R. v. Barber and Lich

Court Information

Citation: 2025 ONCJ 526

Court File No.: 23-11401103

Date: October 7, 2025

Court: Ontario Court of Justice

Before: Justice Heather E. Perkins-McVey

Parties

Crown: Her Majesty the Queen

Counsel for the Crown: S. Wetscher and T. Radcliffe

Accused: Christopher Barber and Tamara Lich

Counsel for Christopher Barber: D. Magas

Counsel for Tamara Lich: L. Greenspon, E. Granger, and H. Drennan

Heard: Various dates from September 2023 to October 2025

Reasons for Judgment Released: October 7, 2025

I. OVERVIEW

[1] Tamara Lich and Christopher Barber were each convicted of mischief and Mr. Barber was additionally convicted of counselling others to disobey a Court Order arising from their involvement in the Freedom Convoy, which gridlocked the streets of Ottawa from January 29 to February 18, 2022. Both Accused were released on bail under strict conditions, with Ms. Lich spending forty-nine days in custody and Mr. Barber two days.

[2] The trial spanned just over two years with numerous days during that time, involving extensive evidentiary hearings, and unprecedented procedural motions, a bail variation, an application to stay, each requiring fulsome submissions on each of these legal arguments. Although this sentence decision will draw an end to these proceedings for Ms. Lich, the Crown Application seeking the Forfeiture of "Big Red" has not concluded and will continue later in November.

[3] The Crown seeks extraordinary, in fact unprecedented custodial sentences for each of the Accused. The Crown seeks a custodial sentence of seven years for Ms. Lich and eight years for Mr. Barber given his additional conviction for counselling to disobey a Court Order. The Crown argues that there is no real precedent in terms of sentencing for a mischief of this nature, scope and magnitude.

[4] The Crown argues that Mr. Barber and Ms. Lich are criminally responsible for the extraordinary harm caused, and profound impact to the public and the community of Ottawa because of the Freedom Convoy 2022 of which they were leaders and organizers. It is further argued that the mischief arising from the Freedom Convoy had a significant broader public impact. The Crown argues the messaging of the Accused did not represent passive expressions of belief, but rather active, sustained counselling of unlawful conduct.

[5] Defence Counsel for both Accused, on the other hand, submit that the offences warrant absolute discharges or, alternatively in the case of Mr. Barber at least, a non-custodial disposition. Counsel for Mr. Barber submit the sentence sought by the Crown is excessive, unfit, and unduly harsh, amounting to cruel and unusual punishment.

[6] Counsel for Ms. Lich says the Crown's sentencing position is untenable and ask the Crown to admit that this is a prosecution not because of the means advocated by Tamara Lich but because of the means used by a minority of protestors present, suggesting the real raison d'être of this prosecution has always been the consequences of those means employed by others. He also argues that there are five unprecedented things about this case that reduce Ms. Lich's moral blameworthiness. One, the means used by others should not be visited upon her in terms of sentence. Arguing, Ms. Lich never advocated for the means that were actually used, the ones complained of, the ones that led to the consequences. Two, she never advocated violence or unlawfulness. Three, it is suggested that there were other groups and persons she did not control, that did not act peacefully. Fourth are the considerable efforts made by Ms. Lich and Mr. Barber to mitigate the consequence of the means utilized by others. And that there is no case where a protestor attempted to work with police to lessen the impact of the protest. And lastly, Counsel for Ms. Lich argued that the Freedom Convoy had a positive effect on the lives of thousands of people across this country.

[7] The parties could not be further apart in their submissions or in their perspectives regarding this case much in the same way as this trial has highlighted the schisms in Canadian political society. Politics has no place inside the courtroom and plays no role in the determination of what is a fair, just and appropriate sentence.

[8] In determining a fit and proportionate sentence, the Court must consider the gravity of the offence, the degree of responsibility of each offender, and the applicable sentencing principles under the Criminal Code. The Court must also consider relevant jurisprudence to situate the present case within the broader framework of protest-related mischief sentencing.

II. SUMMARY OF TRIAL FINDINGS OF FACT RELEVANT TO SENTENCE

[9] The Court's complete finding of fact is set out in the trial decision R. v. Barber and Lich [2025] O.J. No.1564 (C.J) released April 3, 2025, and those reasons have been fully considered. Of course, they inform the aggravating and mitigating factors to be considered as part of the sentencing process. In summary they are as follows:

Both accused were found guilty of mischief for their roles in organizing and sustaining a protest that interfered with the lawful use and enjoyment of property. The mischief caused by the actions of the accused as principals and parties of the Mischief was neither peaceful nor lawful. The protest was nonviolent but not peaceful. The Court found the Freedom Convoy went beyond the boundaries of a legal protest.

They were found to have counselled mischief through their public statements and social media posts.

[10] Mr. Barber was also found guilty of counselling others to breach a Court Order prohibiting horn use.

[11] The Freedom Convoy protest took place in Ottawa from January 28 to February 21, 2022. The protest caused significant disruption to the downtown core, including blocked streets, obstruction of emergency lanes, constant honking of horns, odorous diesel fumes, and restricted access to residences, businesses, and services. Civilian witnesses testified to being unable to sleep, work, or access medical appointments. Businesses reported loss of revenue and customer access.

[12] Ottawa Police initially facilitated truck parking and provided maps for staging areas. Inspector Lucas approved the operational plan set out in Exhibit No. 125 to contain the protest. It was his decision to allow trucks on Wellington Street. He said Wellington was where they wanted to be, and it was an easy place to manage. The Ottawa Police looked for areas where they could divert these vehicles to mitigate the impact on the city. He said; "It's a balance regardless of the message. We wanted to balance the right of free speech but mitigate the impact."

[13] However, the trucks coming to Ottawa did not follow those instructions and restrictions as set out in the operational plan found in trial Exhibit No. 125. Police attempted to maintain emergency lanes but lost control early in the protest. Later, a plan to reduce the footprint was developed. This plan, however, was only partially implemented before being halted by police leadership. Police Liaison Teams ("PLT") communicated regularly with Mr. Barber to manage safety and logistics.

[14] Tamara Lich was a founding member and President of the Freedom Convoy 2022 Corporation. Chris Barber was one of the founding directors. Ms. Lich arrived with Chris Barber January 28, 2022. Both she and Chris Barber were involved in organizing and leading trucks from Western Canada. Chris Barber drove a truck ("Big Red") from Stewart Valley joining the Convoy along with others in Medicine Hat, Alberta which was parked on Wellington Street for approximately eleven days January 29, 2022, to February 8, 2022.

[15] There was overwhelming evidence that Ms. Lich and Mr. Barber were leaders of a significant group of truckers that arrived in Ottawa, and that group was described as the broad moderate group. The Freedom Convoy associated with this group that consisted of approximately three hundred trucks.

[16] Both Ms. Lich and Mr. Barber came to Ottawa with the noblest of intentions, to simply protest their wish for the government and the then Prime Minister to end COVID mandates.

[17] Chris Barber made social media posts acknowledging the disruption caused by the protest by the texts shown in Exhibit No. 135. Mr. Barber clearly knew as early as January 29, that they were "…completely messing the city up." "We fucked this town up." "It's already locked, we train wrecked it." Similarly, in speaking about slow rolls, Barber said; "Really good, train wrecked traffic". There were numerous videos and photos depicting Mr. Barber circulating on Ottawa streets that were clearly blocked or obstructed by demonstrators and vehicles during the demonstration. Mr. Barber clearly knew what was going on in the streets of Ottawa.

[18] It was found that there was more than one group involved in the Convoy Movement as groups of trucks and persons came to Ottawa from various parts of the country. I accepted the evidence that Mr Barber was not able to influence or control all the truckers and even some with within his own group, as was shown in some of the text exchanges with Constable Bach.

[19] Ms. Lich's primary role was as a spokesperson and fundraiser, managing GoFundMe and GiveSendGo campaigns. She was also said to be publicly the face of the Freedom Convoy Movement and the spark that lit the fire of this Freedom Convoy.

[20] On a social media post, Ms. Lich says; "So please, if you can donate, and keep these truckers going, you know we plan to be here for the long haul, as long as it takes to ensure your rights and freedoms are restored. The purpose of those funds is to allow the truckers to stay longer in Ottawa and keep the protest going in the form that it was, blocking the roads".

[21] Ms. Lich, when speaking to her followers and in social media about the convoy, repeatedly said that they should; "Hold the line, we will hold the line". She also encouraged people and truckers to come to Ottawa and join and participate with them. As a leader and the face of the Convoy when she said; "Hold the line" or "Stay where you are" and encouraging people to stay, it meant something, she had influence. Importantly when Ms. Lich said these things, she was aware the streets were blocked, and people were being affected by that blockade. As she was seen in amongst the trucks and protestors in photos and social media.

[22] Ms. Lich did not have a vehicle in Ottawa, emitting exhaust fumes, nor did she honk a horn or block the egress to a building. But as a leader of the Freedom Convoy 2022, she was standing shoulder-to-shoulder with the truckers, both literally at times and figuratively.

[23] Ms. Lich had no direct contact with any civilian witnesses called by the Crown during the protest. During both her arrest and that of Chris Barber, they were compliant and arrested without incident. Both seemed to appreciate leading up to their arrest on February 17, that their arrest was imminent as shown in social media and texts. Both Accused made statements urging followers to respect law enforcement and remain peaceful.

[24] Both Accused always advocated for non-violent peaceful, lawful protest in their public statements and social media posts.

[25] Ms. Lich responded to Mayor Watson's letter as President of the Freedom Convoy, agreeing to a plan to reduce the protest footprint to alleviate the impact on residents by moving trucks out of residential areas. In Ms. Lich's response to the letter, she acknowledges their actions were disturbing some citizens and businesses but says that was never our intent. The mayor corresponded with that group because they were seen to be the broad moderate group of the Convoy.

[26] On February 13, Mr. Barber attended a meeting with city officials to implement the truck relocation plan. On February 14, one hundred and two vehicles, including forty heavy trucks, were moved out of residential areas. City officials confirmed that the Freedom Convoy kept its end of the agreement. The plan was thwarted at the direction of then Ottawa Police Chief Sloly. Also Mr. Barber worked at times with Cst. Bach to open streets and facilitate emergency access and assist with issues that arose. Both Accused demonstrated a willingness to cooperate with authorities in reducing the protest's impact.

[27] Chris Barber was actively involved in logistics, liaising with police, and coordinating truck movements and arranging for fuel and porta potties for the truckers who were part of the Freedom Convoy. He had direct contact with Police Liaison Officers Bach and Blonde and city officials, particularly Kim Ayotte when they were attempting to move trucks to reduce the footprint in the downtown core.

[28] Chris Barber at times expressed frustration with protestors who did not follow directions, indicating he had limited control over some truckers and groups of truckers.

[29] By February 4, as set out in Exhibit No. 127, the Ottawa police made their position clear that they were implementing a surge and containment policy to restore order and prevent unlawful activity. Mr. Barber clearly understood, as shown in his responses to Cst. Bach. The Court found that by February 4, it was clearly conveyed by OPS that they had crossed the line and were engaging in unlawful conduct.

