Deep Dive into Politically Motivated Appeal in the Politically Charged Lich-Barber Convoy Case

Unrelenting persecution and prosecution of the Freedom Convoy 'leaders' another stain on Canada's judicial system

Most people have likely already heard that the Crown is appealing the sentences and the acquittal on intimidation charges, of Tamara Lich and Chris Barber, the two most high profile figures of the Freedom Convoy. Anyone who has been following their case should not be shocked by this move, as the Crown prosecutors in this matter have been practising what can only be described as the epitome of lawfare against these two people going on three years now. And a deep dive into the mechanics of the case makes it clear that this relentless political persecution and prosecution, by the state, of two of its citizens who, by all accounts, led a peaceful protest that challenged the policies of the ruling government that didn’t like it, is just that.

It is that, or simply that Crown prosecutors on this case, Tim Radcliffe and Siobhain Wetscher, are driven by a pathological personal vendetta against Lich and Barber.

It is, however, far more likely that these officers of the court are taking their orders from their political masters to continue what can only be characterized as a politically driven witch hunt. They could muster the courage to say ‘no more’ to those masters and say, ‘we made our case and we lost in getting the convictions and sentences we wanted, pure and simple’. But lacking such courage and moral principles, Radcliffe and Siobhain charge forward, with no compunction to be concerned over the millions, and it is millions, of tax dollars they have already wasted as they continue to prosecute a mischief case against two individuals with no previous criminal records, who have been upstanding citizens their entire adult lives and stand little chance of being ‘repeat offenders’. So, again, this leaves little doubt that this appeal and ongoing prosecution of Lich and Barber is politically motivated and every single Canadian, regardless of how they felt about the Freedom Convoy, needs to sit up and take notice, because if the government is prepared to do it to Tamara Lich and Chris Barber, they can do it to you too.

Lich and Barber are currently serving out 18-month conditional sentences of house arrest and curfews handed down to them by Justice Heather Perkins-McVey in October. It was a far cry from — to use Her Honour’s words— the excessive unfit and unduly harsh seven and eight year sentences the Crown was seeking for Lich and Barber, respectively. That fact that she didn’t grant them is, no doubt, why the Crown has launched its appeal. While Lich and Barber are relieved they aren’t facing prison time, both also knew, with absolute certainty, that the Crown would appeal their sentences, because they are well aware that the government hasn’t finished making examples of them for daring to challenge its policies or ideologies. But, not satisfied with appealing their sentences alone, the Crown is also appealing their acquittal on the intimidation charges and seeking a new trial, because sitting through their initial trial in which the Crown desperately tried to portray their acts as criminal, violent, calculating wasn’t humiliating and disparaging enough.

That this appeal is politically motivated, rather than based on solid legal grounds is painfully obvious, because Crown’s initial case against Barber and Lich was extremely weak, as was demonstrated by the verdict. After the months it spent putting its case together, diligently presenting mountains of ‘evidence’, and making its arguments, the Crown failed on virtually all fronts. Of the seven charges Lich and Barber faced, it only managed to get both of them convicted on a single charge – mischief. Barber, alone was also convicted of counselling to disobey a court order for which he was given a concurrent sentence, meaning he faces no additional punishment for that offence. The Crown also failed in its attempt at a Carter application which wasted a considerable amount of court time. In layman’s terms, the Carter application was a devious move by the Crown to ‘prove’ that Lich and Barber actively ‘conspired’ together to commit their ‘crimes’. Success in this endeavour would likely have given prosecutors more ammunition to seek even harsher sentences for the pair. The judge, however, dismissed the application. Suffice it to say, one could hardly describe this as stellar performance, particularly given the limitless government resources the Crown had at its disposal and the considerable latitude Justice Perkins-McVey gave it in presenting its case.

Crown prosecutor Tim Radcliffe also failed miserably to achieve a goal he adamantly declared he expected to accomplish at the very outset of the trial – that was to prove that the Freedom Convoy protest was ‘anything but peaceful’. This seemed a rather odd and contradictory move given that he also maintained that the Freedom Convoy itself wasn’t on trial, while at the same time setting out to prove that the entire convoy was anything but peaceful. But again, he failed in this pointless endeavour, given that testimonies from police who confirmed the peaceful nature of the convoy were already on the public record from the Public Order Emergencies Commission Inquiry into the Convoy and the use of the Emergencies Act, held in the fall of 2022. As a matter of fact, one officer commented that the “lack of violence was shocking.”

