Judge court orders for yourself
While you're at it, judge coverage by the press too.
You may have read around February 7, 2022, that an Ontario judge granted an injunction to silence honking in downtown Ottawa for 10 days. That claim was made in Canada by CBC, CTV, Globe and Mail, and Toronto Star, and such U.S. news outlets as Yahoo News, Fox News, and, notably, Jurist reporting on law news.
Did the press get it right?
The protest’s primary spokesperson, Benjamin Dichter, doesn’t think so. In a February 14 interview with Montreal lawyer and Youtuber David Freiheit, better known by the name of his law vlog — or ‘vlawg’ — as Viva Frei, Dichter gave some greater insights into what the court filing allegedly had asked for versus what they got in the injunction. About 45 minutes into the interview, Dichter states the following,
Dichter: “It was hysterical. The fake news media reported that we lost an injunction for honking. That’s not what happened. There was an injunction [attempt] against us for everything. They wanted to seize vehicles. They wanted to bring in wreckers to tow them. They wanted to fine people. They had this long list of things that they wanted that were completely ridiculous. You, as a lawyer, would have laughed at it, right. So the judge struck down everything, except for one.”
Freiheit: “Which I presume you consented to in the first place, to stop honking between 8 [a.m.] and 8 [p.m.].”
Dichter: “It was: stop honking only air horns and train horns, which are quite loud, and limit them to a certain designated area. ‘Cause the judge said, ‘I can’t argue that train horns in the middle of the city aren’t a nuisance.’ And we said, ‘OK, we get that. That we can understand.’
But they lost everything else. So the fake news media spins up and says, ‘Oh, convoy loses injunction on horns.’ It’s like, no, the horns was the smallest thing that they were requesting.”
The injunction order does grant an injunction. Specifically,
THIS COURT ORDERS that any persons having notice of this Order are hereby restrained and enjoined from using air horns or train horns, other than those on a motor vehicle of a municipal fire department, in the geographic location anywhere in the City of Ottawa, in the vicinity of downtown Ottawa, being any streets north of Highway 417, otherwise known as the Queensway, for 10 days from the date of this Order.
Dichter appears to be correct about the limitation to only air horns and train horns, not all vehicle horns. He also appears to be right about it being limited to a “certain designated area”, though that is somewhat moot since the designated area is all of downtown Ottawa which is consistent with the news reports and the complaint.
With respect to the horns, it appears most news outlets got it wrong. A few appear to have paid more attention, however. Global News did a story looking into exactly what the injunction said and notes the specific limit applies to only air horns and train horns, and the designated region. Full points. The National Post refers to “banning the horn honking and air horn blowing” which is worth half-points for specifically recognizing air horns, but then loses that half-point for clearly having read the details and still getting it wrong. Plus, they start the story by claiming, “The judge says, ‘Silence!’.” He did no such thing, either literally or in principal.
CBC went on to claim that the protesters were violating the court order by honking their horns within days and police were seemingly disregarding the court order. That appears to be incorrect both because of the limitations of the order and because the order also limits enforcement to police discretion,
5. THIS COURT ORDERS that the Police shall retain discretion:
a. as to the timing and manner of enforcement of this Order, and specifically retain discretion as to the timing and manner of arrest and removal of any person pursuant to this Order; and
b. to detain and release any person without arrest who the Police have reasonable and probable grounds to believe is contravening, or has contravened, any provisions of this Order, upon that person agreeing in writing to abide by this Order.
6. THIS COURT ORDERS that any peace officer and any member of the Police who arrests or arrests and removes any person pursuant to this Order shall have authorization to release that person from arrest upon that person agreeing in writing to obey this Order;
The court notably suggested that anybody arrested and/or removed be released if they agree in writing to abide by the order. CBC got it wrong in describing the content of the court order, describing violation of the order, and describing the police actions as disregarding the order.