[30] Mr. Barber used social media to coordinate logistics and rally support and get the message out to his followers. On February 9, Mr. Barber posted a TikTok video – Exhibit No. 24, instructing truckers to sound their horns if police approached, despite a Court Order prohibiting horn use. Mr. Barber acknowledged the Order and deliberately encouraged others to breach the order.

Findings of Fact – Carter Evidentiary Ruling (Relevant to Sentence)

[31] The Crown alleged five conspiracies involving mischief, intimidation, obstruction, and counselling unlawful acts.

[32] The Court found no conspiracy or common unlawful agreement proven beyond a reasonable doubt.

[33] The Carter Application was dismissed due to insufficient evidence of a specific unlawful agreement between Lich and Barber. Statements made by one accused could not be admitted against the other under the co-conspirator exception.

[34] At para. 47, the Court found that while there was some collaboration between Ms. Lich and Mr. Barber, the precise scope and extent of that collaboration, however, was unclear.

[35] At para. 48, Ms. Lich's communications were primarily focused on fundraising through GoFundMe and GiveSendGo. There was no evidence that she blocked any streets, operated a vehicle in Ottawa, honked a horn, or emitted diesel fumes. None of the witnesses at trial had personal interactions with her, except for police officers during her arrest, during which she was entirely compliant.

[36] At para. 50, by January 28, 2022, Inspector Lucas thought the protest had grown to include up to thirteen identified groups, in addition to numerous individuals acting independently.

[37] At para. 52, Inspector Lucas testified that during the planning phase, protestors were cooperative with police. There were no red flags identified en route, and police attempted to divert vehicles to mitigate the impact on the city.

[38] At paras. 63 - 64, text message exchanges between Mr. Barber and Cst. Bach supports the conclusion that Mr. Barber did not have control over all protest participants. Mr. Barber made repeated efforts to manage horn honking and move trucks, expressing frustration with non-compliance. He stated; "I can plan all I want. You have seen no one tells them what to do." and "If I could pick each one up and move them I would." These communications demonstrate Barber's efforts to mitigate disruption, despite limited authority over participants.

[39] At para. 67, in her response to the mayor's letter of February 12, Ms. Lich shows her awareness of the protest's impact on downtown residents and businesses. She indicated that the Board had a plan to reduce that impact. Mr. Barber's attendance at meetings and his involvement in moving trucks constituted the strongest evidence of collaboration between the two regarding the alleged mischief.

[40] At para. 68, on February 14, 2022, pursuant to an agreement with the City of Ottawa, one hundred and two vehicles and forty heavy trucks were moved from residential areas to Wellington Street and other designated locations. Mr. Ayotte and Inspector Lucas confirmed that the Freedom Convoy fulfilled their obligations under the agreement, although the Chief of Police later terminated its implementation.

[41] At para. 69, Mr. Barber worked with the police at times to open various streets, further demonstrating efforts to reduce disruption.

[42] At para. 75, regarding the January 29 text exchange between Ms. Lich and Mr. Barber, The Court found no evidence identifying the so-called "command centre" or its members. There was no indication that Ms. Lich agreed with any strategy attributed to it. The term "gridlock" was not used by Ms. Lich, and her agreement with the City to move trucks contradicted any suggestion of an unlawful plan.

[43] At para. 77, the evidence confirmed a lack of a plan upon arrival in Ottawa. More vehicles arrived than anticipated, and Ottawa Police directed them where to go, several factors came together that resulted in the downtown core being overwhelmed. Texts referencing overnight parking and Barber saying he was going to call his high-level police contacts further illustrated the absence of a coordinated strategy.

[44] At para. 78, Mr. Barber's cooperation with the police and Ms. Lich's agreement with the mayor to move vehicles to staging areas were not indicative of an unlawful agreement to obstruct or interfere with lawful property use.

[45] At para. 83, there was no evidence of a coordinated plan or unlawful agreement between Ms. Lich and Mr. Barber to obstruct property, except for the agreement with the mayor to relocate trucks, which was contrary to any unlawful intent.

[46] At para. 89, both Ms. Lich and Mr. Barber made statements encouraging their followers to cooperate with law enforcement.

[47] At para. 97, Ms. Lich consistently emphasized that the protest must remain peaceful and lawful. She advised followers to report misconduct to the police. Mr. Barber echoed this message and distanced himself from inappropriate actions, such as flag burning. He also worked with the police at times to clear access near residential buildings.

[48] At para. 100, the Court found that Mr. Barber may have engaged in activities beyond the scope of any agreement with Ms. Lich, particularly regarding truck operations. He could not be considered her agent in those matters.

III. SUBMISSIONS OF COUNSEL

Crown Submissions

[49] Crown counsel submitted that the offences committed by Ms. Lich and Mr. Barber were of an unprecedented scale and impact, warranting a sentence in the upper range of the Criminal Code's ten-year maximum for mischief. The Crown emphasized that while the protest may have begun lawfully, it evolved into a sustained and organized disruption of public order, with significant consequences for residents, businesses, and municipal operations in Ottawa.

[50] The Crown argued that the Accused were not being prosecuted for their beliefs, but for the means they employed to express those beliefs. It was submitted that both Accused, through their leadership roles and public messaging, counselled others to remain in Ottawa and continue the protest, despite being aware of its unlawful consequences.

[51] The Crown relied heavily on the principles of denunciation and deterrence, citing the need to send a clear message that political protest cannot cross into criminality without consequence. The Crown referenced the invocation of the Emergencies Act, municipal and provincial states of emergency, and the financial costs incurred by the City of Ottawa ($7 million) and Ottawa Police Service ($55 million) as indicative of the gravity of the offences.

[52] Victim and community impact statements were tendered, describing economic losses, emotional distress, and disruption of essential services. The Crown acknowledged that some statements were prepared for civil proceedings but maintained they were relevant to the sentencing context.

[53] In respect of Mr. Barber, the Crown emphasized his additional conviction for counselling disobedience of a Court Order and pointed to his text messages referencing gridlock and disruption, arguing that these demonstrated a deliberate disregard for lawful authority.

[54] The Crown submitted that while both Accused made some efforts to cooperate with authorities, these were limited and insufficient to mitigate the overall impact of their conduct. The Crown sought a sentence of eight years imprisonment for Mr. Barber and a similarly lengthy seven-year custodial sentence for Ms. Lich.

Defence Submissions – on behalf of Chris Barber

[55] Defence Counsel for Mr. Barber submitted that the Crown's proposed sentence of eight years imprisonment was excessive, unfit, and disproportionate, particularly considering Mr. Barber's lack of criminal record, cooperation with police, and efforts to mitigate the impact of the protest.

[56] Ms. Magas emphasized that Mr. Barber was a first-time offender, with deep family roots in Stewart Valley, Saskatchewan, where he resides on land homesteaded by his great-grandfather since 1905. He is a father of four, including two stepchildren, and has operated a cross-border trucking business for over thirty years, with approximately 60% of his work involving travel to the United States.

[57] Counsel submitted that Mr. Barber's moral blameworthiness was significantly reduced by several factors: He sought legal advice throughout the protest, albeit from non-criminal lawyers; He cooperated with police, including moving his truck "Big Red" to Exit 88 on February 8, 2022; He attempted to reduce the protest footprint, as evidenced by text exchanges with Constable Bach; and his attendance at meetings with city officials.

[58] Mr. Barber did not advocate violence or destruction of property, and his social media messaging consistently emphasized peaceful protest and cooperation with law enforcement on arrest. Though on at least one occasion, he used social media to mislead police into thinking the Convoy was moving to Toronto. He said he was playing cat and mouse.

[59] Ms. Magas referenced the Carter ruling, in which the Court found no conspiracy or common unlawful design between Mr. Barber and Ms. Lich. This, she argued, was a critical distinction from other protest-related mischief cases involving deliberate planning of unlawful conduct.

[60] Counsel submitted that Mr. Barber's conduct must be assessed in the context of the unprecedented nature of the protest, which arose during a period of COVID-19 lockdowns, public frustration, and grassroots mobilization. She noted that Mr. Barber was perceived by many as a hero, and that he received numerous letters of support from family, community members, and even his ex-wife and her husband.

[61] The Defence highlighted the collateral consequences Mr. Barber has already suffered: His personal bank account was frozen for two to three months under the Emergencies Act. He incurred over $40,000 in travel expenses attending court.

[62] He faces ongoing civil litigation, with a class action lawsuit seeking damages in the hundreds of millions.

[63] He was subject to strict bail conditions for over three years, including a $100,000 bond.

[64] Ms. Magas requested an absolute discharge, arguing that any criminal record would likely jeopardize Mr. Barber's ability to continue his cross-border business. In the alternative, she submitted that a suspended sentence or conditional sentence would be appropriate, noting that Mr. Barber poses no danger to society, has complied with all bail conditions, and has demonstrated rehabilitative potential.

Submissions on Behalf of Ms. Tamara Lich

[65] Defence Counsel for Ms. Lich submitted that her conviction was based on recklessness, not intent, and that her conduct was consistently peaceful and lawful. Mr. Greenspon argued that the Crown's assertion that it was prosecuting the "means" rather than the "beliefs" of Ms. Lich was facile and inaccurate, as the means she advocated were peaceful and lawful throughout.

[66] Mr. Greenspon identified five distinguishing factors that set Ms. Lich apart from other protest leaders: She never advocated violence or unlawful conduct; She did not control other groups or individuals who acted unlawfully; She made unprecedented efforts to mitigate the impact of the protest, including responding positively to Mayor Watson's request to reduce the footprint; She cooperated with police, albeit indirectly, through communications and coordination; The protest had a positive societal impact, as evidenced by over five hundred and ninety-two pages of letters of support, many of which described lives changed, hope restored, and peaceful civic engagement.

[67] Mr. Granger emphasized the relevance of the Carter ruling, which found no criminal plan or conspiracy, thereby distinguishing Ms. Lich's case from precedent mischief cases involving deliberate unlawful conduct. He argued that Ms. Lich's moral blameworthiness was significantly attenuated, and that her messaging consistently emphasized peaceful, lawful protest.

[68] Counsel detailed Ms. Lich's personal background and hardship. She is a mother of three and grandmother of four, with a fifth grandchild expected in December 2025.

[69] She lost her job in June 2022 and has since completed a Crisis and Recovery Coaching certificate.

[70] She spent forty-nine days in custody, on release was subject to strict bail conditions for 3.5 years.

[71] She received hate mail and death threats, though supportive messages outnumbered hate mail.

[72] Mr. Granger submitted that Ms. Lich's case was factually and legally distinguishable from precedent cases and that the principles of restraint and proportionality mandated an absolute discharge.

IV. VICTIM AND COMMUNITY IMPACT STATEMENTS

[73] The Crown tendered a series of victim and community impact statements as part of its sentencing materials, which were referenced in oral submissions and summarized in the Crown's written brief. These statements were not read into the record but were filed and reviewed by the Court. Defence Counsel raised concerns regarding the form, provenance, and relevance of certain statements, particularly those prepared for civil proceedings or the Public Order Emergency Commission ("POEC").

