Where Does Trial for Freedom Convoy Organizers Stand?

Freedom Convoy organizers Tamara Lich and Chris Barber (R) make their way with counsel to the Public Order Emergency Commission in Ottawa on Nov. 1, 2022. The Canadian Press/Adrian Wyld

The trial for Freedom Convoy organizers Tamara Lich and Chris Barber, which was supposed to last 16 days but has stretched to over a year, is finally coming to a close.

Closing arguments in the trial resumed on Aug. 13 and have continued this week.

Barber and Lich are two of the main organizers of the Freedom Convoy protest in early 2022, which was started in response to pandemic-related restrictions and vaccine mandates and resulted large numbers of trucks gathered in downtown Ottawa to protest the measures.

On Feb. 14, 2022, the federal government invoked the Emergencies Act for the first time ever to bring the protest to an end, and Lich and Barber were arrested on Feb. 17.

The pair were charged with mischief, intimidation, and counselling others to break the law, while Barber is also accused of counselling others to disobey a court order.

Crown lawyers say the evidence against the two is “overwhelming.”

Defence lawyers, on the other hand, say there is little evidence that Lich and Barber had criminal intent throughout the protest, or that they worked closely together to organize and direct the protesters in Ottawa.

Lich’s lawyers are expected to continue their final arguments on Aug. 23. Justice Heather Perkins-McVey will have up to six months to deliver a verdict after closing submissions are concluded.

Outset of Trial

The trial began in September 2023 with an argument over the meaning of the word “occupation.” Crown lawyers used the word in their opening statement, saying that “this occupation was anything but peaceful.” Lich’s and Barber’s defence lawyers disagreed.

Defence lawyer Lawrence Greenspon referred to the definition of that word in the Hague Regulations of 1907, which says a territory is “considered occupied when it is actually placed under the authority of the hostile army.” He said the Crown’s use of the word had more serious implications for people “who have been historically—and for the people who are right now—victims of it.”

Crown lawyers also made the case that Lich and Barber “crossed the line” when encouraging people to protest in Ottawa, and in doing so committed multiple crimes. They’ve attempted to make the case that the two had control and influence over the protesters, and that they worked together so closely that evidence applying to one should apply to the other, which is known as a Carter application.

Over the course of the next few weeks, witnesses such as police officers, City of Ottawa employees, and residents, and business owners testified on the protest’s impact. Defence lawyers had objected to eight Ottawa residents being allowed to testify, arguing that this would amount to witness impact statements being filed at an improper stage of the trial. In response, Justice Perkins-McVey said that the Crown needed to be able to call its case as it saw fit.

Those residents went on to testify about traffic disruptions, constant honking, diesel fumes, and urination on public property that they said occurred during the Freedom Convoy protest. Making their case in turn, defence lawyers pointed out that none of the residents said they had directly interacted with Lich or Barber. They also argued that the two showed respect for law enforcement, and denounced extremist actors.

The court also viewed numerous social media videos of the protest, which both the Crown and defence lawyers highlighted to make their cases.

Amid mounting trial delays due to technical glitches and legal deliberations, Crown prosecutors on Oct. 23, 2023, announced they were dropping the criminal charge against Lich that alleged she violated her bail conditions in the summer of 2022. Although the Crown said this was done in order to avoid further delays, the trial still stretched into 2024.

Closing Arguments

After a lengthy break, the trial recently returned for closing arguments in August this year. According to the Crown prosecutors, Barber and Lich are not on trial for their politics but for the “unlawful means that they employed to pursue their political and end goals,” and the case against them is “overwhelming.”

Crown attorney Siobhain Wetscher said the noise, traffic congestion, and harassment associated with the protest were outside the spectrum of “what would be considered lawful demonstration.” She said that, of all the previous court cases around the Freedom Convoy, not a single one found that the demonstration was lawful, although some individuals had been acquitted of their charges.

Prosecutor Tim Radcliffe took the court through instances that he said showed Lich and Barber working closely together to gridlock Ottawa. He pointed to text messages sent by Barber saying the protest was meant to “cause grief” and that they had “trainwrecked traffic” in the city.

Radcliffe also read out text messages between the two on the second day of the protest, in which Lich asked Barber to come with her to the protest’s “command centre,” because they had a plan to gridlock Ottawa and she did not “want to make those decisions on my own.” He said this showed Lich had the authority to make decisions but wanted to work together with Barber, which was evidence in favour of the Crown’s Carter application.

Crown lawyers had earlier emphasized footage in which Lich and Barber encouraged protesters to “hold the line”—which they interpreted as a call for demonstrators to stay in Ottawa and continue protesting. They also highlighted a video in which, following a court injunction against blowing horns, Barber encouraged protesters to honk if they saw police arriving.

Barber’s defence lawyer Diane Magas, on the other hand, said in her closing argument that the two had not intended to block traffic in the city and in fact worked together with police to ensure the roads remained open. Magas showed the court text messages from Feb. 7, 2022, in which Barber said the vehicles had ended up “all over the city” when they were supposed to have been directed by police to a staging area. Magas said the messages showed that Barber was “overwhelmed” by the situation and trying to work with the police.

Magas said Barber’s text messages throughout the protest showed that his mens rea, or mental state, was that he wanted to work with the police to prevent illegal actions from happening.

Magas also took issue with the Crown’s earlier argument that the phrase “hold the line” was used by Barber and Lich to counsel others to break the law by continuing protesting while police cleared the streets. She said the phrase can have several different meanings, such as “be patient,” “stay true to your beliefs,” and “be strong,” or such as in reference to the 1978 hit song of the same name by the band Toto.

Lich’s lawyer Eric Granger argued that Lich did not conspire with Barber to break any laws and that the Crown had failed to demonstrate she had. He said there is a lack of evidence to show close interactions between the two. One key incident where they worked together—both signing a letter to Ottawa’s then-Mayor Jim Watson agreeing to move the trucks out of residential neighbourhoods—showed the opposite of intending to commit mischief, obstruct police officers, or intimidate others, the lawyer said.

Granger also attempted to poke holes in the Crown’s Carter application by pointing out that the conspiracy allegation is often used to prosecute drug trafficking or murder cases where the objective is illegal. He said that in this case, the act of protesting itself was not illegal.

Throughout the closing arguments, Justice Perkins-McVey listened intently but occasionally interjected to ask questions or press the lawyers on their reasoning. She pushed back against the Crown’s statement that it had been established “beyond a reasonable doubt” that Barber and Lich were the organizers and leaders of the Convoy, noting that there were many different groups protesting in Ottawa and the pair did not have control over all of them.

The judge said the evidence had shown that “a number of things converged at once that nobody really had the intelligence on,” and that the police “didn’t plan accordingly.”

“It began in a way that was hard to get out of,” Perkins-McVey said.