The thirty-third day of the trial of Chris Barber and Tamara Lich on Wednesday in Ottawa saw a continuation of an ongoing dispute between the Crown and defence teams over the prosecution's attempt to have the two defendants viewed as co-conspirators working together to execute an unlawful protest.
Both Barber and Lich are charged with mischief, intimidation, obstruction of police, and counselling others to commit mischief, intimidation, and obstruction of police. The charges flow from their roles as organizers of the 2022 Freedom Convoy, a peaceful and civilly disobedient protest in downtown Ottawa broadly opposed the decrees, edicts, orders, mandates, and lockdowns ostensibly issued as "public health" measures by all levels of government to reduce the spread of COVID-19.
Rebel News reported on the Crown's submission of a Carter application to Judge Heather Perkins-McVey, the judge presiding over the trial. As per that previous report:
A Carter application, if accepted by the judge, would allow for incriminating evidence against one defendant to be applied to the other. An accepted Carter application applies a framework of conspiracy to the defendants, and accepts a claim by the Crown that both defendants entered into a conspiracy or agreement to commit criminal acts.
Within this framework, crimes deemed to have been committed by one defendant are attributed to the other, given the premise that such crimes were committed in furtherance of a criminal conspiracy agreed to by the defendants.
In order for a Carter application to be accepted, the Crown must persuade a judge or jury – depending on the type of trial – that the defendants entered into a conspiracy to commit crime. In the context of the Barber and Lich trial, the prosecutors are seeking to convince Justice Heather Perkins-McVey – the presiding judge – that the Freedom Convoy was an "unlawful protest" executed by the two defendants via criminal conspiracy.
According to claims made by the prosecution last week, the defendants' absence of advocacy for Freedom Convoy demonstrators to end their protest and return home is evidence of a conspiracy between Barber and Lich in pursuit of a crime. The crime, the Crown holds, was furtherance of an "unlawful assembly" in the form of the Freedom Convoy.
"The Crown said the defendants never told people to go home," Diane Magas, Barber's lawyer, said on Wednesday in response to the claims. "There's no positive requirement on defendants to do that," she added, concluding that the defendants' lack of calls for Freedom Convoy demonstrators to end their protest is "irrelevant" to the Crown's Carter application claims.
The defence teams are currently seeking to have the judge dismiss the prosecution's Carter application prior to its full consideration on the bases of insufficient evidence presented by the Crown to substantiate its attempt to characterize Barber and Lich as co-conspirators. If the judge rejects the defence teams' request, she will then fully consider the prosecution's Carter application and hear further arguments from both sides before deciding if the Carter application is accepted and applicable to the trial.
Another outstanding dispute between the Crown and defence teams is over the admissibility of remarks made by Ontario Superior Court Justice Hugh McLean in February 2022 in the context of a court-ordered injunction to stop honking by motorists in downtown Ottawa participating in the Freedom Convoy. McLean's ruling has been entered as evidence in the trial, but the relevance of supplementary comments made by McLean – presumably elaborating on his legal rationale for issuing the injunction — are being contested between the two sides.
Perkins-McVey previously speculated that reading transcripts of McLean's remarks in relation to his order would provide insights into his legal reasoning.
Wednesday's proceedings took about one hour, given limited shared availability between the defence teams, judge, and prosecution. Tamara Lich attended the proceedings via Zoom, while Chris Barber — who lives in Saskatchewan — was in the courtroom given that he had not yet returned home since coming to Ottawa for last week's proceedings.
Brief proceedings are scheduled to resume on January 4, 2024, for the primary purpose of scheduling future dates for the trial.