R. v. Mahoney-Bruer, 2015 ONSC 1224

COURT FILE NO.: 717/10

DATE: 2015-02-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Dennis MAHONEY-BRUER

Andrew Cappell, for the Crown

Harry G. Black Q.C., for the Defendant

HEARD: September 16, 17, 18, 19, 20, 23, 24, 25 & 27, 2013, March 5, 2014, August 1, 2014, September 26, 2014 and December 11, 2014

REASONS FOR JUDGMENT

fitzpatrick J.

[1] This trial without a jury was heard by me over approximately two weeks.

[2] On December 11, 2014, I acquitted the accused on all charges with brief oral reasons and the promise of a full written judgment to follow. This is my judgment as promised.

[3] The accused, O.P.P. Sergeant Dennis Mahoney-Bruer (“Mahoney-Bruer”) is alleged to have committed the following six offences:

a. That he, on or about the 10th day of May, 2009, at the City of Mississauga, in the Central West Region, being an official; to wit: a sworn police officer with the Ontario Provincial Police did commit a breach of trust in connection with the duties of his office by falsifying information on a Part 1 Provincial Offences Notice issued to Ismet Breznica, contrary to section 122 of the Criminal Code of Canada.

b. That he, on or about the 10th day of May, 2009, at the City of Mississauga, in the Central West Region, did wilfully attempt to obstruct the course of justice in a judicial proceeding by making false notes in relation to a Part 1 Provincial Offences Notice issued to Ismet Breznica with the intention that those notes be relied upon as evidence of the commission of an offence under the Highway Traffic Act of Ontario, contrary to section 139(2) of the Criminal Code of Canada.

c. That he, on or about the 10th day of May, 2009, at the City of Mississauga, in the Central West Region, being an official; to wit: a sworn police officer with the Ontario Provincial Police did commit a breach of trust in connection with the duties of his office by falsifying information on a Part III Provincial Offences Notice issued to Naveed Ghafari, contrary to section 122 of the Criminal Code of Canada.

d. That he, on or about the 10th day of May, 2009, at the City of Mississauga, in the Central West Region, did wilfully attempt to obstruct the course of justice in a judicial proceedings by making false notes in relation to a Part III Provincial Offences Notice issued to Naveed Ghafari with the intention that those notes be relied upon as evidence of the commission of an offence under the Highway Traffic Act of Ontario, contrary to section 139(2) of the Criminal Code of Canada.

e. That he, on or about the 11th day of May, 2009, at the City of Mississauga, in the Central West Region, being an official; to wit: a sworn police officer with the Ontario Provincial Police did commit a breach of trust in connection with the duties of his office by falsifying information on a Part III Provincial Offences Notice issued to Matthew Martino, contrary to section 122 of the Criminal Code of Canada.

f. That he, on or about the 11th day of May, 2009, at the City of Mississauga, in the Central West Region, did wilfully attempt to obstruct the course of justice in a judicial proceeding by making false notes in relation to a Part III Provincial Offences Notice issued to Matthew Martino with the intention that those notes be relied upon as evidence of the commission of an offence under the Highway Traffic Act of Ontario, contrary to section 139(2) of the Criminal Code of Canada.

[4] Mahoney-Bruer is currently an O.P.P. Sergeant having some 28 years of policing experience with a focus on traffic enforcement. The allegation against Mahoney-Bruer is that he falsified information on, or related, to three traffic notice/summons he issued for speeding offences in the course of his police duties on May 10 and 11, 2009.

The Trial Evidence

[5] This trial commenced with an Application by the Crown for a ruling that an audio taped statement given by Mahoney-Bruer to O.P.P Professional Standards Bureau Detective Sergeant Baldassare Nuccio (“Nuccio”) and Detective Sergeant Peter Donnelly (“Donnelly”) on May 21, 2009 (the "Statement") was voluntary.

[6] The resulting voluntariness voir dire required more than two full days of court time. The prosecution called Nuccio, Donnelly, Sergeant John Martin (“Martin”) and Detective Inspector Martin Graham (“Graham”) as witnesses on the voir dire. No voir dire witnesses were presented by the accused. Both Crown counsel and counsel for Mahoney-Bruer agreed that the evidence heard on the voir dire would apply to the trial proper.

[7] At the conclusion of the voir dire, I granted the Crown application thereby allowing the Statement to be tendered as evidence in this trial. The other primary documentation filed during the trial were the three traffic notice/summons Mahoney-Bruer issued for speeding offences in the course of his duties on May 10 and 11, 2009, which form the basis for the charges.

[8] Mahoney-Bruer testified that there are four pages to both a Part I Notice (the type he issued for the Breznica offence) and to a Part III Summons (the type he issued for the Ghafari and Martino offences). The top sheet plus one copy page are provided to the court. One other copy page is handed to the driver. The remaining page is where the officer can make notes. The officer’s notes would be forwarded to the prosecutor as part of the disclosure process, if necessary.

