Day 42 of the Lich and Barber trial resumed with counsel for Chris Barber - Diane Magas - continuing her submissions.
2/ Court is in session again. Ms. Magas rises to continue her submissions on behalf of Barber.
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She references the “thumbs up” her client gave to honking a mentioned by the Crown. She shows a still of Barber’s “thumbs up.” She then shows the video. She says he says “hello,…
She began by discussing the "thumbs up" video posted by her client. She showed a still of Barber’s "thumbs up" and then played the full video. She noted that he says "hello, boys" when he comes near a truck. She said his motion was perhaps a thumbs up to those particular truckers. She noted that there was no injunction against honking at that point. Thus, presumably it is a reasonable interpretation that her client was not encouraging honking but greeting other truckers.
She then turned to the Carter application (where the Crown is seeking to have the evidence of words and acts of one accused attributed to the other). She said that, with respect to unlawful assembly, the Crown suggested there was an agreement between the defendants: she reminded the Court of case law regarding the G20 protests, noting that the law allows for peaceful assembly. She noted that the offence of unlawful assembly/riot requires "tumult." She also noted that the offence includes a subjective element: the defendant must be aware of the tumult, chaos or violence. However, she said that, in order for there to exist an agreement between the defendants, the date of the alleged agreement or meeting of the minds must be on or before February 17th - the date of the arrests of Lich and Barber. She argued that the intent and words of the defendants as at that date was peaceful - as shown by the evidence.
4/ She goes through case law showing that tumult requires violent conduct and/or words. The Crown says there was a meeting of the minds to desire or promote violence or the threat of violence. But there is no evidence of violence as at February 17th: they were in jail. Before…
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She then went through case law showing that tumult requires violent conduct and/or words. The Crown said there was a meeting of the minds to desire or promote violence or the threat of violence. She suggested that there is no evidence of violence as of February 17th: Barber and Lich were in jail. Before this there is no evidence of an agreement for such an unlawful common purpose.
During the afternoon session, Ms. Magas addressed each charge against her client, noting the actus reus and mens rea required for each offence. She sought to raise a reasonable doubt with respect to either or both legal elements.
She addressed the charge of counseling mischief, discussing the actus reus of the offence in the context of social media posting. She said that case law requires an examination of the entirety of the social media exchange because additional tweets may change the context and, thus, meaning of the words - this affects the evidence for the actus reus of counseling mischief. In one video, Barber said "we got some more announcements:" she claimed that, in this case, the Court does not have a complete record. The Court, however, responded that it appears we do with respect to this exchange.
Ms. Magas, however, suggested that there is, indeed, a doubt about whether we have the entirety of the exchange. She said there appears to be a gap here. She noted that it is not the responsibility of the defence to establish a complete record: the Crown should establish this to show there can be only one meaning, beyond a reasonable doubt.
To demonstrate this, she referred to the screencaps and thumbnails of Barber’s TikTok account captured by a police officer at the direction of OPS Detective Benson. Ms. Magas noted that the police officer conceded in cross-examination that she did not review the entirety of the TikTok account for Barber. She was not directed by detective Benson to download all of the videos - just the ones he directed her to download.
Ms. Magas argued that there is a doubt about whether the Court has the entirety of the exchange - this goes to the evidence of the actus reus of the offence. The Court responded, however, that just because he says "there are more announcements" does not necessarily establish incompleteness of the exchange.
10/ Ms. Magas suggests that Barber was not advocating blocking the street - often he recommended that people find someplace else to park or go elsewhere. She says there was no evidence that Barber erect structures to block roads. The Court remembers a TikTok where he says people…
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Ms. Magas turned to the intimidation charge. She said that the mens rea of intimidation is the intent to compel citizens to block the streets of Ottawa - not to pressure the government to drop the mandates. She suggested that the Crown has argued the latter, which is not proper. The defendant's purpose must be captured by the offence of intimidation: a defendant must compel a person to abstain from doing something they are entitled to do. She argued that there are reasonable inferences here: it can reasonably be said that the purpose of Barber was to compel the people to pressure the government to drop the mandates. Thus, Ms. Magas argued that the mens rea is not present.
Ms. Magas turned to the charge of counseling mischief and obstructing police. As above, she said there is no actus reus, as a principal, of "metaphorically standing shoulder to shoulder" after his arrest. She said that Barber always encouraged compliance and peaceful protest. Barber, when arrested, was compliant and did not resist. Thus, she says neither the actus reus nor the mens rea are established.
She played a video of Barber and freedom convoy lawyer Keith Wilson where Wilson said a recently published police pamphlet allowed for peaceful protest but, importantly, does not allow for disruption of trade, engaging in violence, interfering with infrastructure, etc. He discouraged people from attending for improper purposes. Wilson suggested that people come to Ottawa to stand with truckers to peacefully protest.
Ms. Magas argued that the contention of the Crown that this constitutes counseling is incorrect: the case law establishes that comments must be inciting, not simply informative. There must be an active inducement. The Court said that some of these comments are informative but some go beyond information. Ms. Magas noted that, to the extent that the words are from Wilson and not Barber, they are hearsay. She stated that although Barber was beside Wilson in the video and nodded his head, this does not establish, beyond a reasonable doubt, that he was counseling mischief or obstruction. Ms. Magas suggested that there is no active inducement here. The Court noted that Wilson’s words are careful: he said that people should not come if their purpose is to block infrastructure. Ms. Magas agreed with the Court that the comments of Barber have to encourage people to commit a crime in order for the offence to be committed.
Ms. Magas then addressed the mischief charge. She suggested that Barber was directed to move his truck by police: this provides legal justification for his conduct. Additionally, there is no evidence that he erected blockages to roads, nor did he aid, abet or counsel anyone to commit mischief.
In fact, she said, there is evidence that he tried to stop the honking. She said that there is a reasonable interpretation that Barber told people to come to Ottawa to peacefully protest, to march on foot or to slow roll.
Ms. Magas said that s.430(7) of the Criminal Code allows for communicating without committing mischief. She said the Court should examine the mens rea of Barber in the context of police inviting people to park in certain areas. The Court noted, however, that Barber expressed dissatisfaction with police: Magas responded that he expressed dissatisfaction only around February 7-9 when there was a rumor of riot police - the rest of the time he was compliant and cooperative. In fact, she said he assisted law enforcement with moving vehicles, and moved his own truck on February 8. Finally, he had lawyers, supporters and advisers at this time. This goes to the mens rea of his honest belief that his conduct was legal.
The Court then recessed until Tuesday, August 20th at 11 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.