The Washington Examiner also got it wrong by suggesting it covered all horn honking by the protesters. However, some points should go to the Examiner for actually reading the complaint. The demands laid out in the complaint are as follows:
1. The Plaintiff, on behalf of the Class described herein, claims the following:
(a) an order certifying this action as a class proceeding and appointing the Plaintiff as the representative Plaintiff for the Class (as defined below);
(b) damages for private nuisance in the amount of $4.8-million or any such amount that this Honourable Court deems appropriate;
(c) punitive damages in the amount of $5-million;
(d) injunctive relief prohibiting the continuation of the nuisance;
(e) pre-judgment and post-judgment interest in accordance with the Courts of Justice Act, as amended;
(f) the costs of this action, including HST;
(g) the costs of notice and of administering the plan of distribution of the recovery in this action, plus applicable taxes, pursuant to section 26 of the Class Proceedings Act, 1992, S O 1992, c. 6; and
(h) such further and other relief as this Honourable Court may deem just.
The order demanded $9.8 million in direct dollar amounts ($4.8 million nuisance damages and $5 million punitive damages), plus all associated costs. Of the eight items claimed only (d) related to injunction of the honking and asks for prohibition of the continuing nuisance. From the order, the judge granted that one but interpreted the nuisance as limited to air horns and train horns, not honking in general.
No damage were awarded in the order, but clause 10 of the order notes that “costs of this motion shall be in the cause”. This is legalese for “the ultimate loser of the case shall pay costs”. Often these costs do not include lawyer fees, and the costs aren’t awarded until the case is complete. The order is not the end to the case, with a review of the case on February 16 and no ruling on other parts of the claim.
So the Plaintiff here hasn’t yet succeeded or failed. The injunction was only a temporary order with limited scope and duration and there is still a continuing class action in progress. (They even created a waiver for truckers to be excused if they left by Feb. 7.) The Washington Examiner does include both the waiver and the temporary nature of the injunction, noting “the ruling is temporary because more evidence is needed, and a ‘myriad of people’ may still come forward to speak”.
On this point, Dichter is potentially misleading. The order did not represent a final outcome as to what the Plaintiffs would get. He is correct that they didn’t get any more than a limited set of horn usage and nothing else, but the case isn’t over.
Further, noticeably missing from the Plaintiff’s compliant are any claims consistent with Dichter’s list to seize vehicles, tow them, or fine people. The complaint did ask for more, including the money. The complaint does include many more pages of descriptions of events and suffering, but no additional claims and nothing similar to Dichter’s statements. Perhaps Dichter mixed up the horn injunction with another court order, but none have surfaced yet with such details.
[Edit 2022-03-08: Or the Plaintiff’s lawyer could have asked for more verbally under the claim of “prohibiting the continuation of this nuisance” and had it denied.]
Another important piece of the injunction order does not appear to have made much of the news:
7. THIS COURT ORDERS that, provided the terms of this Order are complied with, the Defendants and other persons remain at liberty to engage in a peaceful, lawful and safe protest.
While this doesn’t declare the protest to be lawful, which is a given unless explicitly judged to be unlawful, the fact that the Plaintiff had a long list of complaints about protestors and requested an end to the nuisance in general, and the judge limited his order only to air horns and train horns, the combination with Paragraph 7 implies that the judge did not find any other cited activities of the protesters as being unlawful worthy of including in his injunction.
The Washington Examiner article also goes into additional details of the complaint including affidavits, all sworn February 5, 2022. Tamara Lich’s affidavit is short. It states,
2. I reside in the City of Medicine Hat, Alberta and while I did invite truckers to come to Ottawa to peacefully protest the Covid-19 vaccine mandates, there are many truckers that I do not know and never been in prior contact with. Based on my discussions with truckers and what I have seen by way of licence plates, there are truckers unknown to me that have come to Ottawa from all provinces and as far as the United States.
3. I do not control the truckers and other participants in the current protest in Ottawa.
4. I do not own or posses a semi-truck or truck.
A second affidavit comes from a retired RCMP officer with 15 years of service. This appears to be Daniel Bulford, who was interviewed on the Shawn Newman podcast in November 2021, months before the convoy, and noted Bulford “has been an officer with the RCMP for 15 years and for the last 8 years on the Emergency Response Team where his primary duties were supporting the protection of the Prime Minister & other internationally protected persons.”
