R. v. Prosa, 2015 ONSC 3122
COURT FILE NO.: CR14100001410000
DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SABASTIAN PROSA
Defendant
Thomas Goddard, for the Crown
Alan D. Gold and Melanie J. Webb, for the Defendant
HEARD: January 12, 13, 14, 15, 20, 21, 22, 26, March 5, April 1, 2015
HAINEY J.
RULING – APPLICATION TO STAY PROCEEDINGS
Overview
[1] During the early hours of August 5, 2012, a tragic head-on collision occurred between two vehicles on the ramp connecting Highway 427 and the Queen Elizabeth Way. It took the lives of Jayanatha Wijeratne and his 16 year old daughter, Eleesha Wijeratne and permanently injured his wife, Antonette Wijeratne. Sabastian Prosa, who was driving his vehicle in the wrong direction on the ramp, is charged on a 12-count indictment with criminal offences arising from the collision. Mr. Prosa was also seriously injured in the collision.
[2] Mr. Prosa has brought an application for a stay of the proceedings on the basis that his rights under s. 7 of the Canadian Charter of Rights and Freedoms have been infringed. He submits that the Centre of Forensic Sciences (CFS) was responsible for the loss of a sample of his blood that had been taken at St. Michael’s Hospital after the accident, and that the loss of this evidence has critically impaired his ability to make full answer and defence to the charges.
Facts
[3] Mr. Prosa was 19 years old at the time of the accident. He was living with his father and stepmother in Bolton, Ontario. He had finished his first year at York University. He was working full-time in Bolton during the summer.
[4] At the time of the accident, Mr. Prosa had a G2 driver’s licence, which did not permit him to drive after consuming any alcohol. He testified that during the school year he rarely drank alcohol. However, during the summer he drank alcohol about once a week. He estimated that when he drank he would usually consume between four and seven one-ounce shots of alcohol.
[5] On Saturday, August 4, 2012, Mr. Prosa planned to attend the Veld Music Festival, which was being held at Downsview Park in Toronto. He drove from Bolton to the festival with the intention of meeting a friend there. He could not locate his friend at the festival so he drove to the home of another friend, Francesco Turano.
[6] Mr. Prosa testified that his plan that night was to go with his friends to a bar called Skybar located at the Guvernment nightclub in Toronto. He had no intention of driving that night. He planned to sleep at either Mr. Turano’s house or at another friend, Josh Medeiros’ house. He testified that he had an overnight bag with him. He parked his car at Mr. Turano’s house.
[7] Mr. Prosa could not recall what he drank that night. However, he believed he consumed four one-ounce shots of alcohol at Mr. Turano’s house before he left for Skybar.
[8] Mr. Prosa recalled that in addition to Mr. Turano and Mr. Medeiros, two other friends, Tallyson Neves and Francesco Gallelli, were also at Mr. Turano’s house.
[9] Mr. Prosa does not remember leaving Mr. Turano’s house or going to Skybar. However, he recalled being at Skybar later that night with Messrs. Turano and Medeiros. He also recalled having shots of alcohol served in test tubes at Skybar. He could not remember how many shots he consumed there.
[10] Mr. Prosa’s last memory that night is of standing by the bar at Skybar. He testified that he does not recall leaving Skybar or returning to his vehicle, which was parked at Mr. Turano’s house. His next memory is of waking up in the hospital after the accident.
[11] Mr. Prosa testified that he has no idea how he travelled from Skybar to Mr. Turano’s house or how he ended up on Highway 427 where he was involved in the accident.
[12] There is no dispute that on Sunday, August 5, 2012, at around 2:50 a.m., Mr. Prosa was driving his vehicle southbound in the northbound lanes on Highway 427 after making a U-turn. He exited southbound on a ramp that was meant only for vehicles travelling northbound from the QEW Highway onto the northbound 427 Highway. He collided head-on with the Wijeratne’s vehicle that was travelling northbound on the ramp.
