Hamilton police ran RIDE check without a breathalyzer, or regard for Charter rights, court finds

Two Hamilton police officers set up a RIDE program without carrying a Breathalyzer one night 2½ years ago.

The failure to carry or request a screening device, along with constitutional grounds, factored into a judge earlier this week acquitting a Hamilton man, John Najev, of two counts of impaired driving. Justice Joe Fiorucci of the Ontario Court of Justice found that the accused’s Charter rights were violated in three different ways during his late-night arrest in March 2019.

The judge wrote that that the Hamilton Police Service failed to make a “breath demand as soon as practicable,” which factored into the driver being “arbitrarily detained.” He was also denied his “RTC (right to counsel) immediately upon his arrest.” Taken cumulatively, those actions constituted violations under sections 8 to 10 of the Canadian Charter of Rights and Freedoms.

Court heard that HPS Consts. Mark Manieri and Timothy Vucinic were conducting RIDE spot-checks at various points in Hamilton on the night of March 13, 2019. They were set up in the middle of Wilson Street East, near Lions Club Road, when they stopped the driver’s silver BMW at 11:52 p.m. that night. It was their 64th stop that night for a roadside sobriety check.

The agreed-upon facts of the case were that there was alcohol on the driver’s breath and that he acknowledged consuming alcohol before driving.

Najev was asked to pull his vehicle over to the roadside at 11:59 p.m., placed under arrest at 12:12 a.m. and was advised of his right to retain legal counsel at 12:17 a.m.. There was some dispute over whether the accused slurred some of his words or stuttered while asking questions about where he was headed, and his physical movements after getting out of his car. Najev was not asked to perform physical coordination tests.

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Fiorucci found that it was inferable from Manieri’s testimony that “within a minute or less of arbitrarily detaining Mr. Najev, he had the grounds to make a formal screening demand.” However, that did not happen.

Additionally, neither officer “could provide clear and cogent evidence” in regard to whether they had an approved screening device, such as a Breathalyzer, with them. It is not necessary for police to do so, since RIDE checks are meant to be “focused and brief” in accordance with past court rulings about the program’s constitutionality. 

Under questioning from defence counsel Patrick Ducharme, Manieri, who was the arresting officer, twice said “I don’t recall” when asked if he was carrying an approved screening device to test a driver’s blood-alcohol content.

In his testimony, Vucinic agreed with the defence’s suggestion there was “no effort” to have a Breathalyzer brought to the scene by other nearby HPS units.

Fiorucci also watched a video of the accused that was filmed at the time that his breath samples were taken. Based on what he saw, he had “difficulty accepting the evidence” from the officers in regard to Najev’s speech and physical movement after he was stopped.

The finding that the breath samples were taken after accused’s Charter rights were violated meant there was “no admissible evidence that Mr. Najev’s blood-alcohol concentration was over the legal limit.”

The RIDE (Reduce Impaired Driving Everywhere) program has been part of policing in Ontario since the first such initiative was created in Etobicoke in 1977.

The Supreme Court of Canada has found that random roadside checks are constitutionally permissible, but are meant to be focused and brief in order to stay on the legal side of Section 1 of the Charter, commonly referred to as the ‘reasonable limits’ clause.

The arresting officer’s detention was unfocused, the court found.

“Ignorance of Charter standards must not be rewarded or encouraged,” Justice Fiorucci wrote in his decision, which was shared at canlii.org.