Walking an ethical razor’s edge in making Tamara Lich's bail hearing political

After spending a little more than two weeks behind bars, Tamara Lich, one of the leaders of the month-long illegal occupation of downtown Ottawa, won her bail review and was released from jail.

Superior Court Justice John Johnston overturned Lich’s detention and released her on strict bail terms that required her to leave Ottawa within 24 hours and the province of Ontario within 72 hours. Lich was also prohibited from accessing social media or communicating with convoy leadership. Importantly, all of these conditions will be supervised by a surety, who pledged a bond of $20,000.

The new bail proposal was solid, unlike the plan presented at Lich’s first bail hearing, which relied on the supervision of her husband, a dubious character who was in Ottawa with Lich while she was committing her criminal offences.

There was outrage in some circles that Lich, who thumbed her nose at the law, advocated for the overthrow of a democratically elected government, and inflicted prolonged and unrelenting harm on an entire city, got bail at all.

That outrage is misplaced.

Superior Court Justice John Johnston got it right in releasing Lich.

So did Ontario Court Justice Julie Bourgeois, who initially denied Lich bail to an utterly inappropriate surety.

The real outrage should be saved for the odious submission of Lich’s lawyer, who suggested Justice Bourgeois could be seen as a biased former Liberal candidate.

Before we break down that offensive argument, let me pause to note a few facts. Justice Julie Bourgeois is one of the most honest, intelligent, hardworking, and thoughtful judges I have ever appeared before. Her reputation is impeccable.

Lich’s argument of the judge's bias, advanced by her lawyer, goes like this:

• The convoy protestors hate Trudeau.
• Trudeau is a Liberal.
• The Liberals hate the convoy.
• In 2011, Justice Bourgeois (then an assistant Crown Attorney) sought election as a Liberal candidate. 
• Also, in 2011, Justin Trudeau (then a backbench MP for Papineau) said some nice things about Justice Bourgeois.
• Years later, Justice Bourgeois was appointed a judge by the provincial Liberal government.
• Justice Bourgeois detained Lich.

• Therefore, it appears that Justice Bourgeois is biased.

This is a bizarre and twisted argument that no lawyer should be making.  

As defence lawyers, we have a responsibility to raise every issue fearlessly to advance every argument and ask every question that could help their client’s case.

But we must discharge this duty by fair and honourable means.

A lawyer is not, and should never be, a mere mouthpiece for their client. We have a fundamental duty to our profession and ethical responsibilities to foster respect for justice.

Lich’s lawyer abdicated these responsibilities in advancing Lich’s conspiratorial political agenda.

Let’s consider for a minute that Justice Bourgeois, the day before Lich’s bail hearing, released Chris Barber, another convoy leader. Lich’s lawyer knew this. She was the lawyer in that case too.

I suspect that Lich and her lawyer were thrilled to have Justice Bourgeois as their judge. Their grapes only soured after Lich was denied bail.

And if you follow Lich’s twisted logic to its natural end, Justice Johnston should have recused himself too. After all, he ran as a Conservative in the 2000 federal election, and Conservative politicians were supportive of the convoy protest.

But this was not about logic or good faith arguments. Lich may believe in wild conspiracies, but her lawyer should know better. Instead, she did damage to the administration of justice.

After all, we only need to look south of the border to see the pernicious impact of politicizing the justice system.

I can’t tell you the politics of our judges. Sure, judges are people and have political opinions, but we have done an excellent job of checking those opinions at the courtroom door.

Part of the reason for that is that lawyers historically have not raised spurious arguments based on politics. 

In Canada, there are countless examples of judges being appointed by a prime minister or premier from one party, only to be promoted by another politician of a different stripe. In 2019 Justice Nicholas Kasirer was appointed to the Supreme Court of Canada by Liberal Prime Minister Justin Trudeau; ten years before, he had been appointed to the Quebec Court of Appeal by Conservative Prime Minister Steven Harper.

It is impossible in this country to say how a judge will rule based on who appointed them or what political party they may have supported in the distant past. In fact, a Supreme Court of Canada dominated by Conservative-appointed judges routinely struck down Conservative legislation.

Lich’s lawyer walked an ethical razor’s edge in making her political argument. Andi n doing so, she did damage to the public’s perception of our justice system.

This is something to which we should all take offence.