[13] Mr. Prosa was removed from his vehicle and was taken by ambulance to St. Michael’s Hospital to undergo treatment for serious injuries. At around 4:06 a.m., hospital staff took a blood sample from Mr. Prosa for medical testing. The hospital conducted a number of tests to determine whether any drugs, other than alcohol, could be detected in Mr. Prosa’s blood.
[14] The police obtained a search warrant for the blood sample and Mr. Prosa’s medical records. On August 8, 2012, the police seized a vial of Mr. Prosa’s blood from the hospital.
[15] The CFS received Mr. Prosa’s blood sample from the police on August 10, 2012. It remained in the custody of the CFS until May 22, 2014. While in the custody of the CFS, the blood was tested by Inger Bugyra, a Forensic Scientist, Toxicology, with the CFS. She determined that Mr. Prosa had a blood alcohol concentration of between 148 and 173 milligrams of alcohol in 100 millilitres of his blood at the time of the accident. Based upon his blood alcohol concentration reading, Ms. Bugyra opined that Mr. Prosa drank between 7¼ and 9½ standard drinks prior to the accident, depending on when he started drinking.
[16] In May 2014, Mr. Prosa’s counsel asked the CFS to release the remainder of Mr. Prosa’s blood sample for the purpose of having further drug testing conducted at a forensic laboratory in Pennsylvania, U.S.A. Defence counsel did not consider the blood tests conducted by St. Michael’s Hospital and the CFS to be sufficiently thorough because the presence of many well-known “club drugs” was not tested for. The Crown consented to the release of the blood sample for independent testing.
[17] On May 22, 2014, Etai Hilzenrat, an articling student with Mr. Prosa’s counsel’s office, attended at the CFS to pick up Mr. Prosa’s blood sample. It was contained in a test tube. The CFS staff packaged the test tube in a FedEx shipping box that Mr. Hilzenrat had provided. Mr. Hilzenrat then took the blood sample to a nearby FedEx office. Mr. Prosa’s blood sample was couriered overnight by FedEx to NMS Labs in Pennsylvania.
[18] On May 27, 2014, defence counsel was advised by staff at NMS Labs that the blood sample had leaked from the test tube while in transit. According to the staff at NMS Labs, there was not enough blood remaining in the test tube to test for the presence of drugs in Mr. Prosa’s blood sample. It appeared to the NMS staff that the blood had leaked because the stopper in the test tube had been improperly wrapped with parafilm by the CFS.
[19] After learning about the lost blood sample, the CFS conducted an internal investigation to determine why the blood sample had leaked in transit. The investigation was conducted by Dr. Janice Hellman, the Quality Assurance Manager for the CFS. Dr. Hellman determined that the test tube containing the blood sample had not been properly sealed before it was given to Mr. Hilzenrat on May 22, 2014. The CFS’s Draft Corrective Action Report prepared by her, concluded that “it was clear that CFS policy was not followed with regards to ensuring the integrity of the sample before it was released to defence counsel and in properly packaging the sample to protect it during transit.”
[20] Mr. Prosa maintains that his blood alcohol concentration of between 148 to 172 milligrams of alcohol in 100 millilitres of his blood was not high enough to explain his bizarre and purposeless driving behaviour that resulted in the tragic collision. He has reason to believe that someone spiked his drink with an unknown drug without his knowledge while he and his friends were at Skybar a few hours before the accident and this resulted in his involuntary intoxication.
[21] Further, Mr. Prosa testified that he has no memory of any events after he was at Skybar with his friends. He maintains that his “en bloc” memory loss is consistent with the ingestion of a substance other than alcohol and is inconsistent with a blood alcohol concentration of 148 milligrams of alcohol in 100 millilitres of his blood alone.
[22] The Crown and defence each called expert toxicologists as witnesses. The defence expert, Dr. Joel Mayer, testified that he would not expect to see the kind of purposeless and senseless driving behavior exhibited by Mr. Prosa in a person with a blood alcohol concentration of only 148 milligrams of alcohol in 100 millilitres of blood. Further, he would not expect there to be an en bloc memory loss in a person with such a reading. Dr. Mayer testified that the first explanation that comes to his mind for Mr. Prosa’s highly erratic driving and his memory loss would be the presence of another drug in his system in addition to alcohol.
