‘LINES OF DEFENCE’

How the ‘Freedom Convoy’ trial of Tamara Lich, Chris Barber could take shape as it turns to defence

Long-awaited legal arguments over the protections afforded by the Charter of Rights and Freedoms and the provisions of the Criminal Code will form a “central issue” as the trial of Tamara Lich and Chris Barber turns to the defence to mount its case.

The 2022 convoy demonstration raised fundamental legal questions, experts say, surrounding the charter-protected rights of protesters when their actions interfere with the property rights of ordinary citizens.

When Crown prosecutors Tim Radcliffe and Siobhain Wetscher opened their case against the co-accused convoy leaders back in September, they alleged Lich and Barber’s actions “crossed the line” into criminal mischief.

On Monday the trial turned to Lich’s defence team of Lawrence Greenspon and Eric Granger and Barber’s team of Diane Magas and Marwa Younes to make their case.

In separate interviews, Greenspon and Magas each confirmed those charter issues will be raised at some point during their defence.

Greenspon said there is “no contest” when charter-enshrined rights collide with the right to lawful enjoyment of property, which, in this case is cited under the Criminal Code charges of mischief.

“I summed up our position on the charter and property rights right off the bat, which was: in a contest between enjoyment of property and freedom of expression and freedom of peaceful assembly — both of which are constitutionally entrenched in the charter — there is no contest,” Greenspon said. “You may recall the judge replying, ‘That’s for me to decide.’

“So that’s a central issue that will be on the table as we go forward,” Greenspon said.

Magas said those charter issues would likely be reserved for closing arguments, after both Crown and defence have completed the evidence and testimony portion of the trial.

The scheduling for that phase of the trial has yet to be determined, with court staff scrambling to reserve further trial dates beyond this week, which could push proceedings into the new year.

Greenspon told the judge on Monday the defence will require five trial days to mount its case, call evidence and make closing submissions.

Defence lawyers customarily decline to publicly discuss trial strategy, and in interviews, Greenspon and Magas each declined to say whether Lich or Barber will testify in their own defence.

When the trial resumes this week, the defence is first expected to file two motions, with each requiring a ruling from Ontario Court Justice Heather Perkins-McVey before the case can proceed.

In the meantime, several “lines of defence” have emerged, according to University of Ottawa criminologist and convoy trial observer Michael Kempa.

“The first is the more straightforward set of issues of raising a reasonable doubt that their clients actually committed any of these acts that are listed as illegal under the Criminal Code,” said Kempa.

“The second layer, which is much more in service of the public interest, are the questions around whether those acts are unjust ... There are major questions around the balance of the ordinary criminal restrictions of mischief, which relates to how property is used, and charter rights like freedom of assembly and expression on public property.

“The great hope of this trial was that we would get quickly to those fundamental issues, because that’s really what the Freedom Convoy was all about in terms of the main legal questions it raised: When and where are people allowed to protest? How do you balance the rights of freedom of expression and assembly with the ordinary rights of citizens to access public property for its intended purposes, like getting to work, medical appointments, accessing businesses, transit and other services?”

The cross-examination of Crown witnesses has offered a glimpse into that first line of defence, Kempa said, which is simply to raise a reasonable doubt that the Crown has proven its case on the individual charges of mischief, counselling, obstruction and other related offences.

Many of the procedural delays that sidetracked the Crown’s case were related to the disclosure of evidence from police witnesses, including chats and text messages that documented the weeks-long communications between Barber and designated members of the Ottawa police liaison team (PLT).

That potentially “exculpatory evidence,” Kempa said, could lend weight to the anticipated defence argument that Barber and Lich believed they were acting within the parameters of a deal that convoy organizers struck with police and city officials.

“As of Jan. 31, efforts were being made by Chris Barber and others to try to reduce the footprint (of the protest) so that the impact on residents would be reduced,” Greenspon said. “Those efforts continued right through until Feb. 12 when the deal was struck with (former Ottawa mayor Jim Watson), and there’s evidence that on Feb. 14 — when as many as 100 trucks were moved — that they were honouring that deal.”

Those efforts were “stopped,” Greenspon said, by Feb. 15 after a major shift in the police executive with the resignation of Ottawa police Chief Peter Sloly, one day after the federal government invoked the Emergencies Act.

When and where are people allowed to protest?