The 22nd day of Chris Barber's and Tamara Lich's trial on Wednesday in Ottawa continued the previous week's disclosure dispute between the Crown and defence counsels regarding redactions of portions of Ottawa Police Service (OPS) documents.
Both Barber and Lich are charged with crimes related to their roles as organizers of the Freedom Convoy in the Winter of 2022, a peaceful and civilly disobedient protest in Canada's capital city against decrees, edicts, lockdowns, mandates and orders issued by government and marketed as "public health" measures to reduce the spread of COVID-19.
Eric Granger and Diane Magas, defence counsels for Lich and Barber, respectively, requested full disclosure of two batches of documents. One batch relates to the erasure of data from two OPS officers' work phones, and the other is a series of emails between OPS Police Liaison Team (PLT) officers.
The Crown claimed its partial and complete redactions of different documents sought by the defence were justified on the grounds of solicitor-client privilege, litigation privilege, and irrelevance.
Justice Heather Perkins-McVey, the judge presiding over the trial, repeatedly asked how communications between police officers — not involving lawyers — are protected by solicitor-client privilege. Vanessa Stewart, counsel for OPS, told the judge that police-to-police communications regarding advice provided by the Crown regarding the Barber and Lich trial amounted to confidential correspondence as does communication between a lawyer and client.
The judge also challenged Stewart's claims that the undisclosed documents are irrelevant to the trial. Perkins-McVey said Stewart's ability to assess relevance of evidence is limited given non-participation in the trial and unfamiliarity with the proceedings, thus far.
"I'm still trying to figure out how the police are a client," Perkins-McVey said.
Magas noted that the subject line of one of the document batches – an email chain which was essentially entirely redacted – had the subject line "PLT Disclosure".
"The subject line certainly suggests that it's something relevant," Magas said in response to the Crown's claim that the email chain was irrelevant to the trial.
Granger said his disclosure request was consistent with precedent set in the 1991 Supreme Court of Canada decision in R. v. Stinchcombe.