[23] The Crown’s toxicology expert, Dr. Robert Langille, disagreed with Dr. Mayer. He testified that a blood alcohol concentration of 148 milligrams of alcohol in 100 millilitres of blood could produce an en bloc memory loss and the type of erratic driving exhibited by Mr. Prosa.
[24] Mr. Prosa maintains that he is unable to make full answer and defence to the charges against him because his blood sample was lost and he cannot now have it tested to ascertain whether or not there was evidence of another substance, in addition to alcohol, that could explain his bizarre driving behaviour and his en bloc memory loss.
Issues
[25] I must decide the following issues:
(a) Did the CFS have an obligation to preserve Mr. Prosa’s blood sample?
(b) If the CFS had such an obligation, was it responsible for the loss of Mr. Prosa’s blood sample?
(c) Is there a satisfactory explanation for the loss of Mr. Prosa’s blood sample?
(d) Did the loss of Mr. Prosa’s blood sample violate his Charter rights?
(e) If Mr. Prosa’s Charter rights were violated because his blood sample was lost, should there be a stay of proceedings?
Positions of the Parties
[26] Mr. Gold, on behalf of Mr. Prosa, submits that the negligence of the CFS in failing to properly seal the test tube containing Mr. Prosa’s blood sample has resulted in irreparable harm to Mr. Prosa’s ability to make full answer and defence. He argues that the CFS must be held accountable as an agency that is under governmental authority. Further, he submits that the CFS was acting as an agent of the Crown and the police in “warehousing” Mr. Prosa’s blood sample and as such had a duty to ensure its safekeeping.
[27] Further, according to Mr. Gold, the CFS’s failure to properly seal the test tube containing the blood sample constitutes unacceptable negligence. He submits that there is no way of rectifying the lost evidence and no existing evidence that can provide an adequate substitute. According to Mr. Gold, there is, therefore, only one appropriate remedy; the proceedings ought to be stayed.
[28] Crown counsel, Mr. Goddard, submits that the CFS was acting as agent for Mr. Prosa or as an independent agency when it prepared the blood sample for shipment to the United States. According to Mr. Goddard, the Crown is, therefore, not responsible for the CFS’s actions.
[29] Further, he argues that the blood sample did not leak as a result of unacceptable negligence on the part of the CFS but due to a mistake or inadvertence or “the frailties of human nature”.
[30] Finally, Mr. Goddard submits that, even if I find that Mr. Prosa’s Charter rights were violated, this is not an appropriate case for a stay of proceedings.
Analysis
General Principles
[31] The proper approach, where an accused person claims that the failure to preserve evidence in the possession of the Crown results in a breach of a Charter right, is found in the Supreme Court of Canada’s decision in R. v. La, 1997 309 (SCC), [1997] S.C.J. No. 30. That approach is summarized by the Nova Scotia Court of Appeal in R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-48 as follows:
(1) The Crown has an obligation to disclose all relevant information in its possession.
(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.
(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.
(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.
(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
Did the CFS have an obligation to preserve Mr. Prosa’s blood sample?
[32] There can be no dispute that Mr. Prosa’s blood sample seized from the hospital by the police was relevant evidence that could have affected his ability to defend himself. Forensic testing of his blood sample could have provided evidence relevant to whether he had any other drug, in addition to alcohol, in his blood at the time of the accident.
[33] If the blood sample had remained in the possession of the police after they seized it from the hospital, they would have had an obligation to take reasonable steps to preserve it until Mr. Prosa’s trial.
[34] Instead, the police delivered the blood sample to the CFS where it remained from August 10, 2012 until May 22, 2014. I am of the view that the CFS was storing the blood sample on behalf of the police throughout this period. The CFS’s website makes it clear that it supports the administration of justice, including law enforcement officers. This includes storing blood and other evidence on behalf of the police.
[35] I accept Dr. Hellman’s testimony that the CFS is independent of the Ministry of the Attorney General and the police. However, this does not mean that it does not have an obligation to preserve evidence. I find that because the CFS was storing Mr. Prosa’s blood sample on behalf of the police, it had the same obligations as the police to take reasonable steps to preserve this evidence. It would be unreasonable to conclude that an agency such as the CFS does not have a duty to take reasonable steps to preserve relevant evidence in a criminal prosecution.
