Lich Trial Highlights: August 20, 2024

TDF’s Legal Team

Written by
August 21, 2024

The trial of Tamara Lich and Chris Barber continued today with submissions on behalf of Lich by her counsel, Eric Granger.

Mr. Granger began by outlining the arguments that he will make. He stated that, on the evidence the Court has before it, none of the actions or words of Lich are unlawful. He said that the Crown must refer to “context” because the evidence is insufficient without it. Even considering context, Mr. Granger said that there is still no case against Lich for the six alleged offences.

Mr. Granger conceded the following: that Lich and Barber were leaders and organizers of the convoy, that the freedom convoy was a prominent group (though there were other groups), and that many vehicles were present, noisy and did interfere with residents. The defendants did use the phrase “hold the line,” though the meaning is disputed. Mr. Granger said that millions of dollars were raised in fundraising appeals.

However, he said that those facts, in combination, fail to establish beyond a reasonable doubt that Lich did something unlawful or that Carter should apply.

He said that mere presence is not unlawful. Leading a convoy to Ottawa is not unlawful. Travelling to Ottawa, encouraging people to travel and stay in Ottawa, and fundraising is not unlawful by themselves.

The Crown needed to link acts of the freedom convoy group to Lich - which it was not able to do. He said that the use of the pronoun “we” is problematic because of its ambiguity. Likewise uttering the phrase “hold the line” is not unlawful unless it incorporates something unlawful.

The Court asked if there are videos of Lich walking around Ottawa during the convoy. Mr. Granger said there are 5 videos of Lich walking outdoors. The Court noted that doing so is not illegal. Mr. Granger suggested that there are no indications of anything unlawful in those videos.

He turned to the fundraising, again noting that it was not illegal. He said Lich's involvement in communications was not unlawful unless it is tied to something unlawful.

Mr. Granger said there was no evidence that Lich blocked the road. The Court asked if Lich was travelling with her parents: Granger confirmed that at one point, Lich was in a vehicle with her parents, but there was no evidence that Lich was a trucker, had a truck in Ottawa, sounded a horn or interacted with any resident of Ottawa. He said there was no evidence of her interaction with PLT officers: the only other interaction we have is from her arrest, where she complied.

Turning to the Carter application - where the Crown is seeking to have evidence of the words and acts of one defendant attributed to the other - Mr. Granger said there are three factors that must be considered to establish a link between the defendants:

A) the underlying purpose of an alleged agreement between the two - which the Crown claims is the removal of mandates. However, Mr. Granger noted that this purpose is not unlawful.

B) the concept of the “freedom convoy:” there were many groups on the ground, which made it difficult/impossible to establish a link. The use of “we” by Lich is insufficient.

C) evidence of collaboration: he said there is no precise scope of collaboration. The Court noted that we do not have many texts between the defendants.

Mr. Granger then explained the law on a Carter application. He said the law requires that the Court find that the words of the accused further the objects of the unlawful agreement beyond a reasonable doubt. However, he argued that this is a challenge for the Crown.

The Crown, he said, acknowledged that the underlying purpose of ending the mandates is not facially unlawful - unlike typical cases such as drug trafficking. The Court asked if there exist any Carter cases where the purpose is facially unlawful: Granger said he had not found any cases. He said that, for a common unlawful design to be found, there must exist something more - the means to achieve that purpose and whether they are unlawful or not. For a murder conspiracy, for example, this would not be the case. This, he said, is a challenge for the Crown.

Mr. Granger then turned to the issue of multiple convoy groups, purposes and means. He suggested that this makes it difficult to connect the conduct of all protesters with Lich during the relevant time frame. He said the use of “we” does not mean everyone. He said that, although there was overlap in means and purposes between groups, it would be an oversimplification to say these are connected to Lich.

He noted that OPS constable Bach gave evidence about this multiplicity of convoy groups. The Court noted that the term “freedom convoy” was used to denote the broader cross-Canada movement: Mr. Granger agreed. He said Mr. Ayotte gave evidence that it was difficult to move all the disparate groups. OPS constable Blonde and Lucas both testified to multiple groups; they said it was hard to say who came to observe and who came to participate. Mr. Granger noted that the group "Freemen on the Land" and Farfada both attended. He said an indigenous clan mother controlled Confederation Park. In sum, he said there was no single homogenous group, and Lich’s use of “we” does not establish a sufficient link.

Mr. Granger noted that the form of an alleged agreement between Lich and Barber is unclear. There was a corporation in which they were both involved. They both supported the truckers. But, he said, there was no agreement about the activities of the truckers while in Ottawa. There is no evidence of Lich about this beyond being peaceful and lawful.

As to the relationship between Lich and Barber, Mr. Granger said that in the early part of the protest, until February 7, there was some contact via texts. After that, he noted that there was little contact. He said that, subsequently, there was a press conference and a letter to the mayor to move trucks. The Court asked if this is evidence of an agreement: Mr. Granger said it may be an agreement, but if it is, it is not evidence of mischief - it is the opposite.

Mr. Granger conceded that there was some cooperation between Lich and Barber prior to February 7 (the injunction date), but the scope and extent are not clear from the evidence. After February 7, there is little evidence of an agreement. He argued that the lack of scope creates a problem for the Crown on the Carter application.

Mr. Granger turned to the words of Lich to determine if it was more likely than not that she was a member of this agreement. He references an itemized chronological list of Lich’s actions or words during the time frame: there are 24 pieces of evidence on that list - which, he said, is not much. He said only a few videos captured Lich outdoors - where most of the offences were said to take place. Additionally, some still images show Lich outdoors.

