Court Information

Ontario Court of Justice

Date: 2020-07-06

Court File No.: Regional Municipality of Waterloo (Kitchener) Info # 18-8575

Parties

Between:

Her Majesty the Queen

— and —

Richard John Crowley

Judicial Officer and Counsel

Before: Justice C.A. Parry

Heard on: November 20, 2019, January 8, February 12, and March 4, 2020

Addendum released on: July 6, 2020

Counsel:

• B. Schnell – Counsel for the Crown
• S. Harvey – Counsel for Mr. Crowley

Addendum to Charter Ruling

PARRY J.:

[1] Since releasing my decision on Mr. Crowley's Charter application [R. v. Crowley, 2020 ONCJ 271], I have had the opportunity to reflect upon my conclusion regarding the alleged arbitrary detention of Mr. Crowley. In my earlier ruling, I concluded that, but for the unlawful entry into Mr. Crowley's home, there existed sufficient grounds to detain Mr. Crowley pursuant to sections 33 and 48 of the Highway Traffic Act. Accordingly, I concluded that Sergeant Mace did not breach Mr. Crowley's right against arbitrary detention. I have now concluded that this ruling was wrong.

[2] Having reviewed the governing jurisprudence anew, I am bound to conclude that, because Sergeant Mace was a trespasser at the point of detention, that otherwise lawful detention became unlawful: R. v. Delong, [1989] O.J. No. 206 (C.A.); Hudson v. Brantford Police Services Board, [2001] O.J. No. 3779 at paras 17 and 26 (C.A.). The Supreme Court has made clear that any unlawful detention must be considered inherently arbitrary: R. v. Suberu, 2009 SCC 33. I am therefore bound to conclude that Sergeant Mace breached Mr. Crowley's right against arbitrary detention when, as a trespasser, he detained Mr. Crowley.

[3] This additional finding does not, however, alter my assessment of the appropriate remedy for the Charter breaches. My s. 24(2) analysis, when examining both the seriousness of Sergeant Mace's conduct and the impact of the breach upon Mr. Crowley's Charter protected rights, already considered Sergeant Mace's status as a trespasser and the impact upon Mr. Crowley of the home-extraction that flowed from that trespass. The import and impact of the section 9 breach were thus for all intents and purposes already considered in the initial ruling.

[4] Consequently, despite finding that Sergeant Mace violated Mr. Crowley's s. 9 Charter right in addition to his s. 8 Charter right, I nevertheless remain of the view that Mr. Crowley has failed on a balance of probabilities to establish that admission of the evidence would bring the administration of justice into disrepute. As a result, the trial will still continue.

Released: 6 July 2020

Signed: Justice C.A. Parry