Tamara Lich Trial Day 24: Judge sides with defence on disclosure dispute

Both Chris Barber and Tamara Lich are being charged with mischief intimidation, obstruction of police, and counselling others to commit mischief, intimidation, and obstruction of police. The charges are related to the two defendants' roles as organizers of the 2022 Freedom Convoy to Ottawa, a peaceful demonstration opposed to governmental decrees, edicts, lockdowns, mandates, and orders described as "public health" measures to reduce the spread of COVID-19.

Day 24 of the trial, Chris Barber is greeted by a leftist dressed as a Unicorn.https://t.co/0PllO9LU4v pic.twitter.com/cFScB2w2Bm

— Guillaume Roy (@guillaum3roy) October 31, 2023

Justice Heather Perkins-McVey, the presiding judge over the trial, decided that a five-page document — which initially was essentially fully redacted by the prosecution and sought by the two defence teams to be revealed — should be fully disclosed to them.

The document relates to the loss of data on two Ottawa Police Service (OPS) officers' work phones, following what the two officers said was a software upgrade on their devices.

Both officers work with the Police Liaison Team (PLT), a group of officers who deal with stakeholders to coordinate security and public safety matters during "special events". PLT officers communicated and coordinated with Barber during the Freedom Convoy demonstration, and the two officers in question — Consts. Nicole Bach and Isabelle Cyr — were invited as witnesses in the trial by the prosecution.

The Crown described the document as "inadvertently" coming into their possession over the course of its collection of information, and that therefore the document was not its to disclose to the defence teams. It further advised the defence teams to submit a third-party application to obtain the document, which allows the judge — if they decide — to review documents held by third-parties to determine relevance to a case while taking into consideration privacy considerations.

The defence said the Crown's possession of the document made it subject to first-party disclosure requirements, regardless of the Crown's claim that the document was acquired "inadvertently." The judge agreed with the Crown's claim that the document maintained third-party status, and upon reviewing it, decided it was relevant and should be fully disclosed to the defence teams given their earlier submission of a third-party application for its disclosure.

A second document, an email chain between OPS PLT officers, is also redacted by the prosecution and sought for full disclosure by the defence counsels. The Crown stated that the OPS' legal department claimed solicitor-client privilege over the email chain, and that as such the email chain should remain undisclosed.

"It is very unusual to have two police officers in important roles ... lose this potentially important information," the judge says, regarding another disclosure dispute over lost data on two OPS officers' phones who directly communicated w/Chris Barber.https://t.co/TWDiMnjMOA

— Robert Kraychik (@rkraychik) October 31, 2023

The defence lawyers countered that the email chain does not include lawyers as either recipients or senders, and therefore is not shields from disclosure via solicitor-client privilege. The Crown said the emails contain information and guidance from the OPS' legal department for the officers, communicated by the officers amongst themselves, and should therefore be protected by solicitor-client privilege.

The Crown has called for the documents in question, internal police emails, to be kept confidential via solicitor-client privilege, since the emails relay legal guidance provided to Ottawa Police Service officers from the OPS's legal department. https://t.co/gUilchuLrW

— Robert Kraychik (@rkraychik) October 31, 2023

Justice Perkins-McVey said there have been instances where solicitor-client privilege was applied to communications not directly involving lawyers as parties, but abstained from issuing a ruling on this disclosure dispute during the day's proceedings.

Judge explained that solicitor-client privilege can and has previously been applied to communications absent lawyers. In other words, a lawyer is not necessarily required to be directly involved in a communication for it to be shielded by this protection.https://t.co/TWDiMnjMOA

— Robert Kraychik (@rkraychik) October 31, 2023

The judge said she needs more time for "careful consideration" of the disclosure dispute given what she described as a sacrosanct and bedroom legal principle of solicitor-client privilege.

Judge is withholding judgement on disclosure of these documents - internal OPS emails between cops containing legal guidance from their legal department - for now, adding that her decision will require more "careful consideration". https://t.co/S2ogFHUj5Ahttps://t.co/TWDiMnjMOA

— Robert Kraychik (@rkraychik) October 31, 2023

Lawrence Greenspon, Lich's defence counsel, told Rebel News that he hopes the judge will quickly issue her decision on the disclosure dispute regarding the email chain. He said he and his counterpart, Diane Magas, who is representing Chris Barber, do not wish to proceed with cross-examination of Const. Jordan Blonde, an OPS officer who directly dealt with the Freedom Convoy demonstration in several capacities in his work, until the judge determines what, if anything, she will disclose from the OPS PLT email chain.