Crown, police arguing against disclosing evidence in Lich, Barber trial

Crown lawyers and the Ottawa Police Service are arguing some internal police communications should not be disclosed to Tamara Lich and Chris Barber's lawyers.

Barber and Lich, on trial for the role they played in organizing the 2022 truck convoy protest in Ottawa, had asked through their lawyers for internal emails about evidence police gave to the Crown.

The defence received heavily redacted copies of those emails, with the OPS arguing that was done to protect solicitor-client privilege.

Eric Grainger, representing Lich, said Thursday those communications could play a "significant role" in the trial and could impact how the defence moves forward with its case.

He said it isn't clear from the redacted materials why certain sections are protected.

"We … are seeking to get access to as much of the context as we can in further attempts to unravel that mystery," Granger said, adding it is in the interest of his client to get to the bottom of it.

He argued the police emails were prepared with the expectation officers would be testifying, so the judge should find them "likely relevant" to the criminal case and have them unredacted.

Crown lawyers argue the disclosure isn't appropriate because the material is either irrelevant or, again, protected by solicitor-client privilege.

The defence says it is a low bar for the disclosure to be considered relevant and OPS waived its solicitor-client privilege when it sent the documents to the Crown.

Lost messages

Defence lawyers are also trying to find out what OPS told officers about a software upgrade to cellphones that police say resulted in the phones of at least two officers being wiped.

Lost in the software upgrade, for example, were messages between a police liaison officer who was texting with Barber throughout the protests.

Defence lawyers have only received a completely blacked-out document about the software upgrade.

Const. Isabelle Cyr and Const. Nicole Bach were police liason team members communicating with convoy organizers and supporters throughout the protests.

Both said from the witness box their phones were wiped because of an OPS software upgrade. A third officer who played a similar role during the protest, and who is on the witness list, did not lose access to his messages.

Grainger said "it's on the Crown to justify" redactions in OPS emails, including about phone upgrades.

Police liaison officers speak to protesters in Ottawa Feb. 10, 2022. (Patrick Doyle/Reuters)

Justice Heather Perkins-McVey, overseeing the matter, said it was "a little unusual" two officers had their phones wiped and questioned how many other police officers may had lost content on their phones.

At least 15 people acted as police liaison officers during the protests.

"(Officers who) knew they would be involved in the case … knew they had to have their phones upgraded and yet did not take the responsible steps to ensure that all the evidence and disclosure was preserved," said Perkins-Mcvey

A lawyer representing OPS argued a formal application should be filed by the defence to view the document, but the defence said they have a right to see it, in part because the Crown has.

Lich and Barber are each charged with mischief, counselling others to commit mischief, intimidation and obstructing police for their role in the weeks-long protest in January and February of 2022.

Perkins-McVey is expected to make her rulings on the disclosure issues in the coming weeks.

The trial resumes Friday with more arguments over the disclosure, and it is currently set to sit three days next week.