| Day 41 of the Lich/Barber trial
Tamara Lich Trial Highlights: August 15, 2024 |
| OTTAWA: Day 41 began with closing submissions of Diane Magas – counsel for Chris Barber.
Ms. Magas focused her arguments on the mens rea – or subjective intent – of her client. She noted that a conviction can only follow if a court finds that the accused had the required state of mind and actually committed the offence. She referred to text and video of her client at specific times during the protest. She noted that the Crown cannot simply refer to the group mischief that occurred during the freedom convoy protest: the Crown must prove each element of the offence against each of the accused. Ms. Magas noted that her client’s original plan was to slow-roll his truck from Alberta and Saskatchewan. However this plan changed as trucks approached Ottawa. At this time, there was no concern or discussion about “gridlock.” She says Barber, in actions and words, was morally innocent – his intent was to protest peacefully using a slow-roll of his truck. She said that, as the protest progressed and trucks entered Ottawa, a lack of planning by police caused gridlock: the OPS underestimated the amount of protesters and had no appropriate plan to contain or move them. She referred to the testimony of one officer who acknowledged that “the event exceeded our capacity.” She showed a video of Barber; he claimed police told him to park on Wellington – thus, presumably, he cannot be said to intend to block Wellington. Other truckers arrived, parked in the downtown core and began to gridlock the city. She said that as people left the protest, the police did not handle the removal properly – which contributed to the continuing gridlock. For example, vehicles driving out of the city encountered barriers that police had erected to prevent entry. Ms. Magas also referred to a text to Barber where a protester says, “we need to gridlock.” Barber later answers that “it’s already locked: we trainwrecked it.” Ms. Magas argued that there was no intent to gridlock the city since it had already occurred. Regarding the meeting about causing city-wide traffic congestion, about which Lich said, “I don’t want to make that decision on my own,” Ms. Magas contended that Lich may have contacted Barber because he’s a reasonable, level-headed person – this, she said, this is a plausible interpretation of the exchange. Ms. Magas referred to numerous texts from her client where he told truckers not to venture into residential areas, not to gridlock roads and to leave emergency lanes open. Ms. Magas argued that her client was communicating with, and listening to, the police: he moved his truck, encouraged others to do so, and agreed to lawfully slow roll. Ms. Magas noted that her client surrounded himself with lawyers to ensure he acted legally. He had the support of former premiers. He sought advice regarding peaceful protesting: this, she said, all goes to mens rea. She said, however, that Barber could not control the different groups and factions: these protesters would often engage in conduct of which he disapproved. Ms. Magas then turned to the phrase, “Hold the line.” She says the Crown claims it means “form a line together and hold it” when confronting police. However, she suggested that it can have multiple meanings. It could mean “be patient.” She refers to evidence where Barber said, “hold the line: we are all so proud of you.” The Court said it may also mean “stay true to your beliefs.” On February 14th, in response to a question from a protester asking if he is ok, Barber said, “yes, holding the line.” But Ms. Magas noted that there was no physical protest line at this point. Ms. Magas noted that other references also allowed for multiple meanings. Similar phrases are also used: “be strong,” “be patient,” “be peaceful,” “be safe.” She said Barber ended many of his videos differently, using different phrases. The Court agreed that the context of each conversation will determine the meaning of a phrase. The Court noted that at one point, the police and protesters used the same phrase, “hold the line,” when facing each other. Mr. Magas showed a video where the phrase “hold the line” was used in reference to Charter rights. She said that Barber was there to exercise these rights. Thus, the Crown cannot contend that there is a single reasonable inference of the phrase. She said that it is not the case that each time Barber used the phrase, he encouraged intimidation: there are other reasonable interpretations. Ms. Magas noted that the Crown said the charge of obstruction arises because Barber and Lich “metaphorically stood shoulder to shoulder” with protesters. Ms. Magas. However, she noted that there is no actus reus of “metaphorically” standing together. The Court suggested that it may be counselling if an accused tells protesters to obstruct. Finally, Ms. Magas noted that Barber was compliant during his arrest. This, she said, showed that he was leading by example: he was demonstrating the importance of not resisting police and remaining compliant. The Court then adjourned until August 19. |