[36] In fact, a new policy introduced by the CFS on July 25, 2014, regarding the “Transfer of Evidence for Independent Testing”, makes it clear that the CFS routinely stores evidence on behalf of the police. It states, in part, as follows:
A Section/Unit may receive a request for independent testing of a case item. Most items received and examined at CFS are under the legal authority of the Police, Crown or the Coroner, with some exceptions. Permission must be received in writing from the appropriate authority prior to release of the item.
[37] In this case, Mr. Gold sought and obtained the Crown’s consent to the release of Mr. Prosa’s blood sample for independent testing. I do not accept Crown counsel’s submission that the CFS was acting as an agent for Mr. Prosa or as an independent agency when it prepared Mr. Prosa’s blood sample for shipment to NMS Labs. The CFS answers and is accountable to the Ministry of Community Safety and Correctional Services, which is a governmental authority. The CFS routinely stores evidence on behalf of law enforcement agencies. I am satisfied for these reasons that it had an obligation to take reasonable steps to preserve Mr. Prosa’s blood sample on behalf of the police.
If the CFS had such an obligation, was it responsible for the loss of Mr. Prosa’s blood sample?
[38] There is no dispute that most of Mr. Prosa’s blood sample leaked from the test tube while being transported to NMS Labs in Pennsylvania. Although there is no direct evidence of how that occurred, the circumstances strongly suggest that the test tube was not properly sealed by the staff at the CFS before it was placed in the FedEx shipping container and given to Mr. Hilzenrat.
[39] The most compelling evidence about why Mr. Prosa’s blood sample leaked in transit is contained in the Draft Corrective Action Report prepared by Dr. Hellman following an internal investigation. The CFS’s internal investigation determined the following to be the “root causes” of the blood loss:
• Mr. Prosa’s blood sample was “not properly prepared for shipment” by the CFS staff;
• The integrity of the cap on the test tube containing the blood was “not checked” by the CFS staff;
• The blood sample was not “packaged properly to prevent deleterious change”;
• The CFS staff “were unfamiliar with proper protocols with regards to providing samples for independent testing”;
• The CFS staff did not understand “whom was responsible for packaging the sample”;
• The CFS staff “assumed that other staff had ‘taken care’ of things.”
[40] A memorandum summarizing a meeting between Dr. Hellman and the CFS staff on June 23, 2014, identifies the fact that the integrity of the cap on the test tube containing Mr. Prosa’s blood sample was questionable. It also indicates that “Parafilm is not a suitable seal for a tube with this type of cap.” The memorandum concludes with the following: “Integrity of the cap was not ensured before packaging”.
[41] The CFS Draft Corrective Action Report concluded that the CFS’s policy was not followed by its staff in ensuring the integrity of Mr. Prosa’s blood sample and in properly packaging it to protect it during transit before it was released to defence counsel. In fact, as indicated above, a new policy was introduced at the CFS regarding the transfer of evidence for independent testing as a result of the loss of Mr. Prosa’s blood sample. The new policy provides, in part, as follows:
Prior to shipping a case item to an outside agency for independent testing, it is the responsibility of the Scientist to securely package the item to protect it from loss, contamination or deleterious change, prior to transferring it to CRO for shipping. When in doubt, CRO staff should be consulted about packaging requirements for the item.
[42] I find that the evidence establishes that the CFS staff did not properly secure the top of the test tube containing Mr. Prosa’s blood sample before it was given to Mr. Hilzenrat to be shipped to NMS Labs. As a result, the blood leaked from the test tube while it was in transit. Accordingly, I find that the CFS was responsible for the loss of Mr. Prosa’s blood sample while it was being transported to NMS Labs.
Is there a satisfactory explanation for the loss of Mr. Prosa’s blood sample?
[43] In R. v. La, supra, Sopinka J. discussed why the Crown must provide an explanation when relevant evidence is lost at paras. 20 and 21 as follows:
This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meets its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.
