Retrial ordered in drunk-driving case acquittal
Appeals court finds Brampton judge was wrong to look up officer’s arrest record of impaired drivers
ABrampton judge in an impaired driving case was wrong to turn to the internet, on her own initiative, to look up the arresting officer’s track record for apprehending drunk drivers, an appeal court has ruled.
Superior Court Justice Leonard Ricchetti ordered last week that Milan Perlic face a new trial before a different judge of the Ontario Court of Justice on a charge of operating a motor vehicle with more than 80 mg of alcohol in 100 mL of blood.
Ricchetti found that in her decision to acquit Perlic, Ontario Court Justice Kathryn Hawke referred to information not in evidence which “could have affected” her assessment of the testimony of the sole witness in the case, arresting officer Const. Ed Nicholson of Peel police.
Perlic’s lawyer, Lisa Jorgensen, said, “we are disappointed that, despite being acquitted at trial, this matter continues to hang over Mr. Perlic’s head nearly three years later.”
“This extraneous evidence could not and should not have been considered by the trial judge in assessing the witness’ evidence.” LEONARD RICCHETTI SUPERIOR COURT JUSTICE
Peel police declined to comment because the case is still before the court.
The issue to be determined at Perlic’s first trial was whether Nicholson’s decision to pull Perlic over was random or arbitrary. (The defence had argued that Perlic had been racially profiled, which Hawke dismissed.)
While Nicholson testified at trial that the stop was indeed random, Hawke said she found no evidence “of the method that he used to achieve randomness.”
She went on to point out that Nicholson has regularly received what is known as the Matt Parr Award from Peel police, which recognizes “the effort of officers who effectively apprehend impaired drivers,” according to the police website.
“I do know that Const. Nicholson is very successful at apprehending those who drink and drive,” she wrote in her decision, noting that these awards are publicized on the police website and in public reports.
Hawke wrote that in 2014/2015, Nicholson’s name was the first on a list of eight officers to receive the award. She said she checked online and found he was on the 2012 and 2013 lists as well.
“I didn’t search any further back, but over the years, given my duties as a judge and an administrative judge, I checked the site and quite frankly for as many years as I can remember, Const. Nicholson has been on the list,” Hawke wrote.
“It is apparent that he is quite efficient at making apprehension when he is on the road in order to continue an award-winning level for apprehension year after year.
“If he doesn’t want to talk about how he sizes people up and how he decides who to stop, that is up to him, but I don’t accept that in the circumstances of this case that it was exclusively a random process without some record being made at the time and evidence brought to court about how the suggested randomness was achieved.”
Hawke therefore ruled the stop was not random and that Perlic had been arbitrarily detained. She threw out the breath samples from Perlic’s case, which Nicholson testified had readings of 138 and 136 mg of alcohol in 100 mL of blood, or nearly twice the legal limit.
The Crown appealed to the Superior Court, where Ricchetti reiterated the basic principle that judges cannot rely on information that was not introduced and tested before them at trial.
Ricchetti wrote that judges are allowed to take “judicial notice” of facts that are so well-known they are “generally beyond debate.”
But he found that just because some community members in Peel region may have also read the articles on the Peel website or in the local newspaper about Const. Nicholson winning awards, that does not mean the fact would be considered “notorious” or of “indisputable accuracy.”
“The trial judge stated she was aware of this information because she was a judge and an administrative judge. That statement does not assist in the notoriety or indisputable accuracy of the information. The public are not judges,” Ricchetti said. “This extraneous evidence could not and should not have been considered by the trial judge in assessing the witness’ evidence.”