[74] The Court acknowledges that Victim Impact Statements ("VIS") are admissible under s. 722 of the Criminal Code, and that community impact statements may be considered where they relate to the offence and its consequences. I find to that extent they are relevant. I find however the VIS of persons who testified at this trial or those specifically prepared for this sentencing hearing of greater relevance and consideration. In general, the Court must assess the weight and reliability of each statement, particularly where the statements were prepared for parallel civil litigation or public inquiries, and not specifically for the sentencing hearing.

[75] The Court notes that only three of the twelve statements explicitly name Ms. Lich and Mr. Barber on their cover pages. Several others were unsigned, unaffiliated with the criminal proceedings, or prepared in affidavit form for the Zexi Li class action lawsuit, which seeks over $300 million in damages. These include statements from Michelle Groulx, Dave Smythe, and Genevieve Dumas, among others. While these documents provide context, they are not direct evidence of harm attributable to the Accused and must be treated with caution.

[76] The Court also received institutional reports from the City of Ottawa and the Ottawa Police Service, filed as part of the POEC. These reports estimate the cost of the protest at $7 million for the city and $55 million for the Ottawa Police. While these figures are not determinative of sentencing, they do provide a general sense of the scale and disruption.

[77] The Court gives greater weight to statements from individuals who testified at trial or whose experiences were corroborated by evidence. For example, Vivian Leir, who testified, described the impact on St. Andrew's Church, including loss of access to community space, garbage and feces on the property, and ongoing trauma. She reported feeling threatened and continues to experience anxiety when seeing trucks with flags.

[78] Statements from local businesses such as the Lord Elgin Hotel and Château Laurier described financial losses, staffing disruptions, and security concerns. The Lord Elgin reported losing two-thirds of its income, while the Château Laurier described delivery issues, guest complaints and non-compliance with public health guidelines. Both establishments reported harassment of staff and an atmosphere of lawlessness. The loss of income etc. is hard to quantify given the challenges and lack of interest in travel during COVID.

[79] Shelters and social service agencies including the Shepherds of Good Hope, Salvation Army Booth Centre and Cornerstone Housing described significant impacts on vulnerable populations. The Shepherds of Good Hope were unable to operate their outreach van, and the Salvation Army reported that low-income families could not access food banks. Staff and residents reported feeling unsafe, experiencing harassment, and suffering mental health deterioration due to noise and disruption.

[80] The National Arts Centre ("NAC") reported cancelling or postponing forty live shows and rehearsals, resulting in economic loss and disruption to cultural programming. The Vanier BIA ("Vanier Business Improvement Area"), represented by Nathalie Carrière, described widespread fear, loss of clientele and staff access issues. Ms. Carrière stated that "the entire city felt under siege."

[81] The Court also received a statement from the Château Lafayette, describing the protest as financially devastating during an already slow season. The business reported loss of income, delivery disruptions, and staffing challenges.

[82] While the Court recognizes that not all residents and businesses were negatively impacted, and that some individuals and businesses expressed support for the protest, the preponderance of evidence demonstrates that the protest caused substantial harm to the quiet enjoyment of property, economic stability, and public safety in downtown Ottawa.

[83] The Court is mindful of the principle articulated in R. v. Theriault, 2021 ONSC 1234, that community impact statements must not attribute the crimes of others to the Accused. Accordingly, the Court has carefully distinguished between general protest-related harm and harm directly attributable to the actions of Ms. Lich and Mr. Barber as parties and principals to the Mischief. As noted in the trial decision, there were more than one group at the convoy as well as individuals acting on their own, the Accused could not influence all groups or persons.

[84] The Court finds that the Accused, through their leadership roles, messaging, and continued encouragement of participation, contributed to the conditions that allowed these harms to occur. While they did not personally engage in harassment or obstruction, their actions enabled and sustained the protest beyond the point of lawful assembly.

[85] The Court also notes that both Accused made efforts to mitigate harm, including responding to Mayor Watson's letter and participating in the relocation of vehicles. These efforts are acknowledged as mitigating factors, but do not negate the overall impact of the mischief had on the City of Ottawa and many of its residents.

[86] In conclusion, the victim and community impact statements provide evidence of the breadth and depth of harm caused by the protest. The Court has considered these statements in determining the gravity of the offence, the need for denunciation and deterrence, and the appropriate sentence for each Accused.

V. PURPOSE AND PRINCIPLES OF SENTENCING (SECTIONS 718 TO 718.2 OF THE CRIMINAL CODE)

[87] Any time the Court imposes a sentence, it must abide by the principals outlined in the Criminal Code Part XXII. The sentencing process is governed by the statutory framework set out in sections 718 to 718.2 of the Criminal Code. These provisions articulate the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.

[88] The objectives of sentencing include: (a) denunciation of unlawful conduct; (b) deterrence of the offender and others; (c) separation of offenders from society where necessary; (d) rehabilitation; (e) reparation to victims and the community; and (f) promotion of responsibility in offenders.

[89] These objectives must be balanced considering the nature of the offence, the degree of responsibility of the offender, and the broader societal context. In protest-related offences, the Court must be particularly mindful of the need to denounce unlawful conduct while respecting the constitutional protections afforded to peaceful assembly and expression.

[90] Section 718.1 codifies the principle of proportionality, requiring that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[91] Section 718.2 sets out additional principles, including the requirement to consider aggravating and mitigating circumstances, parity among similar offenders, restraint in the deprivation of liberty, and the consideration of all reasonable sanctions other than imprisonment.

[92] These principles reflect a presumption of restraint, particularly for first-time offenders, and emphasize the importance of individualized sentencing. The Court must consider not only the seriousness of the offence, but also the offender's personal circumstances, moral blameworthiness, and potential for rehabilitation.

[93] The Crown relies on the case of R. v. Solowan 2008 SCC 62 for the principle that the worst offender principle no longer operates as constraint on the imposition of a maximum sentence where appropriate. Noting though that a maximum penalty of any kind will be imposed only rarely.

[94] In R. v. Solowan, the appellant argued that the trial judge had erred in imposing the maximum allowable sentence without first finding that; "He was the worst offender who had committed the worst offence". Supreme Court found at para. 3: "The worst offender, worst offence principle invoked by the appellant in the Court of Appeal has been laid to rest. It no longer operates as a constraint on the imposition of a maximum sentence where the maximum sentence is otherwise appropriate, bearing in mind the principles of sentence set out in Part XXIII of the Criminal Code. Unwarranted resort to maximum sentences is adequately precluded by a proper application of those principles, notably, the fundamental principle of proportionality set out in s. 718.1 of the Code, and Parliament's direction in s. 718.2 (d) and (e) to impose the least restrictive sanction appropriate in the circumstances: see R. v Gladue [1999] 2SCR 688. This case points out the importance of the application of the framework for sentencing set out by the Criminal Code as they act as a safeguard against imposition of the maximum sentences only where required using that framework.

[95] The Court reaffirmed the principle of proportionality under s. 718.1 of the Criminal Code, and the requirement under s. 718.2 (d) and (e) to impose the least restrictive sanction appropriate in the circumstances.

[96] Proportionality is decided both on an individual basis in relation to the offender themselves and the offence committed, and by comparison with sentences imposed for similar offences committed in similar circumstances. As noted by the Supreme Court of Canada in R. v Lacasse at para. 53; "Individualization and parity of sentence must be reconciled for a sentence to be proportionate".

[97] The Supreme Court of Canada in R. v. Bissonnette 2022 SCC 23 at para. 50 provided guidance on the "cardinal principle of sentencing" when it stated: "But sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence that must not exceed" what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence "… the application of this principle assures the public that the offender deserves the punishment received.

VI. COLLATERAL CONSEQUENCES

[98] The Supreme Court in R. v. Nasogaluak, 2010 SCC 6, and R. v. Suter, 2018 SCC 34, held that state misconduct, collateral consequences, and public scrutiny may justify a reduced sentence. In R. v. El-Azrak, 2021 ONCA 817, the Ontario Court of Appeal affirmed that collateral consequences—such as loss of livelihood—may render a sentence disproportionate.

[99] Barber's business relies on cross-border trucking (60% of operations). A criminal record would jeopardize his livelihood and employees' jobs. He has incurred $40,000 in legal travel costs, had his bank accounts frozen, and faces a $900 million civil lawsuit. Lich has served forty-nine days in jail, endured strict bail conditions and faced public vilification. These consequences are significant and relevant to the sentencing analysis.

[100] In R. v. Nasogaluak, 2010 SCC 6, the court held that state misconduct and collateral consequences may mitigate sentence, even absent a Charter breach. This principle was echoed in R. v. El-Azrak, 2023 ONCA 440, where the Court of Appeal recognized that collateral consequences, may justify a reduced sentence. Counsel for Mr. Barber argues that the impact on Mr. Barber's employment is such a collateral consequence.

VII. RELEVANT CASE LAW: FREEDOM CONVOY CASES

[101] The Court reviewed a range of precedent decisions to assess the appropriate sentencing range and principles applicable to protest-related mischief offences. There are few reported cases arising from the Freedom Convoy prosecutions and few comparable cases. Most of the cases other than R. v King [2025] O.J. 848, involves persons involved in the protest but not in a leadership capacity.

[102] In R. v. King [2025] O.J. 848 (ONSC), the accused Pat King was convicted of the offences of mischief and counselling Mischief, counselling obstructing police, disobey Court Order and counselling to disobey Court Order. These charges arose in the context of the Mr. King's participation in the Freedom Convoy. The Court found that Mr. King planned prior to the arrival of the Freedom Convoy, to gridlock downtown Ottawa and to cause distress to residents, merchants and workers by continuous honking of truck horns, blocking streets and other disruptive activities and to prolong the occupation indefinitely until the groups political demands were addressed to their satisfaction.

[103] The Court at para. 3, found Mr. King's continuing online presence throughout the Freedom Convoy and prior to arriving in Ottawa, justified a finding that he was an organizer and leader of a significant component of the Convoy. He encouraged his followers to use their vehicles to blockade downtown streets and counselled them to "Hold the line" in the face of efforts by the police to encourage protesters to leave the city. The Court found he was "A leader, an organizer, and on-line influencer" of the Freedom Convoy and in that capacity aided and abetted and was part of a joint purpose of Freedom Convoy participants to commit mischief.

[104] In addition, the Court found King counselled his online followers to continue to honk their horns in contravention of a Civil Injunction issued by the Superior Court of Justice and encouraged his followers to resist certain police actions and to continue to "Hold the line".

[105] The Court found that Mr. King made it clear in his social media remarks that the Freedom Convoy's mission was to pressure the government to abandon vaccine mandates and to achieve this result by occupying downtown Ottawa and continuing the occupation until the government acted on their demands. The Court commented that the occupation of downtown Ottawa was not simply a result of the Freedom Convoy growing out of control after its arrival. It was, at least in part, a result of King's and other Convoy organizer's admonitions to protesters, before they set out for Ottawa in their vehicles to, in King's words, encircle and "peacefully bear hug" the city. In other words, in relation to the mischief which ensued, there was an element of planning and premeditation on Mr. King's part.

