Freedom of Expression Hallmark of Defence Strategy for Tamara Lich at Lich-Barber Trial

Because FREEDOM is really what is on trial here

The Charter-protected rights to freedom of expression and peaceful assembly formed the cornerstone of a compelling defence for Tamara Lich, the de facto ‘leader’ of the Freedom Convoy, by her lawyer Lawrence Greenspon.

In his closing arguments in defence of Lich and, her co-accused Chris Barber, in what is likely the longest mischief trial in the history of jurisprudence Greenspon made a strong case for the need protect these rights above all else. He asserted that, in a contest between the constitutionally protected rights of Canadians to freedom of expression and peaceful assembly, versus the right to enjoyment of property, which, he noted, is not mentioned anywhere in the Constitution or Charter – there is no contest – freedom of expression and peaceful assembly must take precedence every time. 

In making this assertion Greenspon referenced two court orders, issued during the convoy’s stay in Ottawa, by Ontario Superior Court judge, Justice Hugh Maclean. While their purpose was to halt the truckers honking their horns MacLean also clearly stated in both orders, that as long as the protesters complied with the terms of his Order, they “remain at liberty to engage in a peaceful, lawful and safe protest.”  “Any court,” said Greenspon, “would be hard-pressed to find another case where a higher court has expressed the reason why freedom of expression should prevail over enjoyment of property.” 

The Crown prosecutor in the case, Tim Radcliffe, has argued that Lich, together with her co-accused Chris Barber, in their roles as the chief organizers of the Freedom Convoy are guilty of the crimes of mischief and counselling to commit mischief. Because, according to the Radcliffe, the very presence of the convoy in downtown Ottawa interfered with the residents’ enjoyment of a property, which under Canadian law constitutes a crime of mischief. Greenspon countered this claim maintaining that when convoy participants arrived in the capital in late January of 2022 to protest government COVID 19 mandates and restrictions they were simply exercising their right to freedom of expression, as guaranteed under the Charter, a guarantee that supersedes any rights to ‘enjoyment of property’ by anyone. 

Greenspon’s decision to articulate the importance of upholding the protections afforded all Canadians by the Canadian Charter of Rights and Freedoms including freedom of expression and peaceful assembly, in this case, makes for a potent defence argument. One that should remind everyone, including our political masters, that these fundamental rights form the foundations of democratic free civil societies where citizens can freely engage issues that affect them. And that is exactly what Lich and Barber, along with the majority of protesters that arrived with the convoy in Ottawa in the winter of 2022, were doing argued Greenspon. “Lich’s purpose in Ottawa was to implore the government to withdraw the COVID mandate, a policy threatening the livelihood of so many Canadian; for her to tell the government to withdraw these mandates should not be considered a crime.”

Whether or not this defence will be successful remains to be seen. However, should the presiding judge, Justice Heather McVey-Perkins, acquit the pair, such a move could further shred the Trudeau government’s increasingly tattered justification for invoking the Emergencies Act on the Freedom Convoy as it did on February 14, 2022. The first blow in that regard came back in January of this year when Federal Court judge, Justice Richard Mosley ruled that Trudeau’s use of the Act against Ottawa protest was illegal and unreasonable. He also explicitly stated in his ruling the the use of the Act “violated the Charter rights of both freedom of expression and security.”

More recently the acquittal of the two Alberta men who were accused of being part of a conspiracy plot to overthrow the government and kill police at the Coutts border blockade freedom protest – which the Trudeau government maintained was the lynch pin for invoking the Act – has further shaken the government’s crumbling rationale for taking such an action. Additionally the Crown prosecutor in the same Coutts case, in February of this year, dropped all the charges against two other men for their alleged involvement in the same conspiracy plot to kill police.

