Initially scheduled for a tidy 10 days, it quickly became apparent the Crown’s new team had no intention of moving swiftly or efficiently. Three days in, Wetscher and Radcliffe were still introducing a vast array of evidence, mostly Facebook and TikTok posts plus thousands of text messages seized from the pair. The defence rightly argued all of this should have been revealed before the trial started. A week in, Ontario Court Justice Heather Perkins-McVey griped that her trial was already at risk of going “off the rails”. The Crown’s late disclosures left her feeling “very unhappy,” agreeing with the defence that “this should have been done well before the trial.”
“I want a not guilty. Period”: Despite the Crown’s plan to drag out their trial for as long as possible, Tamara Lich and Chris Barber were determined to see it through to the very end. Shown, Lich (at front left) and Barber (at front right) walk to court, November 1, 2022. (Source of photo: The Canadian Press/Adrian Wyld)
By the start of the second week, Lich’s defence lawyer Lawrence Greenspon tried to hurry things along by agreeing to accept some of the Crown’s arguments regarding the protest’s impact on residents in downtown Ottawa. “There were individuals who interfered with the enjoyment of property,” he admitted, suggesting the two sides put together an agreed statement of facts. Wetscher “respectfully declined” this offer. She instead promised to produce a lengthy parade of witnesses to complain about the garbage, noise, smells and congestion associated with the protest. Horn-honking by the truckers was to be a particular focus, given how much it irritated those living nearby.
Even Perkins-McVey thought this tactic was a waste of time. “I just don’t know if this evidence is going to have the weight that you hope,” she informed Wetscher, noting that Lich and Barber had no interactions with any of the prospective witnesses. Worried that her trial could “run on ad infinitum,” the judge allowed Wetscher to call just five local residents and imposed clear limits on what they could discuss.
‘I want a not guilty. Period. And I am not afraid. What are they going do, put me in prison? Been there, done that. If they can’t frighten you, they have no power over you.’ Prior to the trial, Lich had already spent 49 days in jail.
As the proceedings dragged on over the ensuing months for reasons both mundane and mysterious – the strange disappearance of internal police emails supporting defence arguments that the truckers were initially welcomed by the Ottawa Police Service and shown where to park was one such example – the assembled court watchers and journalists in Courtroom 5 at 161 Elgin Street began to speculate that Lich and Barber’s constitutional right to a prompt trial might be in jeopardy. This offered a potential escape hatch for the accused.
One regular unconvinced by this prospect was Lich herself. As she explained to C2C during a courtroom break, the idea of getting off on a technicality was anathema to her. “I don’t want a ‘Jordon’ decision,” she said, referring to a 2016 Supreme Court ruling that sets time limits of 18 to 30 months for most criminal trials. “I want a not guilty. Period. And I am not afraid. What are they going do, put me in prison? Been there, done that. If they can’t frighten you, they have no power over you.” Prior to the trial, Lich had already spent 49 days in jail.
Lich’s determination to see her trial out to its conclusion regardless of delays or hurdles likely posed a significant obstacle to the Crown. Considering the fury with which Canada’s legal system has pursued her and Barber for the relatively minor crimes of mischief and obstructing police during the Freedom Convoy protest, it seems plausible the Crown’s goal from the start was to bully them into accepting a plea bargain simply to bring the interminable prosecution to a close. Given its benign reputation but steep potential consequences, criminal mischief seems the ideal charge for this sort of brinkmanship. Set against a possible 10-year prison term, the prospect of pleading guilty to a modest-sounding crime and accepting some modest punishment might appeal to many.
“Even a rich person would not do this kind of trial”: Rebel News’ Erza Levant argues that the length of the case mounted by the Crown would likely have exhausted even the resources of multi-millionaires. Only the broad-based fundraising efforts of groups such as Rebel News and The Democracy Fund allowed Lich and Barber to counter the Crown’s strategy and avoid a plea bargain. (Source of left screenshot: Rebel News)
But Lich and Barber have refused to play the Crown’s game. Not only have they signalled a steely determination to let the trial play out to its end, they also have the financial resources to back up their resolve. Besides their own substantial fundraising efforts, both have benefited from the support of organizations such as Rebel News and The Democracy Fund in raising money for their lawyers.
