The criminal trial of accused convoy protest leaders Tamara Lich and Chris Barber opened earlier this month with the judge cautioning a crowded public gallery that some “housekeeping” would be in order to keep the court proceedings “on the rails.”
Those housekeeping matters have evolved since the trial began on Sept. 5, and there have been defence objections over the Crown’s disclosure of evidence, arguments over the admissibility of trial exhibits, an application to exclude nine civilian witnesses from testifying, and several full days spent viewing exhaustive video documentation of the 2022 convoy protest.
With the trial now beyond the midpoint of its original 16-day schedule — and now likely to extend well beyond that estimate — Ontario Court Justice Heather Perkins-McVey told court last week she requested an additional two weeks of trial time, though no firm dates have yet been established.
Keep reading to find out more about who’s involved in this trial, the charges laid, the Crown’s case thus far, what the defence has said so far, and what’s still to come. For live coverage of the trial, keep an eye on our homepage for “LIVE BLOG” web posts.
LIVE BLOG REPLAY: Day nine of the criminal trial of convoy protest organizers Tamara Lich, Chris Barber
In planning more court dates, trial co-ordination staff must consider:
- Crown attorneys Tim Radcliffe and Siobhain Wetscher’s schedules
- Barber’s defence lawyers Diane Magas and Marwa Younes’ schedules
- Lich’s team of Lawrence Greenspon and Eric Granger’s schedules
- The availability of courtrooms
- The judge’s schedule
The Crown had initially estimated it would call 22 witnesses over 10 days for the prosecution’s case, leaving three days for the defence before taking a scheduled break until mid-October. As of Tuesday, Sept. 19, court had so far only finished the testimony of three witnesses.
Lich and Barber stand co-accused of mischief, obstructing police, counselling others to commit mischief and intimidation for their roles in the weeks-long protest that gridlocked streets in downtown Ottawa and left residents dismayed by its presence through much of January and February 2022. Barber faces an additional charge of counselling others to disobey a court order.
At the heart of the Crown’s case is whether Lich and Barber encouraged people to come to Ottawa and stay there, even as police ordered protesters to leave. The other question is whether doing so is considered illegal.
The Crown’s case so far
In the Crown’s opening statement, Radcliffe said Barber and Lich “crossed the line” as they exerted “control and influence” over the massing crowds, broadcast public statements as convoy leaders and encouraged others to join the demonstration, distributed information about the protest, and engaged in fundraising efforts to fuel its extended blockade in downtown Ottawa.
“This case is not about their political beliefs,” Radcliffe said in his opening. “What is at issue here is the means they employed — not the end, the means to achieve their political purpose, and whether it was lawful or not.”
Social media posts and videos from the “Freedom Convoy 2022” Facebook page were accepted as evidence in the trial Tuesday, Sept. 19. The Crown said it plans to use the posts to make the case that Barber and Lich were conspiring together so closely during the protest that evidence against one of them should apply to them both.
The trial finished its second week the Thursday prior with the end of OPS Sgt. Joanne Pilotte’s lengthy testimony, which began midway through the trial’s third day.
Pilotte was tasked with viewing hours of convoy-related videos and taking screen captures of the official “Freedom Convoy 2022” Facebook page.
The admissibility of that evidence had been challenged by the defence and the trial shifted into a “voir dire” — or a trial within a trial — to determine which of the voluminous videos and Facebook posts would be admitted as trial exhibits.
The voir dire extended over five days and included the Crown playing the entirety of two 75-minute press conferences held by convoy organizers in February, 2022, along with dozens of clips linked from the convoy Facebook page and from Barber and Lich’s social media accounts.
Many of those clips tended by the Crown feature the “Hold the line” rallying cry, which has become a focal point of the prosecution’s case on the counselling charge.
The defence’s objections and stance so far
The defence raised its first objection immediately following the Crown’s opening address on day one, when Magas stood to take issue with the Crown classifying the three-week demonstration as an “occupation” of downtown streets. Magas said the term is usually associated with a territory involuntarily placed under the authority of a hostile invading force and said the term occupation was “inflammatory, inaccurate and insensitive” to those who have been — or currently are — living under hostile occupation.
