Lich Trial Highlights: September 13, 2024

TDF’s Legal Team

Written by
September 17, 2024

The Democracy Fund (TDF) was back in Court on Friday, September 13, 2024, for the final day of the trial of Tamara Lich and Chris Barber.

Justice Perkins-McVey heard reply submissions from Crown Counsel Tim Radcliffe and Siobhain Wetscher.

Counsel for Ms. Lich, Lawrence Greenspon, had argued during his closing submissions, that the Crown did not present evidence beyond a reasonable doubt to establish the charges of mischief, counselling mischief, intimidation and obstructing police. He argued that Ms. Lich was exercising her Charter rights to peacefully protest and speak freely.

Ms. Wetscher, however, argued that there are limits to these rights. She said the trial was not about the political beliefs of the accused. Referring to the court order arising from the civil action during the protest, she said that the Court in that litigation did not find that the protest was lawful, peaceful or safe - the Court simply made findings on the noise from horn honking.

Ms. Wetscher said that Mr. Greenspon claimed there was no line until February 18. However, Ms. Wetscher said that the situation was different that day. The judge noted that she didn't think that was the defence position. Ms. Wetscher said that on the 18th there were still blocked streets, protests and congestion. She claimed that, on the 18th, the means taken by the police changed. The protest didn't become unlawful on the 18th.

Ms. Wetscher did concede that Ms. Lich demonstrated an intent to comply with police. She acknowledged that there is some evidence of Lich and Barber encouraging people to be peaceful. But she noted that both accused refer to the likelihood of their arrest. The Court asked if those statements related to press releases or police pamphlets.

Wetscher claimed that, like the case of R. v. Remley, the last thing an innocent person expects is to be arrested: she suggests that this weakens reliance on the "color of right" defence. The Court, however, did not seem persuaded by this argument. Ms. Wetscher read some quotes of an exchange between Mr. Barber and Officer Bach, but the Court suggested that it was unhelpful for quotes to be "cherry-picked."  The judge said she needed all the evidence to make sure of the context.

Ms. Wetscher then referred to the Canadian Frontline Nurses v. Canada (Attorney General) case. She said the police were entitled to rely on the Emergencies Act declaration at the time because it was presumptively valid. She said Justice Mosley's ruling does not claim that the conduct or protest was lawful. However, Mr. Greenspon rose and noted that the defence did not argue that Justice Mosley's decision made the protest lawful: rather, the defence argued that the issue of the Criminal Code defence under s.430(7) (communication while at a protest) was not before him. The Court noted that there was no case that is on all fours with the present case.

Mr. Radcliffe then began his submissions for the Crown. He reminded the Court that it cannot rely on hearsay. The Court agreed that it cannot rely on hearsay statements for the truth of their contents. The judge, however, notes that there are exceptions.

Mr. Radcliffe pointed to some examples where he says the Defence seeks to rely on hearsay. He noted that at one point, the Defence led evidence in cross-examination statements of the accused. He said that it is hearsay unless led by the Crown. The judge, however, responded that text messages by Officer Bach are admissible because they were put in evidence by the Crown. The Court noted that the entirety of the exhibit is in evidence. However, Mr. Radcliffe said that was referenced in Defence final submissions and it is, therefore, not proper.

Mr. Radcliffe gave other examples of Defence-led exhibits that mention hearsay - for example, Mr. Barber's intention regarding the statement "holding the line."

He noted that "slow-rolls" of vehicles in the downtown core meet all the criteria of mischief. He said Mr. Barber's comments on slow-rolls showed intent, particularly when he said "We're sorry it had to happen in your city" and "Today we roll to cause grief."

Mr. Radcliffe said that there was private commentary on slow-rolls that proved this. However, counsel for Mr. Barber - Ms. Magas - noted that the Crown's reply submissions should be limited to responses to Defence submission, and should not properly restate arguments the Crown made in closing.

Finally, Mr. Radcliffe took the Court through some evidence of roads being blocked at the relevant times, especially Nicholas Street. The police, he said, were overwhelmed: they did not permit or welcome the trucks to stay for 3 weeks. This, he said, is an unreasonable interpretation, especially given the evidence that Lich and Barber understood it otherwise. Presumably this would contradict the "color of right" defence.

Mr. Radcliffe said that Barber parked his truck for 11 days. He said this is not a "short while:" he said 11 seconds on Wellington Street may be a short while - but not 11 days.

The Crown then ended its submission. Justice Perkins-McVey said she is not certain when she will return with her decision. However, she will return on November 25 to provide an update on her progress.

And with that, the longest mischief trial in Canadian history came to a close.

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.

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