[9] In addition to the above, the Crown presented, as trial witnesses each of the three motor vehicle drivers Mahoney-Bruer stopped for speeding, namely Ismet Breznica (“Breznica”), Naveed Ghafari (“Ghafari”) and Matthew Martino (“Martino”).

[10] The only trial witness presented by the Defence was Mahoney-Bruer.

[11] While not intended to be an exhaustive review, I will summarize what I considered to be the main points of evidence offered by each witness.

- Detective Sergeant Baldassare Nuccio

[12] Detective Sergeant Nuccio and Detective Sergeant Donnelly were assigned to conduct an interview with Mahoney-Bruer.

[13] Prior to the interview, Nuccio was briefed by then Sergeant Major Graham with respect to allegations of forgery, breach of trust and obstruct justice against Mahoney-Bruer.

[14] Nuccio was told that at May 1, 2009 laser speed detection devices had been provided to Mahoney-Bruer’s O.P.P. detachment and that they had been equipped to record use and related data (i.e. target vehicle speed and distance details).

[15] Nuccio did not know if radar was also available for Mahoney-Bruer to use from May 1, 2009 forward.

[16] Nuccio was provided with use and related data generated from the laser instruments at Mahoney-Bruer’s detachment, the subject three speeding notice/summons, the detachment sign- out log for the laser instruments and the notes of Mahoney-Bruer.

[17] Nuccio’s understanding was that the information contained in the notice/summons conflicted with the data generated from the laser instruments signed out by Mahoney-Bruer on the dates in question. Specifically, the officer notes portion of the notice/summons referenced the use of a laser speed detection device with two offences also citing related distance measurements whereas the device data showed that Mahoney-Bruer had not used the laser on May 10th for the Breznica and Ghafari matters or on May 11th for the Martino matter.

[18] Nuccio testified that the summons issued by Mahoney-Bruer on May 11th to Syed Kazmi (“Kazmi”) was good in that the laser use, speed and distance details noted by the accused matched the data from the device. The Kazmi summons on May 11th did not form part of the charges in this case.

[19] Nuccio was unaware that it was Mahoney-Bruer who was responsible for creating the use log for the laser devices at the accused’s O.P.P. detachment.

[20] Nuccio reviewed the use log for the laser devices at the accused’s O.P.P. detachment prior to interviewing Mahoney-Bruer. Nuccio testified that he saw the entry made by the accused on May 10th that the laser he had signed out had not been used by him that day. Nuccio agreed this was accurate. He also observed the entry made by Mahoney-Bruer on May 11th that the laser he had signed out had been used by him that day. Nuccio agreed this was also accurate.

[21] Nuccio confirmed there were no reasonable and probable grounds for arrest prior to the interview with Mahoney-Bruer.

[22] Both officers attended at the residence of Mahoney-Bruer to interview him on May 21, 2009 at approximately 8:15 in the evening. The interview commenced at Mahoney-Bruer’s residence but shortly thereafter relocated to a nearby Tim Horton’s. Nuccio was the lead interviewer. The interview was audio recorded by Nuccio except for approximately 30 minutes at the end where the recording device shut off unbeknownst to Nuccio. The interview ended at approximately 11:00 p.m.

[23] Nuccio acknowledged that during the interview of the accused he misused the word radar when he should have said laser.

[24] Nuccio agreed that he lied during the interview when he told Mahoney-Bruer that there was video surveillance of him showing that he did not have anything in his hand, including a radar gun for any of the three subject events.

[25] Nuccio agreed that he lied during the interview when told Mahoney-Bruer that the pace he did of Martino was too short to be valid.

[26] Nuccio agreed that during the interview he told Mahoney-Bruer that the cruiser he used on May 10th was not equipped with radar so radar could not have been used. Nuccio admitted that in fact he did not know whether the cruiser was equipped with radar or not. The Crown conceded during trial that Mahoney-Bruer’s cruiser that day did have a dash-mounted radar as Mahoney-Bruer suggested during the interview.

[27] Nuccio agreed that Martino was not driving a white car but Mahoney-Bruer was describing a white car in the course of the interview where it appeared the discussion was about the Martino ticket. Nuccio agrees that Martino was driving a black vehicle when stopped by the accused.

[28] Nuccio testified he had no recollection of the unrecorded portion of the Mahoney-Bruer interview lasting approximately 30 minutes, except generally they discussed the allegations that form the subject matter of the present charges and the allegations that accused was giving preference to a specific company for tows following traffic offences. These latter allegations were not before me during the trial.

[29] Nuccio had little recollection of what Donnelly disclosed about the conversation Donnelly had with Mahoney-Bruer on May 22, 2009 at 2:00 a.m. following the interview. Nuccio’s only recollection was that the accused did not want to make a further statement but indicated he was “the dumbest officer on the O.P.P. and sang like a canary”.

