HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 308

ONTARIO COURT OF JUSTICE CITATION: R. v. Crowley, 2020 ONCJ 308 DATE: 2020 07 06 COURT FILE No.: Regional Municipality of Waterloo (Kitchener) Info # 18-8575 BETWEEN: HER MAJESTY THE QUEEN — AND — RICHARD JOHN CROWLEY Before Justice C.A. PARRY Heard on November 20, 2019, January 8, February 12, and March 4, 2020. ADDENDUM released on July 6, 2020 Schnell, B. ............................................................................................ counsel for the Crown Harvey, S........................................................................................... 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 opportunityto reflect upon my conclusion regarding the alleged arbitrary detention of Mr. Crowley. In my earlier ruling, I concluded that, but for theunlawful entry into Mr. Crowley’s home, there existed sufficient grounds to detain Mr. Crowley pursuant to sections 33 and 48 of theHighway Traffic Act. Accordingly, I concluded that Sergeant Mace did not breach Mr. Crowley’s right against arbitrary detention.

Ihave 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 atthe point of detention, that otherwise lawful detention became unlawful: R. v. Delong, (ON CA), [1989] O.J. No. 206(C.A.); Hudson v. Brantford Police Services Board, (ON CA), [2001] O.J. No. 3779 at paras 17 and 26 (C.A.). TheSupreme Court has made clear that any unlawful detention must be considered inherently arbitrary: R. v. Suberu, 2009 SCC 33. I amtherefore bound to conclude that Sergeant Mace breached Mr.

Crowley’s right against arbitrary detention when, as a trespasser, hedetained 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’sCharter 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 alreadyconsidered 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 Charterright, I nevertheless remain of the view that Mr. Crowley has failed on a balance of probabilities to establish that admission of theevidence 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