[106] The Crown sought a sentence of nine years for the Offence of Mischief and one year for the offence counselling disobey Court Order for a total sentence of ten years. Defence Counsel suggested that a proper sentence, given the pre-sentence credit of about nine months, would be time served, plus three years' probation or a conditional sentence order, plus probation. As in the case before me, the positions of the Crown and Defence were very far apart.

[107] The Court commenting on the purpose and principles of sentence noted at para. 10; "Notably, the circumstances of this case do not implicate these aggravating factors, nor any of the others mentioned in section 718.2 (such as spousal violence, abuse of minors, and breach of trust in relation to the victim)". This should be kept in mind when assessing the Crown's submission that this is the "worst case of mischief" and thus deserving of a uniquely severe punishment.

[108] Similar arguments were made in the King case as in this case notably, the Crown argued; "On a sliding scale of seriousness and moral culpability, this is the worst case of mischief even though the maximum sentence does not require the worst offence or offender. The counselling to disobey a Court Order and obstruction of police was also done in unprecedented circumstances of a municipal, provincial, and national emergency. For the first time in Canadian history, the downtown core of the nation's capital was occupied and gridlocked for three weeks, causing significant suffering to its residents, until the occupation was forcefully cleared by a multijurisdictional police force. The cost to the City of Ottawa, including police was over $30 million. Pat King was an organizer and leader of this occupation who also counselled obstruction of police and disobeying a Court Order. The purpose of this occupation was to force a change in government policy by non-democratic means. The impact on the community, including loss of confidence in the rule of law, was significant.

[109] The Crown argued that there was a very strong need for general deterrence to prevent crimes as a method for achieving political change, particularly in the nation's capital. It is suggested that the sentence "must serve as a powerful deterrent… those that who attempt to disrupt democratic processes and undermine societal order through unlawful actions will face consequences that ensure such behaviour is not repeated".

[110] The Crown, as in our case, argued the circumstances of Mr. King's case were unique: "There is no sentence precedent for a similar offender who committed the offensives in similar circumstances… there has never been an occupation of downtown Ottawa, or any city in Canada, for three weeks, where the organizer and leader of the mischief has also counselled disobeying a court order and obstruction of police". In our case, the Accused were not found guilty of obstruction of justice, however.

[111] The Court agreed that Mr. King's actions in counselling and committing mischief required a sentence emphasizing the objectives of general deterrence and denunciation but also found the court must also respect the fundamental objective of proportionality by considering the sentencing ranges applied in comparable cases.

[112] Justice Hackland found the "Coutts Border Crossing Cases to be very relevant" and mentioned the Billings case also arising from the Freedom Convoy. Mr. Billings was an associate of Mr. King; he plead guilty to counselling to commit Mischief receiving the agreed upon sentence of six months' time served plus six months' probation requiring him to keep the peace and be of good behaviour.

[113] Justice Hackland agreed that a fit and just sentence must send a message of denunciation and as a warning to others who seek to force their views on government by pressuring downtown residents and workers. At the same time however, he found that adherence to the fundamental principle of proportionality must be respected. An accused must receive a sentence that can be seen to be like sentences imposed on similar offenders for similar offences committed in similar circumstances.

[114] Justice Hackland found that circumstances of the King case were more serious than the Coutts blockade cases, and the Ottawa protest was longer lasting and broader in scope. He found at para. 29: "The Freedom Convoy protesters in the present case blockaded downtown Ottawa for a period of three weeks, involved thousands of protesters and hundreds of commercial trucks which targeted the civilian population living and working in the downtown area. It went well beyond blocking streets and included incessant honking of truck horns intended to harass the public and disrupt businesses. This had a particularly insidious effect on vulnerable parts of the population – people with disabilities, children, the elderly, those in shelters and dependent on food banks."

[115] Several mitigating factors were also noted in R. v King at para. 30:

• King personally organized and led the "slow role" to the Ottawa Airport and then onto highway 417. This tied up traffic for several hours but, on the evidence tendered in this trial, the "slow role" was a temporary nuisance not amounting to a major event;

• He belatedly dropped his "hold the line" rhetoric in favour of an admonition to his online listeners to drive away from the city and regroup at a rural location west of the city, advice which was apparently ignored by other protesters. This was an attempt to avoid confrontation with police that he knew was imminent;

• Apart from one man who joined the 'slow roll', none of the other Crown witnesses interacted at all with King and their evidence was therefore about the Freedom Convoy in general;

• Essentially no violence or property damage occurred over the three weeks of the protest and indeed King counselled against violence in very direct and blunt terms in his on-line broadcasts. This massive demonstration involving large commercial trucks and a diverse group of people, some with extreme political views, carried with it a significant risk of violence and property damage, neither of which occurred. King advocated forcefully against such conduct and can be credited as a positive influencer, in significant respects;

• Apart from a group of truckers and their supporters from Alberta, King was not particularly well-known to protesters in Ottawa. Defence witness Daniel Bulford identified certain individual operational leaders of the convoy, whom he described as "the face of the protest" and King was not among them. Indeed, no Crown witnesses, not even members of the PLT team, had any substantial interactions personally with King during the blockade;

• In short, King was on the periphery of the leadership group, once it arrived in Ottawa and his on-line messaging as the protest continued contained significant 'avoid violence and obey the law' messaging which may have helped to mitigate or contain what could have been a far worse situation;

• King's period of actual incarceration involved frequent lock downs, a serious infection issue with his prothesis and intimidation by other inmates; and

• Community impact statements suggest protestors frightened and intimated residents of a woman's shelter and workers in a food bank. There is no evidence that Mr. King had any knowledge of these events.

[116] After considering, the aggravating as well as the mitigating factors, Pat King was sentenced to a three-month conditional sentence in addition to his presentence custody calculated to be nine months of presentence custody. So, in fact, the Court considered a fit and appropriate sentence to be a twelve-month sentence. As part of the conditional sentence, he was placed on house arrest and 100 hours of community service hours. Mr. King was precluded from contact with several persons including Tamara Lich and Christopher Barber, he was not to be in Ottawa except for required court appearances or consult with a lawyer on legal matters, he was precluded from participating in public demonstrations involving twenty or more people.

[117] Justice Hackland cautioned against punitive sentences in political protest cases, stating at para. 31:

"Respectfully, the court does not accept the Crown's characterization of Mr. King's role in the Freedom Convoy as 'the worst case of mischief on a sliding scale of seriousness and moral culpability'. In the court's opinion there is a social harm to unduly elevating the sentencing goals of denunciation and deterrence in the context of political protests, to result in punitive sentences at the top of the sentencing range. The risk is that an overly severe sentence of imprisonment in the context of legitimate constitutionally protected activity can have the effect of creating a chill or a fear of participation in political expression such as demonstrations or protests, for fear that some persons may cross the line into conduct constituting mischief with resultant severe sentences for all involved. The Freedom Convoy protest was about expressing opposition held by some to perceived government overreach in the form of Covid 19 mandates and other vaccine issues, which continue to be matters of legitimate public discourse and shifting opinions and policy approaches. The Freedom Convoy was not an attack aimed at, for example, promoting violence or intimidation of racial or religious minorities or other vulnerable groups. Rather, the Freedom Convoy began as a lawful constitutionally protected form of protest that unfortunately grew out of control and was allowed to go on and on and morphed into criminal activity (in the form of mischief and related offences). But in the court's opinion neither the Freedom Convoy nor Mr. King's role in it constituted the worst case of mischief."

[118] There are certainly some parallels between the King case and the case at bar. There were however evidentiary differences between the two trials. The Court found King planned prior to arriving in the city to gridlock the city and cause distress to its citizens. The Court found King encouraged truckers to peacefully bear hug the city and found an amount of planning and premeditation on Mr. King's part. That finding was not made by this Court.

[119] Mr. King incited his followers to engage in defiance and obstruction, whereas at least as of February 12, 2022, Lich and Barber attempted to negotiate with authorities to reduce the footprint and consistently emphasized co-operation with authorities. Mr. Barber had also assisted Cst. Bach in opening emergency lanes and moving some vehicles prior to that date.

[120] Both Mr. Barber and Ms. Lich disassociated themselves from Mr. King soon after arriving in Ottawa due to his messaging, and there is no evidence that they engaged in similar conduct. Mr. King, Ms. Lich and Mr. Barber advocated against use of violence.

[121] Mr. King was found to be on the periphery of the leadership group and was not the face of the Convoy as attributed to Ms. Lich and nor was he seen as a high-profile leader the way Mr. Barber and "Big Red" were identified.

[122] Albeit, when enforcement and arrest was imminent, Mr. King dropped his "Hold the line" rhetoric in favour of an admonition to his social media followers to drive away from the city and regroup at a rural location west of the city. Although Mr. Barber did in fact move his truck out of the city as requested by Cst. Bach on February 8, 2022, and while a few trucks went with him, there is no evidence either Mr. Baber or Ms. Lich ever made a large-scale social media broadcast telling people to leave the city.

[123] As noted, apart from the King decision, there are few other relevant Freedom Convoy decisions. In R. v. Billings, "Freedom George", who worked closely with King during the protests pleaded guilty to one count of counselling mischief in relation to the Freedom Convoy. Justice Maranger imposed a sentence of six months' incarceration, equivalent to time served. He also received six months of probation. This was a joint position. This case is unreported but summarized in R. v. King at para.16.

[124] In R v. Koncz, 2024 ONCJ No 3516, Justice Brown imposed a twelve-month conditional discharge and a $2000 fine where the accused had been directed to leave as per police directive and continued protesting. Justice Brown reasoned that the mischief had to be understood in the context of the convoy and that it was serious. The Accused had planned to travel from Calgary to Ottawa to participate. His sentence was mitigated by certain Charter breaches, as well as evidence about his character and employment. He played no leadership role. This case is summarized in R v. Van Huigenbos at para. 55.

Coutts Blockade Cases

[125] The Coutts Border Crossing Blockade occurred during much the same time frame as the Freedom Convoy in 2022 and was also in response to protesting COVID mandates, hence there is some relevance to this body of case law. The decision of R. v Van Huigenbos contains a helpful general review of protest cases and their sentencing principles involving G-20, Abortion Clinic Protests, Clayoquot Sound Protests, Transmountain Pipeline, Pig Farm, logging protests, and the Coutts Blockade.

[126] In R. v. Van Huigenbos and Jansen, 2025 ABKB 14 (Yamauchi, J.), the accused were convicted of mischief by a jury for their participation in the Coutts Border Crossing Blockade which occurred between January 29, 2022, and February 14, 2022, (approximately just over two weeks) so more or less simultaneously with the Freedom Convoy mischief in Ottawa. The protestors blocked the highway at an important U.S. border crossing. The Accused were convicted of aiding and abetting the protestors committing the mischief by providing supplies and food and negotiated with the RCMP. Mr. Van Huigenbos was also found to have played a leadership role in the border blockade. The Court emphasized the need for denunciation and deterrence in applying the sentencing principles.

[127] The Court found the blockade to be potentially dangerous and had a serious impact on the community and caused considerable inconvenience. The Court sentenced Huigenbos to four months imprisonment. Mr. Janzen received a conditional sentence of ninety days duration, despite both Accused assisting police. Mr. Van Huigenbos assisted police in maneuvering through the gauntlet of trucks and tractors. Mr. Jansen assisted police from time to time in having vehicles moved.

