Protest leader successfully varied his bail conditions in Kelowna court Friday

Photo: Rob Gibson

David Lindsay, speaking at a protest outside the Kelowna CBC last year

A leader of Kelowna's anti-COVID restrictions movement who's facing two charges of assault appeared in court Friday afternoon, successfully arguing to have his bail conditions changed.

During David Lindsay's application to vary his bail conditions, more details about the incident that led to the charges were disclosed.

Crown prosecutor Murray Kaay said the alleged assaults occurred on Aug. 19 during one of a number of protests outside the Interior Health building on Doyle Avenue. Lindsay has been one of the leaders of Kelowna's anti-COVID restrictions movement since early on in the pandemic, regularly speaking at protests in Stuart Park and attending the Doyle Avenue building protests.

Kaay said Lindsay had been banned from the IH building stemming from an earlier protest in August, and during the Aug. 19 protest, he attempted to enter the building.

An RCMP officer was on scene, and Kaay said Lindsay asked the officer if he would do anything if he tried to push past the security guards on scene.

“[The officer] responded that [Lindsay] wasn't welcome in the building and explained that he would arrest Mr. Lindsay for trespassing if he went in the building,” Kaay said.

Despite this answer from the officer, Kaay said Lindsay attempted to push past the two security guards who were standing shoulder-to-shoulder in the entrance way. Kaay said one of the security guards told police he felt an object, possibly Lindsays' fingers, pushing into his abdomen area, as Lindsay pushed against the guards.

Another RCMP officer arrived on scene, and he guided Lindsay away from the guards. He later said he didn't arrest Lindsay at the time, due to the potential it could escalate the situation during the protest.

“Police advised they spent a considerable amount of time de-escalating the situation and eventually Mr. Lindsay and his protestors left the area,” Kaay said.

“Neither of the victims sustained any physical injuries, but Mr. Lindsay had been warned previously and told he was not welcome at that facility.”

Lindsay was charged and arrested on Dec. 8, several months after the incident occurred, and he was released from custody after agreeing to several conditions from the RCMP, including not contacting the two complainants in the alleged assaults and not going within 100 metres of any Interior Health building, unless for emergency health treatment.

In court Friday, Lindsay argued the condition to avoid all Interior Health buildings, including hospitals, was unreasonable, when the alleged incident occurred only at the IH administration building on Doyle Avenue. Lindsay did not have a defence lawyer during the hearing, as he was representing himself. He refused to wear a mask in the Kelowna courthouse, claiming an undisclosed medical exemption, and Judge Andrew Tam accepted Lindsays' claimed exemption.

“There's no evidence before the court from the Crown of any risk to anybody at a hospital, or their safety with respect to anybody at a hospital,” Lindsay said. “The Crown's concern as expressed deals only with the two people that are alleged victims and accordingly, the terms of the release should be directed and only directed to them, and the building where this allegedly occurred.”

Kaay offered to agree to loosen the condition to allow Lindsay to attend hospitals for things like medical testing, but argued it was important to keep him from attending other Interior Health buildings for protests, as that was the environment where the alleged assaults occurred.

“While not the most serious of offences in terms of assaults, nevertheless the Crown takes the view that the conditions that Mr. Lindsay was released by the police are appropriate when one looks at the overall circumstances – necessary to protect the named security officers who were working at the time, but also any other security officers who are working at that building or Interior Health employees who are entitled to a safe work place, not to be disrupted,” Kaay said.

“The concerns are related to the prospect of interference of the day-to-day operations of these facilities because of the possibility of protests.”

But ultimately, Judge Andrew Tam sided with Lindsay, and varied his bail conditions to include a condition of just specifically avoiding the IH administration building on Doyle Avenue, and not contacting the two complainants.

“In this case, the fact that Mr. Lindsay allegedly committed an assault on two security personnel in the context of a protest while the world is facing a pandemic crisis is extremely troubling, and one can easily understand why the Crown would seek their condition in question,” Judge Tam said.

“I have nevertheless concluded that, in the context of properly balancing the constitutional principles with the protection of the public, banning Mr. Lindsay from any Interior Health building may be over-broad.”

Lindsay is scheduled to next appear in court on the assault charges on Feb. 17. He's also scheduled to appear in court in Penticton later this month for a hearing related to two public health fines for “failing to wear a face covering in an indoor public space” and “abusive or belligerent behaviour.” Those tickets were issued Dec. 28, 2020 in Penticton.