Round 1 The Crown
Lich and Barber have maintained the protests were organized to end COVID-19 mandates.
WATCH | Lich and Barber arrive at Ottawa courthouse:
Crown argues Lich, Barber acted together during Freedom Convoy
'They’re not ordinary members of the occupation,' says Crown lawyer
The criminal trial of Tamara Lich and Chris Barber saw Crown prosecutors detail Thursday why they think two leaders of what became the Freedom Convoy acted in a preconceived conspiracy to commit criminal acts during their time in Ottawa.
Lich and Barber are on trial for committing mischief, obstructing police, counselling others to commit mischief and intimidation for their roles in the protest.
The two led protesters to Ottawa to rally against COVID-19 mandates and they stayed in the city until they were arrested on Feb. 17, 2022.
The defence is arguing the Crown has not shown enough evidence to convince the court the two were acting in a conspiracy, often referred to in court as a common unlawful design.
They say Lich and Barber promoted peace throughout the protests, that they were non-violent and merely planning a protest is not illegal.
The Crown says the two acted in a conspiracy to break the law, and any evidence applying to one should apply to the other.
They argue the conspiracy began on Jan. 29, the same day the two arrived in Ottawa.
'Spark that lit the fire'
The Crown pointed to examples of Lich being referred to as the "great leader of the truckers' movement" and the "spark that lit the fire" in videos posted to social media during the protests.
Crown lawyer Tim Radcliffe argued the context of the figurative "megaphone" Barber and Lich had was significant, pointing to video evidence where people were excited to meet them because of their role as leaders in the protest.
An
undated photo of Chris Barber, middle, and Tamara Lich taking part in
what became the Freedom Convoy protest in Ottawa during the winter of
2022. (Court evidence)
"Ms. Lich and Mr. Barber, they're not ordinary members of the occupation. They are leaders, publicly identified as such," he said.
He showed a video of downtown Ottawa congested with protesters, telling the court "this doesn't happen by accident" and was the result of planning by Lich and Barber.
Prosecutors also pointed to evidence from Barber's text messages sent to supporters, where he tells others the protest is "to cause grief" and that they "trainwrecked traffic" after the convoy's arrival in the city.
The Crown argues Barber and Lich were together on several occasions throughout the protest and referred to the events in Ottawa as "our protest."
The Crown showed evidence Barber had been told by police early in the protests — on Jan. 29, as he was arriving in the city — that they had to leave, but he told them that would only happen if mandates were dropped.
Ottawa police escalated warning messages to the protesters, including Barber and Lich, as the situation dragged on. The defence for Lich and Barber said the two were following the direction of police throughout the protests.
Warnings provided by police to demonstrators told protesters they must leave and anyone who didn't could be arrested for breaking the law.
The Crown is using the fact protesters, including Barber and Lich, didn't leave as evidence the phrase "hold the line" encouraged them to obstruct police, which they say took place a few days later when police began to remove protesters on Feb. 19.
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Convoy leader texted with ex-premier Brad Wall, current Sask. MLA, docs show
Text messages submitted as evidence in Chris Barber's criminal trial
Text messages retrieved from the cellphone of truck convoy protest leader Chris Barber show contact with a former Saskatchewan premier and a current provincial politician leading up to and during the 2022 protests in Ottawa.
Chris Barber's text messages, retrieved from his phone following his Feb. 17, 2022 arrest, had been sealed by a Superior Court judge. That was partially lifted this week so thousands of his text messages could be submitted as evidence in his criminal trial.
Barber is charged with protest co-organizer Tamara Lich with committing mischief, obstructing police, counselling others to commit mischief and intimidation for their roles in the protest.
The log of text messages contains thousands of messages sent between Barber and hundreds of other numbers.
Not all texts have a name attached and it isn't always clear who Barber is texting.
During her submissions in court, Barber's lawyer Diane Magas did confirm her client exchanged texts with Brad Wall, Saskatchewan's premier from 2007 to 2018, and Saskatchewan Party MLA Hugh Nerlien.
