R. v. Fracassi, 2016 ONSC 6685

CITATION: R. v. Fracassi, 2016 ONSC 6685

COURT FILE NO.: CR-15-176

DATE: 2016-11-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARCELLO FRACASSI Defendant

COUNSEL:

Frank Faveri and Mary Anne Alexander for the Crown

James C. Fleming for the Defendant

HEARD: September 12 - 30, 2016

REASONS FOR JUDGMENT

Boswell J.

INTRODUCTION

[1] The night began with a heavy metal concert. It ended in tragedy. Returning home from the concert, Mr. Fracassi struck and killed a municipal employee painting lines on a downtown street. The Crown asserts that Mr. Fracassi was impaired at the time and driving dangerously. Mr. Fracassi asserts that he was in the throes of a parasomnia – essentially sleep-driving – and is not criminally culpable for the driving or the damages it caused.

[2] Mr. Fracassi faces a seven count indictment: impaired driving causing bodily harm; impaired driving causing death; over 80 operation of a motor vehicle; dangerous driving causing bodily harm; dangerous driving causing death; and two counts of failure to stop at the scene of an accident where injury and death were caused.

[3] This is a relatively complex case. I intend to tackle it in parts. I will begin with a brief overview of the circumstances of the case, followed by a review of the essential elements of the charged offences and a description of how Mr. Fracassi’s position fits in with those elements. I will then identify the live issues in the case and I will proceed with my analysis of those issues, adding factual references as I go. I begin with a general overview.

OVERVIEW

[4] Alliston is one of several small communities that together comprise the Township of New Tecumseth. On Friday June 20, 2014 a small crew of Township employees set out to repaint some of the roadway markers on Victoria Street in downtown Alliston. Victoria St. is the main thoroughfare dissecting Alliston and it can be quite busy during the day. The Township crew began their shift at 2:00 a.m. because, as one of them testified, it would be less busy and safer.

[5] Earlier that night Mr. Fracassi and three friends travelled from New Tecumseth to a club in Toronto for the purpose of attending a concert by a metal band named Mushoogah. The three friends were Josh Hutchinson, Kyle Conway and Brian Lafazanos. They travelled in Mr. Fracassi’s white Ford F150 pickup truck. Mr. Hutchinson doesn’t usually drink so he assumed the role of designated driver.

[6] Mr. Fracassi and his other two companions consumed alcohol throughout the night. They had a short tailgate party outside the concert venue. Then they drank during the concert. After the concert was over (about midnight), the four friends paid a visit to a strip club in Vaughan to celebrate Mr. Hutchinson’s birthday. More alcohol was consumed. They then returned to the New Tecumseth area. Mr. Hutchinson drove as far as Tottenham where he lived. Mr. Lafazanos then drove the truck from Tottenham to his home in Alliston where both he and Mr. Conway exited the vehicle. After assuring Mr. Lafazanos that he was okay to drive, Mr. Fracassi got behind the wheel and headed west towards his own home, some five minutes away.

[7] At the same time, the small crew of Township employees was just beginning to paint parking stall lines on Victoria Street. It was about 2:50 a.m. when Mr. Fracassi’s pickup truck, heading westbound on Victoria Street, approached the Township crew. Two members of the three person crew were actively painting lines on the road just around the corner from Mill Street. An expert in collision reconstruction testified that the F150 was travelling at a rate of speed of approximately 76 km/hr at the time it came upon the crew. The vehicle clipped Jane Fuller, who was in the process of marking a painted stall with a pylon. Ms. Fuller suffered some significant bruising but was otherwise physically intact. It then struck Mr. Geoffrey Gaston more or less head on. Mr. Gaston suffered severe injuries and died.

[8] After striking the Township crew, the F150 continued westbound on Victoria Street. Yves Tetreault was travelling eastbound in his transport tractor. He saw the collision and he saw that the F150 was not stopping. He edged his truck into the westbound lane in an attempt to slow or stop the pickup. The F150 veered around him and continued on.

[9] Police officers located the F150 within about two hours of the collision. It was parked in Mr. Fracassi’s driveway about a kilometre from the site of the collision. They arrested Mr. Fracassi just prior to 5 a.m. on June 20, 2014. He was transported to the local OPP detachment where he gave two samples of his breath, one just before and the other just after 6:00 a.m. Despite his insistence that he had consumed only two beers, both samples registered a little over 170 mg of alcohol in 100 ml of blood. Mr. Fracassi was, in the result, charged with the offences now before the court.

FRAMEWORK OF THE CHARGES

[10] The Crown’s position in this proceeding, simply put, is that Mr. Fracassi went to a concert, got drunk, drove drunk, struck Mr. Gaston and Ms. Fuller, then fled the scene.

