Judge rules arrest of Diagolon founder on COVID-19 protest charges not politically motivated

A Nova Scotia judge has ruled the 2022 arrest of the founder of an anti-government group who protested COVID-19 restrictions outside the home of the province's chief medical officer of health was not politically motivated.

Judge Jill Hartlen of the Nova Scotia provincial court made the decision last week in the case of prolific podcaster Jeremy MacKenzie, 38, and his partner, Morgan Guptill, 33, who are arguing harassment and mischief-related charges against them should be tossed due to alleged violations of their rights.

The hearing comes as the controversial group founded by MacKenzie, Diagolon, has been the source of heated exchanges in Ottawa, with Prime Minister Justin Trudeau accusing Conservative Leader Pierre Poilievre of courting followers during a visit last week to an anti-carbon tax convoy camp near the Nova Scotia-New Brunswick border.

Trudeau has called Diagolon violent and "white nationalist," the RCMP have described it as a militia-like network that believes the collapse of Western governments should be hastened, and Poilievre in 2022 denounced the group as "dirtbags."

MacKenzie has denied the allegations of extremism and violence, and has maintained Diagolon is simply a loose-knit community of fans of his podcast.

MacKenzie and Guptill are charged with criminal harassment, mischief, making harassing phone calls and intimidation of a health professional in relation to a small, three-day protest in March 2022 outside the Fall River, N.S., house of Chief Medical Officer of Health Dr. Robert Strang.

MacKenzie's lawyer, Sherif Foda, has claimed the decision to charge the pair was politically motivated, with interference from the office of Premier Tim Houston, and that police "bowed to political pressure," according to Hartlen's decision.

In particular, the defence focused on the role of Ian Burke, a security officer with the Nova Scotia government who called police over the protest outside Strang's home, and who the judge said "advocated strongly" for RCMP involvement and acted as a go-between with police and Strang.

No 'pull or influence'

But in her decision, Hartlen said there is no evidence the officer in charge of the investigation, Det. Const. Todd Streatch, was ordered to investigate in a certain fashion or give preferential treatment, or felt pressured to lay charges or arrest certain people.

There is also no evidence he spoke to Burke or the premier's office before he decided to lay charges, the judge said, and the evidence shows he did not arrest MacKenzie and Guptill to "improperly stifle political activity."

"The evidence demonstrates that Ian Burke did not have the pull or influence that the applicants wish to portray," Hartlen said.

Not only that, she said Streatch "consistently maintained" that Diagolon and his belief that MacKenzie, who is a Canadian Forces veteran, suffered from post-traumatic stress disorder were not factors in his decision to charge the pair.

There is also no evidence, the judge said, that Burke or the premier's office interfered in the Crown's decision on the release conditions for MacKenzie and Guptill when agreeing to their bail three days after their arrest.

'Not the crime of the century'

In Dartmouth provincial court this week, MacKenzie's lawyer urged the judge to stay proceedings, which would end the prosecution of the case, due to Charter breaches related to the detention of MacKenzie's phone, and alleged breaches related to his access to a lawyer after his arrest and the length of time it has taken for the case to come to trial.

The prosecution is opposed to the stay, and the judge has yet to rule on the application. MacKenzie and Guptill, who is representing herself, are scheduled to go on trial in June.

Foda said in court his client and Guptill "embrace" the chance to go to trial if they fail in their bid to have their cases stayed. He said no one was physical hurt during the protest.

"It's not the crime of the century," he said.

Nova Scotia had lifted many COVID-19 restrictions in the days before the protest outside Strang's home, but a number remained, including the requirement to wear face masks in schools.

Protest details

In her ruling last week, Hartlen said Strang and neighbours saw MacKenzie pacing back and forth in front of the house for hours, making aggressive comments and ranting. Protesters were using the zoom function on their phones to stream over the internet the inside of the house.

At one point, Strang's daughter had a panic attack, the judge said, and his wife had to escort care workers for their autistic son away from the home because they were too intimidated to leave on their own.

Guptill used a livestream on social media to urge people to call the Strang home, and the phone rang throughout the night, causing "distress" to the family, Hartlen said.

MacKenzie has faced charges, many of them firearms-related, in a number of provinces, but all except the current case have been withdrawn or resolved.

In March, firearms-related charges related to a January 2022 search of his parents' home in Pictou, N.S., were resolved, according to the Nova Scotia Public Prosecution Service.

A spokesperson said a peace bond in the case prohibits MacKenzie from possessing weapons for 24 months, and he was required to forfeit any weapons or ammunition.