Their names were also attached to conversations with Barber.
Brad
Wall, seen here exactly one year ago, served as the 14th premier of the
province from 2007 until his retirement from politics in 2018. He
communicated with Barber in early 2022 regarding the event, texts
revealed in court show. (Alexander Quon/CBC)
The text messages show Wall and Barber — who both live in the same area of Swift Current, Sask. — communicated before and during the protest in Ottawa.
In the texts, Wall encourages Barber and tells him "the peaceful protest part of all this is key."
He warns Barber the group will likely be "provoked by counter-protesters and it is so important that they don't take the bait."
Condemn ulterior motives, Wall said
Wall, who led the still-governing Saskatchewan Party, told Barber anyone hitching their wagon to the convoy with ulterior motives should be "openly and roundly condemned."
He singled out Pat King, another convoy organizer facing criminal charges, and his "Anglo Saxon replacement theory" as an example.
On Jan. 28, as Barber was approaching Ottawa, Wall said he thought the convoy was "creating some elbow room for provinces to begin to move away from mandates."
He also told Barber the convoy "needs an endgame."
"It is clear you will not be changing the feds' minds and certainly no one is resigning. So then what?"
He tells Barber the convoy could point to recent announcements of mandates ending in Ontario and Saskatchewan to "highlight the support that you have brought to the cause for an end to mandates and restrictions — and declare a victory of sorts."
It is clear you will not be changing the feds'minds ...So then what?
- Brad Wall text to Chris Barber
Wall suggests Barber consider donating the money they had raised along with a news release headline that would tie the gift to the provincial easing of restrictions.
Wall also tells Barber he has a family member in the Ottawa area willing to help, and warns Barber a photo of a Terry Fox statue being vandalized is "unravelling online support even among those who previously supported the convoy."
On Feb. 2, weeks before police dismantled the protests, Wall asked Barber if he thinks it is time to "claim victory and end the occupation."
Barber responds by saying "not quite yet" because they are "working with city police to strengthen our spots" and move out of residential areas.
The communication between the two appears to end on Feb. 7 after Wall shares a tweet with Barber in reference to another convoy participant.
"He has been the worst to muffle," Barber responds.
Wall did not respond to calls and emails from CBC to his office.
Barber is seen being arrested by Ottawa police officers in downtown Ottawa in February 2022. (Kirk Hill/Facebook)
Saskatchewan MLA expressed support for convoy
Barber's text messages also show he received a message from Nerlien, an MLA for Kelvington-Wadena since 2016.
After introducing himself in a text, Nerlien writes his government has "numerous challenges with the feds. Appreciate all you're doing. Great well-articulated message."
Nerlien issued an emailed statement to CBC saying Barber is part of his extended family and texts were not related to his work as an MLA.
"At the time, Premier Moe expressed support for some of the truckers' concerns, in particular their concern about unvaccinated truckers not being allowed to cross the U.S. border, but he also consistently advised the truckers that they should not block border crossings or engage in any other unlawful activity. That was my position as well," the statement read.
Later in the exchange, Barber tells Nerlien he is a "man without a party" because the Saskatchewan government brought in mandates related to COVID-19.
Nerlien responds by saying Moe is "fighting back everyday but not getting much recognition for it."
Before the convoy, he tells Barber the "national media are not your friends" and accused some journalists of "spewing" comparisons to the Jan. 6, 2021 riot on Capitol Hill "just to stir the pot."
Barber responds by saying protesters expected this and "we are up against the government and they are scared."
Their conversation appears to end on Feb. 6 during the first week of the convoy.
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Lich, Barber begin defence in convoy trial
Defence wants evidence to stand alone against individual it applies to, rather than both accused
Defence lawyers for Tamara Lich and Chris Barber began making their case in an Ottawa courtroom arguing evidence applying to one of the accused should not be used against both.
