On the 28th day of the Tamara Lich and Chris Barber trial, the defense counsel, led by Lawrence Greenspon, opened proceedings by indicating that the defense planned to bring forth two applications.
2/ Greenspon stands and indicates that defence will be bringing 2 applications. The crown states that they do not know the nature of the 2nd defence application and asks the court to order defence to disclose the nature of the 2nd application.— The Democracy Fund (@TDF_Can) November 27, 2023
The Crown expressed uncertainty about the nature of the second application and sought a court order compelling the defense to disclose details. However, Justice Perkins-McVey intervened, asserting that she would not order the defense to reveal their case on record. Instead, she suggested that the Crown could engage in discussions with the defense outside the courtroom.
Eric Granger, counsel for Tamara Lich, then took the floor to present arguments on the first application, which was an application to dismiss the Crown's Carter application prior to making formal submissions. For reference: a Carter application is an application that permits the admission of out-of-court statements made by a co-conspirator against the accused. In this case, the crown is seeking to attribute out of court statements made by Chris Barber to Tamara Lich.
Granger contended that, after 27 days of trial and testimony from 16 witnesses, the Crown had failed to provide enough evidence to satisfy the three required elements of the Carter test. He particularly emphasized the absence of evidence pointing to a conspiracy between Lich and Barber, the lack of direct evidence against her, and the dearth of admissible acts or declarations.
7/ Granger states that there is an absence of evidence to make out the 3 rungs of the Carter application test and therefore the application should not be heard. Defence is seeking a directed verdict.— The Democracy Fund (@TDF_Can) November 27, 2023
Granger proceeded to provide a detailed overview of the test to be met for directed verdicts and the Carter test. In cases relying on circumstantial evidence, he advocated for a nuanced application of the directed verdict test, arguing that the Crown's inability to connect Lich necessitated the dismissal of the application. Granger underscored the importance of the trier of fact drawing reasonable inferences rather than engaging in mere speculation. He explained the nuanced distinction between inference and speculation, emphasizing the court's responsibility to bridge evidentiary gaps through substantive connections.
Moving on to the specifics of the Carter test, Granger argued that a specific and inherently unlawful criminal plan was a prerequisite for establishing a conspiracy. He contended that the alleged plan to lift COVID-19 restrictions lacked inherent unlawfulness, distinguishing it from cases involving crimes like murder or drug trade. Granger then unpacked the 'furtherance' requirement, asserting that declarations were only admissible if made within the course of the conspiracy.
Granger scrutinized the five conspiracies alleged by the Crown, highlighting their divergence from established legal precedents. He underscored the absence of evidence linking Lich to any inherently unlawful objectives, pointing to instances where police provided assistance during protests. Granger further challenged the Crown's claims of aiding and abetting, emphasizing the lack of any witness interactions with Lich.
He then turned his attention to the specific actions and communications attributed to Lich, referencing text conversations, Facebook posts, and a code of conduct. He submitted that the universal themes of these communications were love, unity, and safety, with the goal of ending a number of COVID-19-related mandates. Granger asked Perkins-McVey to consider whether she thought these actions indicated a plan to engage in criminal activity or peaceful demonstrations.
In his detailed analysis, Granger concluded by examining Lich's public statements, emphasizing her consistent calls for peaceful protests and cooperation with law enforcement. He analyzed Lich's social media presence, asserting an absence of evidence supporting any criminal intent. Finally, he addressed the ‘hold the line’ statement made publicly by Lich. Granger noted that there are many possible interpretations of this phrase. Perkins-McVey agreed and added: ‘It could mean, stay true to your conscience and convictions.’
67/ Regarding Lich's 'hold the line' statement, Granger states that there were a number of different potential interpretations. Perkins-McVey adds 'it could mean stay true to your conscience and convictions', Granger responds: 'Exactly'.— The Democracy Fund (@TDF_Can) November 27, 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.