Court File and Parties

COURT FILE NO.: CR12-2335-01/02 DATE: 20170602 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

Joe Ramono Applicant

Counsel: Lisa Wannamaker, for the Crown Glen Orr, Q.C., for the applicant

Heard: March 21, 22, 23, 24, 27, 28 & 29, 2017

Bale J.:

Reasons for Decision

[1] Abigail MacNaughton was killed as a result of a head-on collision with a pick-up truck. Joe Ramono, and William Towns, are charged with criminal negligence causing her death. The allegation against Ramono is that he issued a safety standards certificate for the truck either without inspecting it, or notwithstanding existing mechanical defects, and that those defects were a significant contributing cause of the accident. The allegation against Towns is that he operated the pick-up truck, with knowledge of the mechanical defects, and did so in a dangerous manner. Each of the accused is also charged with offences relating to forged documents used for the purpose of licensing the vehicle.

[2] Four search warrants were obtained by the police during the course of their investigation. The first and fourth were warrants authorizing a mechanical inspection of the pick-up truck. The second and third authorized searches of Pro Street Auto Sales and Service Inc. Pro Street was a business carried on by Joe Ramono, and was licensed by the Ministry of Transportation, as a motor vehicle inspection station, to conduct mandatory motor vehicle safety inspections.

[3] On this application, Ramono alleges that his Charter right to be secure against unreasonable search or seizure has been violated, and asks that all evidence obtained upon the searches of Pro Street Auto be ruled inadmissible at trial. His position is not that the evidence contained in the ITO was insufficient to allow the issuing justice to issue the warrants; but rather, that had the police made full, frank, and complete disclosure in the ITO, the warrants could not have issued. Ramono also argues that the searches conducted at Pro Street Auto exceeded the scope of the searches authorized by the warrants. During the hearing of the application, he acknowledged that he had no privacy interest in the pick-up truck, and that there were no grounds to invalidate the mechanical inspection warrants.

[4] The reason for the two warrants to search Pro Street Auto was that Ramono was not present when the police executed the first warrant, and they were unable to find the documents for which they were authorized to search. They subsequently arranged by telephone to meet with Ramono at the premises, and obtained a second warrant to cover a search at that meeting. Except for this explanation for requesting the second warrant, the two ITOs were identical, and I will refer to them collectively as “the ITO”.

[5] Section 487(1)(b) of the Criminal Code permits a search warrant to be issued where there are reasonable grounds to believe that evidence with respect to the commission of an offence will be found. The offences being investigated, as set out in the ITO, were: (1) that Towns operated a motor vehicle on a highway in a manner dangerous to the public, and thereby caused the death of Abigail MacNaughton, contrary to section 294(4) of the Code; (2) that Towns operated a motor vehicle, with known mechanical defects, on a highway, and thereby caused the death of Abigail MacNaughton by criminal negligence, contrary to section 220 of the Code; and (3) that Joe Ramono provided a safety standards certificate for an unfit pick-up truck, and thereby caused the death of Abigail MacNaughton, by criminal negligence, contrary to section 220 of the Code.

[6] Ramono’s position is that the accident was caused solely by the dangerous driving of Towns, and that mechanical defects in the vehicle, if any, were not a contributing factor.

Background

Contents of ITO

[7] The ITO was sworn by O.P.P. Constable Chad Laperle. The following is a summary of the included information:

• that the weather and road conditions were generally favourable, but the road was winding, and there was heavy long-weekend traffic;
• that a witness, Tracey O’Connor, saw the truck fishtailing “drastically” – like nothing she had ever seen before;
• that Towns stated that he lost control of the vehicle, went into the oncoming lane, and tried to steer into the ditch to avoid the collision; that the steering wheel turned, but the tires didn’t seem to do so; and that the vehicle had recently had a safety inspection;
• that a search of the Ministry of Transportation database indicated that the vehicle was registered to Towns, and that a safety standards certificate had been issued on July 27, 2012;
• that the safety standards certificate had been issued by Pro Street Auto, and that the sole registered mechanic at Pro Street was Joe Ramono;
• that Joe Ramono had, in the past, pleaded guilty to fraud in relation to the issuance of an emissions test certificate, and had been convicted under the Highway Traffic Act for affixing a vehicle inspection certificate to a vehicle, when it had not been inspected, and found to comply with the applicable inspection requirements and performance standards;
• that the prior owner of the truck had said that there was some play in the steering wheel when he sold the truck;
• that following the accident, a new steering shaft was located in the cab of the truck, together with an invoice showing that it had been purchased on July 18, 2012; and
• that a warrant had been obtained for the inspection of the truck, and that the inspection had revealed a number of defects, including excessive free-play in the steering system, which would have been evident to the driver.

