On day 30 of the Lich and Barber trial, the proceedings opened with Ms. Magas resuming her submissions, aiming to have the Crown's Carter application dismissed.
She began with a text conversation dated February 5, 2022, between Barber and an individual known as 'Big Baller,' where Barber expressed his efforts to cease honking and persuade other truck drivers to follow suit. Magas highlighted a subsequent text exchange between Barber and Officer Bach, asserting that Barber's proposal for a 'slow roll' on Parliament Hill received police support. These instances, according to Magas, illustrated Barber's intent for a lawful protest.
3/ Magas reiterates that in a text exchange, officer Bach supported Barber's suggestion of a 'slow roll' on Parliament Hill. Magas states that these examples show Barber's intent to engage in a lawful protest.— The Democracy Fund (@TDF_Can) November 29, 2023
The defence continued to present evidence, referencing a TikTok video where Barber noticed a 'case of rocks' in the street, urging truckers to protect them and prevent people from taking or throwing the rocks. Magas connected these actions to the 'honking injunction' of February 7, 2022, emphasizing that as long as protesters adhered to the terms (ceasing to honk), they were allowed to continue their peaceful protest. She added that there was no obligation to remove trucks as part of the injunction. Magas underlined Barber's consistent message of peaceful protest in various TikTok videos, emphasizing compliance with police instructions.
In addition, Magas detailed text exchanges between Barber and individuals named 'Maurice' and 'Nick,' showcasing Barber's commitment to leaving the downtown area as agreed upon with Officer Bach. Magas argued that these actions demonstrated Barber's cooperation with law enforcement. She referenced a TikTok video on February 12, 2022, where Barber thanked the police, reinforcing the peaceful nature of the protest.
17/ Magas references the agreement letter between the convoy protesters and the mayor's office of Feb. 12. She asks how can this possibly be in furtherance of a criminal conspiracy? She asks: 'is the crown suggesting that the mayor's office was party to this conspiracy?'— The Democracy Fund (@TDF_Can) November 29, 2023
Magas raised questions about the Crown's conspiracy allegations, pointing to a February 12, 2022, agreement letter between the convoy protesters and the mayor's office. She questioned whether the Crown implied the mayor's office was part of the alleged conspiracy. Magas highlighted a TikTok video on February 16, 2022, with Barber and Canadian lawyer Keith Wilson, where Wilson emphasized that the declaration of the Emergencies Act still permitted peaceful protests. Magas concluded her submissions by asserting that, considering the totality of evidence, the court couldn't find an agreement for the alleged conspiracies without speculation.
The Crown responded, acknowledging that a directed verdict would be appropriate if there were no evidence of criminality. However, they argued against dismissal, stating this was a defence application to dismiss a Carter application and that a determination should be reserved until the end of the trial as the leading case law suggests. The Crown stated that it was never their position that the protests were violent but disputed the defence's characterization of the protests as peaceful. They asserted that non-violent protests could still be disruptive and result in criminal charges. They emphasized the significant disruptions caused by the protests.
The Crown scrutinized the Carter test, specifically addressing the first element and the common unlawful purpose. They argued that actions in furtherance could help establish the conspiracy itself. The Crown discussed the legal definition of unlawful assembly and emphasized that tumultuous behaviour, even if non-violent, could still be unlawful. They urged the court to consider limitations to Charter rights and asserted that blocking or obstructing roads was illegal, irrespective of peaceful intentions.
42/ The crown states that there has been a common theme that the protests were peaceful. The crown adds that the crown has never alleged that the protests were violent, but non-violent protests are not necessarily peaceful.— The Democracy Fund (@TDF_Can) November 29, 2023
The Crown turned its attention to photos of Wellington Street between January 29, 2022, and February 10, 2022, suggesting that 'figurative megaphones' of Lich and Barber could be inferred from the events unfolding on the streets. Perkins-McVey questioned how this could be known, and the Crown responded that the effects could be inferred through Lich's and Barber's statements and the activities on the streets. The Crown argued that a three-week-long protest could not be accidental, coordination must be inferred.
As the Crown continued its response, Perkins-McVey interjected, pointing out that not all individuals were working in tandem, to which the Crown agreed.
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