[30] The accused was arrested on May 29, 2009. Nuccio noted that up to the point of these allegations Mahoney-Bruer was “a phenomenal officer”.

- Detective Sergeant Peter Donnelly

[31] Detective Sergeant Donnelly was briefed by then Sergeant Major Graham and directed to assist Nuccio in interviewing Mahoney-Bruer. Donnelly’s understanding was that there was a conflict between the information on the notice/summons issued by Mahoney-Bruer and the laser device data.

[32] Donnelly testified that he reviewed copies of the subject notice/summons but could not recall seeing anything else prior to the interview.

[33] Donnelly also conceded there were no reasonable and probable grounds to arrest Mahoney-Bruer prior to the interview.

[34] Donnelly told the Court that on May 19, 2009, he interviewed tow truck drivers and some police officers respecting allegations that Mahoney-Bruer was falsifying ticket to increase speeds and that he was favouring a particular tow company, namely Elite Towing for the resulting vehicle seizures in exchange for personal benefit.

[35] Donnelly testified that Mahoney-Bruer telephoned his cell phone interrupting Donnelly’s sleep at approximately at 2:08 a.m. the morning following the interview. Donnelly stated that Mahoney-Bruer was very excited and agitated, asking for help from investigators by having them check something. Donnelly did not recall if Mahoney-Bruer told him exactly what he wanted investigators to look into. Donnelly had no memory of Mahoney-Bruer saying that the accused was mistaken as to what he had said during the interview.

- Sergeant John David Martin

[36] Sergeant Martin is a master instructor on the use of radar and laser.

[37] He testified there are four accepted methods to measure speed: radar, laser, aircraft and pacing.

[38] He testified that the laser provides a speed measure accurate to plus or minus one kilometre and also gives a measure of distance in metres.

[39] Martin testified that radar provides a speed measure accurate to plus or minus one kilometre but not distance.

[40] Martin testified that pacing involves following the subject vehicle while the officer maintains a constant distance behind the subject vehicle while noting that speed off of the police cruiser’s speedometer. He testified that the speedometer must be checked for accuracy with a radar or laser device.

[41] Sergeant Martin testified that with the right variables pacing could get within plus or minus two kilometers in accuracy.

[42] Martin testified there is no policy about the specifics or requirements for note taking for traffic stops.

[43] Martin testified that on May 12, 2009, as part of the investigation, he drove an unmarked car through Mahoney-Bruer’s enforcement area while he was on duty at a calibrated speed of 147 kilometers per hour to see whether the accused would issue a notice/summons with a raised speed. Mahoney-Bruer did not stop Martin’s vehicle.

- Detective Inspector Martin Graham

[44] Detective Inspector Graham was the officer in charge of this investigation.

[45] Graham testified that Mahoney-Bruer was being investigated for allegations he inflated speeds to allege vehicles were “racing” (i.e. travelling 50 or more kilometres per hour over the posted limit) with resulting automatic vehicle seizure and that he was favouring a particular tow company (Elite Towing) for these seizures in exchange for personal benefit.

[46] As part of the investigation, Graham testified that undercover officers in unmarked cars drove through Mahoney-Bruer’s enforcement area while he was on duty at calibrated speeds of 147 kilometers per hour to see whether the accused would issue a notice/summons with a raised speed. Graham confirmed that none of the police vehicles were stopped by Mahoney-Bruer.

[47] Graham testified that six laser devices were fitted with a data card device to record use activity. These were provided to the accused’s O.P.P. detachment as part of the investigation into allegations of inflated ticket speeds and related tow company preference.

[48] Graham testified he did an analysis of the data obtained from the lasers and concluded that the accused had issued the three subject notice/summons noting a laser device was used when the laser was in fact not turned on at the time of the offences. In other words, there was no data to match the speed and/or distance recorded on the notice/summons created by the accused.

[49] Graham testified that he directed Nuccio and Donnelly to undertake a cautioned interview with the accused. That interview occurred on May 21, 2009.

[50] Graham confirmed that in his view there were no reasonable and probable grounds to charge the accused prior to the interview on May 21, 2009.

[51] Graham met with Nuccio and Donnelly on May 22, 2009 for a briefing to review the interview with Mahoney-Bruer and was advised that the accused had provided a confession to the offences charged. During that meeting, Donnelly also advised that he had been contacted by Mahoney-Bruer at approximately 2:00 a.m. that morning and that the accused asked if Donnelly could do further investigation into Mahoney-Bruer’s use of radar and pacing.

[52] Graham neither listened to the audio recording from the interview with Mahoney-Bruer nor did he review the transcript from that interview.

[53] Graham reviewed the portion of the Part I Notice provided to Breznica and could not identify any false information on the document that the driver received.

