Defence Lawyers in Freedom Convoy Trial Begin Argument

Tamara Lich walks with her lawyer Lawrence Greenspon (L) as they make their way to the courthouse on the first day of Lich’s trial, in Ottawa on Sept. 5, 2023. The Canadian Press/Adrian Wyld

OTTAWA—The defence lawyers for Freedom Convoy organizers Tamara Lich and Chris Barber have begun making their case, arguing against the Crown’s request that a criminal charge against one should apply to the other, as there is not enough evidence to prove the pair worked together at a level where a conspiracy to commit crimes occurred.

“Ultimately, our submission is what’s required in order to invoke the co-conspirators exception, if there’s something more, a plan that’s more focused and specific than an overarching commonality of purpose,” said counsel for Ms. Lich Eric Grainger on Nov. 27.

“There needs to be a very specific plan or common design that’s criminal in nature. And that’s where we ultimately are to say that the evidence falls short of establishing circumstantial evidence and agreement between more than one individual to engage in one of the various criminal plans alleged by the Crown.”

Ms. Lich and Mr. Barber are currently on trial for mischief, obstructing police, counselling others to commit mischief, and intimidation related to the trucker protest in early 2022, which saw hundreds of vehicles flood the streets of downtown Ottawa to protest pandemic-related vaccine mandates. In response, the government ultimately invoked the Emergencies Act on Feb. 14 to end the demonstration.

The Crown lawyers, who wrapped up their argument on Nov. 20, have attempted to make the case that Mr. Barber and Ms. Lich had control and influence over the protestors and that they “crossed the line” with the protest.

Carter Application Not Met

In his opening argument to the court, Mr. Grainger said the three rungs of the Crown’s Carter Application—which asserts that the two convoy leaders conspired so closely that any charge applied to one should apply to the other—have not been met.

Mr. Grainer argued that for the Carter test to be met, the conspiracy must be between the parties and have a “common unlawful design,” there must be direct evidence against the parties involved, and any acts or declarations must then be receivable against the party.

“One can apply to dismiss a card or application if there’s an absence of evidence on any of the three elements,” he said.

Mr. Grainger took issue with the “circumstantial evidence” the Crown had presented, arguing that the wide gaps in the evidence made it necessary to speculate on whether Ms. Lich was part of a common unlawful design.

He also noted that of all the witnesses who had testified at the trial—many of whom were Ottawa residents and business owners—none had directly interacted with Ms. Lich, meaning that “the sum total of the evidence directly admissible against her comes in the form of the various exhibits that have been filed thus far, in terms of various social media postings, various videos, and various text communications.”

The defence lawyer also said that the Freedom Convoy protest was not a “single ubiquitous entity,” but had many groups with various objectives. “The court ought to be cautious—even where those things may seem to be born out of a common objective or a common ideal—to consider those potential independent acts or independent actors be part of a larger conspiracy,” he said.

“Because ultimately, there needs to be evidence of [Ms. Lich and Mr. Barber] acting in concert, irrespective of whether there was a common goal.”

Trucker Protest ‘Not Necessarily an Unlawful Plan’

According to Mr. Grainger, many conspiracy or common unlawful design cases involve plans to commit murder or import harmful drugs where the plan in and of itself is “criminal in nature.” But he said a protest to convince the government to change its views and policies around COVID-19 vaccine mandates is “not necessarily an unlawful plan,” and also noted that there was no evidence that any Freedom Convoy organizers agreed to “pursue their ends by way of illegal activity.”

Mr. Grainger said that, with the Freedom Convoy, there was also “quite a bit of evidence” that protestors—including the organizers—went to “painstaking efforts to execute such a claim in peaceful, lawful and loving means.” The defence lawyer read out several transcripts of text messages and social media videos where Ms. Lich urged protestors to be peaceful and not commit any illegal acts.

“I just want to put it out there that nobody in this convoy will be inciting violence or uttering threats. That is not what we’re here to do,” Ms. Lich said in a transcript taken from one Facebook Live post early in the protest, which Mr. Grainger read to the court.

“If you see anybody trying to associate themselves with us that is acting in that way, you need to get their truck number and their license plate and report it to the police, or get it to us and we'll report it to the police. Violence and threats are not our mandate.”

Defence Lawyer Lawrence Greenspon told the judge that the defence would require a total of five trial days to make its argument.