Overview

[1] During the early morning 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 (“QEW”). 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 at a high rate of speed in the wrong direction on the ramp, is charged with the following offences as a result of the collision:

(a) Two counts of impaired driving causing death, contrary to section 255(3) of the Criminal Code;

(b) One count of impaired driving causing bodily harm, contrary to section 255(2) of the Criminal Code;

(c) Two counts of operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of his blood thereby causing an accident resulting in death, contrary to section 255(3.1) of the Criminal Code;

(d) One count of operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of his blood thereby causing an accident resulting in bodily harm, contrary to section 255(2.1) of the Criminal Code;

(e) Two counts of dangerous driving causing death, contrary to section 249(1)(4) of the Criminal Code;

(f) One count of dangerous driving causing bodily harm, contrary to section 249(3) of the Criminal Code;

(g) Two counts of criminal negligence causing death, contrary to section 220(b) of the Criminal Code; and

(h) One count of criminal negligence causing bodily harm, contrary to section 221 of the Criminal Code.

[2] Mr. Prosa pleaded not guilty to all charges and was tried by me without a jury.

[3] Mr. Prosa brought an application for a stay of these proceedings on the basis that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been infringed. He submitted that the Centre for Forensic Sciences (“CFS”) was responsible for the loss of a sample of his blood that was taken at St. Michael’s Hospital after the collision, and that the loss of this sample critically impaired his ability to make full answer and defence to these charges. On May 27, 2015, I found that Mr. Prosa’s rights under s. 7 of the Charter had been violated by the loss of his blood sample. However, I dismissed his application for a stay of the proceedings because I did not consider a stay to be an appropriate remedy in the circumstances of the case.

Evidence

Agreed Statement of Facts

[4] The Crown’s case against Mr. Prosa is based primarily on an Agreed Statement of Facts.

[5] It is agreed that at approximately 2:50 a.m. on August 5, 2012, Mr. Prosa was operating his motor vehicle northbound on Highway 427 when he made a U-turn and began travelling at a high rate of speed southbound in the wrong direction. His vehicle was observed to be weaving. He exited Highway 427 southbound onto a ramp that was meant only for vehicles travelling northbound from the QEW onto the northbound Highway 427. He drove his vehicle head-on into the vehicle in which the Wijeratne family was travelling. The collision killed Jayanatha Wijeratne and his daughter, Eleesha Wijeratne, and seriously injured Antonette Wijeratne.

[6] Following the collision, Mr. Prosa was removed from his vehicle and taken by ambulance to St. Michael’s Hospital to undergo treatment for his injuries. Hospital staff took a blood sample from Mr. Prosa for medical testing. The hospital conducted tests to determine whether there was any alcohol or drugs in Mr. Prosa’s blood. These tests found alcohol in his blood.

[7] The police obtained a search warrant for Mr. Prosa’s blood sample and seized it from the hospital. His blood sample 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 collision. Based upon his blood alcohol concentration reading, Ms. Bugyra testified that Mr. Prosa drank between 7¼ and 9½ standard alcoholic drinks prior to the collision.

Mr. Prosa’s Testimony

[8] Mr. Prosa testified that he was 19 years old at the time of the collision. He was living with his father and stepmother in Bolton, Ontario. He had finished his first year at York University and was working full-time in Bolton during the summer.

[9] At the time of the collision, 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.

[10] Mr. Prosa testified that on Saturday, August 4, 2012, he attended the Veld Music Festival at Downsview Park in Toronto after he finished work. He cannot recall what time he finished work. He testified that he drove from Bolton to the festival intending to meet his friend, Brendan, there. He cannot recall what time he drove to the festival. He planned to “hang out” with Brendan until the festival ended for the day. He could not find Brendan at the festival because he was unable to contact him as there was no cellular phone service there. As a result, he left Downsview Park and drove to Francesco Turano’s house. Mr. Prosa cannot recall how long he stayed at the festival or what time it was when he left to go to Mr. Turano’s house.

[11] 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 testified that he did not intend to drive that night. He planned to sleepover at either Mr. Turano’s house or at another friend’s, Josh Medeiros, house. He testified that he had an overnight bag with him. He parked his car near Mr. Turano’s house. He planned to leave it there all night.

[12] Mr. Prosa cannot recall what time he arrived at Mr. Turano’s house or what route he took to get there. However, he testified that he specifically recalls consuming four one-ounce shots of alcohol there before leaving for Skybar. He cannot recall what type of alcohol he drank or where he got it from.

[13] Mr. Prosa recalls that Mr. Turano, Mr. Medeiros and two other friends, Tallyson Neves and Francesco Gallelli, were at Mr. Turano’s house.

