Tag Archives: Justice Heather Perkins-McVey

Day 4 of the Trial of Political Prisoners Tamara Lich & Chris Barber

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Crown exhibit from police body cam.

Hybrid Edition: Sorry for the delay. Yesterday was busy, just getting back from Ottawa. I am including this week’s podcast which is also about the convoy and includes voice messages from people whose lives were harmed by Trudeau’s vaccine mandates (that he says didn’t force anyone).

I’ve been tough on Crown Attorney Tim Radcliffe this week but I don’t think unfairly. It is a mystery to me why he is conducting his case against trucker convoy defendants Chris Barber and Tamara Lich in a manner that is clearly frustrating the judge, annoying the defence and making long days in the courtroom almost unbearably boring.

Friday was a shit show that caused Justice Heather Perkins-McVey to suggest the trial has the potential for going off the rails. She has been a paragon of patience so far but Friday was so bizarre she requested a recess to settle herself. And her mantra was something like I am not happy.

Justice Heather Perkins-McVey

Radcliffe seems either unprepared or somehow unaware of the rules of evidence and disclosure — the gist of which is that the prosecutor must provide the elements of its case to the defence plus all materials in reasonable time to allow counsel to prepare a response. Criminal law 101. From the Criminal Law Notebook.

The Crown must disclose all materials and information that is in its possession or control that is not clearly irrelevant, regardless of if the evidence is to be called at trial or is inculpatory or exculpatory.[1]

The right to disclosures premised upon (1) the right to know the case to meet and (2) the right to make full answer in defence of an offence charged.[2]

Materials in possession of the Crown are not the “property” of the Crown but rather is the “property of the public to be used to ensure that justice is done.”[3]

Purpose

The right to disclosure is founded in the principle of fair play between parties[4] as well as the right to make full answer and defence. [5]

The right to make full answer and defence also suggests in a timely fashion which defence lawyer, Diane Magas asserts did not happen here. Canadian Press picked up by CTV reported in detail what transpired.

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 delivery 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.

In fairness to Radcliffe, he might argue that there is precedent for what he is doing. Perhaps I just didn’t understand it or had stepped out to the washroom but there seemed to be general bafflement toward his approach to evidence. What does this mean for the case? It’s not a good look for the Crown but honourable judges, as Justice Perkins-McVey seems to be, can overlook these issues in the end and focus solely on the evidence as she perceives it — so this is not necessarily a freebie for Lich and Barber.

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In American courts, not handing over exculpatory evidence, something called a Brady violation, will get a convicted person out of jail if discovered after trial. It happened in a wrongful conviction case I investigated involving boxer Dewey Bozella, imprisoned for murdering an elderly lady in upstate New York. No one is suggesting Radcliffe is hiding evidence. But rather delivering it in perhaps obstructionist ways.

All week, there have been housekeeping issues and questions of actual provenance around what seems like hundreds of exhibits, from TikTok videos to digital messaging. As someone who works in documentary films, I can tell you that organizing this kind of material, on a scale this size is a humongous job and the Crown should have set aside a special budget and staff to ensure it was organized and accessible to all relevant parties in meaningful ways. I suspect the Crown’s case relies on it – so this could require a huge fix. Lots of people will be working on it this weekend on both side of the aisle.

This week’s show (listen here) is a convoy special with my documentary producing partner Jacqueline Bynon who was in Ottawa with me and our crew and Tom Marazzo, a convoy participant who has a new book out about his experience. On the show you will hear the voice recordings from Canada and the UK of people whose lives were turned upside by the vaccine mandates that didn’t, according tour our prime minister, mandate the vaccine at all. We didn’t suffer the losses and pain we think we did — because Justin Trudeau is now saying it didn’t happen.

Don’t you feel better now?

Stay critical.

Back to to Ottawa soon.