Evidence on the voir dire

[8] On the voir dire, and with the consent of the Crown, defence counsel was given leave to cross-examine Officer Laperle, as well as O.P.P. Officers Mark McDermott and Jerry McBride, and MTO Enforcement Officer Steve Gimera (who had assisted Officer Laperle in conducting the searches). Defence counsel originally had asked that he be permitted to cross-examine Officer Brian McLaughlin who conducted the mechanical inspection of the pick-up truck, but withdrew that request, and stated that he was content to rely upon the transcript of the evidence given by McLaughlin at the preliminary inquiry.

[9] On this application, defence counsel asks that I consider the record as amplified by the cross-examinations, and by the evidence given at the preliminary inquiry by Tracey O’Connor, and Brian McLaughlin.

Evidence of Tracey O’Connor at the preliminary inquiry

[10] The evidence of Tracey O’Connor to which I was referred would tend to support the allegation of dangerous driving, on the part of Towns, but would not be inconsistent with the Crown’s position that mechanical defects were a contributing cause of the accident.

Evidence of Brian McLaughlin at the preliminary inquiry

[11] In his examination-in-chief at the preliminary inquiry, Officer McLaughlin testified that he found there to be excessive free-play in the steering wheel of the pick-up truck, and that with free-play in that amount, a vehicle would not pass a safety standards inspection. He also testified that the amount of free-play would have been evident to the driver, and would make it more difficult to control the vehicle in an emergency situation. When asked whether it was possible that the excessive free-play had been a result of the collision, he said: “The components that I saw, they were not damaged to cause the free-play from the collision itself.”

[12] On cross-examination at the preliminary inquiry, McLaughlin was taken through his examination of the steering system, step by step. He said that the steering shaft was connected to the steering box, but because of the way the front-end of the truck had been compacted, he was unable to examine the shaft further without tearing the vehicle all apart, which he didn’t do, and which would have taken a couple of days. He said that excessive free-play may be caused by wear and tear, and that he had never found it to be caused by sudden impact. When pressed by defence counsel, he said that it was possible that free-play had been caused by sudden impact, but only in the sense of “anything’s possible”.

[13] When pressed further, he said that he guessed that not tearing the vehicle all apart was an “oversight”, and that further information could have been obtained by analyzing the angle of impact. However, he said that he would do the inspection in the same way, if he were doing it over again, and when asked why, said that “there’s only so much money taxpayers will pay for an investigation”, and “only so much time for [him] to get things done.”

[14] McLaughlin was also prepared to allow that it was possible that the excessive free-play had developed between the date of the certificate, and the date of the accident “if it had been at the upper most limit at the time of the alleged inspection, then it could have gone over afterwards, yes.”

[15] However, despite these admissions, it remained McLaughlin’s opinion that his investigation had been adequate, and that the excessive free-play pre-existed the accident.

Scope of warrant review

[16] Before a search warrant may be issued, the issuing justice must be satisfied that there are reasonable grounds to believe that an offence has been committed, and that there is evidence to be found at the place of search: R. v. Morelli, 2010 SCC 8, at para. 39.

[17] In reviewing the sufficiency of the information to obtain submitted in support of the warrant application, the court does not substitute its view for that of the issuing justice. Rather, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: Morelli, at para. 40.

[18] The reviewing court does not undertake its review solely on the basis of the ITO submitted to the justice of the peace. Erroneous information included in the ITO must be excised, and additional evidence given on the voir dire to correct minor errors in the ITO may be considered: Morelli, at para. 41. Where the defence alleges that the police failed to make full, frank, and complete disclosure in the information to obtain, the evidence given in support of that allegation should be considered: Morelli, at para. 60.

Discussion

Full, fair, and complete disclosure

[19] Ramono argues that the ITO should have disclosed the following information:

• that the accident occurred approximately one month after the date of the inspection shown on the safety standards certificate;
• that according to the odometer reading shown on the safety standards certificate, and the odometer reading taken following the accident, the vehicle had travelled 1,957 kilometres in the interim over “unknown terrain”;
• that Officer McLaughlin had not undertaken a full examination of the steering system of the truck; and
• that it was possible that the excessive free-play in the steering system had been caused by the accident.