[128] Justice Yamauchi in Van Huigenbos at para. 23 made the following comments which are relevant to the case at bar also. The Court states:

"Clearly, the Protesters, and the offenders felt they had a legitimate cause they were pursuing. That cause is not the issue. It is the method by which they chose to promote their cause that was illegal. They had legal means to express their concern with the COVID-19 mandates and those who imposed them on Canadians. They could undertake peaceful protests that did not obstruct the lawful use, enjoyment, and operation of Highway 4. They could invite meaningful discussion with their elected representatives, which they appeared to have started. They could attempt to boycott businesses that supported the governmental policies. Instead, they undertook the vigilante approach of taking over a portion of Highway 4 and shutting it down until their demands were met. This approach was exhibited by their overt criticism of government, such as Mr. Van Huigenbos' speech in which he said the Prime Minister could not even cross the border."

[129] In Van Huigenbos, the Court at para. 70 also cites the sentencing decision of R. v. Pawlowski (unreported September 18, 2023). Mr. Pawlowski was sentenced to sixty days incarceration for attending a saloon near the Coutts border crossing to give a speech encouraging the protesters to continue with the protest and inviting others to join in the blockade.

[130] Justice Krinke found that Pawlowski committed mischief by inciting the protesters to continue the blockade, noting at p.19; "The significant number of people affected by the blockade, and the time period over which the blockade continued, extended the potential harm and therefore the gravity of the offence". Justice Krinke also observed:

"... [W]hen legitimate protest crosses the line into illegal activities, it becomes an attack on the essential values of democracy; that is no one is above the law, and everyone must abide by the law. This attack on essential values of democracy increases the gravity of the offence."

[131] An appeal to the Alberta Court of Appeal was dismissed, see R. v Pawlowski, 2024 ABCA 342. The Alberta Court of Appeal, Justice Slatter in his concurring reasons stated at para. 107:

"While the appellant is correct that peaceful, lawful and nonviolent communication is entitled to protection, blockading a highway is an inherently aggressive and potentially violent form of conduct, designed to intimidate and impede the movement of third parties. Canadian political convention, the common law, and the Charter protect peaceful protests. However, mass obstruction of public highways is not a form of peaceful protest. The fundamental freedoms of expression and assembly do not encompass obstructing public highways or inciting anyone else to do so."

[132] Leave to Appeal in Pawlowski to the Supreme Court of Canada was later dismissed.

[133] In R. v. Colenutt (oral reasons July 25, 2025), Mr. Colenutt pleaded guilty to Possession of a weapon for a dangerous purpose. He was in possession of a firearm while participating in the Coutts blockade. He had been charged with mischief also, but that charge was withdrawn on his plea to possession of a firearm. Mr. Colenutt received a conditional sentence of two years less a day.

[134] At para. 72 of Van Huigenbos the Court references the decision of R v. Olienick and Carbert (September 9, 2024) Lethbridge 220151286Q4 (ABKB). Although those accused were charged with a number of weapons offences in addition to mischief, the Court spent time in its decision specifically addressing the sentence for the charge of mischief arising from the blockade.

[135] Justice Labrenz found that Mr. Olienick held a leadership role and aided the Protesters by transporting items such as food to the Protesters. Olienick was also a principal offender, as he had placed his dump truck on Highway 4 to block the road. Mr. Carbert was "an equal supporter, and he participated in negotiations with police regarding the highway": Olienick and Carbert, at p. 34 ll 17 - 32. Justice Labrenz distinguished many of the cases that the parties placed before this Court on the grounds that each case involved shorter-term protests, with fewer protesters. He also recognized that Highway 4 is a vital economic corridor between Canada and the United States and the Protesters "held the highway hostage" which was contrary to the rule of law. He sentenced both offenders to six months incarceration, concurrent with the other sentences he imposed on those offenders.

Protest Cases

[136] In R. v. Blanchfield, 2023 ONCJ 45, Mr. Blanchfield was convicted after trial with causing a disturbance and mischief arising from a demonstration on Rideau Street April 29, 2022. This was a copycat demonstration of the Freedom Convoy. The Accused was a leader of this convoy group driving into downtown Ottawa. He was the only person encouraging the crowd to "Hold the line' from the top of his blue truck. He had been at the Freedom Convoy earlier and would have been aware of the significance of the Rideau and Sussex intersection. He would have been aware the convoy he was leading would block the road to pedestrians and vehicles. He refused to leave when directed by police. The blockage of Rideau Street lasted 8 to 10 hours. The Crown sought fifteen months reduced to twelve months given pre-sentence custody and strict bail conditions. He had a prior but dated criminal record. Justice Legault considered whether a period of incarceration rather than a conditional sentence was required to have a real deterrent effect sentence was appropriate. The Court imposed a nine month a conditional sentence given that a conditional jail sentence can be longer than a real jail sentence and contain restrictions of liberty to add to the elements of deterrence.

[137] R. v. Soranno, 2022 BCSC 1795, involved a large-scale break and enter into a pig barn located on private property as part of an animal rights protest. The Court found that the accused deliberately engaged in unlawful conduct to achieve political ends and emphasized the need to deter the notion that higher moral values justify breaking the law. Animal rights activists unlawfully occupied barns. The trial judge imposed a 30-day jail sentence. The Court of Appeal substituted that for a 120-day conditional sentence.

[138] In R v Soranno, 2022 BCSC 1795, Justice Verhoeven makes some important general comments that are apropos to the case at bar. In Soranno, a couple, who were animal rights activists, illegally organized a large-scale break and enter into a hog farm. Justice Verhoeven said at paras. 5 - 7:

"As Canadians, we are fortunate to live in a democracy. Freedom of belief and expression is a fundamental freedom under s. 2(b) of the Canadian Charter of Rights and Freedoms. The offenders and every other citizen have the right to protest, to express themselves, and to attempt to influence others by any lawful means, within the democratic process. They have no right to break the law.

There is no shortage of people who believe that their cause is just, who are impatient with democratic processes, and who believe that higher moral values should entitle them to disobey the law in furtherance of their goals. However, as s. 718 of the Code states, the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Allowing citizens to break the law as they see fit in order to achieve political objectives is anathema to the maintenance of a just, peaceful and safe society."

[139] Further at paras. 87 to 90 of R. v Soranno, the Court addresses proportionality, gravity of the offence and degree of responsibility of the offender stating:

"In the circumstances of this case, the gravity of the offence relates primarily to the harm to society and its values, rather than the harm to the victim. Section 718 emphasizes the need for sentencing to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The offenders deliberately organized a mass invasion and occupation of private property, lasting several hours, in order to illegally achieve their political ends. There was a risk of violence which, thankfully, did not occur. The offenders are not youthful. They are intelligent, well-educated adults who fully understood what they were doing, and that it was illegal. They felt justified in breaking the law for what they saw as higher purposes. The moral responsibility of the offenders is at the highest end.

The harm to society's values lies in the pernicious and misguided idea that breaking the law for political purposes, or higher moral purposes, is acceptable.

This kind of behaviour must be denounced and deterred in the most emphatic of terms. Sentencing must reflect these principles.

The offence for which the offenders have been convicted involves both breaking and entering, and mischief. As noted, the maximum penalty for the offence is 10 years' imprisonment."

[140] In Soranno as in the case at bar, the Accused asked the Court to impose discharges. The Court rejected that saying at paras. 98 to 101:

"The offenders both argue that entering a conviction and saddling them with a criminal record would be disproportionate to the gravity of the offence and their degree of responsibility. They also argue that a criminal record will be an impediment to them in the future. No specific circumstances are referred to in that respect, except the possibility that a criminal record may impede their ability to cross borders. No evidence was led in this respect…

As specific deterrence is a concern in relation to these offenders, and the possibility of significant adverse repercussions has not been established, I am not satisfied that the first condition for granting a discharge is met.

In any event, however, the second condition is not met. A discharge would be wholly inappropriate in this case, for either offender. A discharge would be contrary to the public interest. As I have already said, the need for general deterrence is the most important sentencing factor in this case. Discharging the offenders, which would be akin to acquitting them, would send entirely the wrong message to the public at large, and in particular, like-minded persons, or potentially like-minded persons. It would undermine the public's confidence in the administration of justice."

[141] The Court imposed a thirty-day jail sentence plus twelve months' probation. On appeal, the Court overturned Justice Verhoeven's carceral sentence and imposed a longer 120-day conditional sentences on each offender, along with a one-year term of probation: R v Soranno, 2024 BCCA 230.

[142] In R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Div.), [1991] O.J. 340 (C.J.), Justice Fournier quoted Chief Justice Howland in saying that:

"It is one of the fundamental principles of our democratic society that no one is above the law, and everyone is equal before the law. The rule of law is based on the fact that our current laws represent the will of the majority of the people. If a law no longer represents the will of the majority, then it should be changed but until it is changed by lawful means, it must be obeyed. Defiance of the law is not the answer."

[143] He went on to say at paras. 88 - 90:

"The harm to society's values lies in the pernicious and misguided idea that breaking the law for political purposes, or higher moral purposes, is acceptable. This kind of behaviour must be denounced and deterred in the most emphatic of terms. Sentencing must reflect these principles."

[144] In Trans Mountain Pipeline v. Mivasair 2018 BCSC 947, Elizabeth May, MP, a Green Party Leader plead guilty to criminal contempt arising from a Pipeline protest this may went to a work site of trans mountain pipeline with the intention of defying the injunction in a manner which drew maximum attention by the media to that defiance. She was found to have exploited her role as a member of parliament and as a party leader to encourage others to defy the injunction. The Court emphasized her public role and professional status as a lawyer as aggravating factors. The Court found her punishment for criminal contempt must be greater than that of persons who do not hold positions of authority and influence. They imposed a $1500 fine rather than the $500 fine jointly recommended by counsel.

G-20 Protest Cases

[145] Defence Counsel provided the G-20 protest cases of R. v. Cote, Henry, Morano, (G-20 Cases) These cases involved violent mischief, including arson, assault, and destruction of property. Sentences ranged from conditional discharges to twenty-one months, often served conditionally.

[146] In R v. Henry, 2011 ONCJ 501, 278 CCC (3d) 344, Henry pleaded guilty to two counts of mischief over $5000. He was part of a group engaged in what has been referred to as "Black Bloc" tactics, which caused disturbances and destroyed property during the 2010 G20 Summit in Toronto.

[147] Henry, along with other members of this group, smashed a large, double pane Starbucks window. There were many people inside, and over $26,000 worth of damage was done. Additionally, the restaurant had to close down for two days to do repairs which cost them $6000 and had to pay $1500 to employees for lost shifts. The Crown was seeking a nine-to-twelve-month carceral sentence. Henry was seeking a suspended sentence and probation for 12 to 24 months. Henry was a young person when he committed the offences. Since his arrest, he sought psychological counselling and undertook volunteer community work. Justice Tuck-Jackson found that Henry had "tremendous potential for rehabilitation." He was remorseful. She described the G20 protests as "destruction dressed up as political protest. Because of Henry's post-offence efforts towards rehabilitation, together with his status as a youthful first offender, Justice Tuck-Jackson imposed a twelve-month conditional sentence along with twenty-four months probation.

