Timing of evidence disclosure raises ire of judge in 'Freedom Convoy' trial

OTTAWA -

Hope that the trial of two "Freedom Convoy" organizers would last only four weeks may be dashed after the defence raised complaints about receiving heaps of new evidence mid trial. 

There was a sense of tension in the courtroom Friday as Crown and defence lawyers sparred over the timing of the deliver of binders of text message evidence to the defence.

Justice Heather Perkins-McVey called a short recess to step away from the bench to "settle" herself after telling the lawyers she was "very unhappy" about the late-stage disclosure.

"This should have been done well before the trial," she chided before leaving the courtroom.

Perkins-McVey is now working with court staff to find more dates as the prospect the trial will run long has grown. Initially 16 days were set aside for the trial, with three extra days added to the court's calendar as a precaution.

But as the first week of hearings drew to a close Friday, it was clear the timelines were on the brink of being blown.

The text messages are from the cellphone belonging to Chris Barber, who is co-accused with Tamara Lich of mischief, counselling others to commit mischief and obstructing police.

Chris Barber arrives for his trial at the courthouse in Ottawa, on Tuesday, Sept. 5, 2023. Barber and fellow Freedom Convoy organizer Tamara Lich are charged with mischief, obstructing police, counselling others to commit mischief and intimidation. (Justin Tang/THE CANADIAN PRESS)

The charges relate to the role the two played in organizing the convoy that blocked streets in downtown Ottawa for three weeks in the winter of 2022.

Social media and other digital communications are key to the Crown's case, which alleges Barber and Lich exerted control and influence over the unlawful protest, and that they counselled demonstrators to remain in Ottawa after police ordered them out.

Barber's lawyer Diane Magas said she asked the Crown to whittle down tens of thousands of her client's text messages to just the ones expected to be entered into evidence.

Crown lawyer Tim Radcliffe said that request came just before the trial started and was fulfilled this week.

Magas said based on what the Crown had told her she expected roughly 22 of Barber's chats to be at issue. Instead, she said she was given 135 chats to wade through on Thursday.

She told the judge she didn't know how she could be expected to digest the evidence and make sure her client has a fair trial.

The chats are also relevant to Lich's case because the Crown hopes to prove that the two organizers conspired so closely together that evidence against one should apply to them both.

The tempers of lawyers on both sides of the courtroom flared during the debate.

Similar conflicts have played out over the disclosure and admissibility of video and social media evidence in the first week of the trial. Though four police officers have taken the stand so far, only one has finished testifying.

For the others, their evidence has been interrupted by complaints by the defence lawyers that they don't have all the information they need to craft their defence, or about the admissibility of the evidence.

The lawyers had intended to spend the morning arguing over the admissibility of Facebook evidence, but that plan went out the window when the issue of the text messages was raised.

The Crown says getting the "Freedom Convoy 2022" Facebook page accepted as evidence in the trial is the first step toward proving the two organizers conspired together, and that evidence against one should apply to both.

Lich's lawyer, Eric Granger, said the Crown is trying to put 212 pages of Facebook evidence to the court, and it's unclear who authored many of the posts.

"It involves a number of posts not by Mr. Barber, not by Ms. Lich," Granger said outside the courthouse Thursday.

This is not the trial of the Freedom Convoy, he said, "this is the trial of these two particular individuals."

Perkins-McVey vowed before the trial began that she would keep the proceedings on the rails, and told the court Friday that is still her intention.

This report by The Canadian Press was first published Sept. 8, 2023.