[14] Mr. Prosa does not remember how long he stayed at Mr. Turano’s house or when he left to go to Skybar. He does not remember leaving Mr. Turano’s house or going to Skybar. He does not know where Skybar is located and he cannot remember how he got there. However, he does recall being at Skybar later that night with Messrs. Turano and Medeiros. He also recalls having shots of alcohol that were served in test tubes at Skybar. He cannot remember how many shots of alcohol he consumed there.

[15] According to Mr. Prosa, his 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. According to Mr. Prosa, he next remembers waking up in the hospital after the collision.

[16] 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 collision.

[17] Mr. Prosa submits that his blood alcohol concentration of between 148 and 173 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 testified that he believes that someone spiked his drink with an unknown drug without his knowledge while he was at Skybar. He submits that this resulted in his involuntary intoxication.

[18] Mr. Prosa testified that he has no memory of the events that occurred after he was at Skybar. He submits that his total memory loss is also consistent with his ingestion of an unknown drug and is inconsistent with a blood alcohol concentration of between 148 and 173 milligrams of alcohol in 100 millilitres of his blood.

Francesco Turano’s Testimony

[19] Francesco Turano testified that Mr. Prosa arrived at his house at around 10:30 p.m. that evening. Josh Medeiros, Francesco Gallelli and Tallyson Neves were also at Mr. Turano’s house. Their plan was to have a few drinks at his house and then he, Mr. Medeiros and Mr. Prosa were going to go to a nightclub called Skybar. Mr. Turano believes that he had six shots of rum before they left for Skybar. He believes that Mr. Prosa was drinking shots of vodka. He could not say how many shots Mr. Prosa drank, but believes he had the same amount or less than he did.

[20] They left to go to Skybar at around 11:15 p.m. Mr. Neves, who was not drinking, drove them there. Mr. Turano testified that he understood that Mr. Prosa’s plan was to sleepover that night at Mr. Medeiros’ house. According to Mr. Turano, there was no discussion about Mr. Prosa sleeping over at his house.

[21] Mr. Turano testified that after the three of them arrived at Skybar they had a round or two of shots at the bar and then they had one or two more shots served to them by a cocktail waitress. The drinks were served to them in test tubes or shot glasses. Mr. Turano agreed under cross-examination that they did not sip their drinks but consumed them all at once.

[22] Mr. Turano testified that around 12:30 or 1:00 a.m. he lost sight of Mr. Prosa. He did not see him again that night. He and Mr. Medeiros went home around 2:30 a.m. after they were unable to find Mr. Prosa.

[23] According to Mr. Turano, the last time he saw Mr. Prosa was the day after the collision when he visited him in the hospital. Mr. Turano testified that he has not talked to Mr. Prosa since that day.

Tallyson Neves’ Testimony

[24] Tallyson Neves testified that he was at Mr. Turano’s house that night and offered to drive Messrs. Turano, Medeiros and Prosa to Skybar. Mr. Neves was not drinking. He believes that they left Mr. Turano’s house to go to Skybar at around 11:00 or 11:30 p.m. It took approximately twenty minutes to drive there. He described Mr. Prosa as “tipsy” but normal when they left Mr. Turano’s house to go to Skybar.

Josh Medeiros’ Testimony

[25] Josh Medeiros testified that Mr. Prosa is a close friend. Mr. Medeiros arrived at Mr. Turano’s house that night at around 10:00 p.m. He, Mr. Turano and Mr. Prosa were drinking at Mr. Turano’s house before going to Skybar. He was drinking rum. He saw Mr. Prosa drinking vodka but cannot say how much. He understood that Mr. Prosa had parked his car at Mr. Turano’s house. Mr. Medeiros testified that he has never known Mr. Prosa to drink and then drive.

[26] According to Mr. Medeiros, Mr. Prosa was going to stay at his house that night. He had stayed there a number of times before. Mr. Neves drove Mr. Medeiros, Mr. Turano and Mr. Prosa to Skybar at around 11:00 p.m. After they got to Skybar the three of them had three more shooters while they were standing up. Around midnight Mr. Medeiros lost sight of Mr. Prosa although before that he had seen him dancing and enjoying himself. They had planned to all go home together but Mr. Medeiros and Mr. Turano could not find Mr. Prosa at the end of the evening. Eventually he and Mr. Turano went home around 2:00 a.m.

[27] According to Mr. Medeiros, he has not talked to Mr. Prosa since he visited him in the hospital shortly after the collision.

Francesco Gallelli’s Testimony

[28] Francesco Gallelli testified that he arrived at Mr. Turano’s house that night at between 9:30 and 10:30 p.m. He had a bottle of Absolut vodka with him. He planned to leave the vodka at Mr. Turano’s house to drink at another time because he did not want his parents to know he had it. He had nothing to drink that night. Mr. Gallelli testified that he gave Mr. Prosa some of his vodka.