Additionally, none of the police or city officials who testified throughout the actual trial of Lich and Barber gave any indication they encountered any violence from the protesters. This was further reinforced by video evidence of Lich and Barber repeatedly telling protesters to remain peaceful and to comply with police no matter what. In fact, virtually all the video evidence the Crown presented to make their case fell flat, particularly clips of police in riot gear bearing down on crowds of protesters holding hands and singing ‘O Canada’ during the what was often a violent police action against them in the wake of Trudeau’s invocation of the Emergencies Act. All of this was also acknowledged by Justice Perkins-McVey in her written Reasons for Judgement on both her verdict and her sentences.

Yet, after losing so badly in the trial, undaunted, the Crown then set out to seek the outrageously severe sentences on essentially a single mischief conviction. The extreme sentencing recommendations again, demonstrate the full politicization of this case. This was further underscored by Crown’s weak arguments for seeking such the severe sentences, claiming they are justified because Lich and Barber crossed the line into criminality and flouted the law, while once again professing such severe sentences have nothing to do with the pair’s political beliefs.

“They played prominent leadership roles in the weeks-long occupation that took over downtown Ottawa for more than three weeks.. adding the Crown isn’t seeking to punish them for their political beliefs, but for crossing the line into ‘sustained criminality’ that paralyzed the city and flouted the law.”

Yet, the Crown never really made it clear when exactly that ‘line’ was crossed or what laws they flouted, given that an Ontario court judge issued a second ruling on February 18th, reinforcing an injunction against horn honking, while maintaining the protest was peaceful and LAWFUL. And, throughout this ‘sustained criminality’, Lich and Barber were still constantly reminding protesters to remain peaceful and respectful, while they, themselves, were consulting with police and city officials to deal with ongoing issues related to the convoy and working to reduce its footprint in the downtown area. These efforts, however, were stymied by senior city officials – who had advised Police Liaison Officers ‘not to give an inch’.

Seeking such lengthy sentences for two people with no criminal records other than maintaining the Freedom Convoy was an ‘unprecedented event’ and that Lich and Barber crossed some imaginary line into criminality can only be interpreted as again, a political witch hunt and overkill. Yet, again, the Crown’s attempt to send Lich and Barber to prison for a lengthy period failed miserably with the judge’s decision to impose a conditional sentence with no jail time at all. So one has to ask, just how badly do the Crown prosecutors have to lose a case before they finally throw in the towel unless something else is driving them?

And when, one has to ask, is enough enough? Lich and Barber have been put through the legal meat grinder since they were arrested back in February of 2022. Lich, denied bail on several occasions, spent 49 days in jail, before she was ever convicted of anything. Both had to put up hefty cash bonds to secure bail and both were given extremely strict bail conditions impinging on their freedom of association, freedom of movement and even their freedom of speech. Both have had to travel from their home provinces of Saskatchewan and Alberta over the past two years numerous times to attend their trial in Ottawa spending thousands and thousands on travel expenses. Lich lost her job, and Barber had to hand over a considerable amount of his trucking and farming business to his 21 year old son. Both have had to put up with verbal abuse and even death threats on social media from lunatics so brainwashed by the media’s dishonest reporting on the convoy, portraying it as racist and right-wing extremists, they actually believe they should be severely their punished. Barber now faces the prospect of the Crown also attempting to seize his truck, Big Red, a major contributor to his livelihood, and which became an iconic symbol of the Freedom Convoy, to have it destroyed.

And in addition to their criminal trials they are also fighting civil matters facing a multi-million dollar class action lawsuit from citizens of downtown Ottawa who are claiming ‘damages’ they ‘suffered’ due to convoy’s presence in the downtown area.

And now, after hoping, against hope that at least one element of their fight was over, it is anything but. They have another legal battle ahead of them as they could still face potential jail sentences and having to endure another possible trial should the Crown’s appeal be granted. Yet, the grounds of that appeal are as weak as its case was. According to the Crown the judge ‘erred’ in her not guilty verdict on the intimidation charge and did not take into account ‘aggravating and mitigating factors’ in determining their sentences. What the judge’s error is hasn’t been made clear and what aggravating and mitigating factors she didn’t take into account on the sentence is rather a mystery.

Justice Perkins-McVey was well aware of the high profile and politically charged nature of this trial, despite the Crown’s and even her own assertions that Lich and Barber were not on trial for their ‘political beliefs’. In a trial that lasted almost fifty days, the Crown took up three quarters of that time to present its case, during which Perkins-McVey made every effort to allow the it to introduce and enter, as evidence, literally hundreds of exhibits. Her Honour’s attention to detail in this regard was sometimes maddening; however, it might be said that this was an attempt on her part to close as many doors to appeals as possible. This included allowing three days for six residents and/or business owners from the downtown area to testify for the Crown, as to how the presence of the convoy negatively affected their businesses or them personally. She gave the Crown this latitude despite the defense stipulating to the fact that the convoy’s presence in the downtown area did, indeed, cause some disruptions for residents and businesses, while also noting they could produce an equal number of witnesses from the downtown area to testify to the positive aspects of the convoy’s presence in downtown Ottawa. Perkins-McVey did note, in allowing the Crown’s witnesses that she would have to take care in the weight applied to their testimonies given that most were also party to the civil lawsuit against the Freedom Convoy.

