The Court resumed the trial of Tamara Lich and Chris Barber today, with Justice Perkins-McVey presiding.
1/ Welcome back to TDF’s coverage of the Lich/Barber trial. Tamara Lich is back in Ottawa this week with her counsel, Lawrence Greenspon and his legal team, to address the Crown’s Carter application and begin closing arguments.
— The Democracy Fund (@TDF_Can) August 13, 2024
I’m Mark Joseph - senior litigation counsel at TDF…
It was expected that the Crown would argue its Carter application - a legal procedure whereby the state seeks to have evidence of the words and conduct of one accused attributed to the co-accused. Counsel submitted legal briefs on the Carter application and then proceeded to its closing arguments.
Counsel for the Crown claimed that the two accused were leaders and organizers of the protest. She maintained that the evidence established that the two accused represented the freedom convoy. However, Justice Perkins-McVey noted that the evidence showed that the two accused represented one moderate group among many groups in the convoy. The Crown then attempted to show that the interactions between the co-accused over social media - responding to each other with comments, jokes and other communications - proved that the defendants had broad reach and appeal among the protesters The Crown attempted to establish that the freedom convoy protesters had a single purpose: to end the COVID-19 vaccine mandates. However, Justice Perkins-McVey noted that this was not clear: it was quite possible that many of the protesters were there for different reasons.
The Crown argued that, although there were negotiations between police and the accused, but for the conduct of Lich and Barber, the streets of Ottawa would not have been congested or blockaded: police negotiations or PLT interactions do not transform illegal conduct into legal conduct. The Crown cited a case in which an accused who uttered the phrase "hold the line" at the freedom convoy protest was held liable for mischief: however, Justice Perkins-McVey distinguished that case from the present case, noting that the defendant in the cited case was standing on his truck, disobeying police and yelling encouragement.
/22 The Crown suggests that the court needs to take into account of the context in which the mischief is occurring - in this case, a large city-wide protest. She notes that an appellate court case says that “hold the line” may be encouragement to commit mischief in the context of…
— The Democracy Fund (@TDF_Can) August 13, 2024
The Crown argued that the statutory defence under s.430(7) - attending a place for the purpose only of obtaining or communicating information - is unavailable to the defendants because the accused engaged in more than mere communication of information: they were participants, as principals or aiders and abettors.
During the afternoon session, the Crown turned to the evidence and its application to the law. The Crown suggested that the persistent use by the co-accused of "we" and "our" in their public communications indicated a common purpose and organization. Crown counsel noted that the two accused had a team of lawyers, accountants and press representatives. The Court suggested that this might be an indication that the defendants intended to act correctly rather than an indication of a common purpose. The Crown then argued that the stated goal of the freedom convoy protest was to end the COVID-19 vaccine mandates. However, the Court suggested that there might be other purposes.
12/ The Crown refers to language used by Lich where she says “we ask the government to end mandates.” He says this is relevant to the Carter application (since presumably it’s an example of plurality & coordination). He quotes Lich saying “we have great team members here” etc. He…
— The Democracy Fund (@TDF_Can) August 13, 2024
The Crown noted that the defendants were on the ground, amongst the protesters, shoulder to shoulder. The Court opined that politicians were present as well. The Crown said that this is indicative of more than mere presence - circulating in the crowd, interacting with other protesters. Justice Perkins-McVey asked about the inference she was supposed to draw: the Crown said that the defendants were adding their presence to the group pressure. He suggested that they were participants and were joint principals rather than just aiders & abettors.
The Crown then addressed the position that the protesters were invited into the downtown core by police: Crown counsel argued that the invitation was for specific trucks to assemble at specific areas, rather than a general invitation to stay indefinitely downtown. He suggested that the defendants used a metaphorical megaphone to encourage protesters to donate, attend and stay: this makes them more than mere bystanders.
The trial continues on Wednesday, August 14, 2024, at 10 am.
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.