"The Crown has never suggested the Freedom Convoy was violent," said prosecutor Siobhan Westcher on Wednesday, day 30 of Chris Barber and Tamara Lich's trial in Ottawa, ON.
She added, "[The Freedom Convoy] didn't descend into rioting" and that "the absence of violence doesn't make something peaceful. ... [but] is merely a lack of an aggravating factor."
Both Barber and Lich are charged with crimes linked to their organizational roles in the Freedom Convoy of 2022, a peaceful protest against decrees, edicts, orders, mandates and lockdowns issued by varying levels of government and marketed as 'public health' measures to reduce the transmission of COVID-19.
They are both charged with mischief, intimidation, obstruction of police and counselling others to commit mischief, intimidation and obstruction of police.
Westcher's remarks were made in the context of the Crown's Carter application, which, if approved by Justice Heather Perkins-McVey – the judge presiding over the trial – would allow for incriminating evidence against one co-defendant to be attributable to both co-defendants.
A Carter application, if accepted by a judge, applied a conspiratorial framework to the assessment of evidence in a trial with more than one defendant.
If applied, the measure requires that culpability for all criminal acts linked to the conspiracy and committed by one defendant be applied to all other defendants.
It assumed the premise that such criminal acts were committed within the context of an agreement between the defendants towards the commission of one or more criminal acts.
The Crown seeks to convince the judge that the Freedom Convoy amounted to an unlawful protest organized and furthered as a criminal conspiracy by both Barber and Lich.
In order for its Carter application to be accepted by the judge, Perkins-McVey must accept the Crown's characterization of the Freedom Convoy as an unlawful demonstration.
Crown attorney Tim Radcliffe said, "Peaceful protest does not necessarily equate with lawful." He described Barber's repeated calls for "peaceful" protests – entered into the trial as evidence and shared by Diane Magas, his lawyer – as a plea to those "on the bandwagon" to partake "non-violently" in an unlawful protest.
Radcliffe said he would explain on Thursday why the Freedom Convoy was "not peaceful," repeating a characterization of the demonstration he expressed during the trial's first day in which he said the protest was "anything but peaceful."
He added, "Blocking or obstructing streets is illegal … [as is] obstructing access to property [or] its enjoyment." He noted, "All rights have limits."
During Wednesday's and Tuesday's proceedings, Magas dedicated most of her argument to emphasizing Barber's frequent advocacy for "peaceful" demonstrations from Freedom Convoy protestors and supporters.
She recalled that Const. Jordan Blonde – an Ottawa Police Service (OPS) officer who liaised with Barber during the Freedom Convoy – testified as a Crown witness that her client was "always amenable to working with the police" and was "always respectful".
Another OPS officer who testified as a Crown witness, Const. Nicole Bach, acknowledged that Barber had assisted the OPS in the moving of vehicles during the Freedom Convoy to facilitate the OPS's stated pursuit of "public safety."