Lich and Barber are on trial for charges of committing mischief, obstructing police, counselling others to commit mischief and intimidation for their roles in the protest.
Crown prosecutors argue the two worked together in their capacity as leaders of what became the Freedom Convoy and conspired to commit criminal acts when they helped lead demonstrators into downtown Ottawa, where they remained for several weeks and caused significant disruption to residents.
But Lich and Barber's lawyers argue the Crown didn't provide enough evidence for the court to infer the two worked together at a level where a conspiracy to commit crimes, or a common unlawful purpose, occurred.
The defence lawyers want the evidence to stand alone against the individual it applies to rather than both of the accused.
Tamara Lich arrives for her trial at the Ottawa Courthouse on Sept. 19, 2023. (Justin Tang/The Canadian Press)
Defence says objectives not 'illegal'
In his submissions, Lich's lawyer Eric Granger argued that while the protesters had collective objectives to argue against COVID-19 mandates, those objectives were not "inherently illegal."
Granger argued the Crown can't apply evidence to both accused unless they can prove there was an agreement to protest mandates by illegal means. He argued that evidence was not provided as part of the Crown's case.
"While there is evidence of conduct that can be argued to be illegal by individuals, there is no evidence of an agreement to engage in illegal activity," the defence submission read. "Similarly, there is no evidence of any of the leaders of the Freedom Convoy 2022 agreeing to pursue their ends by way of illegal activity."
Lich's defence admits she uses the phrase "hold the line." Crown prosecutors used this to demonstrate she was encouraging people to stay in Ottawa even after police had told protesters to leave.
Granger argued the phrase's meaning isn't defined by Lich or anyone else, saying it's "speculative" to link the phrase to encouraging illegal activity.
Lich's defence said all of her statements point to her "seeking to engage in a protest that was lawful, safe and peaceful."
Barber's lawyers have filed a similar submission and are expected to make similar arguments later this week.
The Crown is expected to respond to the defence's application regarding the evidence once the defence has finished making its submissions on the subject.
Decision should be after all evidence submitted: Crown
In its written submissions filed with the court, the Crown argues the defence is prematurely bringing its application forward because such arguments are exclusively made after the defence and Crown finish making their respective cases.
The Crown also submitted materials supporting why evidence should simultaneously apply to Lich and Barber.
In its court filings the Crown said Lich and Barber, in their capacity as leaders of the protest, "communicated about attending a meeting to discuss strategy to 'gridlock the city.'"
They allege Lich, after police escalated operations to remove people from Ottawa, encouraged others to join the protest.
They say she frequently encouraged protesters not to back down or retreat, citing instances she used the phrases "hold the line", "for the long haul" or "this is my hill."
They said Barber encouraged people to honk their horns and to also join the protest.
Justice Heather Perkins-McVey has signalled she doesn't intend on making a decision regarding the application of evidence by week's end. A ruling on how she will use the evidence in her final judgment is expected at a later date.
Previously sealed texts detailed in court
Several text messages obtained from Chris Barber's cellphone previously sealed by the Superior Court of Justice were unsealed during proceedings on Monday.
They show Lich and Barber communicating in the days leading up to their Jan. 29, 2021 arrival in Ottawa about logistics and fundraising for the protest.
The texts also show that, by Jan. 22, Lich was raising concerns with Barber over Pat King, another convoy organizer facing criminal charges for his role in the protests.
Lich told Barber that in regards to King, they had to "control his rhetoric."
The texts appear to show communication between King and Barber ended shortly after protesters arrived in Ottawa.
Granger argued this indicates there was a divergence in objectives of protesters and an internal struggle of leadership, but maintained the public purpose of the protest from Lich and Barber's perspective was to end COVID-19 mandates.
He also detailed during his submissions how Lich referred to the protests as a peaceful, family-friendly event and encouraged supporters to report anyone making threats or spreading hate to police, including in a Jan. 29 video she posted to social media.
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