[20] In arguing that the police failed to make full, frank, and complete disclosure in the ITO, Ramono’s counsel does not criticize Officer Laperle who swore the ITO. Rather, he argues that Officer McLaughlin failed to provide this information to Laperle with the intention to deceive, and even went so far as to refer to McLaughlin as “a slippery character indeed”. He then goes on to argue both that had the information been disclosed, the issuing justice could not have issued the warrants, and that McLaughlin’s conduct was so subversive of the search warrant process that the resulting warrant must be set aside in order to protect the process, and the function that it serves. I disagree on both counts.

[21] A young woman died in a head-on collision. The driver of the pick-up truck told police that he attempted to avoid the collision and turned the steering wheel, but the wheels failed to respond. A mechanical inspection of the truck revealed excessive free-play in the steering. The driver of the truck told police that the vehicle had recently been safety-checked. Based upon this information, the police had reasonable and probable grounds to believe that the accident was caused either by dangerous driving on the part of Towns, or a failure on the part of Ramono to properly inspect the vehicle, or a combination of both.

[22] Based upon the cross-examination of Officer McLaughlin, Ramono argues that there is no evidence that mechanical defects contributed to the accident, and thus no evidence that he committed an offence. This argument ignores the fact that notwithstanding the admissions made by McLaughlin at the preliminary inquiry, he remained confident in the adequacy of his inspection, and remained firm in his opinion that the excessive free-play pre-existed the accident. It may be that at trial, the jury will agree with Ramono, but it is not the function of a justice of the peace, in considering a warrant application, to engage in the kind of weighing of the evidence that would be required to reach such a conclusion. The argument also ignores the fact that the documents sought in the warrant would be relevant to the offences alleged against both Ramono and Towns.

[23] There is no evidence to support the allegation that Officer McLaughlin’s conduct was subversive, or that he intended to deceive anyone. He undertook what he believed, and continues to believe, was an adequate inspection, and formed an opinion which he continued to maintain at the preliminary inquiry. It was not put to him on cross-examination at the preliminary that he had failed to disclose information to Officer Laperle with the intention to deceive, and Ramono’s counsel passed up the opportunity to cross-examine him on the voir dire.

Scope of the warrant

[24] Ramono argues that the search conducted by the police exceeded the authority given by the search warrants. He says that they went beyond searching for the documents referred to in the warrants, and searched the entire premises, including his tools. Again, I disagree.

[25] The warrants authorized the search of the entire premises. When executing the first warrant, in Ramono’s absence, the police only searched the entire premises, including areas where tools were stored, etc., because at any given point during the search, they had not yet found the documents. The reason why they could not find the documents is that contrary to applicable regulations under the Highway Traffic Act, the documents were elsewhere, and the evidence would suggest that the police started their search in the most logical area of the premises (the office), and went on from there. When executing the second warrant, they simply reviewed the book of documents given to them by Ramono, and removed the safety standards certificate that had been issued for the pick-up truck.

Participation of Steve Gimera

[26] Steve Gimera was present at Pro Street Auto during the execution of the two warrants. Ramono argues that his participation was unlawful, and that his evidence should be ruled inadmissible at trial.

[27] However, Laperle asked Gimera to accompany him because of Gimera’s familiarity with the documents required to be kept at a motor vehicle inspection station. This was disclosed in the ITO, as was the fact that Gimera would be conducting his own investigation. I see no reason why Laperle should not have requested Gimera’s assistance in identifying relevant documents, and Gimera’s investigation was authorized under sections 98 and 225 of the Highway Traffic Act.

[28] Ramono argues that on the day of his arrest, the police conducted a warrantless search. There is no evidence to support that argument. Gimera’s evidence was that the “search” was actually a pre-arranged meeting with Ramono for the completion of his motor vehicle inspection station audit, and that he asked the police to be present, because he wanted to ensure that he did nothing to interfere with their investigation, especially in light of the fact that it involved a fatality. The police evidence was that they waited until Gimera had completed his audit, and then arrested Ramono on the current charges.

Disposition

[29] In the result, there was no breach of Ramono’s Charter right to be free from unreasonable search or seizure, and the application is therefore dismissed.

Released: June 2, 2017

COURT FILE NO. CR12-2335-01/02 DATE : 20170602 ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen – and – Joe Ramono REASONS FOR DECISION Bale J. Released: June 2, 2017