Greenspon may have made the infringement on Charter rights the foundation of his case, but he made plenty of arguments against the plethora of the Crown's assertions regarding the actions of both Lich and Barber and other alleged crimes they committed. Greenspon contended that Lich actually committed no crime at any point during the convoy protest, nor did she do or say anything that remotely resembled a call for violence. “Instead,” he said, “she always stressed that demonstrators should act peacefully and obey the police. In an effort to underscore and maintain that commitment to that type of behaviour and the integrity of the protest it was noted that Lich and Barber even had convoy members sign a code of conduct.

Lich defence attorney Lawrence Greenspon and Crown prosecutor Tim Radcliffe.

Greenspan criticized the Crown for seeking to criminalize the words and actions of the leaders of a protest who consistently urged peaceful behaviour and cooperation with the police. “The Crown asks that those leaders be held criminally responsible for the actions of unidentified others who were directed into the downtown core of Ottawa, and they were allowed to stay for a three-week period of time without so much as a single parking ticket being issued.” Greenspan also made the point of emphasizing that it was the Ottawa police who arranged the routes, even providing maps to direct the truckers into the city and show them to where to park once they got downtown. He said there’s no precedent for a situation where protesters were directed by police to park in a particular area and then prosecute them later for following that direction.

Challenging the Crown’s assertion that it was the convoy members that caused roadblocks, Greenspan reminded the court that it was the police who put up the first roadblocks and barriers long before the trucks and vehicles of the convoy even arrived in Ottawa. As to assertions by the Crown that the convoy blocked emergency routes downtown, Greenspon referenced a review of emergency responses conducted while the convoy was in Ottawa which found there were no substantial delays in emergency response times.

With regard to the ‘obstruct police charge’ that Lich and Barber face Greenspan asked, “Did Lich or Barber make it more difficult for police to execute their duties? Did they aid or abet or counsel anyone to obstruct?” Greenspon argued that in order to convict a person of such obstruction they have to obstruct the police officer in the execution of their duty and to wilfully do so.

“Nothing can be further from the truth,” argued Greenspan, “In fact the opposite is true, she tried to work with police to make things easier for them." What else is true, Greenspan noted, is that the fact that it was Lich and Barber who were stymied or obstructed in their efforts to help police to ‘reduce the footprint’ of the convoy from residential areas in the downtown, by moving more trucks to Wellington Street. First he noted, by the directive from the Ottawa police chief to Police Liaison Officers to give “not one inch”, to the truckers and ultimately by the invocation of the Emergencies Act.

Greenspand also addressed the Crown’s fixation on placing so much weight on Lich’s use of the phrase ‘hold the line’, and interpreting it as a clear call to arms to protesters and an encouragement to obstruct police. “In order to convict, the Crown must demonstrate that this was a clear ‘call to arms,’ but the phrase and its intended meaning was anything but clear. Instead the phrase could be interpreted simply as an encouragement to protesters ‘not to give up.’  Additionally he noted that since Ms. Lich was arrested on February 17th, the day before the actual police operation to clear protesters from the streets began – the was no such ‘line’ to hold. 

Greenspan, in addressing the finer legal points of the Crown’s case appeared to be simply dotting the i’s and crossing the t’s so to speak. He was making sure that any questions regarding the legality of the actions taken by his client were answered from a legal point of view, while at the same time poking holes in the Crown’s case. But the real legal question he is putting to the test in this trial — which many who have followed it are calling the “Freedom Trial” — for this very reason — really centres on the cornerstone of his defence — the Charter protected rights of Canadians to freedom of expression and peaceful assembly — to freely engage and protest issues issues that affect them.

This includes — contrary to what Prime Minister Justin Trudeau may think — being free to protest to demand changes to government policy — something he told the Public Order Emergencies Commission Inquiry he found ‘worrisome’. The only worrisome aspect of that statement is that he finds such protests ‘worrisome’. However Justice Perkin-McVey rules, her verdict could have considerable ramifications for the invocation of the Emergencies Act, the outcome of other trials of protesters from the Freedom Convoy who were charged following the invocation of the Act, and ramifications for all Canadians in terms of how our Charter rights are interpreted and/or protected. And that is why many call this trial — The Freedom Trial.