Trial of Freedom Convoy Leaders Barber and Lich: What the Court Has Heard So Far

Freedom Convoy organizers Tamara Lich and Chris Barber wait for the Public Order Emergency Commission hearing to begin, in Ottawa on Nov. 1, 2022. The Canadian Press/Adrian Wyld

With the criminal trial of Freedom Convoy leaders Tamara Lich and Chris Barber having gone on hiatus after its 13th day wrapped up, it seems no closer to completion.

Due to technical delays, lengthy videos being played, and much deliberation between Crown and defence lawyers—including over admissibility and disclosure of evidence—only four witnesses have finished testifying out of the 22 initially set to testify over the course of 10 days.

Justice Heather Perkins-McVey has also yet to rule on whether eight additional witnesses from the city of Ottawa—who the Crown says were harmed by honking, diesel fumes, and harassment—will be allowed to testify.

As the trial, originally scheduled for 16 days, drags on, the arguments on both sides have become clearer.

The protest began in late January 2022 in response to COVID-19 vaccine mandates imposed by the federal government on truckers crossing the Canada-U.S. border. Over the course of three weeks, hundreds of vehicles converged in downtown Ottawa, as protesters demanded an end to mandates and general COVID-19 public health restrictions.

On Feb. 14, 2022, the government invoked the Emergencies Act to bring the protest to an end, the first time the measure had been used since becoming law in 1988.

Ms. Lich and Mr. Barber were arrested on Feb. 17, the same day Ottawa’s interim police chief warned that action to remove the demonstrators was “imminent.”

The pair are being charged with mischief, counselling to commit mischief, intimidation, and obstructing police. Mr. Barber faces an additional charge of counselling others to disobey a court order.

Crown prosecutor Tim Radcliffe’s opening argument was that Mr. Barber and Ms. Lich “crossed the line” when encouraging protesters to “occupy” Ottawa, and that the convoy protest was “anything but peaceful.”

The defence lawyers took issue with the “occupy” label and argued that the pair lawfully protested and even assisted police in moving protesters’ vehicles throughout the event.

Throughout the proceedings, the Crown has attempted to prove that Ms. Lich and Mr. Barber had outsized influence on the scope and shape of the protest. They are also trying to make the case that the two conspired so closely during the protest that evidence against one of them should apply to both.

Social Media Videos 

To make their case, Crown prosecutors introduced a litany of social media videos taken before and during the protest, including some from Mr. Barber’s TikTok account. In several of those videos, Mr. Barber can be heard repeatedly urging protesters to be peaceful and refrain from violence.

But in one video, taken on Feb. 9, two days after an injunction against the honking of horns had been granted, Mr. Barber encourages the protesters to “lock that door, climb in that bunk, but before you do that, grab that horn switch, and don’t let go” if they see police taking action to clear them out.

That specific video was what led Mr. Barber to be given a new criminal charge of counselling others to disobey a court order. He pleaded not guilty.

In many of the videos, Mr. Barber and Ms. Lich can also be heard telling the protesters to “hold the line.” On Feb. 16, a day before Ms. Lich was arrested, she said in a Facebook video, “I am not afraid, and we’re gonna hold the line.”

She also yelled the phrase while being taken to a police vehicle in handcuffs, the court saw in a Feb. 17 video. Protesters repeatedly yelled “hold the line” as police cleared them from downtown Ottawa near the end of the weeks-long demonstration.

By showing the videos, the Crown is attempting to prove that Mr. Barber and Ms. Lich encouraged protesters to disrupt residents and to stay in Ottawa after police had told them to leave.

Defence Arguments

Defence lawyers, in turn, showed videos in court that aimed to highlight the protest leaders’ call for “peaceful” demonstration. In one video taken as the convoy approached Ottawa on Jan. 21, Mr. Barber told the protestors they must “adhere to the rules of the convoy” or will be kicked out.

In the TikTok video, Mr. Barber tells protesters not to block emergency vehicles and to show respect for law enforcement at all times. In another video taken as the convoy made its way to Ottawa, Ms. Lich tells supporters that violence and intimidation are “not our mandate” and that the protest is solely about “your rights and freedoms.”

Defence lawyers also tried to prove that the phrase “hold the line” could be used as a call to continue protesting but could have other interpretations as well. They did so by showing a video of former Newfoundland premier Brian Peckford using the phrase when speaking about the Canadian Charter of Rights and Freedoms.

The judge has yet to decide if Crown and defence lawyers will be able to rely on the videos and other materials pulled from social media to make their case.

Witnesses

During the trial, the four witnesses shed light on how the City of Ottawa and its police force struggled to deal with the rapidly evolving protest, with their testimonies at times veering outside the scope of Mr. Barber’s and Ms. Lich’s involvement.

Ottawa Police Service Operations Support Inspector Russell Lucas detailed how negotiations between the police liaison team and convoy organizers to “shrink the footprint” of the protest was blocked by then-police chief Peter Sloly. Mr. Lucas said the failure to move protester vehicles from residential neighbourhoods to Wellington Street, the street in front of Parliament Hill, led to police resources being “spread incredibly thin.”

Ottawa’s general manager of emergency and protective services Kim Ayotte told the court that the agreement had been a “success” and that it was the police, not the protest organizers, who reneged on it.

Serge Arpin, chief of staff to then-Ottawa mayor Jim Watson, said he viewed the deal falling through as a “failure on our part to assist in the implementation of the goodwill arrangement.”

Mr. Arpin said he was never given “direct knowledge as to why” the movement of the trucks onto Wellington Street was stopped on Feb. 15.

Regarding the question of whether eight downtown Ottawa residents and business owners should be allowed to testify, defence lawyers have argued that it would not be “legally relevant” to the case and that it would amount to the Crown filing victim impact statements in the middle of the trial.

The Crown countered that the witness testimonies were needed to illustrate the scope and impacts of the Freedom Convoy protest, as residents could speak to the road blockages, honking of horns, smells of diesel, business interruptions, and inappropriate interactions with protesters. However, none of the eight witnesses had any direct dealings with Ms. Lich or Mr. Barber.

The Crown also plans to hear from the senior leadership of the Ottawa Police Service, senior city of Ottawa officials, members of the Ottawa Police Service liaison teams, and witnesses from OC Transpo when the trial resumes on Oct. 11

Mr. Barber’s lawyer Diane Magas said on Sept. 19 that if delays continue, she will consider making a Jordan application, which stipulates that any person charged with a crime has the right to be tried within a reasonable time.