In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of the care for its preservation that is expected of the police.
[44] Mr. Prosa’s blood sample was highly relevant. This increased the degree of care the CFS was required to take in preserving it. Crown counsel submits that the loss of Mr. Prosa’s blood sample was the result of the “frailties of human nature” and not the result of unacceptable negligence. He argues that an “honest and understandable mistake” does not amount to unacceptable negligence.
[45] However, in this case the CFS had previously identified the problem of leaking test tubes and had cautioned CFS staff about improperly sealed hospital blood tubes in March 2014, almost two months before Mr. Prosa’s blood sample was packaged for shipping. The March 2014 e-mail message to the CFS staff from Dr. Amy Peaire, the Acting Section Head, Toxicology, reads as follows:
Subject: Caution: improperly sealed hospital blood tubes
Hello;
Please pay special attention when handling hospital blood tubes, especially those that have previously been opened as they have an increased potential to leak if not properly sealed.
• Once removed, rubber stoppers cannot be easily replaced. Please consider the use of replacement caps instead.
• Rubber stoppers and replacement caps on hospital tubes should be covered tightly with parafilm to minimize the possibility of leakage
• Hospital tubes should NOT be sealed with parafilm or foil alone – this is not sufficient to prevent leakage
• Please note that the CRO is taking extra precautions to identify and prevent leakage on those rare occasions when we receive improperly sealed hospital blood tubes from submitters.
[46] In June 2014 Dr. Peaire forwarded a copy of her March 2014 e-mail message to Dr. Hellman during her internal investigation. Dr. Peaire’s e-mail message reads as follows:
Hi Janice;
Below is the email that I sent out to Toxicology staff, and which was what we had agreed upon with CRO (Diane and Yuki) as an effective means of dealing with improperly sealed hospital tubes.
The complication is that while we notified people about the problem of improperly sealed hospital blood tubes, and that once opened, stoppers aren’t easily replaced, etc., we actually recommended covering stoppers and replacement caps with parafilm to minimize the possibility of leakage.
[47] I find that because the CFS staff had been cautioned about improperly sealed hospital blood tubes less than two months before Mr. Prosa’s blood sample was packaged for shipment, they should have taken greater care to ensure that it was properly sealed before releasing it for shipment. The fact that this was all that remained of Mr. Prosa’s blood sample further increased the degree of care they ought to have exercised in packaging it. Finally, in light of the nature of the charges against Mr. Prosa, his blood sample was highly relevant evidence, further increasing the degree of care required on the part of the CFS staff.
[48] The conclusions in the CFS’s Draft Corrective Action Report make it clear that the CFS staff were careless in their handling of Mr. Prosa’s blood sample for the following reasons:
• They did not properly seal the test tube containing his blood sample before they gave it to Mr. Hilzenrat for shipment.
• They ignored the warning they received in March 2014 about improperly sealed hospital blood tubes.
• They failed to follow the CFS policy when dealing with highly relevant evidence in a serious criminal prosecution.
[49] The packaging of Mr. Prosa’s blood sample was not reasonable under the circumstances. I find that the CFS staff’s conduct in preparing Mr. Prosa’s blood sample for shipment, which resulted in its loss, amounted to unacceptable negligence.
Did the loss of Mr. Prosa’s blood sample violate his Charter rights?
[50] In R. v. La, supra, the Supreme Court held that where the Crown loses evidence due to unacceptable negligence, an accused person’s rights under s. 7 of the Charter are violated. Sopinka J. stated at para. 20 as follows:
Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter.
[51] Because the loss of Mr. Prosa’s blood sample was the result of unacceptable negligence, it constituted a breach of the Crown’s disclosure obligations and resulted in a breach of Mr. Prosa’s rights under s. 7 of the Charter.
Abuse of Process
[52] Mr. Gold did not argue that the loss of Mr. Prosa’s blood sample constituted an abuse of process. However, in R. v. La, supra, the Supreme Court of Canada suggested that where the loss of evidence by the Crown amounts to a breach of s. 7 of the Charter, the court should consider whether the Crown’s conduct amounts to an abuse of process.