[29] According to Mr. Gallelli, Mr. Prosa was not drinking at first because Mr. Gallelli believed Mr. Prosa had to go home that evening. Mr. Gallelli testified that Mr. Prosa was “pressured” into drinking by the others. When Mr. Prosa decided to start drinking, Mr. Gallelli provided him with shots of vodka from the bottle he had brought with him. Mr. Gallelli testified that Mr. Prosa had five shots of vodka because Mr. Gallelli told him he was going to charge him one dollar per shot so Mr. Gallelli was counting the number of shots Mr. Prosa drank.

[30] According to Mr. Gallelli, it was after Mr. Prosa started drinking his vodka that he made arrangements to stay overnight at Mr. Medeiros’ house. He agreed that after Mr. Prosa started drinking there was no further discussion about Mr. Prosa driving home that night.

Issue

[31] I only have to decide one issue in this case. I agree with Mr. Gold’s description of the issue as follows:

Whether the Crown has proved beyond a reasonable doubt that Mr. Prosa’s driving was a voluntary act and that the consumption of whatever intoxicant was responsible for his flawed driving was voluntarily consumed.

[32] Mr. Gold concedes that if the Crown establishes beyond a reasonable doubt that the only substance in Mr. Prosa’s body was alcohol that he voluntarily consumed after which he drove his vehicle, Mr. Prosa should be found guilty. However, according to Mr. Gold, this is dependent upon the Crown proving beyond a reasonable doubt that there was not an intoxicant that Mr. Prosa unknowingly consumed in addition to alcohol that caused him to drive the way he did.

Positions of the Parties

[33] It is Mr. Prosa’s position that, in all the circumstances, his blood alcohol concentration and the projected amount of alcohol that he would have consumed by the time of the collision, is not enough to explain his bizarre and purposeless driving behaviour. Mr. Gold, on behalf of Mr. Prosa, argues that there is reason to believe that a drug other than alcohol was involuntarily ingested by Mr. Prosa without his knowledge. According to Mr. Gold, there was opportunity for this to happen. Mr. Prosa was in a nightclub and he was separated from his friends. Further, according to Mr. Gold, the evidence of Mr. Prosa’s total memory loss is more consistent with his ingestion of a drug in addition to alcohol.

[34] Mr. Gold’s submission that Mr. Prosa’s alcohol consumption, by itself, is not enough to explain his conduct, is based upon the following factors:

• Mr. Prosa’s measured blood alcohol concentration.

• His stated lack of intention to drive after drinking.

• The prior arrangements he made to leave his car parked, and to sleep at a friend’s house after drinking.

• His change in plans when there was no reason to do so.

• The lack of aim or purpose in his driving.

• The bizarre U-turn on a 400-series closed access highway, and his continued driving against oncoming traffic.

• His complete lack of memory of events between the point in time when he was at Skybar and when he woke up in the hospital.

[35] Mr. Gold submits that there had to be a factor, besides alcohol, that caused Mr. Prosa’s unusual behaviour. Specifically, he argues that a reasonable doubt exists that a drug was placed in Mr. Prosa’s drink without his knowledge at Skybar.

[36] The Crown, Mr. Goddard, submits that Mr. Prosa’s position is untenable because his evidence is not credible and does not raise a reasonable doubt. Mr. Goddard submits that it is not credible that Mr. Prosa had a firm pre-arranged plan not to drive home that evening because he planned to drink and that he lacks any memory about what happened after he was at Skybar.

[37] Mr. Goddard further submits that even if I find that Mr. Prosa’s evidence is credible enough to establish that he has a total memory loss and that he deviated from a firm plan not to drive, I should find that this was caused by the alcohol he voluntarily consumed. He submits that Mr. Prosa’s explanation that his drink was spiked at Skybar is speculative.

[38] Finally, Crown counsel submits that even if I find that Mr. Prosa has a total memory loss caused by something other than the alcohol he voluntarily consumed, there is no psychological or psychiatric expert evidence to support a finding that Mr. Prosa’s actions were involuntary.

Analysis

[39] I must decide this case on the basis of many well-established principles. The first is that a criminal trial is not a credibility contest between witnesses. I can believe all, some, or none of the evidence given by a witness. The second is that Mr. Prosa is presumed to be innocent. The third is that the onus of proving the case beyond a reasonable doubt rests at all times with the Crown. Accordingly, even if I find that the evidence establishes that Mr. Prosa is likely or probably guilty, he must be acquitted as that level of proof is insufficient to meet the standard of proof beyond a reasonable doubt. It is a very high standard.

[40] Further, in assessing the evidence in this case, I am bound by the Supreme Court of Canada’s decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Prosa’s evidence, I must acquit him. If I do not believe his evidence but I am left with a reasonable doubt by it, I must acquit him. Even if I am not left in reasonable doubt by Mr. Prosa’s evidence, I must be convinced beyond a reasonable doubt on all of the evidence that I do accept that Mr. Prosa is guilty.

