Day 32: Crown alleges 'conspiracy' between Tamara Lich and Chris Barber in 'unlawful protest'

If accepted by the judge, a Carter application filed by the Crown would allow for incriminating evidence against one defendant to be applied to the other, too.

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The Crown and defence team continued their dispute over the prosecution's Carter application on the thirty-second day of the Chris Barber and Tamara Lich trial on Friday in Ottawa, ON.

Barber and Lich are accused of committing mischief, intimidation, and obstruction of police. They are also charged with counselling others to commit mischief, intimidation, and obstruction of police.

The charges stem from the two defendants' roles as organizers of the Freedom Convoy in 2022, a peaceful demonstration in downtown Ottawa against government decrees — including "vaccine mandates" and lockdowns — ostensibly issued in pursuit of "public health" in the context of COVID-19.

A Carter application, if accepted by the judge, would allow for incriminating evidence against one defendant to be applied to the other, too. 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 pursuit of a criminal conspiracy in which the defendants participated.

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 criminal acts. 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.

The defence teams are arguing that the Freedom Convoy was a decentralized series of protests and protesters, and that the portion of it linked to the defendants was both "peaceful" and "lawful."

"The Crown has never suggested the Freedom Convoy was violent, it didn't descend into rioting," prosecutor Siobhan Westcher stated on Wednesday. "The absence of violence doesn't make something peaceful. ... [but] is merely a lack of an aggravating factor." Westcher also said the Freedom Convoy's status as either lawful or unlawful should be determined by the judge via consideration of an application from the defence teams requesting that she deem the demonstration as lawful.

On Thursday, prosecutor Tim Radcliffe characterized the Freedom Convoy as an "occupation" and "obstruction". The mirroring of language — such as calls for "freedom" and slogans such as "freedom over fear" — between the defendants and the demonstration's participants, he added, was indicative of the defendants' control and influence over what he described as an "unlawful protest".

Freedom Convoy protesters using the same political and philosophical language as Lich and Barber, Radcliffe argued, demonstrated the defendants' leadership role over the protest. Justice Perkins-McVey replied that such language was not uncommon in the political realm.

Eric Granger, co-counsel for Lich, argued on Friday that the request from Westcher amounted to an inversion of the presumption of innocence, given that the burden of proof lies upon the prosecution to prove the accused's criminality.

In the current dispute over the Carter application submitted by the Crown, the defence teams are requesting that the judge dismiss it on the basis of insufficient evidence. If the judge rejects the defence teams' motion to dismiss the Crown's Carter application, the Carter application will then be reviewed by the judge and the two sides will present their arguments. 

Diane Magas, Barber's lawyer, told Rebel News that the burden of proof upon the Crown is lower in the context of securing the judge's consideration of a Carter application than it is to secure the judge's acceptance of the application. In other words, the question before Perkins-McVey at this stage in the trial is whether or not she should accept the prosecution's Carter application for full consideration and review.

The trial's proceedings resume on Thursday. The trial is expected to then continue sometime in January of 2024.

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