Justice Perkins-McVey’s verdict, in finding both Lich and Barber guilty on the mischief charge, was likely her best effort to appease the ‘political masters’ and to attempt to adhere to the phrase: “Justice must not only be done, but must also be seen to be done,’ to paraphrase the words uttered by Lord Hewart, the Lord Chief Justice of England back in 1924. It was meant to emphasize that public confidence in the legal system relies on not just a fair and impartial process, but also on the appearance of fairness so that the public can trust the outcome.

Obviously this was not enough for the Crown or its political masters, thus the appeal on the intimidation charge. Yet, while the Crown, in its appeal documents claim that the judge ‘erred’ in dismissing the charge, it is not clear what this ‘error’ was. As Her Honour wrote in her Reasons for Judgement, she viewed the overall mischief offence as the only tactic used by the protesters to achieve their goal to have COVID mandates removed. She found that the actions and statements of Lich and Barber calling for peace contradicted the required element of ‘menace or violence’, thus making the intimidation charge unsupported by the evidence presented.

“They did not incite or aid supporters in engaging in intimidating, aggressive or threatening behaviours by their mischief or blocking roads. They were not trying to intimidate the downtown residents. The conduct of Ms. Lich and Mr. Barber in my view does not fall within what is intended by the count of Intimidation, the conduct which interfered with the use and enjoyment of property was not intended to intimidate by violence or otherwise to persuade the Government of Canada or the Prime Minister to drop COVID restrictions. There is no evidence the accused or the Freedom Convoy intended to — intimidate. I have found that the tactic of mischief was used to highlight the issue and pressure the Government.”

On the sentence handed down by Justice Perkins-McVey, one could say that it is somewhat ironic the she relied on many of the changes to sentencing provisions implemented by the Trudeau Liberals to provide judges with “more discretion and to avoid over-incarceration for certain offences.” This included removing limitations on conditional sentences to make them an option for a wider range of offences and allowing offenders to serve their conditional sentences in the community under specific conditions such as house arrest or supervision. These were the exact provisions Perkins-McVey applied in determining the sentences for Lich and Barber.

She specifically noted Parliament’s direction to impose the least restriction sanction in the circumstance and the importance the application of restraint… adding it would be unwarranted to resort to maximum sentences when considering the proper application of the principal of proportionality. And the judge did take into consideration mitigating circumstances, however, they were not the circumstances the Crown wanted her to consider. This included that fact that both were first time offenders, both had deep family ties and were not a danger to society. In terms of their behaviour during the protest she noted how they sought legal advice and cooperated with police in attempting to reduce the protest footprint downtown, and they they did not advocate violence or the disruption of property. The judge, in fact, even acknowledged that the Freedom Convoy actually did have a positive effect on the lives of thousands of people across the country.

Justice Perkins-McVey made the right decision in following the provisions of restraint in the sentencing of Lich and Barber. In finding them guilty on the single mischief charge was likely the only decision she could make, given that she knew a not guilty verdict would never have stood. The fact that the Crown simply won’t let this matter rest, again makes it clear that despite Radcliffe’s and Wetscher’s constant protestations that this case isn’t political, that is all it is. Once upon time in Canada the state didn’t prosecute and persecute, and punish people it didn’t politically agree with — but times have changed. This trial and the continued prosecution of dozens and dozens of others who participated in the Freedom Convoy protest, and those who took part in its sister protest in Coutts, Alberta, makes it clear that there is a political vendetta against those who participated in the Freedom Convoy protests, because it dared challenge the government.

Even those who hated the Freedom Convoy should recognize that a single mischief conviction shouldn’t result in an interminable effort by Crown to waste valuable court time, which allows real criminals to walk free on the grounds of being denied their right to a speedy trial, while it tries to punish and jail two people for leading a peaceful, albeit lengthy protest in the nation’s capital. It really is a stain on a justice system that many Canadians have lost considerable trust in and stain on Canada’s reputation as a free and democratic country. It is unfortunate the the Crown prosecutors on this case don’y have intestinal fortitude to recognize the this out for what it is and call it quits. Perhaps, we can only hope that the Superior Court judge reviewing the Crown’s appeal application does.