Expert Toxicology Evidence

[41] Two experts in toxicology testified. Dr. Joel Mayer testified on behalf of Mr. Prosa. Dr. Robert Langille testified on behalf of the Crown.

[42] Mr. Gold asked Dr. Mayer and Dr. Langille the same hypothetical question. He asked them to make the following assumptions and provide their opinion about whether the consumption of alcohol alone could account for the conduct described in the assumptions:

• A young man in his late teens of good character who does not drive after consuming alcohol and has a G2 licence, which prohibits driving after having consumed any alcohol, is going out drinking to a Toronto club.

• He made arrangements to leave his car parked where it was and sleep at a friend’s house.

• There was no particular reason for him to drive anywhere after drinking.

• He drove purposelessly. The driving involved a senseless, purposeless U-turn so that he drove the wrong way on a 400-series closed access highway colliding head-on with another vehicle.

• There was some indication of weaving by his vehicle prior to the collision.

• He had a blood alcohol concentration at the time of driving of 148 milligrams of alcohol in 100 millilitres of blood.

• He has no memory of entering his car or driving.

• His memory ends at the bar that he was drinking at, and his next memory is being in the hospital after the collision.

• He had no intention to drive after drinking, did not consciously drive after drinking, and swears that he has no memory of deviating from his plan not to drive but to spend the night at a friend’s.

[43] Dr. Mayer testified that, in his opinion, it would be unusual for an individual to embark on the type of behaviour described in the hypothetical question with a blood alcohol concentration of only 148 milligrams of alcohol in 100 millilitres of their blood. Dr. Mayer testified that his first thought was that there was another substance in the individual’s system or the presence or occurrence of some sort of trauma or disease. Dr. Mayer described a variety of “club drugs” that could be surreptitiously put in a person’s drink and that could lead to the significant level of impairment of the person’s decision-making ability described in the hypothetical question. In particular, Dr. Mayer testified that one would not expect to see total memory loss at blood alcohol concentration levels of between 148 and 173 milligrams of alcohol in 100 millilitres of blood.

[44] Dr. Langille disagreed with Dr. Mayer’s opinion that alcohol alone could not account for the conduct described in the hypothetical question.

[45] Dr. Langille testified that Mr. Prosa’s erratic driving was not inconsistent with his blood alcohol concentration levels. He testified that he did not regard Mr. Prosa’s driving as either bizarre or inexplicable. According to Dr. Langille, who has extensive experience observing the effects of alcohol on college-aged drinking subjects, these individuals have much less tolerance for the intoxicating effects of alcohol. Dr. Langille testified that he would expect a blood alcohol concentration level of 148 milligrams of alcohol in 100 millilitres of blood to lead to significant intoxication. Under cross-examination, he disagreed that different types of behaviour can indicate a different degree of impairment. Dr. Langille explained that toxicologists cannot predict the kind of behaviour an individual will engage in at different blood alcohol concentration levels. They can only comment upon the degree of impairment that will be experienced at different blood alcohol concentration levels.

[46] Dr. Langille testified that one cannot predict the behaviour an individual will engage in at a specific blood alcohol concentration level because such a determination depends on too many other factors. He disagreed with Mr. Gold’s suggestion that it is unreasonable to conclude that Mr. Prosa’s erratic driving was solely the result of the alcohol he had consumed. According to Dr. Langille, Mr. Prosa’s driving before the collision was entirely consistent with the level of impairment produced by a blood alcohol reading of between 148 and 173 milligrams of alcohol in 100 millilitres of his blood.

[47] I found both Dr. Mayer and Dr. Langille to be credible and reliable witnesses. I accept Dr. Mayer’s evidence about whether one would expect a total memory loss in a person with a blood alcohol concentration level of between 148 and 173 milligrams of alcohol per 100 millilitres of blood. His opinion was supported by the applicable scientific literature, which confirms that a total memory loss is likely to occur only at much higher blood alcohol concentrations.

[48] I accept Dr. Langille’s opinion that a 19-year-old inexperienced driver with a blood alcohol concentration reading of between 148 and 173 milligrams of alcohol per 100 millilitres of blood could operate a motor vehicle as erratically as Mr. Prosa did. I also accept his evidence that toxicologists cannot predict the type of behaviour an individual will engage in at different blood alcohol concentration levels because such an analysis involves too many different factors.