Bulford also spoke out against vaccine mandates at a Toronto rally on November 8, 2021. He joined up with the Freedom Convoy 2022 team, was involved in their press conferences, and turned himself in when the police started making arrests.
The affidavit notes that the former officer at that time was “working with the Adopt-a-Trucker Volunteer Coordination Center in support of the Freedom Convoy 2022” and “currently working on the ground on logistics, security and safety issues on the ground in Ottawa in support of the Freedom Convoy 2022”. He reports,
5. I have been working closely with the Ottawa Police Service, the RCMP, and the Parliamentary Protective Service. I have been liaising with them since early last week.
Any information that I have received related to any public safety concerns has been immediately forwarded to the respective police service.
…
7. On the night of February 1, 2022, I received a complaint from the area of Rideau and Sussex about honking through the night. The caller was supportive of the Freedom Conboy. He said that most of residences in his area were vacant, but he wanted to convey his concern about some elderly residents. I explained that the Freedom Convoy leadership had agreed upon the following schedule out of respect for such concerns:
a. Coordinated unified honk every half an hour for 1 minute, between the hours of 08:00 a.m. and 08:00 p.m., followed by silence between the hours of 08:00 p.m. to 08:00 a.m.
This confirms the point made by Freiheit as to the prior agreement on limitations on honking to the 8:00 a.m. to 8:00 p.m. schedule. The affidavit continues to describe some acts of agitators who were not associated with the groups, and reported to police by the truckers. It describes the truckers feeding the homeless including delivering a whole trailer of food to a homeless shelter, in contradiction to reports of truckers trying to take food from the homeless shelter. It also testifies that,
I have seen the truckers maintaining the cleanliness of city streets, including picking up discarded masks on the ground, centralized garbage collection, shoveling snow at the War Memorial and the Terry Fox statue, and decorating and providing security for the War 4 Memorial and Terry Fox statue.
This is consistent with the livestream videos from many documenters of daily activities including Viva Frei.
A third affidavit comes from a United Way volunteer who lives in downtown Ottawa 10 blocks from Parliament Hill. This person describes their regular role as,
The majority of my work involves supporting several key initiatives that UWEO has spearheaded, namely: employment for persons with disabilities, employment for Indigenous youth, successful aging for seniors and community wealth building, which includes social procurement. The bulk of my work centres around community building, the fostering of partnerships to improve the quality of life of the most vulnerable or enhancing the capacity of agencies and thereby uplift our collective community engagement to make Ottawa a better city for everyone.
This person regularly visited with the truckers and supporters, interviewing an estimated 35 to 40 of them. The opinion of this United Way worker on the truckers includes,
In these encounters, I have observed that all of the truckers I met have been, at all times, friendly, courteous, humble, considerate and peaceful. At no time have observed any aggressive or inappropriate behaviour nor have I at any time felt intimidated or unsafe. I state this as someone who was once the victim of assault on the streets of Ottawa in 2004 and who suffered PTSD as a result.
5. I have also observed that the truckers, and their supporters, are made up of the most diverse, inclusive and varied cross-section of Canadian demographics that I have ever experienced in my life. As examples, I saw a Sikh truck driver with his children, an Indigenous elder giving a blessing to the gathering, a black preacher performing a Sunday service, Canadians of all ethnicities and multiple families with their children.
6. I have observed truckers decorating the Tomb of the Unknown Soldier with flowers as well as guarding it. I also observed an encampment beside the Terry Fox Memorial as a means of watching watch over it. At no point have I ever seen violent or threatening behaviour.
7. My ability to travel in downtown Ottawa, or to and from Parliament Hill has not been impeded by the presence of the truckers. On the contrary, the atmosphere on Parliament Hill has always been safe, welcoming and congenial.
8. Regarding the honking of horns, I live downtown and my sleep at night has not been disrupted by any unwanted sound. I have observed that the truckers do not honk their horns at night. Furthermore, my everyday life has not been disrupted by any noise related to the Freedom Convoy during the day.
9. What I have observed is not in accord with what I have seen in the media or what I have experienced directly either with the truckers, their supporters or the gathering of people on Parliament Hill. The media appears to be framing the convoy and the events around their presence in Ottawa in the most unfavourable, erroneous and distorted manner possible.
