Defence argues Ont. man’s Charter rights were violated when police found drugs, loaded handgun

Michael Evaristo, 45, arrested for suspected drunk driving, is arguing his Charter rights were violated during a traffic stop.

A Barrie, Ont. man arrested for suspected drunk driving is arguing his Charter rights were violated during a traffic stop when police said a loaded handgun and drugs were found in the man’s pickup truck.

Michael Evaristo, 45, faces drug and weapons charges following his arrest April 20, 2022, when Barrie police said Evaristo was stopped for suspected impaired driving when police received two calls from drivers moments earlier.

Police body-worn cameras recorded the traffic stop in downtown Barrie showing Evaristo being pulled over. What happened over the next thirty minutes is now under the microscope in a Bradford courtroom. Defence lawyer David Wilcox has argued Evaristo’s Charter rights were violated by police when he was handcuffed and placed under arrested for suspected drunk driving and his vehicle was searched by officers.

“I could smell alcohol and he’s definitely drunk,” said one officer to his colleague during the arrest along Bayfield Street at about 6:15 p.m.

The defence is arguing police wrongly believed Evaristo was driving drunk. Wilcox told the court the officer mistakenly testified Evaristo had “slurred speech” and “his eyes were all over the place.”

While under arrest Evaristo can be heard questioning police for searching his pickup truck. “I don’t think you should be going through my stuff without a…” he said. “Your stuff?” the officer replied. “We’re not going through your stuff.” he can be heard telling Evaristo.

Wilcox argued Evaristo, when cuffed and placed in the back of a police vehicle, had his liberty taken away from him, while his vehicle was unreasonably searched by officers. Evaristo was later administered a blood test.

The defence argued the evidence clearly established police violated Evaristo’s Charter rights under sections 7, 8 and 9 under the Canadian Charter of Rights and Freedoms, that protect him from unreasonable search and seizure, detention and arrest and the right to life, liberty and security of the person.

Wilcox asked Justice Nancy Dawson to exclude the evidence gathered by police during his arrest as a remedy for police breaching Evaristo’s rights. Police, the court heard, found a loaded handgun and cocaine in Evaristo’s pickup truck along with cash and a drug debt booklet in the minutes that followed his detention.

The Crown argued the officer honestly believed he saw and smelled alcohol in the vehicle and a driver had called 911 to report they were nearly sideswiped minutes earlier along Dunlop Street near Hart Drive. Witnesses said the truck was seen “swerving from lane to lane” south on Highway 400 and again around Anne Street and Tiffin Street.

A test of his urine found Evaristo had cocaine, cannabis and anti-anxiety medication Lorazepam in his system. Evaristo told police he had not had any alcohol to drink that day. He was charged with drug possession and having a loaded gun.

• Barrie police seize loaded gun, drugs during impaired driving investigation

Barrie police said, at the time of the arrest, Evaristo was taken to the detachment, where a “qualified Drug Evaluation Evaluator” determined he was drug impaired.

A decision from Justice Dawson is expected in early April.