[49] Crown counsel provided me with a number of cases involving individuals who drove in an equally erratic manner as Mr. Prosa at similar blood alcohol concentrations. Examples of these are as follows:

• R. v. Bakai, [2010] O.J. No. 6076 - Mr. Bakai, who was 27 years old, was driving his truck at around 4:30 a.m. westbound on Highway 403. He made a U-turn over the median and began to drive eastbound in the westbound lanes. He travelled in the wrong direction on Highway 403 until he had a head-on collision with another vehicle. The collision killed the two occupants of the other vehicle. His projected blood alcohol concentration at the time was between 145 and 190 milligrams of alcohol in 100 millilitres of his blood.

• R. v. J.A.W., [2006] B.J.C. No. 1112 - Ms. J.A.W., who was 26 years old, drove her vehicle in the wrong direction on a major highway and had a head-on collision with another vehicle, killing the driver. She had a blood alcohol concentration of 158 milligrams of alcohol in 100 millilitres of her blood.

• R. v. West, [2008] B.C.J. No. 2870 - Ms. West, who was 26 years old, drove her vehicle onto the off ramp of a major highway and travelled in the wrong direction for about 90 seconds before colliding head-on with another vehicle. Her passenger was killed in the collision. She had a blood alcohol concentration of 162 milligrams of alcohol in 100 millilitres of her blood.

[50] These are three examples of driving that was similar to Mr. Prosa’s erratic driving by persons with blood alcohol concentration levels similar to Mr. Prosa’s.

[51] Having carefully considered the expert toxicologists testimony in light of all of the evidence I find the following:

(a) It is unlikely that a 19-year-old man would experience a total memory loss as a result of consuming alcohol in the quantity that it is estimated Mr. Prosa consumed; and

(b) Mr. Prosa’s erratic driving is consistent with his consumption of alcohol alone in light of his blood alcohol concentration readings of between 148 and 173 milligrams of alcohol in 100 millilitres of his blood.

Assessment of Mr. Prosa’s Testimony

[52] I have carefully considered Mr. Prosa’s testimony. I am troubled about the following aspects of his testimony:

• He cannot recall what time he finished work or when he drove to Downsview Park to attend the Veld Music Festival.

• He cannot recall when he arrived at the music festival at Downsview Park or how long he stayed there. He cannot recall what time he left to go to Mr. Turano’s house.

• He cannot recall what route he took to drive to Mr. Turano’s house or what time he arrived there.

• He cannot recall how he started drinking at Mr. Turano’s house.

• He cannot recall when he started drinking at Mr. Turano’s house or what he drank. However, he is adamant that he specifically recalls consuming four one-ounce shots of alcohol there. He cannot explain why he testified under oath at his examination for discovery held three months before his trial that he only had two shots of alcohol at Mr. Turano’s house.

• He cannot recall how long he stayed at Mr. Turano’s house before they left for Skybar.

• He cannot remember how he got to Skybar, where it is located, what time he got there, how he entered the bar or whether he paid to enter.

• He cannot remember how many drinks he consumed at Skybar. However, he does remember that he drank shooters out of regular-sized test tubes there.

[53] I do not find Mr. Prosa’s testimony to be credible or reliable for the following reasons:

• Mr. Prosa’s inability to recall so many details about events leading up to his attendance at Skybar raises serious questions about the reliability of his testimony. These events occurred before he suggests that his drink was spiked. It is understandable that he could forget a few details about these events, however, the cumulative effect of his inability to remember so many details makes his testimony unreliable.

• It is difficult to accept Mr. Prosa’s evidence that he recalls drinking precisely four shots of alcohol at Mr. Turano’s house but he cannot recall what he drank or where he got the alcohol from. It is hard to understand how he could specifically recall drinking four shots of alcohol but not remember that it was vodka. It is even harder to understand when considered in light of Francesco Gallelli’s evidence, which I accept, that Mr. Gallelli provided Mr. Prosa with vodka and told him he would charge him $1.00 per shot. This is a detail one would expect Mr. Prosa to recall.

• Three months before this trial Mr. Prosa testified under oath at his examination for discovery that he drank only two shots of alcohol at Mr. Turano’s house. He has no explanation for this inconsistency, which raises further concerns about his credibility.

• Mr. Prosa initially testified that his plan was to sleepover at Mr. Turano’s home that night. Later during his testimony he testified that although his plan was to sleep at Mr. Turano’s house, it was possible that he could have slept at Mr. Medeiros’ house. He explained that it depended upon what Mr. Medeiros wanted to do. However, Mr. Turano testified that there was never any discussion about Mr. Prosa sleeping over at his house. Mr. Medeiros testified that he planned to stay over at his house. Mr. Turano’s and Mr. Medeiros’ evidence, which I accept, conflicts with Mr. Prosa’s testimony about his plan for the evening. His plan for the evening is an important aspect of his defence because it is one of the assumptions in the hypothetical question posed to the expert witnesses.

