2024-08-23 Covid mandates: Day 44 of the Lich/Barber trial. With thanks to the Democracy Fund.

Tamara Lich Trial Highlights: August 23, 2024

Mr. Granger noted that the Court, in order to establish the second part of the Carter analysis, must find, on the balance of probabilities, that Lich was a member of the unlawful common design. He said that, at this stage, the Court cannot rely on the statements of Barber against Lich (because this would be hearsay).

He said the Court needs to find a link between Lich and Barber sufficient to establish membership of Lich in the unlawful common design. More than mere knowledge of the scheme is needed; more than acts are needed. Granger said the words and actions of Lich are neutral as to the unlawful common design: it’s not the most likely explanation that Lich is party to an unlawful agreement. He claimed that there is insufficient evidence that the words and actions of Lich amount to “furtherance” of an unlawful design.

After he finished, his co-counsel, Lawrence Greenspon, rose to begin his submissions on behalf of Lich.

Greenspon said the Crown seeks to criminalize the words and actions of protest leaders. It seeks to hold Lich liable for acts of protesters directed to park by police; it seeks to find Lich liable for a common lawful purpose; it seeks to ascribe criminal liability not for the words of Lich but for the means used by others.

He said that the Crown seeks to criminalize the conduct of Lich despite her honoring the agreement she made with authorities to reduce the protest’s interference. Greenspon argued that the right to free speech & assembly should not take a back seat to the right to protection of property.

He said there is no evidence of enforcement by the city of its own bylaws against illegal parking, noise pollution or lane blockage. He said that this was a failure of the authorities. As a result, civil counsel brought an injunction to reduce the interference of the protest.

Greenspon argued that there were two things that made this case different from the 100 legal cases cited by the Crown and defence:

1) In no case is there a situation where authorities directed protesters to park, then arrested them – to now prosecute the leaders is unprecedented.

2) In no case was there an order by another court preserving the right of protesters to peacefully protest. Justice McLean made this clear in his two orders arising from the motion for an injunction. Crown counsel made no reference to this in their submissions. Greenspon said that these judicial orders preserved the right of protesters to protest. And, he noted, these rights are constitutionally entrenched in s2(b) and (c) of the Charter.

He said the evidence supports the defence in the following ways:

A) There was a police direction to park in specified areas. Some streets were closed before the convoy arrived, and directions to park were given for parking areas even at this point.

He took the Court through the evidence of parking directions & staging areas. There were official routes for trucks to go during the protest – many were in the heart of the city. Thus, he argued that it cannot be said that in following instructions of police services the protesters were not in compliance. The Court interjects to ask if the police could or did not anticipate the crowd size or length of stay. Greenspon said that this was nonsense.

He said the evidence was that the plan was to direct the protesters to the core of the city (according to Ottawa city manager Kim Ayotte).

He turned to the order of Justice McLean and the transcript of the injunction hearing. Greenspon said that Justice McLean noted that the right to free speech existed before the Charter in common law.  He said that Justice McLean noted that he had no evidence that the protesters had broken any laws at that point, and he explicitly preserved the right of the protesters to engage in peaceful protest.

Greenspon noted that if the police had decided to enforce noise or parking bylaws, civil counsel would not have needed to bring the injunction motion.

He then addressed the argument by the Crown that the authorities did not contemplate the length of protest. He said the evidence does not justify this position. City manager Ayotte acknowledged that the truckers would stay longer – 30 days or more. OPS constable Bach also acknowledged that all open source info & interactions with protesters indicated that this event could go on for a long period of time. OPS costable Lucas took the same view. They cannot now be said to rely on this alleged ignorance of the protest length. Greenson said the Crown’s argument on this point was “poppycock.”

He said the city was putting in barriers and OPS was making decisions to close roads. Greenspon noted that the authorities closed the roads, and there was no enforcement to have the trucks moved or removed.

He claimed that, though the orders of Justice McLean mention Barber and Lich, contrary to the argument of the Crown, it is of little moment, since anyone can be named in any civil action. He said this indicates the desperation of the Crown to link Lich to the convoy.

