Judge throws out beer cooler sei

LONDON, Ont. - A judge threw out a significant piece of Crown evidence -- a beer cooler -- at an impaired driving causing death trial and called into question the conduct of the police officer who opened the bag.

Superior Court Justice Johanne Morissette said the cooler, found on the floor behind the back seat of Trevor Ristmae's pickup truck shortly after a fatal crash on June 6, 2008, that killed Gary Watterworth, 46, of Glencoe, would not be allowed into evidence.

The taking of the cooler constituted "a serious Charter (of Rights) breach", she said.

She did allow the breathalyser readings of 120 mg and 100 mg of alcohol in 100 ml of blood to remain part of the trial, although she said she recognized there were issues surrounding the reliability of the results.

Watterworth, 46, was killed when he was ejected from his pickup truck after it was sideswiped by Ristmae's Ford-150 on Glendon Dr., formerly Middlesex County Rd. 14. Watterworth's daughter suffered minor injuries. She was strapped into the truck, while Watterworth was found not to be wearing a seat-belt.

Morissette heard at the trial Ristmae's westbound truck had drifted into the eastbound lane before it sideswiped Watterworth's truck. There was evidence Watterworth tried to get out of the way before the crash, making him lose control of the vehicle.

The cooler seizure was a "willful or reckless disregard for Charter rights," the judge said. OPP Const. Jonathan Balzer grabbed it off the floor behind the driver's seat, unzipped it and looked inside, finding two empty beer bottles and two full beers.

Balzer did not have a search warrant to grab the bag. He testified once he spoke to Ristmae inside a cruiser -- taking over the interview from another officer who had not smelled alcohol -- he saw several indications that Ristmae had been drinking, including an alcohol smell and glassy eyes.

A paramedic also testified he saw nothing to indicate Ristmae had been drinking after spending 10 minutes with him before Balzer arrived.

Morissette said Balzer was "looking for the signs with some tunnel vision" or he fabricated the observations before the arrest.

Balzer also didn't give Ristmae a roadside breath demand before arresting him and taking him to the detachment.

After her ruling on the Charter of Rights issues, assistant Crown attorney Jason Skinner and defence lawyer Jeanine LeRoy gave closing arguments.

Skinner told Morissette there was evidence Ristmae had been drinking that afternoon before the crash. He also pointed to testimony from Todd Hagle, who was driving in front of Ristmae and saw two "dust-ups" when Ristmae left the road and hit the gravel shoulder.

He also said Ristmae had driven up behind him, then dropped back.

Skinner agreed the breathalyser instrument was sent away for examination by the OPP breathalyser technician after Ristmae's tests but told the judge the problems were with the display mechanism, not in the diagnostics.

Const. Glen Seddon testified the only problems were with the machine recalling information that had been typed into it.

LeRoy said Seddon was "incredible and unreliable" as a witness as were some of the other police officers.

The invoice at the repair facility in Milton referred to "Internal Standards failed," she said, which indicated problems with the diagnostics. If that signal had been produced by the machine at the time of the tests, it shouldn't have been used, she said.

The crash reconstruction does show Ristmae had control of his vehicle and was trying to steer away from the crash, she said. He was able to get his truck under control after the sideswipe.

She said the readings aren't reliable and the Crown hasn't proven its case beyond a reasonable doubt.

Morissette adjourned the case for a decision June 30.

jane.sims@sunmedia.ca

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Commentary by the OttawaMensCentre.com

Its pretty obvious the Justice Morissette is saying in the most diplomatic way that OPP Const. Jonathan Balzer fabricated evidence.

When anyone from witness to lawyer or judge caught fabricating evidence, you can bet that it is not the only time that this has happened.

The problem is, as much as this driver may have been and probably was drunk, the less than professional behaviour and attitude of the police destroyed the case.

If you watch police arriving when drunk drivers are involved, sometimes they don't even see a drunk, or any signs of impaired driving. At other times, an over zealous officer will see things that don't exist because his "instincts" tell him the driver was drunk. "Instincts" are not evidence that qualifies "probable cause".

The problems is, we need legislation that allows random breath testing, "without any probable cause" for every single driver, police or otherwise stopped en mass and lined up for testing.

That is the only real deterrent that will remove drunk drivers.

Fabrication of evidence, destroys criminal cases, and makes the police officers who do this worse than the criminals they are supposedly chasing and worse than a drunk driver because they destroy those prosecutions.

Its a bit like a soldier in your own army laying a mine against his own troops.

If you know of any fabrication of evidence by OPP Const. Jonathan Balzer please send us an email with the details.

Judge throws out beer cooler seized by cop