• Mr. Prosa testified that from the time he arrived at Mr. Turano’s home he had planned to drink and not to drive. However, Mr. Gallelli, who was not drinking that night, testified that at first Mr. Prosa was not drinking. Mr. Gallelli testified that at first Mr. Prosa did not intend to drink at Mr. Turano’s house. Mr. Gallelli testified that he believed this was because Mr. Prosa intended to drive home that evening. According to Mr. Gallelli, Mr. Prosa was “pressured” by the others to drink. Under re-examination Mr. Gallelli explained that after Mr. Prosa started drinking at Mr. Turano’s home he then made arrangements to sleepover at Mr. Medeiros’ home. Mr. Gallelli’s evidence, which I accept, conflicts with Mr. Prosa’s evidence that he had always planned to drink and to leave his car at Mr. Turano’s house overnight.

• When Mr. Prosa was cross-examined about whether he had spoken to Messrs. Turano and Medeiros after the collision he was evasive. Initially he testified that he had no specific recollection of talking to them but later testified that he had spoken to both of them months after the collision. He testified that he “probably” asked them questions about “what happened that night after Skybar”. I find that his testimony regarding this issue is not forthright. Mr. Turano testified that he saw Mr. Prosa when he visited him in the hospital after the collision. According to Mr. Turano, he never spoke to Mr. Prosa after that. Mr. Medeiros also testified that he did not speak to Mr. Prosa about the collision since he had seen him in the hospital. Both Mr. Turano and Mr. Medeiros contradict Mr. Prosa’s evidence in this regard. I accept their evidence. I do not accept Mr. Prosa’s evidence that he spoke to them months after the accident.

• Certain statements attributed to Mr. Prosa in the Agreed Statement of Facts also contradict Mr. Prosa’s testimony that he has no recollection of events from the time that he was in Skybar until he woke up in the hospital after the collision. One of the paramedics who attended to Mr. Prosa after the collision included the following note in an Incident Report about a conversation he had with Mr. Prosa:

While asking Pt about what happened I asked if he had taken any drugs or Alcohol. Pt stated “I drank a lot”. I again asked how much he stated “A Lot”.

Later that morning, when P.C. Kokot and P.C. Mogan were attempting to obtain telephone numbers from Mr. Prosa at the hospital, Mr. Prosa stated as follows:

I don’t remember it, I just remember weaving.

The eyewitness evidence establishes that Mr. Prosa was weaving as he drove southbound on Highway 427 immediately before the collision.

This evidence establishes that shortly after the collision Mr. Prosa had a recollection of having drank “a lot” and of “weaving” in his vehicle. This contradicts his testimony at trial that he has no recollection of events between the time he was at Skybar and when he woke up in the hospital. I find that he had some recollection of these events when he was in the hospital and made these statements.

[54] For all of these reasons I do not find Mr. Prosa to be a credible or reliable witness. He appeared to me to be evasive and to have a selective memory. A good deal of his testimony did not make sense, particularly his inability to recall so many details about events that occurred before he arrived at Skybar. I do not believe his testimony that he has no recollection of any events from when he was at Skybar until he woke up in the hospital. I find that he is tailoring his evidence to support his defence of involuntary intoxication.

[55] I do not believe Mr. Prosa’s evidence and it does not raise a reasonable doubt about his guilt.

[56] However, my analysis does not end here because I must be convinced on all of the evidence that I do accept that Mr. Prosa is guilty of the offences with which he is charged.

[57] I must, therefore, consider whether I have a reasonable doubt about whether Mr. Prosa’s impairment and erratic driving was brought about through no fault of his own. In other words, I must consider whether I have a reasonable doubt that another substance was unknowingly placed in his drink causing him to operate his motor vehicle in the manner that he did.

[58] The defence relies upon the expert opinion evidence of Dr. Mayer in support of the theory that Mr. Prosa must have involuntarily consumed a “club drug” at Skybar. Dr. Mayer’s opinion was given in response to a hypothetical question posed by Mr. Gold. I must, therefore, analyze the evidentiary basis for the assumptions contained in Mr. Gold’s hypothetical question to determine whether they have been established in evidence. I will review each assumption contained in the hypothetical question in light of all of the evidence.

Assumptions in Hypothetical Question

A young man in his late teens of good character who does not drive after consuming alcohol and has a G2 licence, which prohibits driving after having consumed any alcohol, is going out drinking to a Toronto club.

[59] Mr. Prosa was 19 years old at the time and of good character. He had his G2 licence for about two months before the collision. The assumption that he had a practice of not driving after consuming alcohol was based upon only two months of experience. Although Mr. Prosa and his friends testified that he never drank alcohol and then drove, he had a very short “track record” of abiding by this practice.

He made arrangements to leave his car parked where it is was and sleep at a friend’s house.