As Rebel News’ Ezra Levant explained in an interview with another publication at the Ottawa Courthouse, “A poor person could not afford the nearly half million dollars needed to run a year-long trial. Even a rich person would not do this kind of trial, would not spend half a million dollars for this. They’d all cut a deal.” The decidedly working-class Lich and Barber are neither rich nor poor. But neither are they interested in cutting a deal. Halfway through the trial, Barber told C2C that he’d spent $30,000 of his own money on legal fees, as well as having received more than that from donations and other sources.
Unable to intimidate the pair or run them out of money, the prosecution had to get creative.
Get Carter
In November 2023, with the trial now two months old, the Crown unveiled an additional tactic to ensnare Lich and Barber: what is known as a Carter application. Named for a 1982 Supreme Court case involving a marijuana smuggling ring in the Maritimes, a Carter application sets out a series of steps and evidentiary standards required to link individuals together in a broader criminal conspiracy. Significantly, the focus of the Carter application in this case appeared to be on the sole charge that Barber faces alone.
If the Carter application succeeds in establishing a conspiracy scenario, a conviction for Barber on this single charge could then be applied to Lich as well. Even if she never did anything of the kind.
Lich and Barber together are charged with committing mischief, obstructing police, blocking a highway and counselling others to do all these things. Barber is additionally charged with one count of counselling others to ignore a court order. On February 7, in the midst of the protest, local residents received a court injunction prohibiting gratuitous horn-honking in downtown Ottawa. Two days later, Barber posted a TikTok video in which he said, “Grab that horn switch and don’t let go. Let that f—–’ horn go no matter what.” As Toronto criminal defence lawyer Ari Goldkind observes in an interview, this particular charge presents a “problem” for Barber: he is explicitly calling for protesters to violate the injunction. Of all the charges faced by the pair, this seems the most likely to stick. The issue for the Crown – given its palpable animosity towards Lich – is that it only sticks to Barber.
Amid the mountains of social media and other evidence collated and presented by the Crown, there is none that Lich ever encouraged anyone to break any court order or injunction. “There’s not one word emanating [from] Tamara Lich that she even said ‘honking’ or ‘horns’,” Greenspon pointed out during the trial. Quite the opposite. The evidence repeatedly shows Lich counselling others to remain lawful and respectful.
The Carter gambit: Midway through the trial, the Crown introduced a Carter application, a novel legal manoeuvre meant to ensnare Lich in a crime only Barber is alleged to have committed. Shown at top, the text of the TikTok video from Barber encouraging truckers to blow their horns following a court injunction against gratuitous horn-honking. (Source of bottom photo: JulieK2/Shutterstock)
The Carter argument, however, may provide the Crown with a sneaky way around this inconvenient lack of proof. According to Goldkind, Carter “basically uses the actions of one of the co-conspirators to obtain a conviction against the other.” If the Carter application succeeds in establishing a conspiracy scenario, a conviction for Barber on this single charge could then be applied to Lich as well. Even if she never did anything of the kind. Perkins-McVey has said she will rule on the Carter application when she renders her final judgement. And while such a legal manoeuvre appears to violate the principles of natural justice, it could be the Crown’s best and only shot at finding Lich guilty.
This is why it has been so important for the prosecution to show Lich and Barber together as co-leaders of the protest, as was the focus of the 106-slide PowerPoint presentation shown during the Crown’s closing arguments. “They’re not ordinary members of the occupation,” [emphasis added] Radcliffe explained in his final submission, using an inflammatory mischaracterization of the protest favoured by the government and other Freedom Convoy opponents. “They are leaders, publicly identified as such.”
This also explains the Crown’s odd fixation with pronouns. The prosecution submitted numerous examples of Barber and Lich using terms such as “we” and “us”, including when Lich said on February 3, “We plan to be here for the long haul.” According to Radcliffe, “that ‘we’ pronoun was endless,” and he claimed this proves their combined leadership role, as opposed to, say, their merely holding common views or expressing solidarity with other protesters.
