Kelowna COVID protest leader convicted of two counts of assault

David Lindsay convicted

Photo: Nicholas Johansen

A truck outside the Kelowna courthouse during the first week of David Lindsay's trial in March 2023.

David Lindsay was convicted of two counts of assault Wednesday morning, and he's now facing possible jail time.

After several days of trial through much of this year, Judge Cathaline Heinrichs convicted Lindsay Wednesday of the Aug. 19, 2021 assaults against two security guards during a protest outside the downtown Interior Health building on Doyle Avenue.

Lindsay was one of the main people behind the weekly COVID-19 protests that were held for years in Kelowna's Stuart Park. More than 30 of his supporters packed the Kelowna courtroom Wednesday morning.

Lindsay has been representing himself during the criminal proceedings. But after many months of trying out his unusual legal arguments, including arguing that Canada's RCMP Act is unconstitutional, he came up wholly unsuccessful Wednesday.

He even called for a mistrial, saying Judge Heinrichs did not assist him enough through the trial and showed bias against him, but the judge flatly refused.

“I am not Mr. Lindsay's lawyer and cannot offer him legal advice. This is made clear in the self represented criminal template ... which we reviewed in court on the first day of trial,” Judge Heinrichs said.

“Mr. Lindsay had plenty of time since August 19, 2021 and the commencement of trial to obtain legal advice.”

Judge Heinrichs laid out the main issues to be determined in the assault matter: did Lindsay intentionally apply force to the security guards without their consent?

Relying largely on a video of the incident taken by Lindsay supporter Leo Beauregard, Judge Heinrichs said Lindsay announced to the guards “I have a right of access,” before he tucked his head down and walked into the two guards who were blocking the doorway. Interior Health had previously banned Lindsay from entering the building.

Two police officers had told Lindsay earlier that day that he would be arrested if he attempted to enter the building.

Photo: Rob Gibson

David Lindsay

While no one was injured from the minor contact Lindsay made with the guards, Judge Heinrichs said there is a wider context that must be taken into account.

“In the context of a protest where police were present to maintain peace and order, Mr. Lindsay's behaviour created a risk to the public interest,” she said. “Groups of protesting people can be unpredictable; Mr. Lindsay's act may have been the catalyst to cause more violent behaviour against those in authority and to the public who were present that day.”

In addition to the conviction on the assault charges, Judge Heinrichs also found him in contempt of court for telling her back in June that he refused to provide written closing submissions by her deadline. During their discussion on June 16, he told the judge three separate times that he would not follow her directions.

“I'm not doing that, I'm telling you right now. If you want to cite me for contempt or whatever, that's up to you but I'm not doing it," Lindsay told the judge.

Lindsay eventually filed his closing submissions “just prior to the hearing” Judge Heinrichs said. She noted Lindsay's reason for not wanting to file his closing submissions, because he did not want to “give away his defence,” made no sense.

“The closing argument is exactly the time when he needs to provide his defence, that is what the written submissions were meant to be,” Judge Heinrichs said.

Following her finding, the judge gave Lindsay a chance to “purge the contempt” by providing a written apology for his behaviour, without the "justifications or excuses" he made in his submissions on the contempt matter.

Lindsay told Judge Heinrichs that he would write an “unconditional apology” in an attempt to purge the contempt, but it will be up to the judge to decide if she accepts the apology.

Crown prosecutor Grabavac said he was willing to proceed to sentencing Wednesday, adding that he'd be seeking a jail sentence followed by probation in the matter. When he noted the maximum possible sentence in the case is two years of jail, an audible murmur could be heard among Lindsay's supporters.

Lindsay was not prepared to proceed with sentencing, and a sentencing date is expected to be set for some time in January.

Judge Heinrichs also dismissed several of Lindsay's applications in the matter. In one, he argued the entire RCMP Act and B.C. Policing Act are unconstitutional and the officers' investigation into the assaults is not valid.

He also applied to have Crown prosecutor David Grabavac found to be in contempt of court for repeated lies and misrepresentations. Judge Heinrichs dismissed both applications, calling the constitutional argument “manifestly frivolous,” and saying there was no basis for a contempt allegation against Grabavac.

Lindsay has a long history of having his creative legal theories go nowhere. In a 2007 BC Court of Appeal ruling that labeled him a “vexatious litigant,” the court said “almost all of the applications Mr. Lindsay has made on his own behalf have been without any merit and so found by the courts who have considered them.”

While he peddled his pseudolegal theories about avoiding taxes over many years, before moving on to protesting government COVID-19 measures, he appears to have found a new target. Most recently, he organized a Stuart Park protest against the Sexual Orientation and Gender Identity education resources in B.C. schools, where he was met with a large group of counter protesters.

“It's a pretty sad day when you get queers coming out,” Lindsay said to the crowd through a microphone, as the counter-protesters sang and chanted behind him. “You know, every society that has let the queers take over has self destructed from within. And if it continues, Canada will self destruct.”