[60] There is contradictory evidence on this issue. Mr. Prosa testified that he had planned from the very beginning of the evening to leave his car parked at Mr. Turano’s home and stay overnight there or possibly at Mr. Medeiros’ home. However, Mr. Turano testified that there was never any discussion about Mr. Prosa staying overnight at his house. Further, Mr. Gallelli testified that he believed Mr. Prosa originally intended to drive home that night and only made plans to sleepover at Mr. Medeiros’ house after he was pressured into drinking at Mr. Turano’s house.

There was no particular reason for him to drive anywhere after drinking.

[61] There is no evidence that Mr. Prosa had any reason to drive anywhere after he left Skybar. He maintains that he has no recollection of why he was driving or where he was going. However, he agreed with Crown counsel’s suggestion that he may have changed his mind and decided to drive home. He also agreed that northbound on Highway 427 would be his route to his home in Bolton.

He drove purposelessly. The driving involved a senseless, purposeless U-turn so that he drove the wrong way on a 400-series closed access highway colliding head-on with another vehicle.

[62] Mr. Prosa was a relatively inexperienced driver. He admittedly has a poor sense of direction. He testified that he relies entirely on a GPS device to drive from location to location. There is no question that his driving was extremely erratic and senseless when he made a U-turn and began driving southbound on Highway 427 in the wrong direction. Prior to that he was driving on the route to his home and had somehow managed to get there from Mr. Turano’s house.

There was some indication of weaving by his vehicle prior to the collision.

[63] The eyewitness evidence confirms that his vehicle was weaving prior to the collision. As I have already indicated, this is one aspect of his pre-collision conduct that Mr. Prosa recalled shortly after the collision when he was in the hospital.

He had a blood alcohol concentration at the time of driving of 148 milligrams of alcohol in 100 millilitres of blood.

[64] There is no dispute that his blood alcohol concentration readings at the time of the collision were estimated to be between 148 and 173 milligrams of alcohol in 100 millilitres of his blood. On the strength of the expert evidence I have found that it is unlikely that he would have had a total memory loss as a result of his blood alcohol concentration. I have also found that I do not believe his evidence that he has a total memory loss. Further, I am satisfied that his erratic driving is not inconsistent with this estimated range of blood alcohol concentration.

He has no memory of entering his car or driving.

[65] As I have already indicated, although Mr. Prosa testified that he has a total memory loss I do not believe his evidence for the reasons I have outlined.

His memory ends at the bar that he was drinking at, and his next memory is being in the hospital after the collision.

[66] I do not accept Mr. Prosa’s testimony in this regard for the reasons I have outlined.

He had no intention to drive after drinking, did not consciously drive after drinking, and swears that he has no memory of deviating from his plan not to drive but to spend the night at a friend’s.

[67] I do not accept Mr. Prosa’s testimony in this regard for the reasons I have outlined.

[68] As can be seen from the foregoing analysis, many of the assumptions contained in the hypothetical question Dr. Mayer and Dr. Langille responded to have not been established in evidence. Probably the most significant assumption that has not been established in evidence is the fact that Mr. Prosa has a total memory loss about everything that occurred after he was at Skybar until he woke up in the hospital after the collision. This was an important factor relied upon by Dr. Mayer in giving his opinion that something in addition to alcohol must have been involuntarily consumed by Mr. Prosa. I find that this important assumption has not been established in evidence. I am of the view that Dr. Mayer’s opinion does not have a proper evidentiary foundation. I, therefore, do not accept it.

[69] Dr. Mayer’s opinion does not leave me with a reasonable doubt that Mr. Prosa involuntarily consumed a club drug in addition to the alcohol he voluntarily consumed.

Opportunity for Mr. Prosa’s Drink to be Spiked

[70] The defence also relies upon the fact that Mr. Prosa was in an environment where it was more likely his drink could have been spiked with a club drug. Paragraph 52 of the Submissions on behalf of the Defendant reads as follows:

The defence notes that the environment and the general surroundings of the defendant at the time he was last seen is a highly relevant factor. The Skybar was a nightclub at which there was certainly the opportunity for a substance to be surreptitiously placed in someone’s drink, whether the defendant was the intended target or not. The Court heard from both expert witnesses as to the prevalence of certain substances, be it GHB, ketamine, or various other substances, in the “club scene”. The phenomenon of “spiked drinks” is certainly not a new one. Indeed, many websites list several categories of drugs, some widely known, some less so, as being highly prevalent in the club scene. Further, many governmental institutions warn the public of this danger (both males and females alike, although females especially so, for obvious reasons), and certain legislation was enacted to safeguard against this possibility.

