The Crown has dropped its charges against a Freedom Convoy protester after a judge ruled his arrest unlawful and excluded video evidence collected without proper authorities.
Benjamin Spicer, arrested during the police clearing operation of the protest in Ottawa on Feb. 19, 2022, was charged with mischief, obstructing justice, and being in possession of a knife and pepper spray.
Spicer pleaded not guilty to the charges and alleged various breaches of his charter rights surrounding his arrest and processing.
In a decision rendered on Aug. 2, Justice Timothy Lipson ruled the arrest of Spicer was unlawful, breaching his section 9 charter right against arbitrary detention. This made the resulting search of Spicer unlawful as well, said Lipson.
“There is no evidence that Mr. Spicer did anything in violation of any law that warranted him being detained on the ground and being subjected to physical force,” wrote the judge.
Spicer had been arrested while anti-riot police were pushing back protesters at the intersection of Bank and Sparks streets. A constable who handled Spicer after he was grabbed by front-line officers testified he “did not have any knowledge of whether Mr. Spicer committed any crime,” according to the decision.
Police action against protesters had started that weekend, a few days after the federal government invoked the Emergencies Act on Feb. 14. The trucker-led protest against COVID-19 mandates and restrictions had settled in Ottawa in late January.
After Spicer was arrested, he was put in a police transport van in which a surveillance system recorded audio and video of a conversation between Spicer and another protester.
The Crown sought to have that evidence admitted in court and said it inferred criminal activity. It also argued there is no expectation of privacy when in police custody. Justice Lipson, however, ruled the evidence constituted an intercept not obtained lawfully. Intercepts require prior judicial authorization under Part VI of the Criminal Code.
Lipson also ruled Spicer had not been granted the opportunity to speak with a lawyer for a period of over two hours after his arrest, constituting a breach of a charter right to obtain counsel without delay.
“I have found that there were multiple breaches of Mr. Spicer’s Charter rights, and each breach is, in my view, serious,” wrote Lipson.
The Epoch Times contacted the Crown for comment but didn’t immediately hear back.
“I am very satisfied that the judge recognized serious breaches of Mr. Spicer’s section 8, 9, and 10(b) Charter rights, and excluded the evidence after conducting an analysis, effectively gutting the Crown’s case,” Spicer’s lawyer Monick Grenier said in a statement.
Spicer’s defence was being supported by the Justice Centre for Constitutional Freedoms, a civil rights advocacy group involved in multiple legal challenges related to COVID-19 restrictions and the Freedom Convoy protest.