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Protests are not illegal — not even the 'Freedom Convoy,' organizers' lawyers argue

Planning a protest, even one as massive and long-lasting as the "Freedom Convoy," is not an illegal act, the lawyer for one of the demonstration's organizers told an Ottawa courtroom on Wednesday.
Defence lawyers representing two high-profile "Freedom Convoy" organizers are expected to present more new evidence today as they lay out their case. Tamara Lich arrives for her trial at the courthouse in Ottawa, on Tuesday, Sept. 19, 2023. THE CANADIAN PRESS/Justin Tang

OTTAWA — Planning a protest, even one as massive and long-lasting as the "Freedom Convoy," is not an illegal act, the lawyer for one of the demonstration's organizers told an Ottawa courtroom on Wednesday.

The early 2022 demonstrations gridlocked streets in the capital's downtown in protest against COVID-19 public-health restrictions, led to declarations of emergency and provoked a massive police response. 

Before they were removed by police, protesters vowed they wouldn't leave the decampment in front of Parliament Hill until the federal government met their demands.

Now two of their most high-profile ringleaders, Tamara Lich and Chris Barber, are answering charges of mischief and intimidation, among several other charges. Barber is also charged with counselling others to disobey a court order.

The Crown has said it intends to prove that Lich and Barber worked together so closely that evidence against one should apply to both.

But to do that, the Crown would have to prove the two were conspiring to break the law, the organizers' lawyers argued

"There is absolutely nothing wrong with people saying they’re going to protest until they get what they want," Barber's lawyer Diane Magas told the court Tuesday. 

"They can stay six months if they do it peacefully, lawfully."

Magas took the court through several of Barber's private text messages and chats, which his lawyers say show that he was simply organizing a protest. 

In one exchange from Jan. 30, Lich texted Barber to say, "They have a strategy to gridlock the city."

"I don’t want to make those decisions on my own," she said in the text. It's not clear from the exchange who "they" were, or what the result of that discussion was. 

In a reply to another person's message about gridlocking the city on the same day, Barber said: "It’s already locked. We trainwrecked it."

Magas told the court that Barber didn't say they did it on purpose. He simply stated the facts. 

She argued his actions were not illegal. 

"There was certainly a common purpose. It was to peacefully, lawfully protest," she said 

Similarly, Lich's frequent use of the protest's rallying cry "hold the line" doesn't imply she was encouraging illegal activity, her lawyer said on Tuesday. 

Prosecutors have argued that Lich and Barber exerted influence over the massive crowds and urged them to "hold the line" as police tried to clear the streets, making the rallying cry a focal point of the trial.

The phrase was used on the "Freedom Convoy 2022" Facebook page before the protesters even arrived in Ottawa, and long before any crimes were alleged to have occurred, Granger argued. 

At one point during the police action, as Lich was arrested and led away in handcuffs, someone shouted at her to "hold the line." In an exchange caught on camera, she repeated the phrase back as she was walked to a waiting police cruiser.

"Any suggestion that 'hold the line' is to be inferred to be something nefarious is entirely speculative," Granger argued.

The Crown closed its case last week, after taking the court through the testimony of several witnesses and dozens of social media posts that showed how the "Freedom Convoy" unfolded over the course of three weeks in early 2022. 

Shouts of "hold the line" were audible in many protest videos, including from Lich, Barber, police and others. The videos also show that the organizers called for a peaceful, unified and loving demonstration. 

In those videos, Lich and Barber both identified themselves as leaders and organizers of the protest, though the defence argues the Freedom Convoy consisted of several factions.

"You can’t refer to it as one entity," said Justice Heather Perkins-McVey, who pointed to similar protests at border crossings and provincial legislatures across the country at the time. 

Granger said the convoy was fragmented even in Ottawa.

The Crown, he argued, hasn't presented enough evidence to establish that Lich and Barber were working together for a common unlawful purpose, or that Lich had anything to do with anything illegal.

"There’s simply an absence of evidence that Ms. Lich is linked to any common unlawful design," Granger said. If anything, the opposite is true, he added: "She tried to avoid anything nefarious happening."

The fact that only Barber is charged with counselling to disobey a court order is a "tacit admission" that the two weren't always working in tandem, he said.

The Crown is expected to make its argument on the conspiracy charge on Wednesday.

Perkins-McVey is not expected to rule on the co-conspiracy motion this week. The defence says it cannot call evidence until she makes her decision. 

This report by The Canadian Press was first published Nov. 28, 2023. 

Laura Osman, The Canadian Press