[71] I accept this submission. There is a prevalence of club drugs in nightclubs such as Skybar. There is also a risk that unattended drinks may be spiked. However, the evidence establishes that Mr. Prosa was drinking shots of alcohol from either a test tube or a shot glass that he received directly from a bartender or a cocktail waitress while he was standing up. Mr. Prosa agreed that these types of drinks are consumed all at once. They are not left unattended on a table where someone could put something into them. Under the circumstances, I find that there was no realistic opportunity for this type of drink to be surreptitiously spiked. It is unrealistic to conclude that either a bartender or a cocktail waitress would add a drug to a drink they served in a test tube or a shot glass. I find that there was no opportunity for Mr. Prosa’s drinks to be spiked. Accordingly, I do not find that there is an air of reality to the defence theory that Mr. Prosa’s drink was spiked at Skybar.

Lost Evidence

[72] The defence intended to test the remainder of Mr. Prosa’s blood for the presence of a club drug. I am satisfied that Mr. Gold and his associates took reasonable steps to do so but were prevented from having the blood tested because of unacceptable negligence on the part of the CFS. As I have already indicated Mr. Prosa’s Charter rights were violated as a result of the lost blood sample.

[73] In R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199, Doherty J.A. commented upon how a jury should be instructed when the prosecution is responsible for the loss of relevant evidence at paragraph 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.

[74] I must instruct myself in the same manner. The Crown is responsible for the fact that Mr. Prosa was deprived of evidence that may have assisted his defence. However, it could also have confirmed the Crown’s case against him or it may have done neither. It was not Mr. Prosa’s fault that he was unable to adduce further evidence about the analysis of his blood. However, his inability to obtain evidence that may or may not have supported his defence of involuntary intoxication does not leave me with a reasonable doubt that he involuntarily consumed a club drug. For the reasons I have already outlined, I find the theory of the defence to be speculative. The lost evidence does not leave me with a reasonable doubt about Mr. Prosa’s guilt.

Conclusion

[75] For the foregoing reasons, I am satisfied beyond a reasonable doubt that Mr. Prosa’s impairment at the time he was operating his vehicle and collided with the Wijeratne vehicle was due solely to alcohol that he voluntarily consumed and was not due to his drink being spiked at Skybar. I am also satisfied beyond a reasonable doubt that the Crown has proved all of the essential elements of the offences with which Mr. Prosa is charged.

Impaired Driving Charges

[76] There is no dispute that Mr. Prosa was impaired by alcohol when he struck the Wijeratne vehicle and killed Jayanatha and Eleesha Wijeratne and seriously injured Antonette Wijeratne. I, therefore, find Mr. Prosa guilty of Counts 1, 2 and 9.

Over 80 Charges

[77] There is no dispute that Mr. Prosa’s blood alcohol concentration was over 80 milligrams of alcohol in 100 millilitres of his blood when he struck the Wijeratne vehicle head-on. Further, there is no dispute that Jayanatha and Eleesha Wijeratne were killed and that Antonette Wijeratne was seriously injured as a result of the collision. I, therefore, find Mr. Prosa guilty of Counts 3, 4 and 10.

Dangerous Driving Charges

[78] There is no dispute that Mr. Prosa was operating his vehicle in a manner that was dangerous to the public and that his operation of his vehicle caused the deaths of Jayanatha and Eleesha Wijeratne and seriously injured Antonette Wijeratne. I, therefore, find Mr. Prosa guilty of Counts 5, 6 and 11.

Criminal Negligence Charges

[79] There is no dispute that Mr. Prosa’s operation of his motor vehicle showed a wanton and reckless disregard for the lives and safety of others and that it caused the deaths of Jayanatha and Eleesha Wijeratne and seriously injured Antonette Wijeratne. I, therefore, find Mr. Prosa guilty of Counts 7, 8 and 12.

[80] I wish to thank counsel for their assistance with this difficult and tragic case.

HAINEY J.

Released: June 26, 2015

CITATION: R. v. Prosa, 2015 ONSC 4081

COURT FILE NO.: CR14100001410000

DATE: 20150626

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SABASTIAN PROSA

Defendant

REASONS FOR JUDGMENT

HAINEY J.

Released: June 26, 2015

Her Majesty the Queen v. Sabastian Prosa, 2015 ONSC 4081

Case Summary

Overview

Evidence

Agreed Statement of Facts

Mr. Prosa’s Testimony

Francesco Turano’s Testimony

Tallyson Neves’ Testimony

Josh Medeiros’ Testimony

Francesco Gallelli’s Testimony

Issue

Positions of the Parties

Analysis

Expert Toxicology Evidence

Assessment of Mr. Prosa’s Testimony

Assumptions in Hypothetical Question

Opportunity for Mr. Prosa’s Drink to be Spiked

Lost Evidence

Conclusion

Impaired Driving Charges

Over 80 Charges

Dangerous Driving Charges

Criminal Negligence Charges

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 9

Legal Tests 1

Legislation 2