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Kelowna 'vexatious litigant' faces sentencing for assault, contempt

David Lindsay is guilty of assaulting an Interior Health security guard at an anti-COVID mandate protest
David Lindsay (right) and two of his supporters outside the Kelowna Courthouse on March. 1, 2023.(Jacqueline Gelineau/Capital News)

A prolific protester named David Lindsay who has previously been labelled a "vexatious litigant" in the Supreme Court of B.C., returned to a Kelowna provincial courtroom to make his final submissions before sentencing after being found guilty of two counts of assault.

Lindsay, who is a co-founder of an organization called Common Law Education and Rights (CLEAR), is known locally as a leader of the 'Freedom Rallies' and anti-COVID mandate protests that have been held in downtown Kelowna. 

He was arrested and charged with two counts of assault after attempting to enter an Interior Health building, from which he had been banned, during an anti-COVID mandate protest on Aug. 19, 2021.

Following a lengthy trial, where Lindsay represented himself, Judge Heinrichs found the prolific protester guilty of two counts of assault, on Dec. 13, 2023.

Throughout the trial, Lindsay maintained that he was "unlawfully" banned from entering the building and stated it was a violation of his Charter of Rights and Freedoms. 

However, during the sentencing hearing for the convictions, Lindsay said that he regrets his actions.

“I do regret trying to walk into the building. It is due to a misunderstanding of the law that I thought I had a right to enter the building.” 

The sentencing hearing on June 13, was the final opportunity for Lindsay and Crown Prosecutor David Grabavac to present their submissions for sentencing before Judge Heinrichs delivers her verdict on July 10. 

In addition to the conviction of assault, Lindsay is also facing a charge of contempt of court. Contempt refers to acts of disobedience and disrespect toward a court of law. 

On the day he was convicted, Lindsay "dared" Judge Heinrichs to find him in contempt of court after a disagreement. 

He also disobeyed requests made by the court regarding the filing of documents. 

Heinrichs said that she found Lindsay’s dare to be contemptuous but, granted him a chance to apologize ahead of the June 13 sentencing. Lindsay has since submitted two letters of apology to the court in an attempt to purge himself of contempt. 

For that, Lindsay told the court he should not be found in contempt and said he would comply with future court orders. 

"For better or for worse, the relationship between us has not been the best," said Lindsay to Judge Heinrichs. "But that doesn't mean I should be penalized for it."

Crown Prosecutor David Grabavac submitted that Lindsay had not purged himself of contempt.

Grabavac said that while Lindsay did provide the court with written apologies, he has continued to disobey and disrespect Judge Heinrichs.

He made specific reference to instances that transpired in court after the letters of apology were issued where he alleges Lindsay disobeyed court orders.

Grabavac also submitted a video as evidence of contempt that had been posted in March 2024 – after Lindsay was found to be in contempt of court – on the social media site Rumble. In the video, Lindsay is interviewed by a member of Action for Canada about the court case.

In a clip of the video, which was played for the court, Lindsay is heard saying, "The judge did not know what the heck she was doing but she was ordered to convict at any cost," and claimed Grabavac and the witnesses "controlled the judge." In the video, Lindsay was also heard calling the government corrupt. 

Grabavac said it is the Crown's position that the accused should serve a four-month jail sentence for the offence of contempt. Grabavac asked that the four months be served consecutively with the sentence that will be imposed for the convictions of assault. 

Grabavac has submitted that Lindsay ought to be sentenced to the maximum penalty of two years less a day in custody, followed by a three-year period of probation.

Lindsay has requested that he not serve any time in custody for the both conviction of assault and the charge of contempt of court. He also requested that if he is found in contempt, he should be sentenced to less than 30 days in custody, served concurrently with his sentence for the convictions of assault. 

At the end of the sentencing hearing on June 13, Judge Heinrichs asked Lindsay if he would comply with the protocols of a Conditional Sentence Order, which would include an electronic monitoring system worn on his ankle. While Lindsay may still face time behind bars, Judge Heinrichs said she was exploring all options before making her decision on sentencing. 

Lindsay said he would have to think about it, explaining that the monitoring system and the assessment to determine eligibility for house arrest would impede his freedoms and privacy. Lindsay said he will tell Judge Heinrichs his decision by Monday, June 17.

A decision on both the sentencing for the conviction of assault and the matter of contempt is scheduled for July 10, in Kelowna. 

Editor's note: This article originally stated that Lindsay was declared a vexatious litigant in the Supreme Court of Canada. The article was corrected on June 16, to reflect that the ruling was in fact made in the Supreme Court of British Columbia. 

Jacqueline Gelineau

About the Author: Jacqueline Gelineau

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