CONVOY TRIAL DIARY: DAY FOUR

How to Alienate a Judge in Four Days

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.

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.