[148] R. v. Cote 2011 ONCJ 778: The Accused plead guilty to two counts of Mischief for damaging two police cars during a violent protest. Mr. Cote was described as a political anarchist. He was also involved in tearing down fencing, burning a police car and admitted he brought a disguise to the protest. Sentence imposed was six months imprisonment followed by probation.

[149] R. v. Morano 2014 ONCJ 79: The Accused engaged in numerous acts of mischief, including throwing a rock at a police cruiser smashing the windshield, damaged a bank machine and burned a vehicle There was over 230,000 damage attributed directly to him. Victim impact statements illustrated the significant impact the violence and property destruction had on the community. The Court imposed a jail sentence of seven months less pretrial custody followed by two years probation.

[150] These cases involved direct physical damage, violence, and deliberate illegal conduct. In contrast, the conduct of Lich and Barber, while disruptive, was non-violent and constitutionally motivated. The moral blameworthiness of the Accused in the G-20 cases exceeds that of the present case.

R. v Dube 2018 QCCQ 9059

[151] The Crown relies on R. v. Dube, 2018 QCCQ 9059 to justify its sentencing position. This case involved sabotage of the Hydro Quebec grid in three different locations. This sabotage caused 180,000 people to be without electricity in winter at mealtime. The Cities of Montreal, the Laurentians and Montérégie as well as McGill University Health Care Centre and Laval Police were without power. The Accused caused over $29 million in lost revenue and the unforeseen purchase of electricity from neighbouring networks to prevent a blackout affecting all of Quebec. The Crown sought a ten-year sentence.

[152] The Crown argued there was a vengeful motive on the Accused behalf to attack hydro Quebec and there was a high degree of pre-meditation and sophistication to the crime. It was argued that the attack on this essential service warranted the maximum sentence.

[153] The Court found no mitigating factors regarding the circumstances of the offence, but the accused previously had a good reputation and had the Accused had no prior criminal record but there had been a previous discharge for assault and uttering death threats. Defence argued there were collateral consequences as he had been sued civilly for $29 million dollars, experienced loss of reputation due to media coverage, his property had been seized, and he experienced loss of income.

[154] The Court found the maximum penalty requested by the crown to be excessive in the circumstances. It was found that the sentence failed to take sufficient account of the personal circumstances of the Accused and did not respect the fundamental principle of proportionality. The Court also found the Accused had suffered significant collateral consequences which diminished the weight to be given to the objective of specific deterrence. The Court imposed a seven-year custodial sentence. the present case is entirely dissimilar, involving non-violent protest, no property damage, and no intent to harm infrastructure.

[155] This case is distinguishable from the case at bar. Dube's conduct was sophisticated and premeditated. He had targeted hydro transmission lines in numerous locations. His actions were done out of revenge with an aim to sabotage critical infrastructure putting lives at risk. Ms. Lich and Mr. Barber's conduct, while disruptive, did not put lives at risk. They advocated against violence and did not advocate damage to property it. There was evidence of property destruction, and their protest began with the noblest of intentions.

Parity and Proportionality

[156] Parity and proportionality, as previously noted, are important requirements in determining what is a fair and fit sentence. I have reviewed the cases relied on by the parties and summarized those most relevant to the case involving the Accused.

[157] The purpose is to illustrate how courts have approached situations that are arguably "similar" to the case at bar. The challenge in this case is that there is no case directly on all fours with the case before the Court. There are certainly some similarities to the King decision as well as the Coutts Border Crossing Blockade Mischief cases, but there are also differences.

[158] In some cases, the accused pleaded guilty, or their role was limited, or the protest lasted for a shorter duration, planned to cause harm or advocated violence, weapons were present etc. In the case at bar, the Accused had a trial which is their right and they are not faulted in any way for exercising that right. It is an absence of a mitigating factor. In the case at bar, the accused were high profile leaders of the protest, the protest lasted more than three weeks while they did not advocate for property damage or violence, their actions had significant effect and caused huge inconvenience to the residents of downtown Ottawa for the duration of the convoy. This highlights the difficulty with taking an approach that simply overlays one factual situation to the case at bar is that each situation, and each offender, is different from the next.

[159] In Soranno, the pig farm protest case involved individuals essentially breaking into pig barns en masse with media in tow, which are arguably more invasive in that target area than not allowing people clear unencumbered passage.

[160] Similarly, are distinguishable as the G20 Summit Riot cases involved significant violence and planned vandalism including arson and other crimes against innocent business owners. Some accused wore clothing to disguise their appearance

[161] Nearly all the cases to which this Court has referred involved civil disobedience that lasted for a short period. Granted some of the protests themselves lasted for very long periods, such as the Trans Mountain Pipeline Protests, but the offences themselves in which the offenders were involved lasted for brief periods from the time the police warned them of possible arrest to the arrests themselves.

[162] In the case at bar, the Freedom Convoy involving the Accused lasted from January 28 to February 17,2022 (date of their arrest) for a period of approximately three weeks. Both Ms. Lich and Mr. Barber continued to lead and organize the Freedom convoy movement during that time and were aware of the effect the blocked roads etc was having on the residents and businesses in Ottawa. The downtown core was in essence held hostage contrary to the rule of law as described by Justice Lebrenz in the Olienick and Carbert case. The difference is that Lich and Barber and their broad moderate group could not control all the groups and persons who had congregated in Ottawa during the protest, and both accused tried to mitigate or ameliorate the situation by trying to work with authorities to reduce the footprint of the demonstration.

[163] The Coutts Border Crossing Blockade took place between January 29 and February 14. so, a comparable time frame and was also protest of COVID restrictions and overreach of Federal government policies. It should be noted, in R. v Olienick and Carbert (September 9, 2024) Lethbridge 220151286Q4 (ABKB) Justice Lebrenz found that Olienick held a leadership role and aided the protesters by transporting food to them and was also a principal offender as he placed his dump truck on highway 4. Carbert was an equal supporter, and he participated in negotiations with authorities regarding the highway. The Judge distinguished many of the protest cases as they involved shorter protests with fewer protests. He also recognized that Highway 4 is a vital economic corridor between Canada and the United States and that the protestors "held the highway hostage" which was contrary to the rule of law. Those accused received jail sentences of six months for mischief offences. That sentence was to be served concurrently to weapons offences as police had found a cache of weapons and ammunition and body armor near the blockade. For those offences they were sentenced to six and a half years less time spent in custody.

[164] The Freedom Convoy demonstration was broader in scope and covered a wider geographical area than the Coutts Blockade, which was smaller, targeting however an important border crossing. The Freedom Convoy in Ottawa, involving thousands of protestors and hundreds of trucks, and the effect went beyond the blocking of streets. The noise, honking horns and diesel fumes in addition to the blocked roads had a deleterious on citizens and businesses. In Coutts, the blockade prevented personal and commercial vehicles from crossing between Canada and the U.S which was an important infrastructure and a cache of weapons and ammunition was found at the blockade. So, while there are many comparables, there are also differences.

[165] Although the cases referred to each differ factually from the case at bar, the statement of leading principles and the legal reasoning in application of sentences are helpful. It is those policy considerations that will guide this Court in its sentencing of each of the individuals before it.

AGGRAVATING AND MITIGATING FACTORS

[166] In any sentencing hearing the presence of both aggravating and mitigating factors play a significant role in determination of sentence. Aggravating factors the Court must consider are set in s. 718.2 of the Criminal Code. I have considered the following aggravating and mitigating factors.

A. Aggravating Factors

Leadership Role

[167] Both Ms. Lich and Mr. Barber held prominent leadership positions within the Freedom Convoy 2022 Corporation. Ms. Lich served as President, and Mr. Barber as a Director.

[168] They attended a meeting of organizers soon after arriving to discuss a strategy to "gridlock" the city. We do not know the results of that discussion however and by the time of the meeting the city was already gridlocked.

[169] They led a significant number group of trucks to Ottawa from Western Canada. Their roles were not just symbolic; each of them was actively involved in organizing, messaging, and sustaining the protest. Ms. Lich was primarily involved in fundraising to sustain and maintain the protest.

[170] They also encouraged others to remain or to join them in Ottawa to sustain the protest in the form of blocking streets and disrupting the downtown core. They use statements on a regular basis such as stay strong, hold the line, stay united and not give in to fear which was said to incite their followers to continue to do what they were doing which was the blocking of streets or continue the mischief.

[171] Although both Lich and Barber worked with OPS and the city to reduce the footprint, neither took steps to end or stop the demonstration which was the disturbing the peace and quiet enjoyment of residents of the affected areas.

[172] As in R. v. Van Huigenbos, leadership in a disruptive protest is an aggravating factor, particularly where the offender "undertook and proudly announced" their role to police and others.

Duration and Scale of Offence

[173] The protest lasted approximately three weeks, January 28 until February 18 when the enforcement and removal operations commenced. Neither Ms. Lich nor Mr. Barber left until they were forced to by their arrests on February 17. Despite receiving clear messaging that the demonstration had become unlawful.

[174] The sustained nature of the disruption, including obstruction of public roads, excessive noise, diesel odour and interference with the use and enjoyment of property, distinguishes this case from shorter, more contained events.

Impact on the Community

[175] In the messaging from police and the mayor, both Lich and Baber were aware the disruption caused to residents and businesses.in Ottawa. The mayor in his letter of February 12 stated; "Our residents are exhausted and on edge, and our small businesses impacted by your blockades are teetering on the brink of permanent closure. Ms. Lich in her reply to this letter acknowledged; "Many of the citizens and businesses in Ottawa have been cheering us on, but we're also disturbing others".

[176] February 3, 2022, at a press conference where both Lich and Barber were present, a reporter stated; "people in this town are terrified. They are fed up. They are tired of the noise, blaring horns late at night, early in the morning. The harassment of people on the street they want to know when you were going home". Counsel to the Freedom Convoy responded; "As you just heard Tamara Lich answered that question, we're not leaving till the mandates are lifted." (Exhibit No. 57 and Exhibit No. 57 at pages 3,6.)

[177] Chris Barber in TikTok videos posted on February 4, 2022, stated; "There's a few people in the high rises that don't like the horns, and I apologize for that. I don't know what else I can do to fix that. "(Exhibit No. 18) And in another TikTok posted on February 6; "I kind of find it hilarious, everybody, that the city of Ottawa has been freaking out. Law enforcement's getting more pushy, the citizens are pissed off. I can understand why. I absolutely 100% am on your side but we've been here for a week over a week now... We need an audience. So, citizens of Ottawa, put pressure on your... government. Come on we're all here for a reason. We're sorry it had to happen in your city" (Exhibit No.12 and 12A).

[178] Also in a news article, Barber is quoted saying; "Our message to the citizens of Ottawa is one of empathy. We understand your frustration. And genuinely wish there was another way for us to get our message across, but the responsibility for your inconvenience flies squarely on the shoulders of politicians who have preferred to vilify and call us names rather than exchange in respectful and serious dialogue (Exhibit No. 135, Volume 1 Tab 40 of page 2).

