David Lindsay and his group of loyal followers packed into a Kelowna courtroom Friday morning, three weeks out from his assault trial. And with the trial fast approaching, Lindsay plans to argue the RCMP had no jurisdiction to investigate him.
The Crown laid two assault charges against Lindsay back in December 2021, stemming from an incident outside the Interior Health building on Doyle Avenue in August 2021. The Crown alleges Lindsay tried to force his way into the building during a protest on Aug. 19, by trying to push his way past two security guards.
The force he allegedly used against the guards constitutes an assault, the Crown says.
Lindsay has previously called the charges “politically motivated.” His trial is scheduled to run March 1 and 2.
Through the pandemic, Lindsay has been one of the more prominent figures in the local movement against the COVID vaccine and other measures the government implemented to reduce the spread of the virus. His organization, Common Law Education And Rights, has hosted weekly Saturday rallies in Kelowna's Stuart Park for years, and the City of Kelowna has recently sought a court injunction to stop them.
About 25 of Lindsay's supporters, largely seniors, packed the small Courtroom 8 Friday morning to view Lindsay's pre-trial conference. When Lindsay arrived, one woman said “Our hero!” while another encouraged him to “Break a leg out there Dave!”
One supporter, Bruce Orydzuk, pointed at the Castanet reporter who was present and repeated “Corrupt media!” several times. Orydzuk has made a habit of confronting media members and others over the past several years. He was previously charged for allegedly threatening a Global News reporter in August 2021 and for allegedly causing a disturbance by yelling racist comments at a South Asian security guard outside a Kelowna vaccine clinic in July 2021.
The Crown stayed the uttering threats charge in December, and he's scheduled to face trial on the disturbance charge in July.
Lindsay has a long history in Canadian courts, having lost cases dating back to well before the pandemic. A 2012 ruling from the Alberta Court of Queen’s Bench listed Lindsay as one of Canada’s most prominent Organized Pseudolegal Commercial Arguments (OPCA) “gurus" – those who makes money from pushing bogus legal theories to those who are easily influenced.
Prior to the pandemic, he's charged for seminars on how to “avoid being a natural person,” on how “all taxes are voluntary” and “how to file criminal charges when the police won’t.”
He's been handed jail sentences for not paying his taxes, but he's pivoted to pushing back against the government's COVID-19 measures in recent years. In late 2020, he was charging $25 for an online seminar billed as “today’s answer to the COVID-19 insanity.”
Lindsays' also been declared a “vexatious litigant” in B.C., which means he cannot initiate a lawsuit without a judge's permission. But now that he's representing himself in this most recent criminal matter, he's able to explore all of his theories in his own defence before a judge. And he appears to be relishing the opportunity.
As part of his defence on his assault charges, he's filed a constitutional challenge against provincial and federal police legislation, arguing the RCMP had no jurisdiction to investigate his alleged assault.
“If my division-of-powers analysis is found to be correct, and there's a high degree of probability that it is, then the RCMP would have no jurisdiction, as oppose to authority, to enter into an investigation, or to appear in court and give evidence, or to lay the charges,” he told Judge Cathaline Heinrichs Friday.
“It seems problematic to proceed with a trial, possibly enter a finding of guilt or innocence, and then find out ex post facto they never had the jurisdiction to do it in the first place.”
He said he expects his “extensive challenge” to take an extra two or three days, and he expects his witnesses will include government officials.
“The witnesses will be the signatures on the agreement between both the province and the feds ... and there'll be witnesses from the federal government, the commissioner, as to the, again, power structure and who controls the RCMP as well as from the provincial government and as well as what their intentions were,” Lindsay said, after Judge Heinrichs seemed surprised at the length of time Lindsay expected his challenge to take.
He also expressed concerns about how a possible finding of guilt would be published in the local media, and asked Judge Heinrichs to reserve a judgment following trial until his constitutional challenge was completed. She did not address this request during Friday's hearing.
Crown prosecutor David Grabavac expressed his concern Friday with completing Lindsay's prosecution on time. A 2016 Supreme Court of Canada decision, R. v. Jordan, set an 18-month time limit on provincial court cases from when charges are laid. That 18-month limit expires on June 7, 2023 in Lindsay's case. If a case exceeds that time limit, and it's determined the delay is not due to the accused's conduct, charges can be stayed entirely.
Grabavac said he doesn't know if a further delay for Lindsay's challenge would count against that time limit.
“From the Crown's perspective, the evidence on this trial should go first and the court should make a finding of either guilt or innocence,” Grabavac said.
A lawyer for the Attorney General of B.C, Jessica Brown, appeared in court Friday by video. The Attorney General will respond to Lindsay's constitutional challenge if it makes it to court. Judge Heinrichs asked Brown her opinion about the authority a provincial court judge has to strike down legislation, like Lindsay's challenge is seeking.
While Brown said Judge Heinrichs would not have that power, she noted the Supreme Court of Canada has ruled a provincial court judge can decline to apply a provision of legislation in a particular case if it's found to be unconstitutional.
Ultimately, Judge Heinrichs ruled the trial would proceed on March 1 and 2, and if Lindsay is found guilty, his constitutional challenge can be scheduled afterwards. If he's acquitted, she said there'd be no need to proceed with the challenge.
Correction: A previous version of this story said both of Bruce Orydzuk's charges were still before the courts, but the Crown stayed his uttering threat charge in December 2022.