Day 21 of the trial of Chris Barber and Tamara Lich resumed with the cross-examination of Constable Nicole Bach, one of three police liaison officers scheduled to testify in the trial.
During the cross-examination, disclosure concerns arose due to Bach's testimony late the previous day about a software update that ‘wiped’ the contents of her OPS-issued phone. The defence team requested disclosure about the reasons behind the 'wiping' of Officer Bach's cell phone. The Crown and defence left the courtroom together to discuss the issue.
The court took a 10-minute recess to allow for further discussions. However, the recess turned into a crown request to return at noon, followed by another request to return at 2:00 pm, as the defence had yet to receive any disclosure. Following an extended break, Diane Magas, Chris Barber’s defence lawyer, handed a 5-page document to Justice Perkins-McVey, which was 100% redacted.
Magas states that defence requested disclosure about the reasons behind the 'wiping' of Bach's cell phones. Magas hands a 5 page document to Perkins-McVey and states that this is what she received from the crown. All 5 pages appear to be blacked out - 100% redacted.— The Democracy Fund (@TDF_Can) October 20, 2023
The Crown's position was that this document was a third-party record, which is why it has been redacted, and that defence should make a third-party records application for an unredacted copy.
A second document was provided to defence - a heavily redacted email chain between Detective Benson, a number of crown attorneys and PLT officers. The subject line throughout the email chain was “PLT Disclosure”. The Crown stated that the reasons for the redacted paragraphs were "solicitor-client privilege" for some and "clear irrelevance" for others.
Some paragraphs have also been redacted due to "litigation privilege". Again, the subject line of each of these emails is "PLT Disclosure".— The Democracy Fund (@TDF_Can) October 20, 2023
The court discussed the issue of these redactions and decided that a Stinchecombe application (an application to obtain an unredacted copy of the email chain) would be necessary. Magas stated that she would prefer to continue cross-examination of Bach at a later time, once the aforementioned issues had been resolved, as this would avoid having to call Bach back to the stand and engage in additional cross-examination of areas already covered.
Just before the court adjourned for the day, defence counsel Eric Granger notified the court that the Ottawa chief of police would be subpoenaed by the defence.
And we're back to confirm dates. Oct 26, 27 and Nov 1 and 3 are confirmed for next week. Granger further introduces a subpoena for the chief of police or his designate. And that will do it for Day 21. Thanks again and we'll see you all on Oct 26.— The Democracy Fund (@TDF_Can) October 20, 2023
Disclaimer: Please remember this update is given for information purposes only. It is not legal advice. If you have a legal issue, you should consult a lawyer for specific advice.