Charter ruling leads to acquittal in Barrie on drug, gun charges. This is great but the police say the s.24 Charter ruling in the defendant's favor is in error since the police had reasonable and probable cause due to the complainant's reckless driving. The other issue is that he is back in Court today since there was an ongoing investigation on his drug debt book. The funds in his account is evidence and also proceeds of crime. He thought he would do a home delivery version of the new weed shops but he does not have a licence for such a shop or to make such sales. Sell alcohol then with out an LCBO licence. But some day he can have his licence to sell controlled cannabis after a pardon. The conviction is appealed.
Charter ruling leads to acquittal in Barrie on drug, gun charges
A man facing serious drug and gun charges has been found not guilty after a Barrie judge excluded most of the evidence against him because of “serious” violations of his Charter rights that ultimately “killed the Crown’s case.”
“Thank you, your honour. God bless you,” Michael Evaristo told Ontario Court Justice Nancy Dawson after she was finished her three-hour judgment today at the Barrie courthouse.
The ruling means the 45-year-old Evaristo avoids a lengthy penitentiary sentence that likely would have been attached to convictions for possession for the purpose of trafficking and possession of an illegal handgun, two of the most serious counts of the several he had faced.
Evaristo went to trial last year after Barrie police found about 40 grams of cocaine and a 9mm Beretta handgun during a search of his truck after an early-evening traffic stop in the city's downtown on April 20, 2022.
The trial proceeded in tandem with separate arguments made by defence counsel David Wilcox that his client’s Charter rights were violated, from which Wilcox sought the evidence be excluded.
Dawson agreed on all Wilcox’s arguments, save for a section 7 application related to the police muting their body-worn camera during the arrest. Dawson found that the short muting of the audio did not have any significant impact.
At issue was the conduct of one Barrie police officer who gave evidence that he thought Evaristo was impaired. It was during that search that two other officers on scene uncovered cocaine and the handgun, along with other tell-tale signs of drug trafficking, such as a debt list, court heard.
Evaristo’s health card was found in a satchel that contained the cocaine and police said powdery residue was visible on the console in the cab of his truck, court heard.
Outside court, Evaristo acknowledged the evidence against him, but was clearly relieved, almost sheepish, at the judge’s ruling.
“He broke my rights, a few of them … the judge agreed with my defence and we got the win,” said Evaristo, who also expressed his gratitude to his family for supporting him throughout his four-year legal journey.
Evaristo walked away from the courthouse a free man because Dawson took issue with virtually all aspects of the original officer’s actions in detaining him.
Though she didn’t find the officer acted maliciously or that he was even “wilfully blind,” the judge picked apart most of the manner in which Evaristo was arrested, cautioned and then taken into custody.
“He rushed … he should have done better,” said Dawson.
Effectively, the Crown’s case fell apart because of confusion around whether Evaristo was impaired by alcohol or by drug.
The arresting officer believed – helped along by a tallboy and a container of what he thought was alcohol, but turned out to be skin bronzer being spotted in the truck – that Evaristo was drunk.
Evaristo was very likely high, based on drugs later being found in his urine and him failing sobriety tests. Critically, however, Evaristo registered zero on the road-side breathalyser and the urinalysis findings were excluded based on the judge accepting the Charter challenge.
Dawson also had significant issues with the police officer’s contention that Evaristo had struggled to disembark from his truck and that his eyes were “all over the place.”
The judge disagreed, citing video evidence from the officer’s own body-cam, adding Evaristo may have simply been squinting in the face of bright sunshine on the evening of his arrest.
Dawson also found Evaristo not guilty of impaired driving, despite accepting the evidence of a woman who had called police after witnessing him drive erratically into Barrie from the Highway 400/11 split, following him off at the Dunlop Street exit and proceeding eastbound toward downtown.
Once Evaristo got downtown, police picked up his tail at the Five Points intersection and eventually stopped him on Bayfield Street, just north of Collier Street – not far from the courthouse doors where the legal journey ended 51 months later.
Dawson said it was merely proof of dangerous driving, and therefore acquitted Evaristo of impaired driving.
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