[11] At the outset, allow me to confirm the obvious: the onus is on the Crown to prove the guilt of Mr. Fracassi beyond a reasonable doubt with respect to each count. Mr. Fracassi enjoys the presumption of innocence and is to be convicted of a charge only if and when the Crown has discharged its burden with respect to each essential element of that charge. I will take a moment to outline those essential elements with respect to each of the charged offences.

[12] To establish Mr. Fracassi’s guilt for the offence of having care or control of a motor vehicle while his ability to operate it was impaired, the Crown must prove each of the following essential elements beyond a reasonable doubt:

(i) That Mr. Fracassi had care or control of the F150;

(ii) That he intended to assume care or control of the F150 after consuming alcohol; and,

(iii) That his ability to operate the F150 was impaired by the consumption of alcohol.

[13] To establish guilt for the specific offences of impaired care or control causing injury and death, the Crown must prove beyond a reasonable doubt that Mr. Fracassi’s impaired ability to operate the F150 caused the injuries to Ms. Fuller and the death of Mr. Gaston, respectively.

[14] To establish guilt for the offence of having the care or control of a motor vehicle with a blood alcohol content over 80 mg of alcohol in 100 mL of blood, the Crown must prove each of the following essential elements beyond a reasonable doubt:

(i) That Mr. Fracassi had care or control of the F150;

(ii) That Mr. Fracassi intended to assume care or control of the F150 after consuming alcohol; and,

(iii) At the time he had care or control of the F150 he had a blood-alcohol content over 80 mg of alcohol in 100 mL of blood.

[15] To establish Mr. Fracassi’s guilt for dangerous operation of a motor vehicle, the Crown must prove each of the following essential elements beyond a reasonable doubt:

(i) That Mr. Fracassi operated the F150; and

(ii) That he did so in a manner that was dangerous to the public.

[16] To establish guilt for the specific offences of dangerous driving causing bodily harm and dangerous driving causing death, the Crown must establish, to the reasonable doubt standard, that Mr. Fracassi’s dangerous operation of the F150 caused Ms. Fuller’s injuries and Mr. Gaston’s death respectively.

[17] To establish Mr. Fracassi’s guilt for failing to stop after an accident, the Crown must prove each of the following essential elements to the reasonable doubt standard:

(i) That Mr. Fracassi had the care or control of the F150;

(ii) That the F150 was involved in an accident;

(iii) That Mr. Fracassi knew that the F150 was involved in an accident;

(iv) That he failed to stop and identify himself after the accident; and

(v) That he intended to escape civil or criminal liability for the accident.

[18] The Crown asserts in counts 6 and 7 that there were aggravating circumstances present in that Mr. Fracassi knew bodily harm had been done to someone and knew that death had been caused to another, or alternatively knew that bodily harm had been caused and was reckless as to whether death had been caused. These aggravating circumstances are additional features the Crown must establish to the reasonable doubt standard to prove Mr. Fracassi’s guilt on counts 6 and 7 respectively.

[19] The charged offences have a common thread - they are all driving-related. The first essential element of each of the charged offences is that Mr. Fracassi either had care or control of, or was operating, the F150 on the occasion in question.

[20] The parties filed, as trial exhibit 1, an Agreed Statement of Facts. Paragraph one of that agreement confirms that Mr. Fracassi was driving his white Ford F150 truck on Victoria Street on June 20, 2014 and that he struck Geoff Gaston and Jane Fuller.

[21] Obviously the real dispute in this case is not whether Mr. Fracassi was operating the F150 at the relevant times. The real disputes are whether Mr. Fracassi was impaired when he was operating the F150 and whether he was voluntarily operating it. I turn now to an examination of the contours of his defence.

FRAMEWORK OF THE DEFENCE

[22] As I have said, the onus remains at all times on the Crown to prove Mr. Fracassi’s guilt of each offence beyond a reasonable doubt. Subject to one qualification I will describe a little later on, Mr. Fracassi has no obligation to prove anything in this case; certainly not that he is innocent of the charged offences.

[23] In terms of the alcohol-related offences (counts 1, 2 and 3), Mr. Fracassi’s defence is, put at its simplest, that the Crown has failed to establish beyond a reasonable doubt that his blood-alcohol content was over 80 mg of alcohol in 100 ml of blood at the time he drove from Mr. Lafazano’s home to his own. Moreover, the Crown has failed to establish to the reasonable doubt standard that his ability to operate a motor vehicle was impaired by alcohol.

[24] Mr. Fracassi, however, asserts a broader defence; one that potentially impacts all of the charges before the court. He argues that he is not criminally responsible for any of the offences because he was in a somnambulistic state while driving. In other words, he was sleep-driving. To be clear, “sleep-driving” is not the same thing as falling asleep at the wheel. It is a manifestation of a parasomnia – a sleep disorder. It is the driving equivalent of sleepwalking. It involves conduct that is not voluntary.