Report on the First Day of Political Prisoner Tamara Lich’s Trial

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As the morning wore on yesterday in Courtroom Five at the Ottawa Court Building, anticipation and excitement about what might transpire was tamped down by hours of legal housekeeping, most of it brought forward by Crown Tim Radcliffe. He seemed to be struggling with his video evidence and as he did, I spent time studying the mini-community that was taking shape in the gallery.

Behind the Crown on one side, most of legacy media plus professional types focussed on various electronic devices, including phones and laptops. Across the aisle, behind the defense tables many casually attired folks who seemed to have come a long way to support Tamara Lich and Chris Barber. During breaks, everyone was cordial but there wasn’t much mixing. Indy media stuck to themselves and the legacy media types stayed in their own lane. It was clear to see we would be covering the case in different ways. Imagine this happening even five years ago. Unthinkable.

Media, including our documentary crew waiting outside the courthouse.

I couldn’t help feeling it was a microcosm of the country. Like good Canadians, everyone was well behaved but I detected suspicion and the gap between the two sides created and reinforced by our prime minister’s rhetoric was on full display. To be honest, the convoy has exposed a class struggle in this country exacerbated by pols and media who tarnish working people with the usual epithets.

Like the Rodney King case — one of the first where video evidence was paramount, this trial will likely revolve around the thousands of hours shot by citizens and police. The convoy protest was one of the most widely photographed ever given the rise of the cell-phone camera and the growing cadres of citizen journalists who got fed up with legacy media’s bias. But if yesterday is any indication, the Crown is unlikely to produce any gotcha video moments. Constable Craig Barlow presented an 11 minute compilation of videos, some of it police body cam that the Crown must have believed contained inculpatory moments. I didn’t see any and it got worse. From the Ottawa Citizen.

The court was introduced to life in Ottawa during the protests with a 12-minute video of scenes recorded by police from the protest compiled by the first witness in the case, Const. Craig Barlow with the Ottawa police cyber crimes unit.

The sound of revving engines, air horns, chants of “freedom” and “we’re not leaving” filled the Ottawa courtroom as scenes of blocked intersections, large crowds, open fires and Canadian flags played on a large TV screen.

The video also showed a sea of protesters pushing back against police during a massive operation to put an end to the protest.

In her cross-examination, Diane Magas, who is representing Barber, asked Barlow whether he reviewed video of people hugging, games of pickup street hockey, a bouncy castle, and other scenes from the convoy that weren’t included in the compilation video.

When Magus argued to see more than edited snippets and the longer original versions, the video flooded the courtroom with trucker chants of Love not Fear, hardly a scary rallying cry. Justice Heather Perkins-McVey even referred to the phrase in a later discussion. In cross, Magus also asked Barlow if he included any of the video of police hitting protestors in the head. He did not. So she showed it to the court.

As a condition of Tamara’s bail, she is ordered to stay out of the Red Zone in Ottawa unless accompanied by her lawyer, Lawrence Greenspon. That was lifted for lunch yesterday and there will be more talks on-going. I heard from a source there was concern from the Crown Law Office when the bail conditions were originally set, that her presence on the street might trigger locals.

Tamara Lich with her husband Dwayne, yesterday.

And there is some hysteria here. In our hotel, a kindly restaurant worker let loose with a torrent of convoy critiques, including a false tale of a car full of explosives belonging to the protestors. When we mentioned that were this true, there would be criminal charges connected to it and it would have been litigated at the POEC — he defaulted to it’s a secret. And so it goes.

Regardless of what evidence is presented by the Crown at trial, there are a lot of folktales about the protest on a repeat-loop here that perhaps one day an anthropologist can explain.

There was talk last night at dinner that legacy media are doing an OK job covering this case so far. As I said yesterday — perhaps there is a break in our national storm.

I think many people understand what is at stake here, including the judge who is thoughtful and no-nonsense so far. Barber’s lawyer, is going for it. Interesting to watch.

Note: I will be posting Tweets from the courtroom here when I can.

Also – I am quoting from daily news reports for detailed spoken evidence because they are permitted to record the proceedings as they unfold. As an unaccredited journalist, I am not.

Stay critical.

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