Affidavits reveal lengthy bylaw investigation, business pressure in response to Kelowna 'Freedom Rallies'

Photo: Supreme Court of British Columbia

Composite of photographic evidence submitted to Supreme Court of BC showing protest organizers, including David Lindsay engaging in activities on Kelowna streets and at Stuart Park.

More is being learned about the City of Kelowna's attempt to stop regular anti-vaccine and anti-mandate protests in Stuart Park.

Affidavits filed at the Kelowna courthouse reveal a lengthy investigation and surveillance process undertaken by the city's bylaw department, along with pressure from downtown businesses as the protests swelled in size last year.

The city filed its petition on Jan. 16 seeking an injunction against protest organizer David Lindsay, John and Jane Doe and persons unknown, seeking a court order declaring the protests are violating city bylaws by holding “events” in the park without the city’s permission.

Included in the affidavits attached to the lawsuit, is an email sent from the executive director of the Downtown Kelowna Association, sent on Feb. 25, 2022, just five days after the convoy protest in Ottawa was shut down using the Emergencies Act. Tensions were high across the country and large crowds were expected at the planned protest the next day in Kelowna.

"For 18 months protests have continued in downtown. It seems like the organizers are dictating to the city what will happen and where it will happen with no input from any source but the organizers. In the meantime our businesses must accept that the traffic interruption will happen, that horns will no doubt be blaring and parked cars will not be able to move until the 'parade' passes by," said Mark Burley, in an email to the city and RCMP.

"At the very least, the DKA should be consulted or advised about the operation plan and long before the day prior to yet another large protest in downtown Kelowna. In my opinion there must be a better way to manage these situations than what we have experienced to date," his email continued.

Castanet spoke to Burley about the email Wednesday and he noted it was sent when the rallies were marching down Bernard Avenue and stopping traffic.

"The convoy in Ottawa was front and centre in everybody’s minds and we were all tired of the whole situation. All I would expect is for everybody to play by the same rules. If you need a permit, then get the permit. The businesses in Downtown Kelowna only expect the right for their customers to visit their businesses and not be impeded in doing so," Burley told Castanet.

The affidavits filed by the city contains a long list of times, dates and photographs of instances where bylaw officers handed out multiple tickets and fines all of which have been ignored by rally organizers, specifically David Lindsay.

The city says the protests’ erection of tents, use of amplified sound systems, the sale of merchandise and “standing and loitering” on public roadways are the primary bylaw violations that make the rallies unlawful.

The court documents are unclear as to whether the city wants the protest rallies stopped permanently, or temporarily.

Local lawyer Darren J. Kautz, partner at FH&P Lawyers LLP tells Castanet that makes a difference to the case.

"The evidence in these two legal recourses will differ a bit as the one offers finality while the other gives interim relief until a full hearing can be set."

Kautz added, "if the court grants an injunction they can issue orders for damages and repercussions if the protestors do not follow the order."

The court could also authorize any police officer to arrest and remove any person who has knowledge of the order who disobeys it.

Kautz also noted the Downtown Kelowna Association may have legal recourse if their businesses have been or continue being adversely affected by the protests.

It is still not known when the file will be before a judge for consideration.

Kelowna Coun. Rick Webber told Castanet this week, in his opinion, the lawsuit is just an attempt to manage public space fairly. Council would have signed off on the legal action in a closed-door meeting, standard for legal matters.

While the rallies have were held on a weekly basis in the park for nearly three years, they have now been scaled back to once-per-month, a decision that was announced this month prior to the city's legal action.