[54] Graham reviewed the portion of the Part III Notice provided to Ghafari and could not identify any false information on the document that the driver received.

[55] Graham reviewed the portion of the Part III Notice provided to Martino and could not identify any false information on the document that the driver received.

[56] Graham testified that there was no issue with the notice issued to Kazmi by Mahoney-Bruer on May 11th given that the laser use, speed and distance details noted by the accused for that offence matched the data from the device.

[57] Graham testified that the balance of the notice/summons documents, including the part for the officer notes and all related materials were seized from the accused’s desk or briefcase on May 14 or 15, 2009. As a result, the documents were seized before any Crown brief was completed and/or submitted by Mahoney-Bruer.

[58] Graham was unaware that the accused’s O.P.P. detachment had created a use log for the laser devices.

[59] Graham testified that the investigation did not produce any evidence that Mahoney-Bruer had preferred any towing company in exchange for personal benefits.

[60] Graham testified to receiving information during the investigation confirming that Mahoney-Bruer was then in the midst of studies to obtain his real estate sales licence.

- Naveed Ghafari

[61] Naveed Ghafari was ticketed for speeding by Mahoney-Bruer on May 10, 2009.

[62] At no time did Ghafari see any speed measuring device although the accused told Ghafari he had measured excessive speed on a speed gun.

[63] Ghafari identified the ticket he was given by Mahoney-Bruer and confirmed that he did not receive the portion of the Summons where the officer records his notes.

- Ismet Breznica

[64] Ismet Breznica was ticketed for speeding by the accused on May 10, 2009.

[65] Breznica was driving a white Mercedes that day.

[66] Breznica testified that he had asked if the accused caught him on radar but there was no response and he was never shown a speed measuring device.

[67] Breznica did not receive the portion of the Notice where the officer records his notes.

- Matthew Martino

[68] Matthew Martino was ticketed for speeding by the accused on May 11, 2009.

[69] Martino was driving a black Volkswagen Jetta on that date.

[70] Martino did not receive the portion of the Summons where the officer records his notes

- Dennis Mahoney-Bruer

[71] At the time of these allegations, the accused was working from the Port Credit O.P.P. detachment at the rank of Sergeant.

[72] Mahoney-Bruer has extensive traffic enforcement experience beginning in 1983 with the military police where he was trained and worked in traffic enforcement for six years. During his time with the military police the accused was trained in the use of radar devices by the R.C.M.P. and pacing. He was next employed by the Toronto Police Service commencing in 1989 where he remained until 1997. He worked in the Central Traffic Unit where he obtained extensive traffic enforcement experience and training. Part of his duties while with the Toronto Police included working as a motorcycle traffic enforcement officer where he estimated he paced 25 – 50 vehicles per day. The accused commenced his career with the O.P.P. in 1997 going initially to the RIDE unit and then to the O.P.P. Highway Rangers approximately five years later where he has remained to date.

[73] Mahoney-Bruer estimates that he has issued in excess of 23,000 tickets in his traffic enforcement career.

[74] Mahoney-Bruer testified that the documentation for the Breznica, Ghafari and Martino offences included the face sheet of the notice/summons, dash pad notes he made during the investigation at the scene, any notes made in his police notebook and the notes on the officer copy of the Notice/Summons. The accused testified that all of these offence documents were placed in his desk or briefcase in anticipation of preparing the disclosure brief.

[75] The accused testified that he had not prepared a disclosure brief for the Breznica, Ghafari and/or Martino matters prior to his arrest.

[76] The accused testified that his detachment was provided with six new laser devices on May 1, 2009. At that time, he instructed P.C. Watts to create a use log for the laser devices.

[77] The accused testified to his preference for radar over the laser speed detection device and that he only used radar for the year prior to May 1, 2009. Given that he consistently used this device, the accused testified he was not in the habit of writing down what device he used each shift.

[78] The accused testified that he found two notes in the pocket of his bullet-proof vest during the course of moving to a new residence around the time of this trial.

[79] One of these dash pad notes stated “Remember 1st May new lazers lazers lazers” (“Dash Note 1”). The accused testified that he made this note because he needed a reminder to not fall into the habit of noting his usual radar device.

[80] The accused testified that on May 10th he planned to use a laser. Accordingly, he signed out the laser on the use log. The accused testified when he stopped at his selected location intending to conduct traffic enforcement he realised that he had left the laser sitting beside his desk. The accused then decided to use the radar in his cruiser. The Crown concedes that there was a dash-mounted radar in the police vehicle used by Mahoney-Bruer on May 10th.

[81] Mahoney-Bruer testified that he used a radar speed device for each of the Ghafari and Breznica offences on May 10th. He measured a speed of 145 kilometres in a 100 kilometre zone for Breznica and 157 kilometres in a 100 kilometre zone for Ghafari.