[179] There were also numerous text messages in Exhibit No. 135 sent by Barber where he said things like; "We fucked this town up." "We are messing this town up." "It's already locked. We train wrecked it, really good. Train wreck traffic". So clearly, Mr. Barber was aware of the harm caused and was using the disruption and harm caused to pressure governments.

[180] There were also text messages between Cst. Bach and Barber where she communicates that locals and businesses were worried about the demonstration impeding on their livelihoods.

[181] The mischief caused significant harm to Ottawa residents and businesses, including economic losses, emotional distress, and disruption of essential services.

[182] The invocation of municipal, provincial, and federal emergency measures, including the Emergencies Act, underscores the severity of the impact.

Counselling Disobedience of Court Order (Barber)

[183] Mr. Barber was convicted of counselling others to disobey a Court Order. See Exhibit No. 25 and 25(a) to transcript of the "Grab that horn" TikTok while the Court accepts that he may have misunderstood the scope of the injunction, and did consult a lawyer, the act of publicly encouraging defiance of a judicial order remains an aggravating factor.

Aggravating regarding Barber

[184] There were numerous texts speaking about law enforcement where he said; "Fucking with law enforcement', "Playing games with the law", "We are going to mess with this government", "Playing cat and mouse with police" and his encouragement of telling truckers to lock themselves on their trucks and blow the horn if police came to enforce.

[185] Although Mr. Barber did work with Cst. Bach and city officials to reduce the number of trucks in the downtown core. He also sent out messages on social media saying; "Do you think we're leaving? We might move a few trucks around just a little bit", "So. Apparently, there were a few issues with the airport this morning.", "I don't know. You know, we've moved a few trucks out of the downtown core, and they were kind of replaced somewhere else. That's so unfortunate you guys. My goodness. Be safe." Which causes one to question the sincerity of his commitment to reduce the footprint and alleviate the stress on downtown citizens and businesses.

Aggravating regarding Lich

[186] Ms Lich showed her public support for other unlawful demonstrations such as the Windsor blockade by stating; "I wish we could take credit for the Windsor blockades, but we cannot... we are keeping an eye out on the protests and blockades happening nationwide and in so far as we are concerned it only strengthens our demonstrators resolve" (Exhibit No. 51 and Exhibit 51(A)).

B. Mitigating Factors

Lack of Criminal Record

[187] Neither Ms. Lich nor Mr. Barber has a prior criminal record. They are both otherwise law abiding and pro social individuals. They have strong support from friends and family and a large number of like-minded supporters. They have been respectful to the Court and court staff throughout this trial.

[188] They are first-time offenders, which weighs significantly in favour of restraint.

Peaceful Intent and Messaging

[189] Both Accused consistently emphasized peaceful, non-violent and lawful protest in their public communications. There is no evidence that either advocated violence, property damage, or intimidation. They asked their followers to report anyone engaging in such conduct to law enforcement Their messaging included instructions to cooperate with police and to report unlawful behaviour. They were viewed by officials as the "broad moderate "group of the convoy.

Efforts to Mitigate Harm

[190] Both Ms. Lich and Mr. Barber showed a willingness to negotiate with the city and Ottawa Police to alleviate some of the harm caused to the city by the presence of the Freedom Convoy. They reached a good faith agreement to reduce the footprint of the Convoy and Mr. Barber met city officials to co-ordinate this move. As agreed by Kim Ayotte, the plan stopped not because of Mr. Barber or any one from the Convoy but at the direction of the then Chief of Police.

[191] Mr. Barber engaged with police and city officials in efforts to reduce the footprint of the protest. Significantly, at the suggestion of Cst, Bach on February 8, He moved his own truck ("Big Red") out of the city to Exit 88 and tried encouraging some others to follow.

Cooperation with Authorities

[192] Both Accused cooperated fully with police during their arrests. Their conduct during enforcement operations was non-confrontational and respectful.

Collateral Consequences

[193] Ms. Lich served forty-nine days which at 1.5 amounts to seventy-four days in jail some of which was during COVID so conditions would have been harsh with enhanced risk of contagion. Mr. Barber was in custody for two days or amounting to three days at 1.5. Both Ms. Lich and Mr. Barber were subject to strict bail conditions for over three years.

[194] Mr. Barber incurred substantial financial costs, had his bank accounts for a period frozen, and both Accused face ongoing civil litigation arising from the Freedom Convoy. Mr. Barber along with his son, run a trucking business which includes international haulage to the US. Although mischief is not a crime of moral turpitude which would generally make a person inadmissible to the US, a criminal conviction could be an issue crossing the US border.

[195] Ms. Lich's husband lost his job because of the charges, and her bank accounts were frozen for a three-week period.

[196] Both have experienced public vilification from some persons and personal hardship because of their convictions. On the other hand, as shown in the sentencing materials, to many of their supporters they are heroes.

Community Support and Positive Impact

[197] The Court received extensive letters of support for both Accused, attesting to their character, community involvement, and the perceived positive impact of their advocacy. While not dispositive, these letters provide context for the offenders' motivations and the broader societal response.

Comparative Moral Blameworthiness

[198] In contrast to offenders in cases such as Soranno, Dube, and King, neither Lich nor Barber engaged in violent, destructive, or overtly defiant conduct.

[199] Their actions, while unlawful, were not characterized by malice or disregard for human safety.

Tamara Lich

[200] Ms. Lich is a first-time offender. She has no prior criminal record. She is 52 years old, married and a mother to three children and a grandmother to four. She has suffered significant collateral consequences, including the equivalent of seventy-four days in custody, strict bail conditions for over three years, loss of employment, and reputational harm. She has also received hate mail and threats, though she has maintained her commitment to peaceful civic engagement.

[201] Ms. Lich stands convicted as a principal and a party of mischief, arising from her continued encouragement and incitement of protest activity after becoming aware of its unlawful consequences. The Court has found that her conduct was non-violent, that she did not engage in direct obstruction or incitement, and that her messaging consistently emphasized peaceful and lawful protest. Her messaging, including TikTok and other social media posts, consistently emphasized peaceful protest and lawful conduct. Also, she did not plan or premeditate criminal conduct. This distinguishes her case from precedent decisions involving deliberate unlawful action.

[202] The Court accepts that Ms. Lich did not personally engage in direct obstruction of roadways, nor did she possess a vehicle in Ottawa or participate in honking or other disruptive acts. Her role was primarily in communications and fundraising. Nevertheless, her status as a figurehead and president of the protest movement gave her messaging significant influence and that cannot be understated.

[203] The Court accepts that Ms. Lich made genuine efforts to mitigate the impact of the protest, including responding positively to the mayor's request to reduce the footprint and participating in the relocation of vehicles. These efforts are somewhat unprecedented in protest jurisprudence and reflect a reduced degree of moral blameworthiness.

Christopher Barber

[204] Mr. Barber is a first-time offender with no prior criminal record. He has complied with all his strict bail conditions, including a $100,000 bond, and has suffered substantial collateral consequences, including the freezing of his bank accounts, loss of income, and ongoing civil litigation. He has incurred over $40,000 in travel expenses attending court and faces potential restrictions on his ability to continue his cross-border trucking business.

[205] Mr. Barber stands convicted of mischief as a principal and a party and counselling others to disobey a Court Order. The latter conviction reflects a serious disregard for judicial authority and is an aggravating factor. However, the Court has also found that Mr. Barber's conduct was non-violent, and that he did not incite aggression or intimidation.

[206] Mr. Barber played a more logistical and operational role in the protest, including coordinating truck placement and communicating with protestors. He attended meetings with city officials and made documented efforts to attempt reduce the protest footprint to alleviate the extent of the harm to the city and its residents, including relocating his own truck "Big Red" to Exit 88.

[207] The Court accepts that Mr. Barber sought legal advice, albeit imperfectly, and that his conduct was motivated by civic engagement rather than malice or intent to harm. His moral blameworthiness is reduced by his cooperation with police, his efforts to relocate vehicles, and his peaceful conduct throughout the proceedings.

[208] His messaging emphasized peaceful protest, and he advised followers to cooperate with police. His cooperation during arrest was complete and respectful.

[209] The Court finds that Mr. Barber's conduct was not premeditated or planned with criminal intent. There is no evidence he arrived with that intent. The protest evolved over time, and his actions must be assessed in that context. This reduces his moral blameworthiness, though the conviction for counselling disobedience of a Court Order remains serious.

[210] Mr. Barber has no prior criminal record, complied with bail conditions, and has suffered significant collateral consequences, including financial loss, reputational harm, and ongoing civil litigation. He does not pose a danger to the community.

VII. JUDICIAL REASONING AND APPLICATION TO THE CASES OF MS. LICH AND MR. BARBER

[211] As I previously stated, the parties could not be further apart when it comes to their respective sentencing positions and with all due respect, I must reject the suggested sentences of both the Crown and the Defence.

[212] I accept as is stated in all the protest cases provided to this Court, that the primary sentencing objectives must be denunciation and deterrence, both general and specific and the sentence must reflect society's condemnation of such conduct.

[213] The Accused committed a serious form of mischief, which is contrary to the Criminal Code. It is a crime. The Accused actions had a significant detrimental effect on the citizens of Ottawa who wanted nothing other than to carry on living in their community without having horns honking day and night, the roads impassable blocked by noisy trucks emitting diesel fumes making it impossible at times to even exit their own building and for other cars and buses to enter the downtown core.

[214] The sentence that this Court imposes on them must make clear that many Canadians denounce their actions, and it is hoped that the sentence will deter them and supporters from engaging in unlawful conduct which challenges the rule of law.

[215] The Court must also consider the personal circumstances of each accused and the aggravating and mitigating factors the court has considered. In this given neither have criminal records, the principles of restraint and rehabilitation also must play a role in determining sentence.

[216] At the sentencing hearing, counsel for both Accused submitted to this Court that it should impose absolute discharges as a fair and appropriate sentence. In my view to impose such a sentence would be unfit. As noted in R. v Soranno at para. 141; "A review of the case authorities demonstrates that in serious cases of planned and deliberate civil disobedience having significant consequences, generally, discharges are not considered appropriate and are not granted in the absence of strong evidence of remorse. The courts are overwhelmingly concerned with the need for denunciation and general deterrence, and discharges are seen as inconsistent with these pressing objectives." While discharges might clearly be in the Accused best interests, in my view it would be contrary to the public interest to impose a discharge and would send the entirely wrong message to the public at large. A discharge would fail to reflect the need for deterrence and denunciation and would undermine confidence in the administration of justice.

[217] The Court equally and with respect rejects the sentence of eight years jail sought for Mr. Barber and seven years jail sought for Ms. Lich. To impose such a sentence would in my view, would also amount to an unfit sentence, it neither being fair, appropriate or consistent with the principles of sentence. Persons charged with serious violent crimes such as robbery or aggravated assault and other cases involving violence rarely receive sentences in that penitentiary range. In the Colenutt case involving possession of a weapon at the Coutts Blockade, the Court imposed a conditional jail sentence of two years less one day and the mischief charge was withdrawn. In the Olienick and Carbert case involving possession of guns and ammunition near the Coutts Blockade in the context of a plan to allegedly murder police the accused received six and half year sentences.

