Judge in Lich, Barber criminal trial says case has the potential to go ‘off the rails’

Open this photo in gallery:

The judge presiding over the criminal trial of Tamara Lich and Chris Barber, key organizers of the 2022 convoy protest in Ottawa, said Friday the proceedings have the potential to go “off the rails” and stressed the importance of clearing up what evidence the prosecution intends to put before the court.

Crown prosecutors plan to rely on a large volume of text messages from Mr. Barber’s phone as part of their case. Tension was high at the trial on Friday, after Mr. Barber’s lawyer, Diane Magas, said the prosecution had only recently disclosed which of those messages it intended to focus on in court.

The judge, Justice Heather Perkins-McVey, said the timing of that disclosure could create challenges for the defence on cross-examination. She told the Crown she was “very unhappy” about this, and called a recess.

She later emphasized the need to ensure that the trial’s playing field is as even as it can be, and that everyone is aware of the legal arguments being made. If things continue in the same fashion, she said, “we are going to be in for some serious problems.”

“There’s potential risk of this case going off the rails,” she added.

Mr. Barber and Ms. Lich are facing criminal charges of intimidation, mischief and obstruction of police, all stemming from their roles in the convoy protest, which filled downtown Ottawa with big-rig trucks and brought the area to a standstill for more than three weeks in early 2022. The protesters were opposed to pandemic vaccine mandates, and some expressed anti-government views.

Mr. Barber and Ms. Lich also face charges of counselling others to commit each of those three offences. And Mr. Barber faces a charge of counselling others to disobey a court order.

After Friday’s recess, Crown prosecutor Tim Radcliffe told the court the Crown had informed the defence months ago that a large number of text messages would be used in the trial in some way. But he said the defence had not requested further details.

Mr. Radcliffe said Ms. Magas had waited until two days before the trial’s Tuesday start to ask the Crown which of the text messages prosecutors would be relying upon.

He said he is concerned the defence is not being diligent. Ms. Magas replied that she was offended by that suggestion.

The Crown’s office should have known long ago what evidence it wants to bring forward against her client, Ms. Magas added.

Ms. Lich’s lawyer, Lawrence Greenspon, told reporters after the day’s proceedings that there have been a number of “legal obstacles” in the trial that have taken up the court’s time.

“We’ve done four days of trial, we’ve finished one witness,” he said. “So … that gives you some idea of how difficult it has been to this point.”

Mr. Greenspon said what is at stake is “trial fairness.” He said it is one thing to have a trial that moves along from day to day, but that it is “quite another” to deal with a “moving target.”

“Defence has, before trial, the right to know what case we have to meet,” he said.

“What we are seeing here is, in a number of areas, evidence that … is being put to us mid-trial as to the Crown’s intention as to its use. It’s problematic.”

Mr. Radcliffe played a series of videos in court Friday, including videos of Ms. Lich that had been posted on TikTok. The videos were collected by Ottawa Police Sergeant Joanne Pilotte, who is a witness in the trial. The defence said it is waiting for the Crown to tell it why the footage is being shown to the court.

Social media content is expected to figure prominently in the trial, because the convoy’s organizers were active online.

The trial is expected to run into October, although Justice Perkins-McVey said Friday that she is already looking at additional court dates.

“You heard the comments from the judge,” Mr. Greenspon said. “She is concerned that we don’t have enough time to get this done in the timeframe that’s been set … if it’s her concern, it’s our concern.”