Duelling definitions: Assistant Crown Attorney Tim Radcliffe (middle) claimed Lich’s catch-phrase “Hold the line” was a war-cry meant to incite open rebellion, while her defence lawyer Lawrence Greenspon (right) said it was simply an encouragement for protesters to carry on. (Sources of photos: (middle) IAP; (right) The Canadian Press/Patrick Doyle)
Radcliffe also engaged in a lengthy disquisition about the meaning of Lich’s catch-phrase “Hold the line.” According to the Crown, it was a war-cry meant to incite open rebellion; Radcliffe claimed the term actually “crossed the line” by encouraging illegal behaviour. According to Greenspon, however, “Saying ‘Hold the line’ was a way of encouraging demonstrators not to give up.” Perkins-McVey, for her part, observed that it could simply mean, “Stay true to your values.” The judge also noted that she’d heard police use the same phrase during crowd control efforts.
The frequency with which the judge engaged in often-pointed debate with the Crown attorneys seems noteworthy. Early in the trial, Radcliffe attempted to turn an obvious joke told on TikTok about how the protest was about to move to Toronto into further proof of nefarious purpose. Perkins-McVey quickly admonished him for his lack of imagination. “Reacting to a joke is not a crime,” she remarked offhandedly. She also went out of her way to scold him for imputing unproven radical or violent motives onto Lich and Barber. “They were moderate, that’s why [city] officials reached out to them,” Perkins-McVey explained. Another time, in response to Radcliffe’s assertion that the protest was “unlawful” based on statements made by the police, she wryly shot back, “Just because police say it was unlawful doesn’t make it so.”
Looking out for the accused: During the trial, Ontario Court Justice Heather Perkins-McVey frequently sparred with the Crown attorneys, admonishing them for imputing motives, missing jokes or wasting her time. As a defence lawyer in Ottawa prior to being called to the bench, Perkins-McVey was well-known for protecting the rights of her clients. (Source of photo: Bluewater Association for Lifelong Learning)
What appears to be the judge’s simmering frustration with the Crown’s interminable and often exaggerated arguments is fully in keeping with Perkins-McVey’s legal reputation. As a high-profile defence lawyer prior to being appointed to the bench, she was known throughout the Ottawa legal community for her determination on behalf of her clients’ rights. This story’s author, while an articling student, once crossed paths with Perkins-McVey in the Ottawa Courthouse lobby. “Someone has to stick up for them!” the future judge yelled from across the room, deep in a private argument. When your correspondent impishly asked “Who?” she responded to everyone within earshot, “The accused!”
The Defence Speaks at Last
Once the Crown rested its case, the defence – comprised of Diane Magas and Marwan Younes for Barber plus Greenspon and Eric Granger for Lich – introduced no further evidence and called no witnesses. Neither Lich nor Barber took the stand in their own defence, as is their right without prejudice. This move shortened the trial considerably and further emphasized that its excessive length to date was almost entirely the prosecution’s doing. It also required the Crown to go first during closing arguments, as is recounted in Part I of this series.
When the defence’s turn came, Barber’s lawyers spoke for the first two days, followed by another two days for Lich’s team. Granger spent his time explaining how his client never did anything illegal. “Leading a convoy of trucks to Ottawa is not unlawful,” he noted. “There is no evidence of Lich even being in a vehicle or parking in a vehicle. There is no evidence of her honking horns or emitting any exhaust. There is no evidence of any Ottawa residents having any interactions with Lich. No evidence of her personally obstructing a peace officer.”
Greenspon followed Granger and began with his reading of the dozens of previous mischief cases assembled by the Crown as legal precedent for the charges against Lich and Barber. None of them, he said, involved protesters “told where to park and where to stay, [and] then prosecuted for parking or staying” in those spots, he noted. The level of official direction provided to the protesters was unprecedented; Greenspon then displayed the maps given to the truckers by police showing “staging areas” around downtown Ottawa designated for their exclusive use. “Can it be said that in following the instructions of the OPS, that they weren’t in compliance with the very plan Ottawa police gave them?” he wondered. How could anyone be arrested for following police orders?