[82] The accused testified that after the Breznica stop he took a break during which he was reading materials for the real estate agent licensing course he was then pursuing. The accused testified he was working on calculations for that real estate course during his break and wrote down the answer “78.7” on the cruiser dash pad. The accused then resumed working and stopped Ghafari.

[83] The accused testified at the conclusion of his shift on May 10th he went back to his office at the detachment, then seeing the laser beside his desk and made the entry on the log use sheet “did not use” returning the device.

[84] On May 11, 2009 following the Kazmi ticket the accused took a lunch break and was working on his real estate studies again as he had the day before. He testified to working on the same equation as the prior day writing down the answer “178.7” on the dash pad, which he thought looked more correct than his calculation from the previous day.

[85] Following lunch, the accused attended at the destination where he chose to continue his enforcement but did not have time to activate the laser device when he noticed the Martino vehicle, so he made the decision to pace that vehicle. Mahoney-Bruer testified that he paced the Martino vehicle and confirmed a speed of 154 kilometers in a 100 kilometers per hour zone.

[86] Mahoney-Bruer testified that the front page for the Notice/Summons and his dash pad notes were done at the roadside for each stop.

[87] The accused testified on the morning of May 11th he was required to be at court at Old City Hall such that he was up at approximately 6:00 a.m. and did not have time for any sleep prior to beginning his shift that evening.

[88] Mahoney-Bruer testified that near the end of his shift at approximately 5:00 a.m. on May 12, 2009 back at the detachment, he took his approximately 20 dash pad notes going back to April and began to transcribe them in order to complete the officer notes page for various notices/summons he had issued over the preceding weeks, including for the Breznica, Ghafari and Martino offences.

[89] Mahoney-Bruer testified that he had Dash Note 1 about the laser use starting May 1st so he had that in mind and transcribed what he saw. The accused testified that he saw the dash pad note with the number “78.7” and wrote laser down assuming this was laser distance. He followed the same process with respect to the note of “178.7”. The accused explained that he wrote laser and the distances also because he was “bone tired” from having been up for almost 24 hours. Mahoney-Bruer described this constellation of events as the “perfect storm”.

[90] Mahoney-Bruer testified that he last placed the dash pad notes he used to complete his officer notes in his briefcase or desk on May 12th and had not seen them since. A list of items seized from Mahoney-Bruer in the course of this investigation was filed at trial. There were no dash pad notes included in the list of items seized.

[91] The accused testified that while sitting on the side of the highway on May 13th he remembered that he had paced the Martino vehicle and had not tested the speedometer. He testified that he was in the same cruiser on May 13th as he was for the May 11th Martino ticket such that the testing of the speedometer on the 13th would have been valid for the May 11th Martino ticket as well.

[92] Mahoney-Bruer testified that the second of the dash pad notes he found in his vest (“Dash Note 2”) was made following his issuing a Part III Summons on May 13, 2009 to a driver named Bartlomiej Aniol (“Aniol”) for a speed of 140 kilometers in an 80 kilometers per hour zone. The accused also testified that the vehicle registration for the Aniol car noted the vehicle as white when in fact it was silver.

[93] Dash Note 2 stated the following:

0210 Tested AIO [all in order]

2013 Test speedometer

130 140 150 160 AIO

0219 Retest AIO

[94] Mahoney-Bruer told the Court that he had confirmed the speed for Aniol by pacing his vehicle. The accused testified that he returned to the detachment later in his shift to obtain the radar and then went back out in his cruiser to test the speedometer for accuracy. He then made Dash Note 2 confirming he had tested the speedometer for accuracy. Mahoney-Bruer testified that it was acceptable to test a speedometer within 30 days of an offence. As such, he retained the note in the vest pocket because it would be valid for confirmation of the speedometer accuracy for tickets within 30 days of that test.

[95] The accused testified that he did not go back to correct the Martino ticket before the end of the May 13th shift due to other duties, and that he was then was off duty for four days until the 17th of May. Prior to his scheduled return to work on May 17th, he was told by his Staff Sergeant not to come to the detachment as he was under investigation.

[96] Mahoney-Bruer testified that Nuccio and Donnelly controlled all documents throughout the interview and he was only shown one document at a time. The accused agreed that in the course of his interview with Nuccio, he at first stated that he had made a mistake and then later conceded that he intentionally wrote down incorrect information. The accused explained this by saying he was drawing information from separate incidents without all of the documents in front of him to review and compare and without time to connect the information or recollect the specific events resulting in uncertainty such as his mixing up the Aniol and Martino tickets. He testified that he was blending events and in the midst of this confusion he acquiesced to the suggestion of the officers that he had intentionally put down incorrect information.