[53] There is no evidence in this case that the blood sample was lost due to an improper motive on the part of the Crown. I am of the view that the CFS staff’s conduct was unacceptable negligence. However, it was not a sufficiently serious departure from the Crown’s duty to preserve evidence to constitute an abuse of process.
[54] I do not find that there was an abuse of process in this case.
Should there be a stay of proceedings?
[55] A stay of proceedings should only be granted in the clearest of cases. Doherty J.A. made this clear in R. v. Bero, supra, at paras. 42 and 43 as follows:
A stay of proceedings is a remedy of last resort. The prosecution’s failure to preserve evidence does not automatically entitle the accused to a stay of proceedings even when that failure amounts to an abuse of process: R. v. La, supra, 108. A stay is an appropriate remedy only where the breach of an accused’s s. 7 rights has caused harm to the accused’s ability to make full answer and defence that cannot be remedied, or where irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue: R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1, per L’Heureux-Dubé, in dissent, approved in R. v. La, supra, at p. 108.
The reluctance to stay criminal proceedings reflects the strong preference for a verdict on the merits. A stay of proceedings is sometimes necessary, but it is nonetheless an unsatisfactory result which denies both the accused and the community their legitimate expectation of a true verdict based on the merits.
[56] In this case I cannot conclude that the loss of Mr. Prosa’s blood sample resulted from a systematic disregard by the Crown, the police or the CFS of their obligation to preserve evidence. Further, there is no suggestion that the Crown, the police or the CFS acted with an improper or malevolent motive. In these circumstances, proceeding with a trial on the merits of the charges against Mr. Prosa would not do irreparable damage to the integrity of the judicial process.
[57] However, Mr. Prosa’s primary submission in support of his position that I should stay the proceedings is the alleged prejudice caused to his ability to make full answer and defence as a result of the loss of his blood sample for further testing.
[58] Mr. Gold described the impact of the lost blood sample upon Mr. Prosa’s ability to make full answer and defence at paragraph 32 of his factum as follows:
The lost evidence has resulted in significant and substantial prejudice to the Applicant. He is unable to make full answer and defence to the charges against him. The Applicant had intended to send the remainder of the sample for further testing in efforts to ascertain whether or not there was evidence of another substance which had not been tested for, either by the hospital or by CFS. While CFS tested for ethanol (alcohol), cocaine, and benzoylecgonine (a metabolite of cocaine), the latter two of which were not detected, it did not test for a full range of drugs. While St. Michael’s Hospital did test for a number of substances, it was by no means complete: for example GHB (a well-known “date rape” drug) was but one of several substances that were not tested for. As is expected to be heard in evidence at trial, the Applicant was in an environment on the evening of which would have left him open to the possibility of a substance being slipped into his drink without his knowledge. The Applicant is amnesic for the event and for a large portion of the evening. As a large part of the sample was consumed by both the hospital and CFS in their testing, leaving only a very small remainder portion in the first place, the negligence of CFS in failing to ensure that the sample had been properly sealed, before it was transported to another lab, becomes even more pronounced.
[59] As Mr. Gold noted, the purpose of the testing was an effort to ascertain “whether or not” there was evidence of another drug in Mr. Prosa’s blood. There was certainly no guarantee that another drug would have been detected in Mr. Prosa’s blood had the sample not been lost. It was merely a possibility.
[60] Further testing of Mr. Prosa’s blood sample may or may not have produced results helpful to his defence. As Doherty J.A. stated at paras. 49 and 52 of R. v. Bero, supra:
An assessment of prejudice is problematic where, as in this case, the relevant information has been irretrievably lost. No one can say with any certainty whether an examination of the vehicle would have produced information helpful to the appellant in his defence. It may have done so, or it may have yielded information that confirmed the Crown’s case, or it may have produced information that supported neither the Crown nor the defence.
I accept that, depending on the results of forensic tests of the interior of the vehicle, they could have assisted the appellant in the ways outlined by counsel. The fact remains, however, that these possible advantages to the defence were no more than realistic possibilities, and were no more likely than test results that were adverse to or neutral to the defence position.
