The Court's judgment in His Majesty the King v. Tamara Lich and Christopher Barber is now available online.
The Court's judgment in His Majesty the King v. Tamara Lich and Christopher Barber is now available online. In her 108-page decision, Justice Perkins-McVey found Tamara Lich guilty of mischief under s.430(1)(c) and counselling mischief under s.464(a) of the Criminal Code, though the latter charge was stayed at the request of the Crown due to an evidentiary and factual overlap.
As a preliminary matter, the Court dismissed the Carter Application submitted by the Crown. This application aimed to have certain statements by Mr. Barber and Ms. Lich accepted as evidence against one another based on the co-conspirators' hearsay exception. However, the Court concluded that there was not enough proof beyond a reasonable doubt of the five alleged unlawful agreements needed to establish the exception.
The Court began by acknowledging that the evidence established that the trucks, truckers, and people who came to Ottawa created a mass mischief during the protest period and that the protest significantly interfered with the lawful use and enjoyment of property.
After reviewing the law, the Court explained that simply being present at a protest is insufficient to prove mischief. However, context can show that someone was part of or a leader in the mischief. The Court noted that it was also unnecessary to have direct contact between the protesters and those affected by the protest. Showing unity with a large group of people, no matter how long someone participates, can also be considered mischief.
After examining the evidence, the Court found that both Ms. Lich and Mr. Barber frequently used social media to encourage people and truckers to join and participate in the protest. They did so with the knowledge that the protest was interfering with the lawful use of property by residents and business owners.
The Court determined that both Ms. Lich and Mr. Barber were leaders of the Freedom Convoy 2022 movement and were involved in organizing and leading trucks and other vehicles from western Canada. While there was no evidence that Ms. Lich owned a vehicle emitting fumes or honking, or that she blocked access to buildings, the Court noted her creation of the Freedom Convoy 2022 Facebook page, which gained a large following, and her involvement in setting up the GoFundMe and later GiveSendGo fundraising pages.
The Court stated that comments from Ms. Lich and Mr. Barber such as “hold the line” indicated their joint participation in the protest, which included road blockades and interference with the property of others.
Ultimately, the Court concluded that the evidence strongly supported the finding that Ms. Lich and Mr. Barber were principals to the mischief. Alternatively, they were aiders and abettors who demonstrated a sense of unity with those blocking the roads and, through their actions, aided and encouraged them, fully aware of the disruption in the downtown core and the impact on residents' lawful use of property.
The defence under s.430(7) of the Criminal Code, which protects communicative acts, was rejected. The Court found that the actions of the accused were not solely communicative but were aimed at pressuring the government by maintaining the blockade.
Regarding the charges of intimidation under s.423(1) and counselling intimidation under s.464(a), the Court found no evidence that either Ms. Lich or Mr. Barber intended to intimidate or counsel others to do so, noting the absence of menace or violence in their conduct. Similarly, on the charges of obstructing a peace officer under s.129 or counselling obstruction under s.464(a), the Court found that the Crown had not proven beyond a reasonable doubt that either accused intentionally obstructed police or counselled others to do so, as both were arrested before the police removal operation began.
Mr. Barber was convicted of counselling to commit the offence of disobeying a court order contrary to s.464(a).
Sentencing for Ms. Lich is scheduled for July 23rd and 24th before Justice Perkins-McVey in Ottawa.