An Ontario court's order to retry "Freedom Convoy" protester Allen Remley could have implications for the ongoing trial of the protest's two key organizers. They include Tamara Lich, seen here arriving at the courthouse in Ottawa, Monday, Oct. 16, 2023. THE CANADIAN PRESS/ Patrick Doyle

OTTAWA - An Ontario court's order to retry a "Freedom Convoy" protester could have implications for the ongoing trial of the protest's two key organizers, an Ottawa criminologist said Tuesday.

Superior Court Justice Narissa Somji ordered a retrial last week for Allen Remley, a convoy participant who had been acquitted on a mischief charge.

Remley was acquitted last year by Justice Heather Perkins-McVey, who is also presiding over the criminal trial for organizers Tamara Lich and Chris Barber.

The court ordered a retrial after concluding Perkins-McVey didn't adequately take the context of the protest into account.

That means the judge will have to apply a broader standard when the time comes to rule on Lich and Barber, said University of Ottawa criminologist Michael Kempa.

The two are both accused of mischief, intimidation and several charges related to counselling others to break the law.

Lich and Barber organized a legal protest, their lawyers argue. Mischief occurred during the protest, but Lich and Barber did not take part, they say.

The Superior Court order makes clear that there are "several pathways" to a mischief conviction, Kempa said.

"And it goes beyond directly engaging in activities that directly blocks or prohibit people from using and enjoying property for its intended purpose."

Protesters flooded into the capital in 2022 at the tail end of the omicron wave of the COVID-19 pandemic. Most said they were there to demonstrate against public health restrictions and vaccine mandates, though many also railed against the government in general.

The protesters stayed in Ottawa for three weeks, blocking downtown roads around Parliament Hill with big rigs and other vehicles, blaring horns at all hours, blasting music over loudspeakers and setting off fireworks in the street.

In Remley's case, Perkins-McVey found the Crown had failed to adequately prove that he was engaged in mischief during the protest.

Police accused him of being involved in a "mobile gas station" — a children's wagon filled with jerry cans. His truck was also illegally parked.

"Based on the evidence before me, the best we have is jerry cans in a wagon 10 feet away with dozens of people milling about," Perkins-McVey said in her decision to acquit Remley last year.

"If (Remley had) been charged with parking on a one-way street in the wrong direction, so be it. But this is a Criminal Code offence."

In the absence of more evidence, doubts persisted about whether he was committing a crime, or even shared the same aims or political beliefs as the protesters, she said.

Somji agreed that simply being at the scene wasn't enough to prove guilt, but found the decision didn't take into account "the evidence as a whole, including evidence of the ongoing protest."

The facts of the Lich and Barber case are slightly different, since they spent most of their time organizing the protest, fundraising and sharing updates on social media from a "command centre" set up in a local hotel.

The Crown has argued Perkins-McVey need only consider whether streets were blocked and property was interfered with, and whether Lich and Barber were party to those crimes.

While Remley's trial lasted only three days, Lich and Barber's case is still ongoing after months of testimony, evidence and legal wrangling.

Their trial paused last month and is expected to resume in March.

This report by The Canadian Press was first published Jan. 30, 2023.

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