The lawyer for a man convicted of mischief for his actions at the Coutts border blockade drew the ire of a judge Monday by suggesting jurors rushed to a verdict because they were in a hurry to get out before the August long weekend.
Marilyn Burns also drew criticism from the Crown prosecutor when she hinted the jurors were culturally biased when they convicted Anthony Olienick on a firearms possession charge.
Burns’s comments came in Court of King’s Bench as lawyers on both sides and Justice David Labrenz began discussing what facts should be considered in determining a fit sentence for Olienick and Chris Carbert.
Earlier this month, a jury convicted Olienick and Carbert of mischief and possession of a firearm for a dangerous purpose for their roles at the Coutts border blockade in early 2022.
Olienick was also convicted of possession of a pipe bomb.
The jury found both not guilty of the more serious charge of conspiring to murder police officers.
The jury came to a decision late on the night of Friday, Aug. 2, before the August long weekend on its third day of deliberations.
Burns told Labrenz the timing was curious.
“This jury took a long time to come to this decision,” said Burns. “Did they come to the same conclusion on count two for different reasons because it was late on a Friday evening before a long weekend and there were compromises? We can’t know that.”
Labrenz shot back: “You’re being very insulting to the jury. [Are you] trying to insinuate they rushed to judgment because it was a long weekend?”
Burns replied, “They were a great jury. I don’t mean to be insulting.”
Burns also drew criticism when, while discussing the weapons charge, she said the jury made a “cultural decision.”
She did not explain the remark, but Crown prosecutor Steven Johnston told court she was inferring an urban bias.
“The jury is who we got,” Johnston told court.
“[Burns] making that suggestion that they’re just somehow just city folk that didn’t understand how the rural folk use firearms is just beyond the pale, quite frankly.”
Details of what is discussed inside the jury room are private.
A judge normally makes his findings of facts used in sentencing based on his or her own decision but after a jury trial will hear arguments from both the Crown and defence on their interpretations.
Olienick and Carbert were charged after RCMP found guns, ammunition and body armour in trailers near the blockade at the key Canada-U.S. border crossing. The blockade was one of several held across the country to protest COVID-19 rules and vaccine mandates.
Carbert’s lawyer, Katherin Beyak, played down her client’s weapon-possession conviction as simple pride in a new weapon.
“I would urge this court to find that Mr. Carbert’s dangerous purpose was potentially just showing off,” Beyak said. “There’s no violence being directed by Mr. Carbert toward the police.”
Labrenz challenged that remark. He noted that there were text messages from Carbert to his mother talking about a war coming and that he may not survive it.
“There’s no immediacy to that threat,” Beyak said.
“Sounds pretty immediate to me,” Labrenz said.
“Not that the war’s about to start,” she replied.
Johnston said the not-guilty verdict on the conspiracy charge opened the door for the jurors to find the pair not guilty on the weapons count.
But they didn’t, said Johnston, adding that fact alone is noteworthy in sentencing. He said the jury believed the guns were there to be used against police if necessary, hence the conviction on that count.
He noted that Olienick told officers that he considered himself a “sheepdog” who would be there to protect the protesters if police advanced on them.
“The sheepdog defence is another way of looking to say they’re there — that being the firearms and ammunition and all the armoury — to have a shootout with police. That’s what the jury has found in the Crown’s position,” Johnston said.