[25] Almost invariably, the essential elements of criminal offences in Canada include both a prohibited act and an accompanying state of mind. These elements are frequently referred to by people in the legal business by the Latin terms actus reus and mens rea.

[26] It is a fundamental principle of Canadian criminal law that only voluntary actions will attract findings of guilt. The actus reus of each of the charged offences in this case involves the act of driving. Mr. Fracassi admits that he was driving, but if he was not driving voluntarily, then it will inevitably follow that he cannot be guilty of a driving-related offence.

[27] Dr. Colin Shapiro, a noted expert in sleep and sleep disorders, testified that a person experiencing a parasomnia may have some partial awareness of his or her surroundings. Though he or she would not be described as conscious, he or she may nevertheless carry out various physical activities while in that state. They may behave in a manner that is, or appears to be, purposeful or goal-oriented. Their actions may include walking, talking, or uncommonly, driving while in a state of sleep.

[28] In Mr. Fracassi’s submission, he was either in a somnambulistic state when he got behind the wheel at Mr. Lafazanos’ house, or he fell into one shortly thereafter. In either event, he was no longer driving voluntarily at the time he struck Mr. Gaston and Ms. Fuller, nor when he continued home. Because of his parasomnia he has no recollection of the collision or anything else prior to being awakened by the police.

[29] I note that the words “somnambulism” and “parasomnia” were used frequently during this trial and often interchangeably. They are not the same thing. Somnambulism is another word for sleepwalking. Or in this case, sleep-driving. According to Dr. Shapiro, “parasomnia” is a broad term used for a group of disorders where people have actions normally associated with wakefulness, but they’re actually asleep. Somnambulism is one of those disorders and would, accordingly, fall under the broader umbrella of a parasomnia.

[30] I suspect the average person on the street may be incredulous about the concept of sleep- driving. But there is clear evidence that it does happen, though rarely. There is a famous Canadian case which stands out as particularly remarkable. In 1987, a 23 year old man named Kenneth Parks was charged with the murder of his mother-in-law and attempted murder of his father-in-law. On the night of the attack, Mr. Parks fell asleep on his couch at his home in Pickering. At some point in the night he arose, put on his coat and shoes, grabbed his car keys and the key to his in-laws’ home and proceeded to drive to their home, which was some 23 km away in Scarborough. Once there he attacked them in their bed. He choked and cut his father-in-law and bludgeoned and stabbed his mother-in-law to death. He then essentially drove to the nearest police station and reported that he had just killed two people.

[31] At trial, Mr. Parks successfully advanced a sleepwalking defence. The case proceeded all the way to the Supreme Court. That court’s decision was released on August 27, 1992 and reported at 1992 SCC 78, [1992] 2 S.C.R. 871. The Supreme Court upheld Mr. Parks’ acquittal and confirmed that episodes of somnambulism may fall within the ambit of the defence of automatism, provided the circumstances justify it.

[32] The elements of an automatism defence were explored in a subsequent Supreme Court case: R. v. Stone, 1999 SCC 688, [1999] 2 S.C.R. 290. In Stone, Justice Bastarache, who wrote the majority decision, defined automatism as:

…[A] state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action.

[33] He noted that there are two forms of automatism recognized by Canadian law: non-mental disorder automatism and mental disorder automatism. Both involve impaired states of consciousness in which an individual has no voluntary control over his or her actions. Each leads to a different outcome if established. In particular, an established claim of non-mental disorder automatism will entitle the accused person to an acquittal. On the other hand, an established claim of mental disorder automatism will not result in an acquittal, but rather a determination that the accused person is not criminally responsible by reason of a mental disorder.

[34] Mr. Fracassi’s position, as argued by his counsel, is that he experienced an episode of non-mental disorder automatism.

ISSUES FOR DETERMINATION

[35] The essential elements of the charged offences, the automatism defence and the positions taken by the parties raise the following issues for determination by the court:

(i) Was Mr. Fracassi’s ability to operate a motor vehicle impaired at the time he took care and control of his truck?

(ii) Was Mr. Fracassi’s operation of the truck voluntary?

(iii) If the answer to question (ii) is no, was the involuntariness the result of mental disorder automatism, or non-mental disorder automatism?

(iv) On the other hand, if the answers to questions (i) and (ii) are yes, did the impaired driving cause the death of Mr. Gaston and the injuries suffered by Ms. Fuller?

(v) Did Mr. Fracassi operate the truck in a dangerous manner?

(vi) If the answer to question (v) is yes, did the dangerous driving cause the death of Mr. Gaston and the injuries to Ms. Fuller?

(vii) Was Mr. Fracassi aware, at the time of the collision, that he had been involved in a collision and that someone was injured?

(viii) Did Mr. Fracassi flee the scene of the collision in an attempt to evade criminal or civil liability?

[36] I intend to review these issues in turn and I will relate them to the essential elements of the charged offences as I proceed.

