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Police breached rights of man charged in cyclist's death: judge

Judge found no bad faith on the part of the authorities
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City police officers breached numerous Charter rights of a young man charged in the death of a cyclist two years ago, a judge ruled last week.

Matthew White, then 19, was involved in a June 26, 2020 collision that took the life of the 48-year-old cyclist.

The accident occurred just before midnight in the 1000 block of Peoples Road.

It was reported that the victim was transported to the Sault Area Hospital with major injuries where he later died.

At the time, White was arrested for driving while impaired with a drug or alcohol causing death and dangerous driving causing death.

Six months later, police announced that White, now 20, had been charged with impaired operation by a drug, as well as the dangerous driving causing death count.

He has pleaded not guilty to the charges.

During a hearing that took place in two days in March and four days in May of this year, Ontario Court Justice Romuald Kwolek heard a number of Charter applications brought by the defence.

Lawyers Bruce Willson and Anthony Orazietti sought, under four sections of the Charter of Rights and Freedoms, to have evidence, including blood samples, videos taken at the police station and breath samples following the accused's arrest, excluded from the trial.

During a voir dire at the trial, the court heard White struck a bicyclist, who was dressed in black, on a straight stretch of a four-lane, non-divided highway that was  illuminated by city lights.

Numerous Sault Ste. Marie Police Service officers, including one who was not on duty at the time but was the first person on the scene, testified at the hearing.

White's lawyers alleged that he wasn't promptly advised of the reasons for his detention at the roadside. 

When he was arrested, the involved officers lacked reasonable and probable grounds to make breathalyzer demands, they argued.

The defence also maintained that when the breath tests had a zero result, one of the officers didn't have reasonable grounds to make a subsequent blood sample demand.

As a result, White was subjected to a warrantless arrest - an arbitrary detention - and warrantless seizures of breath and blood samples, which should be excluded from the trial, his lawyers said.

They argued that if both officers had reasonable grounds for the arrest and subsequent demands for breath and blood samples, they didn't make them in a timely manner.

White's counsel further alleged that investigation changes from an impaired by alcohol charge causing death, to impaired by drug charge, should have provided him with a further opportunity to consult with his lawyers.

His rights were also violated when he was detained until 6:46 a.m., the defence said, maintaining he should have released after he provided blood samples at 2:53 a.m.

Crown prosecutors Matthew Caputo and Carl Lem, who is based in Ottawa, took issue with the alleged breaches.

They denied that there were any any Charter violations.

As well, the Crowns said if the court found that there were breaches it shouldn't exclude any evidence from the trial.

Kwolek heard the first person on the scene was an off-duty officer, who spotted the bicycle just off the roadway, and the deceased victim.

He attempted CPR, and advised passers-by to call 911.

The officer noted a vehicle parked in an outside lane a short distance from the scene

He testified that he was acting as a concerned citizen, not a police officer, when he attempted CPR, and secondly was worried about the emotional health of a young person who was unaware that the victim was likely deceased.

The officer said he didn't question White about what had happened, but indicated when he first saw the young man, he appeared to be in shock, with a "deer in the headlights stare, emotionless."

The witness indicated that he didn't note any smell of alcohol, slurring of words, glossy or red eyes, no drugs or drug paraphernalia in the vehicle.

A Sept. 8, 2020 toxicology report detected three drugs in the accused's blood.

One, Etizolam, was described as a drug prescribed for treatment of anxiety and panic disorders that is not available in Canada.

A second report, dated Aug. 16, 2021, quantified the concentration of a second drug, Flubromazolam, which is not approved for medical use in this country.

It concluded that such a drug can impair a person's ability to operate a motor vehicle because it has central nervous system depressant effects, and more pronounced effects would be expected when combined with Etiizolam.

When he was questioned by one of the officers, after his first breathalyzer test had been completed, White admitted that he had taken his prescribed anti-depressants at about 5:30 p.m.

 "This was an admission of some drug consumption, albeit it, of a prescribed medication," the judge said

Kwolek found multiple instances of Charter breaches, which had "a significant impact" on White's protected rights.

The exclusion of blood test results would impact the ability of the Crown to successfully proceed with their prosecution on the impaired driving charge,  he said.

But whether or not the evidence is excluded, the case will proceed on its merits.

He said the lawyers had advised the court that the trial will continue regardless of the interim rulings in the voir dires

Kwolek concluded that the admission of the evidence obtained as a result of the breaches would bring the administration of justice into disrepute.

He granted the defence application to exclude all incriminating evidence, provided following White's arrests, including the breath and blood samples.

The court found White's Charter rights were breached in his arrest and the subsequent breathalyzer demand.

It then follows that any further detention to obtain the breath sample was not warranted and any continued detention violated his rights not to unreasonably detained.

Kwolek found a second breach in requiring the accused to provide a blood sample because that officer lacked reasonable grounds for making such a a demand.

This means that White was then further improperly detained.

While Kwolek found distinct breaches of sections of the Charter, he also dismissed a number of other defence applications about alleged violations.

He also indicated he had found no bad faith on the part of the authorities.

The police officers involved in the breaches believed that their conduct was appropriate and Charter compliant, the judge said.

But their behaviour was deficient in their application of the facts before the court "objectively they were mistaken in some of their observations and conclusions," Kwolek said.

The trial is scheduled to continue in November. 

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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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