Two of the main figureheads of the “Freedom Convoy” protest are set to stand trial in Ottawa starting Tuesday.
Tamara Lich and Chris Barber are both accused of mischief, obstructing police, counselling others to commit mischief, and intimidation.
As the trial gets underway and is expected to last 16 days, Global News breaks down what these charges mean.
Under the Criminal Code, mischief has a broad definition. It’s characterized as the willful destruction of property, making it dangerous or useless to others and/or obstructing, interrupting or interfering with the lawful enjoyment of property of others.
“To the layperson, it can seem sort of trivial or minor. You know, when we talk about mischief, it can sometimes conjure up a misbehaving toddler or something like that getting into mischief. But it’s a very serious criminal offense,” explains Michael Spratt, an Ottawa-based defence lawyer.
Spratt says that it is not uncommon to see mischief charges in a large protest or demonstration that disrupts a community. Now, what the court will have to determine is whether Lich and Barber interfered with the rights of other people when they exercised their Charter rights of freedom to protest and freedom of expression.
“The real question is going to be whether the actions of the protesters were lawful and to what degree there was a disruption,” he says.
Spratt says that neither Lich nor Barber necessarily had to be among the people actively honking horns, for instance, to have a mischief charge stick. As leadership figures in the convoy, there is a possibility they can be held responsible for the actions of others.
This goes along with the counselling to commit mischief charge.
“The Crown is going to need to prove that both Lich and Barber, either together or individually, were directing, were in control, knew the damages that were being inflicted and either participated or encouraged others to participate, that they had an active role in that ongoing damage in criminal law,” he explains.
During the Public Order Emergency Commission (POEC) that ran for six weeks in October and November last year, Lich said she did not control the demonstrators when police began to issue notices of coming enforcement unless they left.
Barber testified at POEC that it was not their intention to occupy parts of Ottawa, and there was a power struggle between various organizing figures throughout the convoy protest.
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He said that there was no official leader of the protest.
The central mischief charges carry a maximum penalty of 10 years in prison if convicted, but Spratt sees that as highly unlikely.
“The Criminal Code is designed to be a general legislation that is applied on specific situations, and there can be varying degrees of culpability, various harms inflicted,” Spratt explains.
With respect to the charge of intimidation, Spratt pointed to the many stories of downtown Ottawa residents not feeling safe in their community while the convoy was occupying the city for those three weeks in February 2022.
Zexi Li, an Ottawa resident who was granted an injunction to stop the protesters from using truck horns after days of nearly non-stop noise, told the POEC she was living in fear.
She told the commission she would be often harassed for wearing a mask.
“They would blast their horns at me with a smile on their faces, and then they would cheer in unison and almost take joy (in) my flinching, my recoiling from the noise that I had been essentially experiencing non-stop for the entire duration of the events that occurred,” she said.
Spratt says it will like be harder for the Crown to prove in court that Lich and Barber are guilty of the intimidation charge. He says the Crown could argue that as leadership figures, Lich and Barber helped foster the environment for alleged intimidation to occur.
On the final charge — obstructing police — Spratt says Lich and Barber may still be found liable for things they didn’t do themselves due to their perceived leadership positions, such as carrying jerry cans filled with water after Ottawa Police said no more fuel can be carried into downtown.
“If the Crown is able to prove with evidence in court that they took steps to encourage other people to continue lawless behaviour or obstruct police or intimidate others through actions like telling people to hold the line or to ignore dispersal orders, it’s those types of, controlling actions that can lead them to be liable and to be convicted,” he said.
Lich famously said “hold the line” in a video of her arrest when police moved in to begin breaking up the protest.
“Hold the line” was used as a rallying cry of sorts throughout the protest by many people involved. It is also the title of Lich’s memoir.
When asked during her cross-examination at POEC what she meant by that, Lich said she wasn’t encouraging people to stay, but rather to “stay true to your values in the face of adversity.”
— with files from The Canadian Press and Rachel Gilmore
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