He mentioned a February 5th video of Lich outdoors - possibly on Wellington & Rideau. He said there was no indication of a criminal offence being committed: there were just random individuals. The Court wanted the video played, after which the judge agreed that “there is a police car and people walking.”

A video by “papa wolf” of Lich and Barber was then shown. "Papa wolf" is seen speaking to Barber, with Lich in the same area. Papa wolf then speaks to Lich. Lich is heard saying, “keep getting the word out." Mr. Granger noted that this is ambiguous. Importantly, Lich and Barber do not speak together- they speak separately, though they are in proximity.

Another video of Lich collected by Sergeant Pilotte is shown. The Court noted that it is not known if the video is altered or complete. Lich is heard to say, “it’s not an illegal protest” and “hold the line.” Mr. Granger said that the Court has to determine the meaning of "hold the line" from among multiple meanings. The Court commented that “hold the line” can mean "be true to your values," but in the context of a police line, it can mean something different.

Mr. Granger said that the Crown would like the phrase to mean “remain and do something illegal,” but this interpretation is one among many. The Court noted that there is a contextual element to the phrase. Mr. Granger responded that the context must be such that by saying the phrase, Lich must encourage criminal behaviour, to the exclusion of all else, in order for the Court to convict.

A video of the arrest of Lich was then played: she is handcuffed and complies. She is heard to say “hold the line", then is put in a police cruiser. Mr. Granger noted that here, too, the phrase is ambiguous. He said there was no evidence of an offence being committed at the time of the arrest, with which the Court seemed to agree.

Mr. Granger finished by arguing that this is the sum total of evidence of Lich on the ground in Ottawa: none of it connects Lich sufficiently to a crime.

Mr. Granger conceded that Lich was involved in fundraising: she managed GoFundMe and other campaigns in support of registered truckers.

However, he said there is no evidence linking the fundraising to unlawful activities. The Court said that the Crown may argue the fuel truck could be linked via fundraising to unlawful activity.

Mr. Granger said the "fuel" references mostly occur prior to Lich's arrival in Ottawa. By January 30th, Lich has arrived, which is the first weekend, when they haven’t “worn out their welcome.” And the use of the fuel is not clear: it may have been used to move trucks out of Ottawa, to leave the area completely or to remain.

He then turned to the communications of Lich. She set up Facebook pages, group chats, etc.  However, absent a connection between setting up comms and illegal activities, the fact of Lich setting up comms for the "freedom convoy" corporation does not establish that it was in furtherance of anything unlawful.

He argued that, absent evidence of the content of her comms, there is only evidence that she was engaged in media - which is not unlawful.

Mr. Granger then referenced a February 14 video from the freedom convoy Facebook page where Lich said "it is everyone’s right to stand up and speak out for freedom." He said that it is not clear that this recommends unlawful behavior.

He also referenced a video where Lich advocated for lawful and peaceful protest, and another on February 17 where she talked about lawful protest. He referenced a video where Lich advised police that they should be at the proper location.

Mr. Granger then gave some examples of Lich having problems with other groups and factions in the convoy. He said there was always some degree of division between Lich and Barber’s communications, even at a later date.

Mr. Granger noted that although Lich invited people to come to Ottawa, it is not clear what she invited them to do. He said that simply staying in Ottawa is not unlawful: the Court has to find that the only reasonable inference to be drawn is that it was part of an unlawful plan.

Mr. Granger said that, between February 14-17, there are references to Lich saying “hold the line.” But, he said, when she does so, she usually mentions it in connection with peaceful protest, staying strong, or “keeping love in your heart.” He said this is consistent with a “stay true to your values” interpretation rather than unlawful conduct.

Mr. Granger argued that, ultimately, these pieces of circumstantial evidence are suggestive of reasonable inferences that her statements and conduct were not in furtherance of anything unlawful or indicative of a plan to do anything unlawful.

He then referenced the text where Lich said the command centre called and said “they have a strategy to gridlock the city” and “I don’t want to make this decision on my own.”

The Court suggested that Lich seemed to be part of the group that was making a decision about gridlock. Mr. Granger responded that it was a collective decision at some meetings she and Barber would attend, but we do not know the composition or identity of the “command center.” The Court said that term had been used before - but Mr. Granger responded that we do not know the hierarchy or connection between it and Lich.

He went on to note that, after January 30th, the notion of gridlock was not brought up by Lich again.

Mr. Granger said that we do not have evidence about the "gridlock" decision - we do not know if any decision was made. By that point in the protest, he said the trucks had already arrived and gridlocked the city.

He suggested that we know from other texts that Barber did not take the text from Lich as a direction to decide.

Mr. Granger then referenced case law on the Carter application. He said the Court needs to find that the only reasonable inference is that there is an agreement - but he said there are other reasonable inferences to be drawn from the evidence.

He noted that the timing of the alleged agreement is unclear - this affects the weight of the words said in furtherance of the unlawful purpose. The Crown claimed that the agreement “quickly shifted” to an unlawful purpose from a legal one - but, he said, the Crown does not specify when this occurred. Thus, he said the evidence does not establish that anything unlawful was contemplated or agreed upon.

The Court then adjourned until Friday, August 23rd 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.

E-transfer (Canada):
[email protected] - password democracy if required

Cheques made out to The Democracy Fund:
PO Box 61035 Eglinton/Dufferin RO
Toronto, ON M6E 5B2

🚨 For E-transfer and cheque donations, please include the following legally required information:

  • Full name
  • Email address
  • Full address
  • If making a corporate or business contribution, the corporation or business' name