OTTAWA—The lawyer for Freedom Convoy organizer Chris Barber is continuing to argue in court for a stay of proceedings on the basis of an “officially induced error of law,” claiming that he was given erroneous legal advice on the legality of the trucker protest.
Barber and Tamara Lich were already found guilty of mischief, while Barber was also found guilty of counselling others to disobey a court order, for their role in the 2022 trucker protest against COVID-19 vaccine mandates and other pandemic restrictions.
Justice Heather Perkins-McVey ruled on April 3 that the pair were not guilty of the other charges of intimidation, obstructing police, and counselling others to do the same. Both were also found guilty of counselling others to commit mischief, but that finding was stayed at the request of Crown lawyers.
Crown prosecutors are seeking two years of prison time for Lich and Barber, as well as to auction off Barber’s iconic truck “Big Red,” which he used to travel from Saskatchewan to Ottawa and parked in the downtown core for three weeks. The sentencing for the two organizers has not happened yet.
In the meantime, Barber’s lawyers are requesting that the proceedings be stayed because he sought legal advice from his previous lawyers, police officers, and a Superior Court judge on the legality of the protest. A stay of proceedings would lead to Barber’s case being put on hold, and he would likely not face any charges.
Defence lawyer Diane Magas has said that the Ottawa Police Service was aware of the protest ahead of its arrival and directed Barber where to park his truck. At two injunction hearings around silencing the honking of truck horns, Barber was also told by his lawyer at the time that he could continue protesting as long as it was done peacefully and safely, and that he could honk his horn in situations of emergency, and that breaching this injunction against honking would not be a criminal offence.
Arguments Over Officially Induced Error of Law
On May 23, defence lawyer Magas said Ottawa Police Service officers suggested that Barber could remain at the protest. She said that since Barber coordinated with the police to move trucks out of the downtown core on Feb. 14, “from that conduct and words, he was induced into believing that what he was doing was lawful.”Magas also said Barber had asked his lawyer at the time to seek guidance from the lawyer imposing the injunction about whether they could continue protesting. She added that during this injunction hearing, the justice also said it was a civil process and not a criminal one.
Justice Perkins-McVey pushed back and said Barber had not specifically asked the police officers whether what he was doing was legal, and said the injunction hearing was only ruling on the issue of horn honking.
Crown attorney Siobhain Wetscher said that while Barber had received “bad legal representation” from his lawyer, that was not an error on the part of an agent of the state. She said that in order for an “officially induced error of law” to apply, the erroneous legal advice needed to come from a government official responsible for administering the law.
Wetscher also said that Barber had confirmed during cross-examination on May 22 that nobody from the office of the mayor of Ottawa told him that the Freedom Convoy was lawful, peaceful, or safe.
Justice Perkins-McVey said if Barber or the other Freedom Convoy organizers had sought specific advice on where they were or were not acting unlawfully, then “we wouldn’t be here.”
Crown attorney Wetscher also said that while Barber was told by a police officer that parts of the demonstration were unlawful, but was told by his lawyer that it was not illegal, “there were no steps taken by [Barber] to get clarity on those two very divergent positions.”
