A Barrie judge acquitted Michael Evaristo of gun and drug charges Tuesday afternoon citing “serious” breaches of his Charter rights during an April 2022 downtown traffic stop.
A jubilant Evaristo, 45, walked out of the Barrie courthouse a free man, with his arms raised, after being found not guilty on all charges due to what Justice Nancy Dawson described as an “unlawful arrest and detention” and subsequent illegal search of his pickup truck while he was suspected of drunk driving.
“I agree with the judge,” said Evaristo, who was accompanied by his mother and girlfriend for the proceedings. “I mean, the evidence was strong but, I mean, the cop didn’t do his job. He broke my rights, a few of them.”
The serious charges were laid against Evaristo after police discovered cocaine, a loaded gun, and a drug debt book in his pickup truck when he pulled him over on the night of April 20, 2022, following several calls to 911 about a driver seen swerving from lane to lane on Highway 400.
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In her judgement, Justice Dawson agreed with the defence that Evaristo’s Charter rights were violated by investigators who unlawfully detained and arrested him “without objective, reasonable, and probable grounds.” The judge ruled one of the investigating officers “jumped to the conclusion” Evaristo was driving drunk based on “erroneous facts” and suspicion he was drunk.
The officer testified Evaristo had slurred speech, squinting eyes, and that he smelled alcohol in the vehicle. Evaristo told police he had not consumed alcohol that day. A six-pack of unopened beer cans was discovered in the truck by officers. The entire traffic stop was recorded on police body-worn cameras.
In her nearly three-hour decision, Justice Dawson ruled there was no odour of alcohol coming from Evaristo and he was not administered a roadside alcohol screening test by officers which would have confirmed he was not impaired by alcohol. Failure to conduct that sobriety test led to the subsequent unlawful search of the accused’s truck that uncovered drugs and a loaded gun inside, the judge ruled.
The judge also found a drug recognition exam demand was delayed, and officers did not provide Evaristo with an update on what was happening while he was detained. Justice Dawson found police breached his right to counsel, calling the actions of officers “a series of failures on the part of the police to be Charter compliant to respect Evaristo’s rights.” The defence had argued Evaristo’s rights to life, liberty and the security of the person were violated along with protections from unreasonable arrest, detention and search and seizure. Justice Dawson threw out all of the evidence obtained during the arrest and found Evaristo not guilty of all counts as the Crown could not prove his guilt without the unlawfully obtained evidence.
A blood test determined Evaristo had several drugs in his system including cocaine, cannabis, and anti-anxiety medication, Lorazepam.
Justice Dawson called the police investigation “careless” and ruled the experienced officer should have “done better.” Barrie Police chose not to comment on the ruling by Justice Dawson.
Evaristo vowed to celebrate the acquittal with loved ones. “The judge agreed with our defence and we got the win,” he said. “I am an innocent man, and I am going to stay that way.”