Is it against the law to obey the police? As Greenspon argued during his final summation, the Ottawa Police Service initially directed the truckers to park in designated staging areas, implying that the protest had official approval. At top, police-erected fencing demarcating the protest zone; at bottom, police mingle with protesters during the first days of the protest. (Sources of photos: (top) Gary A Corcoran Arts/Shutterstock; (bottom) Benoit Daoust/Shutterstock)
“What Tamara Lich encouraged was entirely lawful,” Greenspon continued. While she stands accused of counselling others to break the law, the evidence collected by the Crown itself points in the other direction. He noted her efforts to register the truckers and implement “a signed code of conduct.” Even more significant is the agreement she struck with Ottawa mayor Jim Watson to begin voluntarily removing trucks from Parliament Hill. The deal was signed before the imposition of the Emergencies Act. This is what Greenspon referred to as “moving day” in a telephone interview with C2C soon after the trial started. “The Emergencies Act was completely unnecessary,” he told C2C. “By February 12 there had been an agreement between Tamara Lich and the mayor of Ottawa to reduce the size of the footprint of the trucks…and it actually started to happen the same day as the invocation.”
‘They never put a time limit on…freedom of expression,’ Greenspon concluded. Nor should anyone.
Throughout the Freedom Convoy event, Greenspon told the court in his summation, Lich encouraged protesters to remain peaceful and “show respect for police officers.” All the Crown can prove, he asserted, is that “Tamara Lich knew there were lots of trucks that were impeding traffic, and as far as anyone could tell, the Ottawa police did nothing about it.” As for the Crown’s Carter gambit meant to ensnare Lich in Barber’s solitary transgression, Greenspon charged, “It is unprecedented for the Crown to take a democratic lawful purpose and try to juxtapose that with acts by other individuals.”
Early in the trial, Perkins-McVey had mused that the crux of the case before her rested on the issue of, “How do we balance the right to protest with the right to use and enjoy private property?” Greenspon returned to this central question in his summation, claiming it was an easy one to answer. Does a temporary interference into the daily lives of residents take precedence over the Charter-given rights of protesters to express themselves, he asked rhetorically. “We say not so!” he replied. “In a contest between constitutionally-protected rights and the interference in enjoyment of property, there is no contest.”
No limits: In a competition between the enjoyment of private property and the Charter-protected right to free expression, Greenspon declared “there is no contest” and that there should “never be a time limit” imposed on Canadians exercising their essential freedoms. (Source of photo: Valmedia/Shutterstock)
And when the judge provocatively asked him if the protestors should have policed themselves better by packing up and leaving prior to being forcibly evicted – Perkins-McVey didn’t spar only with the Crown’s attorneys – Greenspon shot back eagerly and with flourish. “Poppycock!” he declared. Any claim the truckers overstayed their welcome would amount to an “attempt to retroactively justify why the trucks were led into the downtown core without any time limit,” noting further that the February 7 horn-honking injunction explicitly preserved both the truckers’ right to remain in the Ottawa core and their liberty to engage in a peaceful, lawful and safe protest. “They never put a time limit on…freedom of expression,” Greenspon concluded. Nor should anyone.
“Biggest waste of time”
When the trial finally wrapped up on September 15, its 45 sitting days and 13-month duration likely set some sort of record for the Canadian legal system. In every aspect it had lasted far longer than expected, something that was almost entirely the result of Crown tactics and strategy. Even the closing arguments exceeded expectations as the prosecution demanded the right of reply to the defence’s summation, adding yet another day.
Veteran court reporter Aeden Helmer of the Ottawa Citizen, who covered every day of the trial, noted in his blog, “I have never encountered a trial that required 7 days just for closing arguments. I’ve covered murder trials that managed to get through closing arguments (in front of a jury) in a day or two.” According to The Democracy Fund, the prosecution of Lich and Barber constituted “the longest mischief trial in Canadian history”. Echoing Helmer, Greenspon noted that, “I’ve represented people charged with a lot more serious crimes than this, and the trials have not taken nearly as long.” During a courtroom break near the end of the case, Lich’s lead lawyer told a crowd of reporters, only half in jest, “We are going to apply to the Guinness Book of World Records.”