He raised the issue of multiple convoys, noting that it is proven beyond a reasonable doubt that there were, in fact, multiple convoys.

He said that the heart of the Crown’s case is that Lich encouraged protesters to come & stay until mandates were removed. However, he argued that this was lawful and her words encouraged lawful behaviour.

He said her ultimate success was achieved by an agreement with the mayor around February 12th. He said pursuant to it, trucks were moved, footprint reduced, lanes opened. There was an attempt at registration and signed code of conduct for truckers. The evidence of constable Lucas was that protesters were cooperating. He said the evidence showed that Lich encouraged reporting of bad behaviour, saying of bad conduct “that is not who we are,” “keep it peaceful” and “show respect to our police officers.”

City manager Ayotte gave evidence that protesters were concerned with keeping lanes open, testifying that there was no reduction in response times for emergency vehicles.

OPS Inspector Lucas testified that the intent was to reduce the footprint, but the invocation of a provincial emergency and the view of the police chief “not to give one inch” both prevented the reduction of the footprint. Greenspon noted that Justice Mosley found that the invocation of the regulations and Emergencies Act were unconstitutional. Greenspon added that it was unnecessary. He said Prime Minister Trudeau did not seem to be aware that Barber was successful in removing 100 trucks by then or that the mayoral agreement was a success.

Returning to the footprint issue, Greenspon said that inspector Lucas testified that the “not one inch” decision of the OPS chief was the real obstacle in reducing the footprint.

Greenspon said that Serge Arpin – chief of staff to the mayor – testified that the protesters did not intend harm to the community. The Crown said that Lich was aware that the protesters were impeding traffic, though Greenspon said that the OPS did nothing about it. So, he asked rhetorically “how do you get from Lich’s statements about peaceful protest & cooperation to her encouraging unlawful activity?”

The Crown’s position, he said, seemed to be that somehow Lich aided & abetted the “unlawful means.” But, he said, there is no evidence of this. The Crown must take the lawful purposes of Lich and transform the unlawful act of other protesters so that Lich is criminally responsible. Greenspon said that this is unprecedented: making the acts and words of protest leaders criminal by tying them to the unlawful acts of some.

Greenspon said that city manager Kim Ayotte admired the success of the mayoral agreement in removing trucks. He also said that the move onto Wellington street was blocked by police. The OPS then put an end to the agreement. He said there was initially a reluctance to charge protesters. Greenspon lamented that only in Ottawa is it legal to protest but if dancing breaks out, a permit is needed. The Court reminded Greenspon that there were kids selling lemonade who were ticketed for it.

Greenspon said the police warning notices three days after the Emergencies Act invocation showed that the police were paralyzed. There was nobody who was charged with anything: trespass, parking, noise violation, obstruct police – nonetheless the Crown says Lich encouraged unlawful conduct.

Turning to the mischief charge, Greenspon said that several defences are available. He said Lich did not willfully interfere with property, there is legal justification, and statutory defences under s.429(2) and s.430&7) are available.

Mischief, he noted, is a general intent offence: it includes willfulness. He said there is no evidence that Lich encouraged, knowingly, this interference. He said that the only reasonable inference that can be drawn is that she encouraged people to come to Ottawa to protest peacefully until mandates ended. He argued that there is no evidence that Lich encouraged a crime.

Greenspon reviewed case law on the various defences available to Lich.

He said the Crown argues that, for s.430(7) to apply, it is only communication for communicative purposes that must occur. However, Greenspon argued that case law allows for communication to be for persuasive purposes also.  The cases establish that, even if the purpose is to interfere with property, the defence is still available: the result of the communication is irrelevant. When people picket a business, he said, the purpose is to persuade and to cause economic harm, but he argued that this doesn’t disentitle reliance on the defence under s.430(7).