[97] Mahoney-Bruer testified that he continued to review the offences in his mind following the end of the interview. By 2:00 a.m. on May 22nd he had a clearer recollection of the details for the three tickets and telephoned Donnelly in a very excited state. The accused testified to telling Donnelly that the accused had written down laser by mistake. Mahoney-Bruer asked that Donnelly further investigate to confirm that he had paced the white Aniol car the night after the Martino ticket and that he had used the radar to check the speedometer for his cruiser. The accused stated that Donnelly had agreed to do this if Mahoney-Bruer would provide a further recorded statement. Mahoney-Bruer testified he initially agreed to do this but was then advised by counsel not to provide any further statements.

[98] The accused argued that the one hundred difference (i.e. 78.7 and 178.7) between the two numbers noted respectively on the Breznica Notice and the Martino Summons confirmed that it was a math mistake, and that he did not create numbers to look like a laser distance reading.

[99] Mahoney-Bruer agreed that he did not have a laser with him on May 10th. The accused agreed that his notes for May 10, 2009 in his officer notebook stated “lazer 403/Matheson”. Mahoney-Bruer stated he made that entry as he was intending to use the laser but when he arrived at this location he discovered he had left the laser behind at the detachment. However, he agreed that he did not make a correcting note to remove laser and note that he was using the cruiser radar.

[100] The accused acknowledged that the officer notes portion of the May 10th Breznica Notice noted an “Atlanta Lazer” with a test time of 07:30 a.m. and a “retest laser” at 17:15. The accused testified that the times noted for the test and re-test were for the testing and re-testing of the radar and the times noted would have been reflected on dash pad notes. He also agreed that the 78.7 m reference should not be there.

[101] The accused acknowledged that the officer notes portion of the May 10th Ghafari Summons noted an “Atlanta Lazer” with a test time of 07:30 a.m. and a retest at 17:15. The accused testified that the times noted for the test and re-test were for the testing and re-testing of the radar and the times noted would have been reflected on dash pad notes.

[102] Mahoney-Bruer had a laser with him on May 11th. However, he acknowledged that the May 11th Martino Summons noted an “Atlanta Lazer” with a test time of 19:15 and a “retest laser” at 05:00. Mahoney-Bruer also acknowledged that the officer notes portion of the Martino summons noted “178.7 m”. The accused agreed that there should be no reference to the use of a laser as it was not used for that offence. He also agreed that the 178.7 m reference should not be there.

[103] The accused agreed that for all three tickets (Breznica, Ghafari, Martino) the only device referred to is the laser and neither pacing nor radar are written down anywhere.

[104] The accused stated that he did not deliberately or wilfully falsify information or obstruct justice in relation to the Breznica, Ghafari or Martino tickets.

Analysis

[105] There is no dispute in the evidence that:

a. The Breznica officer notes portion of the notice was in error where it says “Atlanta Lazer”, “re-test lazer” and provides the 78.7 m notation;

b. The Ghafari officer notes portion of the summons was in error where it notes the “Atlanta Lazer”;

c. The Martino officer notes portion of the summons was in error where it says “Atlanta Lazer”, “re-test lazer” and provides the 178.7 m notation;

d. His police notebook was in error where for May 10, 2009 it states “lazer 403/Matheson”;

e. On May 10, 2009, Mahoney-Bruer was in possession of the laser unit with the serial number 25689. This is the only laser unit Mahoney-Bruer had in his possession on that date. According to the data collected from that unit, it was not turned on at any point during which it was in Mahoney-Bruer’s possession on May 10th;

f. On May 11, 2009, Mahoney-Bruer was in possession of the laser unit with the serial number 25634. This is the only laser unit Dennis Mahoney-Bruer had in his possession on that date. According to the data collected from that unit, the unit was turned on at certain points on that date but it was not turned on and not used to record vehicle speed or range when Mahoney-Bruer stopped Martino’s vehicle and issued him the Summons; and,

g. Mahoney-Bruer accurately completed the detachment laser use log on May 10th noting the he did not use laser that day and on May 11th to note he did use the laser on that day for the Kazmi summons.

[106] Mahoney-Bruer has three evidentiary issues: First, there was no indication anywhere that he paced any vehicle. Second, he noted using laser and related distances contrary to the data from the device showing no use. Third, he provided a statement wherein he acknowledged the offences.

[107] I remind myself that every person charged with an offence, in this case Mahoney-Bruer, is presumed to be innocent. The burden remains at all times on the Crown to prove his guilt beyond a reasonable doubt.

[108] The fundamental question for this case is whether the Crown has proven beyond a reasonable doubt that Mahoney-Bruer intended to falsify the Breznica, Ghafari and/or Martino notice/summons.

[109] As noted above, Mahoney-Bruer took the witness stand to provide testimony. This, of course, then requires a “W.D.” analysis be undertaken. The W.D. analysis and antecedent caselaw was comprehensively reviewed by Justice Code in R. v. Edwards, 2012 ONSC 3373, [2012] O.J. No. 2596 (Ont. S.C.J.).