[218] The Crown relies on the Dube decision to support its position. The Dube case is distinguishable on many grounds. Mr. Dube was convicted of planning a sophisticated and vengeful attack on hydro transmission lines, an attack on very critical infrastructure. His planned and deliberate actions caused 180,000 people to be without power, in the middle of winter, affecting numerous communities and leaving a hospital and police station without power. The Court found nothing mitigating in the commission of the offence and few mitigating factors for the Accused. He received a seven-year sentence.

[219] The actions of the Accused in the case the case at bar on a sliding scale of seriousness and moral culpability is not the worst case of mischief. They came with the noblest intent and did not advocate for violence. They did not plan a violent or vengeful attack on critical infrastructure. There were several groups of protestors in Ottawa at the Freedom Convoy and as noted in the trial decision, while Ms. Lich and Mr. Barber had significant influence over many, they could not control everyone's actions, they were broad moderate group.

[220] I agree and adopt the words of Justice Hackland in the King sentencing decision at para. 31:

"In the court's opinion there is a social harm to unduly elevating the sentencing goals of denunciation and deterrence in the context of political protests, to result in punitive sentences at the top of the sentencing range. The risk is that an overly severe sentence of imprisonment in the context of legitimate constitutionally protected activity can have the effect of creating a chill or a fear of participation in political expression such as demonstrations or protests, for fear that some persons may cross the line into conduct constituting mischief with resultant severe sentences for all involved. The Freedom Convoy protest was about expressing opposition held by some to perceived government overreach in the form of Covid 19 mandates and other vaccine issues, which continue to be matters of legitimate public discourse and shifting opinions and policy approaches. The Freedom Convoy was not an attack aimed at, for example, promoting violence or intimidation of racial or religious minorities or other vulnerable groups. Rather, the Freedom Convoy began as a lawful constitutionally protected form of protest that unfortunately grew out of control and was allowed to go on and on and morphed into criminal activity (in the form of mischief and related offences)."

[221] The sentencing decisions I consider to be most relevant are the King decision as well as those arising from the 2022 Coutts Border Blockade in Alberta, which involved similar protest-related mischief offences. The Coutts Blockade significantly affected critical infrastructure being a busy U.S. Canada border crossing. In the case it bar, the streets of downtown Ottawa were blocked and there were honking horns and diesel fumes.

[222] Mr. King received a twelve-month sentence, nine months of which had been previously served in custody and the last three months was to be served as a conditional sentence followed by a year probation conditional jail sentence. There is no evidence Mr. King worked with police or authorities to reduce the footprint and only told people to leave the city to regroup when arrest and enforcement was imminent.

[223] In R. v. Van Huigenbos, the Accused was convicted of mischief over $5,000 and sentenced to four months in jail. The Court felt a real jail sentence was necessary emphasizing the need for denunciation and deterrence, noting the Accused's leadership role and the impact of the blockade. Mr. Van Huigenbos has helped police navigate through the blockade of vehicles and the Court found a four-month sentence sent the needed message of deterrence and denunciation.

[224] In contrast, in R. v. Janzen, the Accused received a three month conditional sentence and 100 hours of community service. The Court found that Janzen had expressed genuine remorse, did not pose a danger to the community, and had a lower leadership profile. He also helped in negotiations with police and helped move vehicles from the blockade.

[225] In R. v. Van Herk, the Accused was sentenced to a ninety-day conditional sentence with community service and probation. The Court noted that Van Herk was not a leader and had demonstrated rehabilitative potential.

[226] These decisions confirm that conditional sentences can be appropriate in protest-related mischief cases where the offender's conduct, while serious, does not involve violence, weapons, or high moral culpability.

[227] In the sentencing process a court must consider whether a custodial sentence is warranted and having determined that and if the proposed sentence is less than two years the court should then determine whether a conditional sentence is consistent with the purpose and principles of sentence.

[228] Under s. 742.1, where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the Court imposes a sentence of imprisonment of less than two years, and is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the Court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

[229] In R v Proulx, 2000 SCC 5, 140 CCC (3d) 449, 30 CR (5th) 1, the leading case involving conditional sentence orders ("CSO"), the Supreme Court of Canada said; "A conditional sentence can achieve both punitive and restorative objectives." The Court discusses denunciation and deterrence, being the punitive aspects of a CSO, when it says: "Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed, and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances."

[230] The Supreme Court of Canada in R. v. Proulx, clarified that a conditional sentence is a form of incarceration and must reflect the seriousness of the offence. It is not a lenient alternative to probation. The Court emphasized that conditional sentences must include meaningful restrictions on liberty and must not undermine public confidence in the administration of justice.

[231] In Proulx, the Court held that conditional sentences are appropriate where the objectives of denunciation and deterrence can be achieved without resorting to actual imprisonment, provided the offender does not pose a risk to public safety and the sentence includes punitive conditions.

[232] As this Court has mentioned, and Justice Labrenz pointed out, the Coutts Border Crossing Blockade had a significant detrimental effect on the community. Slatter, JA specifically pointed out in Pawlowski's conviction appeal: "Blockading a highway is an inherently aggressive and potentially violent form of conduct, designed to intimidate and impede the movement of third parties." However, as Criminal Code s 742.1 says, this Court must consider whether a CSO "would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2."

[233] In the circumstances of this case, the gravity of the offence relates primarily to the harm caused to the citizens and businesses of Ottawa and the broader harm to the community at large. Section 718 of the Criminal Code emphasises the need to protect society and to contribute to respect for the law and the maintenance of a peaceful and safe society. Allowing persons to take over downtown Ottawa and blockade the streets and disturb citizens for a period of three weeks to achieve their political objectives is anathema to the maintenance of a just, peaceful and safe society. Ms. Lich and Mr. Barber were among the leaders of the convoy they represent the broad moderate group.

[234] The Court finds that although the conduct of Mr. Barber and Ms. Lich was serious, neither Mr. Barber nor Ms. Lich possessed weapons, incited violence, or planned the destruction of critical infrastructure.

[235] Their conduct was non-violent, and both made documented efforts to cooperate with police and reduce the protest footprint. They have no prior criminal records, have complied with strict bail conditions, and have each suffered significant collateral consequences.

[236] Barber's conviction for counselling disobedience of a Court Order is aggravating and an offence which is an affront to the administration of justice. However, he lacked legal training, had not been at the injunction hearing, misunderstood the nature of the inunction and relied on legal advice. The Court finds that Mr. Barber's moral blameworthiness is reduced due to his efforts to comply and his misunderstanding of the parameters of the injunction.

[237] The principles of sentencing require that the Court balance denunciation and deterrence with rehabilitation and restraint. Considering the mitigating factors, the reduced moral blameworthiness, and the absence of violence or property damage, the court finds that while a custodial sentence is required for each accused but that the objectives of sentencing can be met through a conditional sentence with punitive conditions.

[238] I find both Accused have been specifically deterred by their arrest, their incarceration, the Court process and the collateral consequences each suffered as a result of being charged.

[239] The Court finds that the principles of denunciation and deterrence can be met through conditional sentences with punitive conditions, including house arrest, curfews, and prohibitions on certain activity. They can make reparations to the community through community service. These conditions reflect the seriousness of the offences and ensure that the sentence is not perceived as lenient.

[240] A conditional sentence is available under s. 742.1 of the Criminal Code, and the Court is satisfied that such a sentence would not endanger the safety of the community and would be consistent with the principles of sentencing. Neither Accused has a prior criminal record, they have complied with strict bail conditions for over three years and have demonstrated rehabilitative potential. Their cooperation with police during arrest was complete and respectful. Neither accused pose a risk to the community should they serve their sentences conditionally.

[241] I am not going to impose any period of probation following the conditional sentence as sated in Van Huigenbos at para. 21: "In the case at bar, it would be naive for the court to believe that it can rehabilitate the offender in their way of thinking regarding protesting COVID mandates. That would be punishing them for their ideologies."

DISPOSITION

[242] Christopher Barber is sentenced to a Conditional Sentence of 18 months on the charge of Mischief and a concurrent Conditional Sentence of 3 months for the Counselling to Disobey Court Order to be served in the community under the following conditions. As noted in Proulx a conditional jail sentence can be longer than a real jail sentence to add elements of deterrence. Thus, a total sentence of 18 months served as a Conditional Sentence:

[243] The statutory conditions apply as set out in Criminal Code s 742.3, which are:

• Keep the peace and be of good behaviour;
• Appear before the Court when required to do so by the Court;
• Report to a supervisor within two working days, or such longer period as the court directs, after the making of the Conditional Sentence Order, and thereafter, when required by the supervisor and in the manner directed by the supervisor;
• Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor; and
• Notify the Court or the supervisor in advance of any change of name or address; and
• Promptly notify the Court or the supervisor of any change of employment or occupation.

[244] In addition to those statutory conditions:

• You shall report today and after that the Order will be transferred to Stewart Valley, Saskatchewan for supervision;
• You shall remain within your residence or on the property of your residence for the first 12 months with the following exceptions:
  • Medical emergencies for yourself or any member of your immediate family;
  • While travelling from Ottawa to Stewart Valley, except for employment;
  • Except while travelling to and from and being at any legal, medical, or dental appointments and religious services and any required court attendances.
• Once per week for a period of up 5 hours to obtain the necessities of life or as set out in conjunction with the CSS, with the prior written permission of the conditional sentence supervisor, that written permission is to be carried with you during those times, and other exceptions approved by his supervisor;
• For the remaining 6 months you shall abide by a curfew by being in your place of residence or the property of your place of residence between the hours of 10:00pm and 5am except for employment except for medical emergencies for yourself or your immediate family or with the approval of the CSS;
• Perform 100 hours of community service at a rate and schedule as set out by the Conditional Sentence Supervisor.

[245] Ms. Lich shall receive a Conditional Sentence of 18 months less 74 days of pre-sentence custody so a remaining conditional sentence 15.5 months. As noted in Proulx a conditional sentence can be longer than a real jail sentence in order to add elements of deterrence.

[246] In addition to the statutory conditions:

• You will report today to a supervisor and after that at such times and place as directed by the superior or anyone authorized to assist in your supervision. This order will be transferred to Medicine Hat, Alberta for Supervision.
• During the first 12 months of the Order you are under House Arrest. You will be in your residence or on the property of your residence at all times with the following exceptions:
  • While travelling from Ottawa to Medicine Hat, Alberta;
  • For medical emergencies involving yourself or your immediate family;
  • For the purposes of travelling to and from and while at employment;
  • Legal, medical or dental appointments or attending religious service;
  • Once per week for a period of up to 5 hours to attend to the necessities of life or as set out in conjunction with the CSS, with the prior written approval of the Conditional Sentence Supervisor that approval to be carried with you during those times.
• For the remaining 3.5 months you shall be under a curfew of 10:00pm to 5:00am except for medical emergencies for yourself or any member of your immediate family, employment, or with the approval of the Conditional sentence Supervisor;
• You are to perform 100 hours of community service hours at a rate and schedule set out in conjunction with the CSS.

Released: October 7, 2025

Signed: Justice Heather E. Perkins-McVey