“This is the biggest waste-of-time prosecution in the history of waste-of-time prosecutions,” Toronto lawyer Goldkind exclaimed after the trial wrapped up. “The most serious charges in Canada of a criminal nature often take less than 30 days [to resolve at trial]. That this has gone on for 45 days…must be considered one of the most shameful episodes in Canadian legal history.” By way of comparison, the 1995 trial of Paul Bernardo, one of Canada’s most notorious murderers, was concluded in four months, although it sat for slightly more than 45 days.
“An obscene waste of taxpayers’ money”: High-profile Toronto defence lawyer Ari Goldkind (left) calls the 13-month-long trial of Lich and Barber “one of the most shameful episodes in Canadian legal history”. By comparison, the trial of Paul Bernardo (right), one of Canada’s most infamous murderers, lasted just four months. (Sources of photos: (left) CBC; (right) The Canadian Press/Frank Gunn)
For Goldkind, the political vendetta against Lich and Barber is not only vexatious and unfair but a grotesque squandering of public resources. “Every day the courtroom was filled with this stupid case meant there were other trials for rape, child abuse, sex assault, drinking and driving, drug trafficking that were being delayed,” he says, an assessment based on his own experiences as a criminal lawyer. “This was an obscene waste of taxpayer’s money on every level.” In this observation, Goldkind echoes the work of prominent Queen’s University law professor Bruce Pardy, who has written extensively on how Canada’s courts have become badly clogged and afflicted by delays for nearly all legal procedures.
Punished by Process
In his classic 1979 text The Process is the Punishment, American sociologist Malcolm M. Feeley observed a clear distinction in the form of punishment meted out by the upper and lower courts of New Haven, Connecticut. As the higher federal courts were concerned with serious crimes such as armed robbery, rape and murder, they thus dealt out significant penalties, including lengthy jail sentences and possibly even capital punishment.
The lower courts, however, were involved with relatively minor crimes that attracted suitably lighter sentences. Feeley’s insight was that the true nature of the punishment they delivered lay in the accumulation of pre-trial burdens placed on the accused, such as meeting bail requirements, getting time off work, attending court and so on. By the time a verdict was rendered – whether guilty or not guilty – the “sentence” was essentially over.
This phenomenon has only worsened throughout North America in the ensuing decades, as prominent commentators such as Mark Steyn have noted. Others, like Canadian media icon Conrad Black, use the term “prosecutocracy” to describe the vindictive and unjust manner in which the legal system can pursue a target out of all proportion to the matter at hand. The prosecution of Lich and Barber appears among the most egregious examples of such punishment-by-process yet to be found in a Canadian court.
Ground down by the system: Based on his observations at the County Courthouse in New Haven, Connecticut (top left), Malcolm M. Feeley’s 1979 book The Process is the Punishment argued that the true form of legal punishment often arises from the many pre-trial burdens and obligations placed on the accused – regardless of the ultimate verdict. More recently, conservative commentators Mark Steyn (bottom left) and Conrad Black (bottom right) have amplified this message. (Sources of photos: (top left) ajay_suresh – New Haven County Courthouse, licensed under CC BY 2.0; (bottom left) The Standard; (bottom right) ideacity/YouTube)
Having been identified by politicians in Ottawa as the leaders of a national protest-cum-uprising that allegedly required the invocation of the Emergencies Act, and hence the suspension of Canadians’ essential rights and freedoms, the pair must now fulfill their putative role as arch-villains. But instead of charging them with serious crimes such as sedition or rioting, the worst the police could come up with were mischief and obstructing police. Depressingly – for the powers-that-be – these crimes typically entail only modest sanctions. And based on the experience of other protesters arrested at the same time, Lich and Barber seem likely to be found not guilty as charged. Or, failing that, to receive a sentence no longer than time already served.