[110] As noted by Code J., the seminal W.D. cases are R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), R. v. Nimchuck (1977), 1977 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.), and R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.).

[111] Justice Morden in Challice described that a trier can arrive at one of the three findings, namely “total acceptance, total rejection, or something in between” in a case where there is a credibility dispute on what he labelled a “vital issue”. Justice Morden suggested “something in between” as “being unable to resolve the conflicting evidence and, accordingly, being left in a state of reasonable doubt.” The Supreme Court of Canada in Morin accepted the Challice framework as correct.

[112] Following the Challice framework, Justice Cory in R. v. S.(W.D.) (1994), 93 C.C.C. 93d) 1 (S.C.C.) offered this:

Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown’s evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not be acquitted unless the defence evidence was believed.

It seems to me that the recharge in this case suffers from the same flaw as the recharge in R. v. W.(D.), supra. It will be remembered that in that case the trial judge instructed the jury on the recharge that the issue that they had to decide was whether they believed the accused or the complainant. Directions such as that exclude what has sometimes been referred to as the “third alternative”; namely, that without believing the accused, the jury, upon considering the evidence of accused in the context of all of the evidence, may have a reasonable doubt as to his guilt. [Emphasis added].

[113] Following his review of the caselaw leading up to and subsequent to W.D., Justice Code noted that the W.D. analysis presents “three separate alternatives or choices for the trier of fact that will depend on the evidence…Accordingly, the so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an “alternative” to complete belief or complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not “able to select one version in preference to the other” as Cory J. put it in W.D.S.”.

[114] As Justices Code and Cory make clear, the trier cannot consider the evidence of the accused in isolation but instead must consider the trial evidence in whole when making determinations of credibility and reasonable doubt. On this point, Code J. in Edwards referenced the words of Chief Justice McLachlin in R. v. M.(R.E.) (2008), 235 C.C.C. (3d) (S.C.C.) where she stated:

In a case that turns on credibility…the trial judge must direct his or her mind to the decisive questions of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

[115] The only evidence tendered by Mahoney-Bruer was his own testimony. My assessment of his testimony must be made with reference to the totality of the evidence accepted during this trial. Similarly, I must consider the whole of the evidence when determining whether the Crown has met its burden of establishing guilt beyond a reasonable doubt.

[116] Here, Crown counsel must prove beyond a reasonable doubt that Mahoney-Bruer intended to commit fraud (breach of trust) in connection with his official duties. This question has to do with Mahoney-Bruer’s state of mind. In other words, what did Mahoney-Bruer mean to do when he made the admitted incorrect entries on the officer’s notes part of the notice/summons?

[117] Obviously, it is impossible for anyone to gain entry into Mahoney-Bruer’s thoughts at the time he endorsed the notice/summons to make a determination of his intention when doing so.

[118] In his paper “Intention: It’s all in the mind” prepared for the July, 2010, National Criminal Law Program, Justice Watt examined the difficulty in proving intention where he wrote:

“Without a comprehensive and reliable confession by D, it is usually impossible for P to actually get into D’s mind and to demonstrate exactly what it finds was there when D did the things that amount to the actus reus of physical element of the offence. In the result, P invites the trier of fact to draw inferences about D’s state of mind, more narrowly, D’s intention, from all the evidence adduced at trial. The trier of fact does not search for an intention that the law objectively imputes to D. The search, by inference from evidence, aims to discover the intention which, subjectively, D actually had contemporaneously with doing the things that amount to the actus reus of the offence.

It does not follow from the requirement that P prove “subjective” intention that objective considerations are irrelevant. In the process of attributing the mental state such as intention to D, a trier of fact, like a jury, will often resort to a consideration of what a reasonable person might have intended, known or believed in the circumstance. It is a commonplace for juries to be instructed to reason this way.”

[119] The Crown argues that I should consider Mahoney-Bruer’s motivation in my determination of intention. Motive is clearly not an essential element of the offences that Crown counsel must prove. However, if motive is established then this is one other piece of the evidentiary whole that I may consider.

[120] Specifically, the Crown suggests that Mahoney-Bruer was at the time of these allegations in competition with a fellow O.P.P. Sergeant, Bill Harrington for the most racing offence charges. Mahoney-Bruer acknowledged his competitiveness; particularly his desire to have the most racing charges but denied he would falsify documents to achieve that end. The difficulty I have with the Crown’s argument is that this motive fails to offer any explanation of the Breznica Notice where a speed of 45 kilometers over the limit is noted (i.e. not meeting the threshold speed for racing). If I were to accept the Crown theory on motivation then surely the Breznica offence would be one where the accused would raise the speed slightly to obtain another racing offence charge. This contradiction substantially diminishes any weight I would assign to motive.

