The Crown and defence teams continued a disclosure dispute over the release of Ottawa Police Service (OPS) communications on the twenty-third day of the Chris Barber and Tamara Lich trial in Ottawa, ON, on Friday.
Both Barber and Lich are being charged with mischief intimidation, obstruction of police, and counselling others to commit mischief, intimidation, and obstruction of police. The charges flow from the two defendants' roles as organizers of the 2022 Freedom Convoy in Ottawa, a peaceful demonstration opposed to governmental decrees, edicts, lockdowns, mandates, and orders marketed as "public health" measures to reduce the spread of COVID-19.
The Crown is seeking to maintain redactions placed on a series of OPS documents sought by the defence for full disclosure. One broad category of documents relates to data erased from two OPS officers – who were both Crown witnesses in the trial and worked in the OPS's Police Liaison Team (PLT) during the Freedom Convoy – work phones, and the other category relates to an email chain between PLT officers with the subject line "PLT Disclosures".
One category of documents sought by the defence teams to be fully disclosed is an email chain between OPS PLT officers and is essentially entirely redacted aside from a subject line – "PLT Disclosure" – and several officers' email addresses. The Crown seeks to retain the redactions of these documents in their entirety on the basis of solicitor-client privilege, despite the email not being sent to or from lawyers. The Crown deferred to the OPS's legal department, which sent Vanessa Stewart to represent its claims during the proceedings. Stewart said the police-to-police emails are confidential and should remain undisclosed because they contain information pertaining to legal counsel provided to the OPS officers by the OPS's legal department.
Stewart stated the OPS's position on Thursday, in which she said the OPS will not waive its claim to solicitor-client privilege to shield the OPS PLT email chain from full disclosure.
Diane Magas, Barber's legal counsel, emphasized the email chain's absence of correspondence with legal counsel. She said a condition for confidential protections of documents under the framework of solicitor-client privilege requires direct communication with a lawyer offering legal counsel. She contrasted lawyer-to-client emails – which are shielded from disclosure requests via solicitor-client privilege – containing legal guidance and emails between people who are not lawyers.
"That's a valid distinction," Justice Heather Perkins-McVey, the presiding judge over the trial, replied to Magas's statement.
On Thursday, Perkins-McVey questioned the Crown's attempt to apply solicitor-client privilege to the OPS PLT email chain. "I'm still trying to figure out how the police are a client," she stated.
A separate category of documents the defence team wishes to have fully disclosed relates to the data erased from at least two OPS PLT officers' work phones following what the officers said was a system update or upgrade. Const. Nicole Bach said her work phone was "wiped" following an update or upgrade of her device.
"It's unusual to have two PLT officers have their phones wiped," the judge said. She added, "[Officers] did not take the responsible steps to ensure [that] ... all the relevant documents [relevant to] disclosure were preserved."
Eric Granger, co-counsel for Tamara Lich, told Rebel News the ongoing disclosure dispute may be resolved next week when the trial resumes on Tuesday.