[61] In my view, Doherty J.A.’s comments about the lost evidence in R. v. Bero are equally applicable to Mr. Prosa’s lost blood sample. The results of the proposed testing of Mr. Prosa’s blood sample by NMS Labs might have assisted Mr. Prosa. However, the results might have confirmed the Crown’s case or they might have supported neither. The possible advantage to Mr. Prosa of having his blood tested was that a drug other than alcohol might have been detected. This was no more than a realistic possibility, and was no more likely than test results adverse to or neutral to his defence.
[62] At para. 55 of R. v. Bero, supra, Doherty J.A. concluded as follows:
The appellant was denied access to evidence which had a realistic possibility of assisting his defence. That evidence could also have destroyed his defence or it could have been of no assistance to him. When that prejudice is considered along with the measures that could have been taken to alleviate the prejudice, I conclude that this is not one of those rare cases where a stay of proceedings was an appropriate remedy.
[63] I am of a similar view in this case. As Weiler J.A. stated in R. v. Bradford, 2001 24101 (ON CA), [2001] O.J. No. 107 at para. 8:
The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult …
[64] Mr. Prosa is able to put forward his defence that an unknown drug, other than alcohol, was involuntarily ingested by him without his knowledge without having the results of blood testing by NMS Labs. There is expert evidence before the Court that his blood alcohol concentration would likely not have produced his bizarre and purposeless driving behavior or his en bloc memory loss. Dr. Mayer testified that these factors lead him to believe that Mr. Prosa must have ingested another drug besides alcohol. Mr. Prosa was at a nightclub where the spiking of drinks is prevalent. Results from the testing of his blood sample are not necessary for Mr. Prosa to put forward his defence. They may or may not have supported it. However, he is not precluded from advancing his defence because his blood sample was lost.
[65] This is, therefore, not an appropriate case in which to order a stay of the proceedings.
[66] Having concluded that a stay of proceedings is not an appropriate remedy in this case, I must consider whether there are any other measures that can be taken to alleviate the prejudice to Mr. Prosa resulting from the lost blood sample. Doherty J.A. considered this in R. v. Bero, supra, at paras. 56 and 57 where he pointed out that in many pre-Charter cases where evidence was lost, the lost evidence had an impact on the trier of fact’s assessment of whether the Crown had proved the case beyond a reasonable doubt. According to Doherty J.A. at para. 57, “Prior to the Charter, many an acquittal could be attributed to the police failure to preserve evidence or otherwise to conduct a proper investigation”.
[67] Doherty J.A. concluded in R. v. Bero, supra, that the trial judge had erred in not allowing defence counsel to cross-examine the police on what evidence might have been found if the lost vehicle had been forensically examined. He also concluded that it was an error for the trial judge not to instruct the jury about the failure of the prosecution to preserve the vehicle and the absence of forensic testing.
[68] He concluded his judgment at para. 67 as follows:
Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied upon by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence.
[69] These comments suggest that I should instruct myself in the same manner on Mr. Prosa’s trial on the merits of the charges against him. However, as I have not heard counsel’s submissions on this issue, I intend to give them an opportunity to make submissions on this point before I decide whether the Crown has proved the charges against Mr. Prosa beyond a reasonable doubt.
Conclusion
[70] In conclusion, although I find that Mr. Prosa’s rights under s. 7 of the Charter were violated by the loss of his blood sample, I do not consider a stay of these proceedings to be an appropriate remedy. Mr. Prosa’s application for a stay of proceedings is dismissed.
[71] I am prepared to hear further submissions on the effect of this ruling on the trial on the merits of the charges against Mr. Prosa, if counsel wish to make them.
[72] Finally, I want to thank counsel for their helpful submissions and the professional and efficient manner in which they conducted these proceedings.
HAINEY J.
Released: May 27, 2015
CITATION: R. v. Prosa, 2015 ONSC 3122
COURT FILE NO.: CR14100001410000
DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SABASTIAN PROSA
RULING – APPLICATION TO STAY PROCEEDINGs
HAINEY J.
Released: May 27, 2015