[121] While not as impactful on the matter of motivation as the above noted contradiction, it appears implicit in the Crown argument on motivation that Mahoney-Bruer falsified a notice/summons to note laser on the theory that this device establishes a stronger foundation for charges and convictions versus radar or pacing. However, this theory is contrary to the evidence at trial confirming radar and pacing as similarly reliable methods to a laser.

[122] Here, the evidence from all of the officers was that there were insufficient grounds to arrest Mahoney-Bruer for these offences prior to the interview on May 21, 2009. I agree with that assessment based on the pre-interview evidence before me in this trial.

[123] However, unlike the officers involved, I do not believe that the case against Mahoney-Bruer was meaningfully strengthened on the basis of the interview.

[124] Mahoney-Bruer had no notice of the interview and, a result, no opportunity to consider the events at issue and organize his thoughts to respond. The interview was audio recorded only with the last approximately 30 minutes unrecorded due to the recording device having shut off. There is no opportunity for the court to visually review and assess the interview as would have been the case if it had been videotaped at a detachment.

[125] The interview was confusing to listen to and read.

[126] Nuccio confused the devices conflating “radar” for “laser” multiple times, along with dates throughout the interview.

[127] Nuccio mislead Mahoney-Bruer at various points during the interview. Nuccio mislead Mahoney-Bruer when he told him of video surveillance of the accused on the subject days confirming he did not have a radar speed detection device in hand on either day. Nuccio mislead Mahoney-Bruer by telling him that the pace he did of Martino was too short to be valid. Nuccio mislead Mahoney-Bruer when he told him that the cruiser he used on May 10th was not equipped with radar so radar could not have been used. Nuccio referenced the video surveillance, the cruiser not being equipped with radar and the insufficient pacing distance to challenge Mahoney-Bruer’s explanations. During this trial, I noted that there was nothing fundamentally improper with Nuccio misleading Mahoney-Bruer in the way he did. However, I have considered these references in my overall assessment of the evidentiary value of the interview as a whole.

[128] The responses from Mahoney-Bruer evidence ongoing uncertainty on his part. For example, he attempts to recollect these events at one point by relating them to another officer, Rosanna Souza who had nothing to do with these allegations. Mahoney-Bruer recollects pacing and then stopping a vehicle. However, he conflates the colour of the cars he paced, namely he confuses the colour of the vehicle driven by Martino with the Aniol stop.

[129] Mahoney-Bruer starts out stating any error on the documents was a mistake and later in the interview appears, at least, to acknowledge some of the offences. Mahoney-Bruer’s uncertainty during the interview persists to the point of his call to Donnelly in the early morning hours immediately following the interview requesting that the investigators undertake further efforts to confirm the accused’s use of radar and pacing for the subject offences.

[130] Mahoney-Bruer’s statement is equivocal, in my view, given the overall circumstances and the exchange between the accused and Nuccio, including and in particular the errors and admitted falsehoods by Nuccio and the accused’s uncertainties. To borrow the words of Justice Watt, this is not a clear and reliable confession.

[131] Ultimately, I am left in the position where I am unable to believe Mahoney-Bruer’s testimony. I am particularly troubled by the non-production of any of the dash pad notes that the accused said he used to transcribe onto his officer’s notes. As a result, I am left with only Mahoney-Bruer’s uncorroborated recollection of what those dash pad notes contained and his having transcribed those contents to complete his officer’s notes for the subject notice/summons.

[132] I am also, however, unable to reject Mahoney-Bruer’s evidence of what he described as the “perfect storm” of events culminating in these charges. The accused was able to produce two notes from his police vest that supported his testimony. In addition, Inspector Graham confirmed that Mahoney-Bruer was engaged in real estate studies at the time of these allegations lending support to the accused’s narrative. Mahoney-Bruer did not raise the speed of the Breznica Notice by the necessary 5 kilometres to meet the racing threshold contrary to the Crown’s argument on motivation. Mahoney-Bruer accurately completed the laser use log on May 10th noting the he did not use laser that day and on May 11th when he did use the laser, which log supported his explanation for the events resulting in these charges. The Crown offered no evidence or anything else to explain the obvious inconsistency between the argument that Mahoney-Bruer intentionally falsified the Notice/Summons and the fact that he accurately completed the use log.

[133] In conclusion, the totality of the evidence, including that tendered by Mahoney-Bruer leaves me with a reasonable doubt as to whether he had the requisite intent for the charged offences. As such and following the analysis in W.D., I must and do acquit Mahoney-Bruer of all charges.

Fitzpatrick J.

Released: February 25, 2015

COURT FILE NO.: 717/10

DATE: 2015-02-25

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Dennis MAHONEY-BRUER

REASONS FOR JUDGMENT

FITZPATRICK J.

Released: February 25, 2015