David Lindsay claims judge was 'ordered to convict at all costs' in his assault case

'As contemptuous as ever'

The Crown prosecutor in David Lindsay’s assault case said it’s “like Christmas Day” when an accused makes allegations against a judge while the case is still ongoing. And the comments made by Lindsay back in March could lead to him serving an additional four months in jail.

The second and final day of sentencing submissions for Lindsay, the long-time leader of Kelowna's COVID-19 protest movement, was held in Kelowna court Thursday, after he was convicted of two counts of assault by Judge Cathaline Heinrichs back in December.

The first day of Lindsay's sentencing took place back in April, but after the hearing went longer than anticipated – a common occurrence throughout the trial as Lindsay represented himself – it was continued on Thursday. In addition to sentencing submissions, a hearing was also held to determine whether Lindsay had “purged” his previous contempt of court charge.

Judge Heinrichs found him in contempt of court for telling her last June that he refused to provide written closing submissions by her deadline.

“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 last June.

'She was ordered to convict'

Judge Heinrichs gave Lindsay an opportunity to “purge” the contempt conviction by writing an unconditional apology for his behaviour, which Lindsay agreed to. But during Thursday's hearing, Crown prosecutor David Grabavac played a video in court of Lindsay taking part in an online interview, where he tells the host that Judge Heinrichs “did not know what she was doing at all” and was “controlled” by the Crown and witnesses.

“She was ordered to convict at all costs,” Lindsay says in the video, although it's not clear who he alleges made the order.

Grabavac called this statement “a pretty serious thing to say.”

“Mr. Lindsay says things in that video that clearly show he's not purged his contempt. It's like Christmas Day for the Crown when you get these things,” Grabavac said. “He put this online and it clearly shows that the letter, he's telling you one thing in court, and he's doing something outside of court completely different. I'm saying he has not purged his contempt, he's as contemptuous as ever.

“If you're not smart enough, stupid enough, when you're in the middle of a court matter, to go online in this day and age and say something that's contemptuous, or should show there's no purging of the contempt, then I say it's relevant.”

Grabavac also noted the host of the show, Tanya Gaw, appeared to make vaguely threatening comments about one of the security guards that Lindsay was convicted of assaulting.

“You should be ashamed of yourself,” Gaw said about the security guard. “Your face is out there, people know who you are.”

When Grabavac first brought forth the video, Lindsay argued the video was private and was not meant for public distribution. But the video remains publicly available on Gaw's website and Facebook page, and Judge Heinrichs noted that if it was private, Grabavac wouldn’t have been able to access it. Later, Lindsay argued he was exercising his freedom of expression and his comments had nothing to do with being in contempt of court.

“Mr. Grabavac just wants to shut me up,” Lindsay said. “What I'm saying in public with respect to my views on the court or you [Judge Heinrichs] or any other judge, I'm entitled to do so. It doesn't violate whether I'm going to comply with a court order.”

Grabavac said Judge Heinrichs should uphold Lindsay's contempt of court conviction and it should carry an additional four-month jail sentence.

Crown's position 'outrageous'

Lindsay's assaults against the two security guards occurred during an Aug. 19, 2021 protest by Lindsay and his supporters against mask mandates and other COVID-19 measures, outside of the Doyle Avenue Interior Health building.

The “exceptionally minor assaults,” as characterized by Lindsay, were captured on film by one of Lindsay's supporters, and were shown in court during the trial. During the protest, Lindsay wanted to access the building to confront IH administration about the “mask issue,” but he was refused entry after he was banned from the building during a different protest the week prior. But while two security guards stood in the doorway, Lindsay walked into them, making contact with the two men, before he was led away by an RCMP officer.

In April, Grabavac told Judge Heinrichs that a jail sentence between nine and 12 months is justified for the two assault convictions, but Thursday, Lindsay called the Crown's sentencing position “outrageous,” “ridiculous and abusive,” “grossly disproportionate” and “unduly long and harsh.”

Lindsay is instead seeking an absolute discharge that would leave him with no criminal record.

“In this particular case, the procedure itself has been the punishment,” Lindsay said. “30-plus some-odd court appearances, over two-and-a-half years, and if I say so, dealing with Mr. Grabavac has been a punishment.

"I've had to spend hundreds of hours doing research because I can't afford a lawyer.”

Lindsay continued to characterize the assaults as an “error in interpretation of the applicable rights and freedoms,” as he believed he had a right to enter the IH building, despite being banned. While he's already been convicted of the assaults, Lindsay still spent much of his sentencing submissions arguing that he did in fact have a right to enter the IH building back in August 2021.

“This was a non-violent challenge [to authority] ... throughout history many positive social changes resulted from individuals and groups challenging government authority, some peaceful, others more violent,” Lindsay said, citing the civil rights movement, women's suffrage and the anti-apartheid movement.

“I was not in it for personal gain. I was there to get the truth out to people.”

Grabavac noted that during the online interview show in March, Lindsay was seeking donations for his legal fees.

'Drinking the same Kool-Aid'

Lindsay's court appearances have regularly attracted dozens of his supporters and several of them provided reference letters to the court, including Bruce Orydzuk and Linda Jackson. Grabavac urged Judge Heinrichs to consider the letter writers' own history when assessing the references.

He pointed to Jackson's letter, which stated the protest group prided themselves on being “mature, peaceful, responsible adults.” He then showed a screenshot from the video of the Aug. 19 protest, showing Jackson carrying a sign that read: “You can shove your mask up Bonnie Henry’s ass.”

“You have to carefully consider the reference letters provided, most of them are from Mr. Lindsay's followers, people who drink the same Kool-Aid as him,” Grabavac said, prompting some audible protests from the gallery.

Judge Heinrichs deferred her decision on sentencing on both the assaults and the contempt issue to July 11.