Disclosure disputes continued to consume much of the 25th day of proceedings in the trial of Chris Barber and Tamara Lich on Wednesday, in Ottawa, ON, maintaining an ongoing trend since the previous week.
Barber and Lich are both accused of mischief, obstructing police, intimidation and counselling others to commit mischief, obstruction of police, and intimidation.
The charges stem from the two co-defendants' roles as organizers of the 2022 Freedom Convoy, a peaceful protest against decrees, edicts, lockdowns, mandates, and orders issued by varying levels of government marketed as "public health" measures to reduce the transmission of COVID-19.
Justice Heather Perkins-McVey, the judge presiding over the trial, has yet to decide how she will address a disclosure dispute between the Crown and defence teams regarding internal Ottawa Police Service (OPS) emails.
The Crown redacted most of the emails' contents in its submission to the defence teams on the basis of solicitor-client privilege claimed by the OPS's legal department, despite lawyers not being senders or receivers of any of the emails.
According to the OPS's legal department, the contents of the emails sent and received between OPS officers contain advice and guidance originally received from the OPS's legal department.
The judge accepted the Crown's claim of solicitor-client privilege applying to the internal OPS emails but she will review the emails to determine if anything – or all – of the emails contents should be shared with the defence if the emails' contents relate to "innocence at stake" regarding defendants in trials, which she said is the most common rationale provided by judges in instances of disclosure of documents that would normally be shielded from exposure.
Perkins-McVey ruled on Tuesday on another disclosure dispute regarding a five-page document, the specific contents of which have not yet been revealed to court observers.
She determined the document should be fully disclosed to the defence counsels. The document relates to erasure of electronic communications from two OPS officers' work phones.
Consts. Nicole Bach and Isabelle Cyr – who both work with the OPS's Police Liaison Team (PLT), which communicated and coordinated with Barber during the Freedom Convoy – testified as witnesses in the trial that their work phones had data lost following a software upgrade.
Lawrence Greenspon, Lich's lawyer, told Rebel News that the contents of the five-page document will likely be used in further cross-examination of Bach.
Const. Jordan Blonde, another OPS PLT officer, testified on Wednesday as a Crown witness. He worked on the ground in Ottawa's downtown as part of the OPS's PLT's response to the Freedom Convoy. Greenspon's cross-examination of the officer elicited acknowledgments that the Freedom Convoy featured some aspect of decentralized leadership, including multiple groups and multiple leaders.
Marwa Younes, one of Barber's lawyers, noted that Blonde had specifically described Barber as "always respectful, always polite and always amenable to working with the police."
Blonde further confirmed that the OPS's PLT had no discretion in its negotiations with the Freedom Convoy's organizers. He shared the sentiment expressed by Russel Lucas, the OPS's top PLT officer, regarding the OPS's top management restricting the PLT's breadth of discretion to negotiate with Freedom Convoy organizers for the purpose of consolidating the protesters' vehicle presence to reduce the demonstration's "footprint" in downtown Ottawa and lessen its negative impacts on the city's residents.
Rebel News reported:
"Not one inch" should be conceded to the Freedom Convoy in any negotiation with the Ottawa Police Service (OPS), Inspector Russell Lucas, an incident commander with the OPS, said during his testimony on Wednesday in the trial of Chris Barber and Tamara Lich in the Ottawa Courthouse.
Lucas said the directive against making any concessions to the Freedom Convoy eroded his discretion to liaise with the demonstrators in his capacity as incident commander.
This restriction of his freedom to act, he added, reduced his ability to pursue negotiations with the protesters in pursuit of what he said was his top priority — "public safety".
The "not-one-inch" directive – as it came to be referred to by Barber's and Lich's lawyers – was "an executive decision that was made beyond me," Lucas said. He added that he "complied" with the directive.
Lucas speculated that the "not-one-inch" directive came from the Ottawa Police chief's office, which at the time was held by former OPS Chief of Police Peter Sloly.
Greenspon asked Blonde if he agreed with one of his OPS colleague's assessments of the consequence of the OPS's management rescinding the PLT's discretion to negotiate with Freedom Convoy organizers. Blonde's colleague determined, "The lack of authority for PLT to make decisions… resulted in this catastrophic failure… [and] empowerment of the protesters at Rideau-Sussex, while showing them how valuable of a footprint this location truly is by how many times we came back to the table asking for it."