Lynne Cohen is an author and non-practicing lawyer based in Ottawa. For Tamara Lich and Chris Barber, November 26 is the day they find out when they will find out.The pair are facing up to 10 years in jail for their roles organizing the Freedom Convoy trucker protest that disrupted downtown Ottawa in January and February 2022, and which later prompted the Trudeau government to invoke the never-before-used federal Emergencies Act. (Essentially, the War Measures Act, rebranded.)After dragging on for 13 months, their trial finally concluded this past September. On November 26 Ontario Court Justice Heather Perkins-McVey has promised to provide an update on when she will deliver her final verdict.It could be several more months before Lich and Barber find out their fate. But while we await that outcome, it is worth investigating one aspect of their case that has been overlooked despite the massive media spotlight — the fate of a controversial “Carter application” made by Crown prosecutors.Named for a 1982 Supreme Court case involving a marijuana smuggling ring in the Maritimes, a Carter application consists of a series of steps and evidentiary standards required to link individuals together in a broader criminal conspiracy. Significantly, the focus of the Crown’s Carter application appears to be the one charge that does not apply to Lich.Together, Lich and Barber are charged with committing mischief, obstructing police, blocking a highway and counselling others to do all these things. All this is an effort to make the pair the “villains” of the protest — and thus justify the use the Emergencies Act. That said, none of these crimes are particularly serious. On his own, however, Barber is also charged with counselling others to violate a court injunction.On February 7, Ottawa residents received a court order prohibiting truckers from gratuitously honking their horns, an aspect of the protest locals found particularly annoying. On February 9, Barber foolishly went on TikTok and told other protestors to “Grab that horn switch and don’t let go. Let that f—–’ horn go no matter what.”As well-known Toronto criminal defence lawyer Ari Goldkind said in an interview, this evidence presents a “problem” for Barber; he is explicitly calling on protesters to disobey the court order. Of all the charges faced by the pair, this one seems the most likely to stick. The issue for the Crown is that it sticks only to Barber.Amid the mountains of social media and other evidence collated and presented by the Crown during the trial, there is nothing to show that Lich ever encouraged anyone to break a court order. “There’s not one word emanating [from] Tamara Lich that she even said ‘honking’ or ‘horns’,” Lich’s lawyer Lawrence Greenspon pointed out during the trial. Quite the opposite. The evidence repeatedly shows Lich counselling others to remain lawful and respectful.The Crown plans to get around this inconvenient lack of proof by using its Carter application to tie Lich and Barber together as members of a conspiracy. As Goldkind explained, a Carter application “basically uses the actions of one of the co-conspirators to obtain a conviction against the other.” If the Crown’s Carter gambit succeeds, a conviction against Barber on this single charge could then be applied to Lich as well. Even if she never did anything of the kind.This explains why prosecutors went to great lengths during the trial to present Lich and Barber together as co-leaders of the protest. “They’re not ordinary members of the occupation,” [emphasis added] Crown prosecutor Tim Radcliffe stated in his final submission, using an inflammatory mischaracterization of the protest favoured by the government and other Freedom Convoy opponents. “They are leaders, publicly identified as such.”The Carter application also explains the Crown’s odd fixation with pronouns. The prosecution submitted numerous examples of Barber and Lich using terms such as “we” and “us,” including when Lich said on February 3, “We plan to be here for the long haul.” According to Radcliffe, “that ‘we’ pronoun was endless,” and this supposedly proves their combined leadership role.In his own summation address, Greenspon painstakingly rebutted the Crown’s efforts to link Lich to Barber’s problematic TikTok post and thus find her guilty of a crime she did not commit. “What Tamara Lich encouraged was entirely lawful,” Greenspon continued. reenspon noted Lich’s efforts to register the truckers and implement “a signed code of conduct.” Even more significant is the agreement she struck with Ottawa mayor Jim Watson to begin voluntarily removing trucks from Parliament Hill. The deal was signed before the invocation of the Emergencies [War Measures] Act. As for the Crown’s Carter gambit, Greenspon charged, “It is unprecedented for the Crown to take a democratic lawful purpose and try to juxtapose that with acts by other individuals.”When she delivers her judgement, Perkins-McVey will also reveal her ruling on the Crown’s Carter application, and whether Lich can be punished for a crime other people committed. Canadian justice awaits.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.