Testimony from Det. Isabelle Cyr was paused after the defence raised an objection, saying it had not been provided full disclosure of voluminous WhatsApp chat messages exchanged between convoy organizers and members. Cyr served on the police liaison team and had contact with several convoy organizers, including Barber, throughout negotiations between police and demonstrators.
Testimony from Const. Craig Barlow was also paused on the trial’s first day. Barlow, a cybercrime investigator, was tasked with preparing a “compilation” video of convoy demonstration highlights. The defence objected and has requested a complete list of all the police-sourced videos Barlow viewed when making his compilation.
(Both Cyr and Barlow may be recalled later to complete cross-examination by the defence.)
The defence submitted a series of “admissions” in an effort to exclude nine civilian witnesses — downtown residents and business owners — from testifying. The admission essentially states that the elements of the offence of mischief were present in the convoy. The admission is not specific to the actions of Barber or Lich, however, and relates to the entire convoy as an entity. The Crown has so far rejected this admission and says it can prosecute the case the way it chooses. That issue is still to be decided before the case proceeds to those potential witnesses. Zexi Li, who is at the centre of the pending civil lawsuit, was one of those downtown residents who received a summons to testify at this criminal trial.
Barber’s lawyer, Diane Magas, said on Tuesday, Sept. 19 that if the current delays in the trial continue, she would need to consider making a Jordan application, which stipulates that any person charged with a crime has the right to be tried within a reasonable time.
The time it’s taking
“I’m very surprised that it wasn’t anticipated there would be a huge amount of procedural challenge on a case like this,” said Michael Kempa, associate professor of criminology at the University of Ottawa. “I’m astounded they only booked 16 days.”
Kempa said Ontario has a “massively overloaded” court schedule and the fall tends to be the busiest season at the Ottawa courthouse.
Issues with the disclosure of evidence are not uncommon in criminal trials, but Kempa said the Crown’s “precise case and evidence should be tightly organized well in advance, such that there would have been full and inclusive disclosure available to the defence… to not extend all of these loose threads for the defence to continue to pull apart, which, frankly, is their job.”
This is a high-profile criminal trial that is also being litigated in the “court of public opinion,” Kempa said, and the defence has managed to provide its own “counter-narrative” to the Crown’s allegations.
In the normal course of a criminal trial, the Crown has the first opportunity to present its case, with the defence team typically waiting for the close of the Crown’s evidence to mount a defence.
The numerous objections and procedural issues raised by the defence have helped to “flip the script,” Kempa said.
“In addition to flipping the script and having the opportunity to present an equally weighted counter-narrative for the judge and the public, it’s also procedurally important. It’s essentially saying, if you’re giving the Crown all this time to present evidence that (the defence is) arguing is not relevant, then (the defence) should have the same amount of time.”
That played out in court during the second week of trial when the Crown presented a volume of video evidence of demonstrators using the “Hold the line!” rallying cry.
The defence was then afforded an equal opportunity to tender video evidence of protesters saying the demonstration was about “peace, love, unity and freedom.”
“If (the defence) can legitimately extend the amount of time spent talking about the non-essential issues, they are improving the positions of their clients,” said Kempa.
What’s still to come
Radcliffe has said the Crown intends to call witnesses from the senior leadership of the Ottawa Police Service, senior city officials, members of the OPS police liaison teams and witnesses from OC Transpo.
After a break beginning next week, the trial is set to resume for three days from Oct. 11 to 13, which was initially slated for closing arguments.
The original timeline now appears to be all but impossible, as the judge looks for more trial dates in October and November.
Read more convoy protest news coverage:
Convoy protest organizers’ lawyers attempt to block Ottawa residents from testifying at trial
Trial for convoy protest organizers not about their political beliefs, Crown says
Newsmakers 2022: The ‘Freedom Convoy’
Why were convoy trucks allowed downtown in the first place? And other questions answered by reports on the protest response
How Tamara Lich transformed from spokeswoman to symbol of ‘Freedom Convoy’ movement
Criminal trial for ‘Freedom Convoy’ organizer Pat King trial to begin in November
Second report from People’s Commission on Convoy Occupation pitches how city could rebuild residents’ trust
With files from The Canadian Press
Five things in store for Ottawa city council this fall
Newsmakers 2022: The ‘Freedom Convoy’