COHEN: Lich, Barber find the process is the punishment

Lynne Cohen is an author and non-practicing lawyer based in Ottawa In his classic 1979 book “The Process is the Punishment,” American sociologist Malcolm M. Feeley observed a distinction in the form of punishment meted out by the upper and lower courts of New Haven, Connecticut. The higher federal courts, he noted, were concerned with serious crimes such as rape and murder and thus handed out significant penalties, including lengthy jail time and possibly even the death penalty.The lower courts however, dealt with relatively minor crimes that attracted suitably lighter sentences. It was Feeley’s insight that the true nature of the punishment in these courts lay in the accumulation of various pre-trial burdens placed on the accused, such as meeting bail, getting time off work, attending court and so on. By the time a verdict was rendered — whether guilty or not guilty — the “sentence” was essentially over.Feeley’s work has become increasingly relevant throughout North America in the ensuing decades as prosecutors now seek to punish the accused with grotesquely long and costly court cases without regard to due process or natural justice. For Canadians, the most recent and egregious example of such punishment-by-process can be seen in the relentless persecution of Tamara Lich and Chris BarberLich and Barber were popularly regarded as the leaders of the Freedom Convoy protest that took over downtown Ottawa in January and February 2022 to protest the federal Liberal government’s vaccine mandates for cross-border truckers. When Prime Minister Justin Trudeau decided he could no longer abide the protest, he invoked the never-before-used Emergencies [War Measures] Act, essentially declaring the entire protest to be a dangerous insurrection. Lich and Barber were then arrested along with numerous other protesters. They also had their bank accounts frozen.Rather than being charged with riot, sedition or some other terrible crime, however, the worst the police could come up with for the pair was mischief and assorted other insignificant offences. And while mischief is punishable by up to 10 years in jail, most guilty verdicts in Canada for mischief result in no jail time at all. That was certainly the experience of the many other Freedom Convoy protestors arrested alongside Lich and Barber. In fact, according to the Justice Centre for Constitutional Freedoms, most had their cases dismissed outright.But Lich and Barber were not average protesters. Having declared the entire Freedom Convoy a threat to the very security of Canadian society, it became necessary for the legal system to make an example of them. Someone had to play the role of villain, and Lich and Barber fit the bill. The unprecedented vigour with which the Crown pursued the pair caused Toronto-based criminal lawyer Ari Goldkind to claim it was evidence of a “prosecutorial vendetta”.This included denying Lich bail after she was first arrested, and then re-arresting her on a trumped-up claim she broke her initial bail conditions when she attended a ceremony in Toronto giving her an award for her protest efforts. She spent a total of 49 days in jail before the trial even began.The trial itself was initially scheduled for a tidy 10 days, but ended up stretching to 45 days over 13 months. Nearly all this time was the result of Crown tactics that dragged the trial out for as long as possible. The defence called no witnesses and entered no evidence.The Crown prosecutors may have hoped that by extending the trial, Lich and Barber could be induced to plead guilty. The effect on the pair was certainly severe, given lawyer fees and many other expenses and disruptions. But thanks to the fundraising efforts of organizations such as Rebel News and The Democracy Fund, they were able to outlast the Crown. As Lich remarked in a brief courthouse interview during a break in the trial, “I want a not guilty. Period. And I am not afraid. What are they going to do, put me in prison? Been there, done that. If they can’t frighten you, they have no power over you.”By the time the trial finally lurched to its conclusion in September 2024, Lich’s lawyer Lawrence Greenspon said, “I’ve represented people charged with a lot more serious crimes than this, and the trials have not taken nearly as long.” At one point, he jokingly vowed to apply to the Guinness Book of World Records. Advocacy group The Democracy Fund claimed it was the “longest mischief trial in Canadian history.” The trial’s extreme length should be regarded as an obscene waste of public resources and proof of punishment by process.On November 26, Ontario Court Justice Heather Perkins-McVey has said she will deliver an update on when her final judgement will be released. It could be many more months. Regardless of her ultimate verdict, however, Lich and Barber have already been punished. By the process.Lynne Cohen is an author and non-practicing lawyer based in Ottawa. The original, full-length version of this story first appeared at C2CJournal.ca.

COHEN: Lich, Barber find the process is the punishment

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