Lich, Barber begin defence in convoy trial

Defence lawyers for Tamara Lich and Chris Barber began making their case in an Ottawa courtroom arguing evidence applying to one of the accused should not be used against both.

Lich and Barber are on trial for charges of committing mischief, obstructing police, counselling others to commit mischief and intimidation for their roles in the protest.

Crown prosecutors argue the two worked together in their capacity as leaders of what became the Freedom Convoy and conspired to commit criminal acts when they helped lead demonstrators into downtown Ottawa, where they remained for several weeks and caused significant disruption to residents. 

But Lich and Barber's lawyers argue the Crown didn't provide enough evidence for the court to infer the two worked together at a level where a conspiracy to commit crimes, or a common unlawful purpose, occurred. 

The defence lawyers want the evidence to stand alone against the individual it applies to rather than both of the accused. 

Defence says objectives not 'illegal' 

In his submissions, Lich's lawyer Eric Granger argued that while the protesters had collective objectives to argue against COVID-19 mandates, those objectives were not "inherently illegal."

Granger argued the Crown can't apply evidence to both accused unless they can prove there was an agreement to protest mandates by illegal means. He argued that evidence was not provided as part of the Crown's case. 

"While there is evidence of conduct that can be argued to be illegal by individuals, there is no evidence of an agreement to engage in illegal activity," the defence submission read. "Similarly, there is no evidence of any of the leaders of the Freedom Convoy 2022 agreeing to pursue their ends by way of illegal activity."

Lich's defence admits she uses the phrase "hold the line." Crown prosecutors used this to demonstrate she was encouraging people to stay in Ottawa even after police had told protesters to leave.

Granger argued the phrase's meaning isn't defined by Lich or anyone else, saying it's "speculative" to link the phrase to encouraging illegal activity.

Lich's defence said all of her statements point to her "seeking to engage in a protest that was lawful, safe and peaceful." 

Barber's lawyers have filed a similar submission and are expected to make similar arguments later this week. 

The Crown is expected to respond to the defence's application regarding the evidence once the defence has finished making its submissions on the subject. 

Decision should be after all evidence submitted: Crown

In its written submissions filed with the court, the Crown argues the defence is prematurely bringing its application forward because such arguments are exclusively made after the defence and Crown finish making their respective cases.

The Crown also submitted materials supporting why evidence should simultaneously apply to Lich and Barber.

In its court filings the Crown said Lich and Barber, in their capacity as leaders of the protest, "communicated about attending a meeting to discuss strategy to 'gridlock the city.'"

They allege Lich, after police escalated operations to remove people from Ottawa, encouraged others to join the protest. 

They say she frequently encouraged protesters not to back down or retreat, citing instances she used the phrases "hold the line", "for the long haul" or "this is my hill."

They said Barber encouraged people to honk their horns and to also join the protest.

Justice Heather Perkins-McVey has signalled she doesn't intend on making a decision regarding the application of evidence by week's end. A ruling on how she will use the evidence in her final judgment is expected at a later date. 

Previously sealed texts detailed in court

Several text messages obtained from Chris Barber's cellphone previously sealed by the Superior Court of Justice were unsealed during proceedings on Monday. 

They show Lich and Barber communicating in the days leading up to their Jan. 29, 2021 arrival in Ottawa about logistics and fundraising for the protest. 

The texts also show that, by Jan. 22, Lich was raising concerns with Barber over Pat King, another convoy organizer facing criminal charges for his role in the protests.

Lich told Barber that in regards to King, they had to "control his rhetoric." 

The texts appear to show communication between King and Barber ended shortly after protesters arrived in Ottawa.

Granger argued this indicates there was a divergence in objectives of protesters and an internal struggle of leadership, but maintained the public purpose of the protest from Lich and Barber's perspective was to end COVID-19 mandates. 

He also detailed during his submissions how Lich referred to the protests as a peaceful, family-friendly event and encouraged supporters to report anyone making threats or spreading hate to police, including in a Jan. 29 video she posted to social media.