To be fair, this United Way worker lives 10 blocks from Parliament Hill. The complaint Paragraph 17 creates a class defined by “all persons who reside in Ottawa, Ontario, from Bay Street to Elgin Street and Lisgar Street to Wellington Street.” Lisgar Street is approximately 7 blocks south of Parliament Hill, so the United Way worker is likely outside of the zone of the class specified in the complaint as far as noise levels though inside the zone defined by the order.
As far as the behaviours of the protesters, these affadavits are important attestations under oath that directly contradict claims of the press and in the complaint filed with the court. For corroboration of behaviours of the protesters there are hundreds of hours of livestreamed video and interviews, with links provided below this article.
For accuracy of information, the press appears to have the injunction mostly wrong. There was no ban on honking, only on the use of air horns and train horns. Dichter is right about that part but seems to have it wrong as to what the complaint had asked for. While details in the complaint seem at odds with the other affidavits and video evidence, there is nothing in the complaint asking for seizing or removal of the trucks. While seizure and removal of the trucks has indeed happened since then, and were likely part of other legal efforts, they do not appear to be contained within the same private complaint as Dichter suggests. He gets half points for accuracy.
The press does much worse, however, and that is far more tragic. The press provide an important role in society to challenge governments and those with power and influence and to inform the public. When the press gets it wrong, their role reverses from being a public good to a public menace by misinforming and reinforcing harmful acts. Accuracy is critical. Details matter. In this case, it is the Youtubers with livestream videos and, in the case of Viva Frei, interviewing participants that are fulfilling the important role of the press to accurately inform the public and challenge those in power.
This does not look good for the future of the press in general. Online interviewers like Joe Rogan reach 11 million viewers per show. Viva Frei is much less well-known and managed between 200,000 and 556,000 views on Youtube and another 120,000 views on Rumble, totaling between 300,000 and 680,000 per livestream in Ottawa. By way of comparison, in 2014-15 CBC had roughly 375,000 viewers of “TV supper news” (Q3 report, p.14), in 2018-19 down to 299,000 viewers of “TV local 6 PM news” (Q3 report, p.11). (Starting in 2020, CBC stopped giving news viewer numbers and focused more on “digital reach” that doesn’t contain numbers comparable to episode views.) CTV has been doing better with 1.6 million for CTV News at Six.
In 2020, viewership for mainstream news saw some increases due to COVID-19, reporting CBC National more than doubling to 640,000 viewers, CTV National News to 1.3 million, Global News at 538,000, CNN at 445,000, CBC Newsworld at 365,000, and CP24 at 187,000. For a Youtuber with a livestreaming phone, unedited, for 4 hours at a time, to effectively exceed all Canadian TV news in viewers per hour and all except CTV per broadcast, says a lot about the interests of viewers compared to what is being delivered by corporate news.
Livestream videos from downtown Ottawa during the Freedom Convoy 2022 protests:
February 4 interview with Nate “Big Bull” [Youtube]
February 5 interview with counter-protesters [Youtube, Rumble]
February 8 [Youtube, not on Rumble]
February 10 interview with woman who lost two sons during pandemic [Rumble]
February 14 interview with spokesperson Ben Dichter and walkabout [Youtube, Rumble]
February 25 interview with organizer Tom Marazzo [Youtube, Rumble]
Ottawalks [Youtube]
Travel Fun 69 [Youtube]
Zot (who got arrested) [Youtube]
I found you through your comment on Michelle Rempel Garner's article on the WEF. I really appreciated what you had to say/add. I was wondering if you had ever stumbled across Paul Kingsnorth's mini book about the "Vaccine Moment?" Part three he writes about the WEF as well. But the whole thing is very much worth a read, if you haven't already done it. He writes at "The Abbey of Misrule.
https://www.paulkingsnorth.net/vaccine
I find it very interesting that the amount they are asking for in the lawsuit is just about the amount raised in the GoFundMe/GiveSendGo fundraisers. Huh. Do you follow Jonathan Kay on Twitter? He's been just savage funny in his tweets about what's been going on. I've been reading his twitter feed to cheer me up when the whole affair just gets so depressing to watch...