Lynne Cohen is an author and non-practicing lawyer based in Ottawa. For Tamara Lich and Chris Barber, November 26 is the day they find out when they will find out.The pair are facing up to 10 years in jail for their roles organizing the Freedom Convoy trucker protest that disrupted downtown Ottawa in January and February 2022, and which later prompted the Trudeau government to invoke the never-before-used federal Emergencies Act. (Essentially, the War Measures Act, rebranded.)After dragging on for 13 months, their trial finally concluded this past September. On November 26 Ontario Court Justice Heather Perkins-McVey has promised to provide an update on when she will deliver her final verdict.It could be several more months before Lich and Barber find out their fate. But while we await that outcome, it is worth investigating one aspect of their case that has been overlooked despite the massive media spotlight — the fate of a controversial “Carter application” made by Crown prosecutors.Named for a 1982 Supreme Court case involving a marijuana smuggling ring in the Maritimes, a Carter application consists of a series of steps and evidentiary standards required to link individuals together in a broader criminal conspiracy. Significantly, the focus of the Crown’s Carter application appears to be the one charge that does not apply to Lich.Together, Lich and Barber are charged with committing mischief, obstructing police, blocking a highway and counselling others to do all these things. All this is an effort to make the pair the “villains” of the protest — and thus justify the use the Emergencies Act. That said, none of these crimes are particularly serious. On his own, however, Barber is also charged with counselling others to violate a court injunction.On February 7, Ottawa residents received a court order prohibiting truckers from gratuitously honking their horns, an aspect of the protest locals found particularly annoying. On February 9, Barber foolishly went on TikTok and told other protestors to “Grab that horn switch and don’t let go. Let that f—–’ horn go no matter what.”As well-known Toronto criminal defence lawyer Ari Goldkind said in an interview, this evidence presents a “problem” for Barber; he is explicitly calling on protesters to disobey the court order. Of all the charges faced by the pair, this one seems the most likely to stick. The issue for the Crown is that it sticks only to Barber.Amid the mountains of social media and other evidence collated and presented by the Crown during the trial, there is nothing to show that Lich ever encouraged anyone to break a court order. “There’s not one word emanating [from] Tamara Lich that she even said ‘honking’ or ‘horns’,” Lich’s lawyer Lawrence Greenspon pointed out during the trial. Quite the opposite. The evidence repeatedly shows Lich counselling others to remain lawful and respectful.The Crown plans to get around this inconvenient lack of proof by using its Carter application to tie Lich and Barber together as members of a conspiracy. As Goldkind explained, a Carter application “basically uses the actions of one of the co-conspirators to obtain a conviction against the other.” If the Crown’s Carter gambit succeeds, a conviction against Barber on this single charge could then be applied to Lich as well. Even if she never did anything of the kind.This explains why prosecutors went to great lengths during the trial to present Lich and Barber together as co-leaders of the protest. “They’re not ordinary members of the occupation,” [emphasis added] Crown prosecutor Tim Radcliffe stated in his final submission, using an inflammatory mischaracterization of the protest favoured by the government and other Freedom Convoy opponents. “They are leaders, publicly identified as such.”The Carter application also explains the Crown’s odd fixation with pronouns. The prosecution submitted numerous examples of Barber and Lich using terms such as “we” and “us,” including when Lich said on February 3, “We plan to be here for the long haul.” According to Radcliffe, “that ‘we’ pronoun was endless,” and this supposedly proves their combined leadership role.In his own summation address, Greenspon painstakingly rebutted the Crown’s efforts to link Lich to Barber’s problematic TikTok post and thus find her guilty of a crime she did not commit. “What Tamara Lich encouraged was entirely lawful,” Greenspon continued. reenspon noted Lich’s efforts to register the truckers and implement “a signed code of conduct.” Even more significant is the agreement she struck with Ottawa mayor Jim Watson to begin voluntarily removing trucks from Parliament Hill. The deal was signed before the invocation of the Emergencies [War Measures] Act. As for the Crown’s Carter gambit, Greenspon charged, “It is unprecedented for the Crown to take a democratic lawful purpose and try to juxtapose that with acts by other individuals.”When she delivers her judgement, Perkins-McVey will also reveal her ruling on the Crown’s Carter application, and whether Lich can be punished for a crime other people committed. Canadian justice awaits.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.