It is possible that Justin Trudeau will no longer even be prime minister by the time Lich and Barber learn their fate. And his successor will almost certainly claim that the whole mess wasn’t their doing.
And so, in order to validate the (purely figurative) high treason of Lich and Barber, the Crown has had to think outside the box. This presumably explains the legal gymnastics of the Carter application – an attempt at finding Lich guilty of a crime only Barber is charged with committing. But even that seems like a long shot. Which in turn has necessitated the Crown’s ultimate tactic: to drag out the case such that the legal process itself – with all the costs, obstacles, uncertainty, wasted time and personal stress that entails – either spurs the defendants to plead guilty or, failing that, serves as the punishment itself. All before the formal verdict is rendered.
It may also be hoped in some quarters that this delay and obfuscation will lessen the political embarrassment should the entire matter fizzle out ignominiously. If the verdicts are not guilty, or guilty but with punishment as time served, most Canadians may hardly even notice, having grown bored with the whole topic and “moved on.” Indeed, it is possible that Justin Trudeau will no longer be prime minister by the time Lich and Barber learn their fate. And his successor will almost certainly claim that the whole mess wasn’t their doing and that they always had doubts about invoking the Emergencies Act.
Necessary victims: In order to validate the Liberal Cabinet’s decision to invoke the Emergencies Act, it became necessary to paint the Freedom Convoy as a full-scale threat to public order, and Lich and Barber as notorious insurrectionists. Shown, Barber (left) and Lich (right) are arrested in downtown Ottawa on February 17, 2022 on mischief charges.
It is for such self-serving and, some might say, deeply unjust motives that a petite, devout Métis grandmother has been presented to the world as a dangerous, violent rebel whose mere liberty would threaten the safety of all of downtown Ottawa, and whose subsequent communications on social media might destabilize Canada itself. And why she has already spent 49 days in jail for a crime than generally results in no jail time at all.
This is why Karimjee, the original Crown prosecutor, absurdly argued that the fact Lich had accepted a public honour was reason enough to lock her up for years. And why, when that same over-zealous, Liberal-donating prosecutor thought he had her trapped in another bail breach when she allowed her picture to be taken with lawyers just slightly off-stage, he issued a Canada-wide warrant for her arrest and sent homicide detectives to Medicine Hat to bring her back to Ottawa – who actually placed her in leg shackles. If any of these theatrics was justified, Lich would indeed be the greatest criminal threat this country has seen since the FLQ Crisis or the Riel Rebellion.
Only when the case finally made its way into a courtroom, however, was the true nature of the prosecution’s animus fully revealed. “This should not be the trial of the Freedom Convoy,” Greenspon declared at the outset. Yet that’s exactly what it became: a punitive effort to hold Lich and Barber accountable for the actions of others – most of whom were never charged with anything or who had their charges dropped. As the evidence shows, Lich worked tirelessly to make the Freedom Convoy a peaceful, law-abiding and community-minded event.
Canada’s greatest criminal mastermind? Lich, a peaceful and devout Métis grandmother, has been the subject of intense focus by the Canadian legal system. After her initial arrest, she was re-arrested at home in Medicine Hat and placed in leg shackles for part of her trip back to Ottawa. (Source of photo: Freedom Convoy 2022/Facebook)
And while she was not always successful, whatever failures occurred do not rest on her shoulders. They are the fault of the many other groups, institutions and individuals involved, including the Ottawa police. Throughout the three-week-long demonstration, Lich remained a voice of idealism, love and respect for the rights of all Canadians to participate in peaceful protest. And for this she has been treated with the utmost disrespect, the most obvious evidence being her 13-month, 45-day show trial alongside Barber for a crime of no consequence whatsoever.
Perkins-McVey has said that on November 26 she will provide an update regarding when she expects to reveal her final decision; the verdict itself could still be many months away. Until then, the punishment of Tamara Lich and Chris Barber continues.
Lynne Cohen is a journalist and non-practicing lawyer in Ottawa. She has published four books, including the biography Let Right Be Done: The Life and Times of Bill Simpson.
Source of main image: JuliaDorian/Shutterstock.