He noted that the Court of Appeal has dealt with the situation where there is a conflict between the Charter right of free speech and property rights. The defence is still available even if there is more than solely communication. Quoting from the case: “The fact that the consequence may be to persuade others to act in a way that interferes with property does not mean that the defence is unavailable.”

Greenspon said that, even if Lich’s comments did result in interference (not conceded), the defence still applies. The defence protects acts done that would otherwise constitute mischief. He noted that this ruling is a binding case on this Court.

He said free speech is most engaged, as here, when Canadians come to Ottawa and protest in front of Parliament and police lines to object to mandates that seriously affect their families.

He says Mosley determined that the Emergencies Act invocation was unconstitutional. He notes that Mosley said it’s debatable that the OPS couldn’t deal with the protest under existing powers and that they did not anticipate the length & size. Mosley said protests are inherently disruptive and go to the heart of freedom. Paraphrasing Mosley: the highest level of protection should be afforded for speech – to hold otherwise is to criminalize any attendance at protests.

Greenspon said that, under the case law, there is no contest between the Charter right to freedom and property rights: there is no need for a Charter challenge here when considering s.430(7).

He said even if the Court makes a link between Lich’s word and protesters conduct, it’s still protected by s.430(7). Section 7 of the Charter does not include protection of property.

He turned to recent university encampment cases. He noted that these were civil cases, using different standards, where the Charter was not applied. The Court noted that these involved private property.

He said that, unlike this case, the occupants were not directed by police as to where they should erect their tents or told their free speech rights were protected by court order.

He said there is a legal justification for the conduct of Lich. Under s.429(2), the defence of legal justification for mischief is available: he said that the orders of Justice McLean were just that.

He turned to the charge of counselling mischief. The actus reus for counselling is encouragement/incitement to do an unlawful act. Greenspon said that this does not exist here.

He turned to the charge of obstruction of a peace officer. He noted that the test is “did Lich make it difficult for police to do their job.” The accused has to affect the police willfully. The outcome (making it more difficult for police to do their duties) must be willed by the accused – but, he said, nothing can be further from the truth in this case. Lich had no intention to make it difficult for police nor did her words do so. She worked to reduce the footprint. This was confounded by the Emergencies Act invocation and police policy.

He said that, for a conviction for obstruction to be found, the “hold the line” comment must be unequivocal and unambiguous. However, he noted that even the Crown placed multiple interpretations on it in their own written submissions. Greenspon took the Court through these Crown interpretations. He said OPS officer Martel gave his interpretation of the phrase.

He said that the protest group “Farfada” created a protest line in front of Chateau Laurier on February 18th. However, Lich was arrested for obstruction on February 17, when there was no line. He said this is why the Crown limits the obstruction charge to February 18-20, when a line of protesters materialized.

Greenspon said that arguing, as the Crown does, that “hold the line” caused obstruction on a date when there was no protest line makes little sense.

He addressed the argument of the Crown that Lich held a “metaphorical megaphone.” He said there was no actual megaphone, nor did Lich physically stand “shoulder to shoulder” with protesters. He said this is why the Crown always uses the phrase “metaphorically.”

Greenspon then turned to the charge of intimidation. He took the Court through the legal elements of the offence. He said there is no evidence that Lich blocked a highway. He said the Crown failed to establish that the exclusive inference of her words “come to Ottawa” meant “block roads.” And, he reiterated that OPS provided instructions about where to park and what to do when protesters arrived. By the time Lich arrived the state of the roads were known – they were already congested.

Greenspon said that the purpose of Lich’s speech was to remove mandates. He says it is only in a dictatorship that this would be illegal. Lich came to Ottawa to encourage others to stand up for their rights. “This is not and should not be a crime.”

He quotes Benjamin Franklin, who said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Greenspon ended by arguing that the interference of citizens is the price of liberty. Canadians, he said, have a habit of sacrificing liberty for temporary safety: he said that the Court, rather, should not criminalize speech to obtain safety.

With that, he ended his submissions.

The Court adjourned until September 13th, on which it is expected that the Crown will have a half day to reply.