‘Freedom Convoy’ leaders’ criminal trial goes beyond mischief charges

The leaders of the ‘Freedom Convoy’ are preparing to answer to criminal charges next week for their part in the massive demonstration that gridlocked Ottawa last year — but the stakes go beyond the actions of two protest organizers.

Tamara Lich and Chris Barber were among the most prominent organizers of the protest movement that rolled into Ottawa early in 2022, and they’re scheduled to be the first members of the organizing committee to stand trial on Sept. 5.

But that is not where the scrutiny will stop.

Lawrence Greenspon, the lawyer representing Lich, told the court earlier this summer that the focus should be on the case at hand.

“This should not be the trial of the ‘Freedom Convoy,'” he said.

Even so, University of Ottawa criminologist Michael Kempa said the attention paid to the trial could mean that Canadian institutions will also be judged, for how the case is handled and the precedents it could set.

The organizers of the “Freedom Convoy” set out to oppose COVID-19 restrictions and Prime Minister Justin Trudeau’s government. Thousands of people refused to leave downtown Ottawa for three weeks, with local leaders calling it an occupation, while others blockaded several U.S. border crossings.

The Liberal government declared a national public order emergency, invoking the Emergencies Act for the first time in history. Justice Paul Rouleau, who led a public inquiry into that decision, called it a “singular moment in history.”

The convoy exposed a stark divide in Canada, Kempa said, between the “significant degree” of people who support and sympathize with the protesters and those who were, “lock, stock and barrel, completely against” it.

And this at time when faith in institutions is waning, Kempa said.

A recent Statistics Canada survey found that only 45.8 per cent of Canadians reported a high level of confidence in the justice system and courts in the final quarter of 2022.

“The majority of people no longer believe that the ordinary political process and the ordinary institutions of the state can make problems better or resolve problems,” Kempa said in an interview.

“People have to see that the courts treat everybody fairly on both sides of this political divide.”

Lich, who hails from Alberta, and Barber, who owns a trucking company in Saskatchewan, were both arrested on the final day of the Ottawa protest before police launched a multi-day operation to clear demonstrators.

They are facing charges of mischief, obstructing police, counselling others to commit mischief and intimidation.

Both say the protest was an organic movement with no clear leader.

“I think it’s kind of poetic in a way, actually, that we have to pack up and go back there again,” Lich said of her plans to return of Ottawa. She spoke earlier this month at an event in Vernon, B.C., where she was promoting the book she wrote about her experience at the protest.

While many people know of Lich because she acted as a spokesperson and a leader during the convoy, there are lesser-known organizers who are facing charges as well, she said.

“Myself and Chris’s trial is the first one and that’s why it’s so important, because what comes out of this is going to set a precedent for everybody else,” Lich said.

“That’s why I’m not going down without a fight and we will come out swinging.”

Keith Wilson, the lawyer who represented Lich during the protest, said the court system has already failed its first test.

Like many people arrested during the protest in Ottawa, Barber was released shortly after his arrest. Lich, however, was held in jail for a total of 49 days.

Following her arrest, she was held for nearly a month after Ontario Court Justice Julie Bourgeois decided she would pose a risk to the “physical, mental and financial health and well-being” of Ottawa residents if she were to try to rekindle the protest.

That decision was reversed after a bail review, and Lich was allowed to return home to Alberta with a lengthy list of conditions, including that she not contact other protest organizers or use social media.

Four months later, in June, she was arrested again on a Canada-wide warrant after the Crown learned that she attended a gala in Toronto where she had been photographed with a fellow convoy organizer.

At the most recent bail hearing, the Crown argued that if Lich is found guilty, she could face a jail sentence of up to 10 years. But Superior Court Justice Andrew Goodman said Lich may have already spent more time in pretrial custody “as a presumptively innocent person” than she would have served if she was convicted and sentenced. She was released again at the end of July to await her trial.

Wilson, who is not representing Lich in the proceedings but said he still offers her legal advice, said the warrant and the amount of time Lich spent in jail before her trial both “brought the administration of justice into disrepute.”

While some would like to see Lich and others face criminal consequences for the convoy, Kempa said the trial will have to focus on the very specific charges before the court.

University of Ottawa law professor Joao Velloso said mischief is a minor infraction that, in many cases, does not result in jail time.

“It was this kind of safe, bureaucratic choice for the police,” he said. “Less demanding choice, in terms of police work.”

Many behaviours could be considered mischief, he said, and the charge offers a lot of latitude for the Crown and courts in terms of deciding on a suitable sentence.

Velloso suggested the result of the trial won’t have much of an effect on how future protests are handled. Ottawa police responded in an “atypical” way compared to other wide-scale protests, such as those that happened when Toronto hosted the G20 summit in 2010 and the 2012 student demonstrations over tuition hikes in Quebec.

In the public inquiry, Rouleau concluded that police failures “contributed to a situation that spun out of control” in Ottawa, and city police made missteps when it came to intelligence, command structure and communication.

Those criticisms could come up again in court.

Velloso said the court could seek to punish Lich and Barber severely if they’re found guilty of mischief.

“But at the same time, the seriousness of the mischief during the protest was produced by lack of policing.”

The trial is expected to last at least 16 days.

This report by The Canadian Press was first published Aug. 30, 2023.