DISCUSSION

Issue 1: Was Mr. Fracassi impaired at the time he took care and control of his F150?

[37] It is notable that the law does not require a significant threshold of impairment to be met. The Crown need not prove that the alleged impairment involved a “marked departure from the norm”. As Justice Labrosse of the Court of Appeal for Ontario held in R. v. Stellato, 1993 ONCA 3375, [1993] O.J. No. 18 at para. 14:

In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree impairment ranging from slight to great, the offence has been made out.

[38] It is also the case that alcohol need not be the only cause of impairment. As Durno J. of this court held in R. v. Cosentino, [2008] O.J. No. 5263, at para. 68:

An individual can be convicted of “impaired operation” where the evidence established that the impairment was caused by the voluntary consumption of alcohol in combination with another cause or causes. There is no law that required the Crown to establish that a driver’s ability to operate a motor vehicle was impaired by alcohol alone.

[39] The Crown’s position is that Mr. Fracassi’s ability to operate his F150 was, at 2:50 a.m. on June 20, 2014, impaired by alcohol alone, or by a combination of alcohol and fatigue. They offer the following types of evidence to support their position:

(a) Evidence of a toxicologist regarding the levels at which alcohol impairs important driving-related functions;

(b) Evidence of Mr. Fracassi’s breath test results;

(c) Toxicological evidence regarding Mr. Fracassi’s blood-alcohol content at the time of the collision;

(d) Evidence of Mr. Fracassi’s fatigue; and,

(e) Evidence of Mr. Fracassi’s driving.

[40] Laura Gorczynski testified as part of the Crown’s case. She is a forensic toxicologist, employed by the Centre of Forensic Sciences. I qualified her as an expert in her field. She testified about the intoxicating effect of alcohol and its general impairment of functions involved in the operation of a motor vehicle. I accept her evidence that a number of important abilities required to operate a motor vehicle are impaired in a significant way when a driver’s blood-alcohol content reaches 50 mg of alcohol in 100 mL of blood. Those abilities include simple reaction time, choice reaction time, and divided attention. She testified, and I accept, that scientific research literature supports a conclusion that impairment increases as the concentration of alcohol in a driver’s blood increases beyond .05.

[41] Having said that, it is well known that tolerance varies from person to person. A modest amount of alcohol might be quite impairing to a naïve drinker and have little apparent impact on a more regular imbiber. I could not say that Mr. Fracassi’s ability to operate a motor vehicle would necessarily be impaired with a blood-alcohol content of .05. It might be. It might not.

[42] I noted earlier that following his arrest at about 5 a.m. on June 20, 2014, Mr. Fracassi provided two samples of his breath. There is no dispute about the validity of the breath test results. At 5:48 a.m., Mr. Fracassi blew .176. At 6:11 a.m. he blew .175. In other words, his blood-alcohol content about 3 hours post-collision was in excess of 170 mg of alcohol in 100 ml of blood, or more than double the legal limit. I have no difficulty concluding that a blood-alcohol content at that level would significantly impair anyone’s ability to operate a motor vehicle. Indeed, there is no serious dispute about that finding in this case.

[43] What is disputed is when it was that Mr. Fracassi consumed alcohol in sufficient quantity to produce blood-alcohol readings at those levels at 6 a.m.

[44] PC Michael Walton is an OPP officer with the Nottawasaga detachment. He testified that he and Sergeant Thomas Shantz knocked on the Fracassi’s front door at approximately 4:48 a.m. on June 20, 2014. Mrs. Fracassi answered and, acting on a request made by the police, she went and woke her husband. PC Walton said he spoke briefly with Mr. Fracassi. One question he said he posed was whether Mr. Fracassi had consumed any alcohol since he got home. He testified that Mr. Fracassi’s answer was “no”.

[45] The answer given at the door was repeated more than once after Mr. Fracassi was conveyed to the police station. He told both PC Walton and Sgt. Shantz repeatedly that he had nothing to drink after he got home. He said his last drink was at 12 a.m. I counted seven locations in the transcript of his interactions with PC Walton and Sgt. Shantz where he said he had not consumed alcohol at home and instead had gone straight to bed. He got quite emphatic at one point. PC Walton asked, “You didn’t have another nightcap or anything?” He responded, “no, no, no, no, no, no. I was supposed to be up in three hours.”

[46] Ms. Gorczynski opined that, assuming Mr. Fracassi had not consumed more alcohol following the collision, his blood-alcohol content at 2:50 a.m. would have been 180 to 230 mg in 100 ml of blood, based on two further assumptions: (1) a two hour plateau; and (2) elimination rates between 10 and 20 mg per hour. Assuming an elimination rate of 15% per hour, she opined that his blood-alcohol content would be 205 mg of alcohol in 100 mL of blood. Again, I have no difficulty concluding that a blood-alcohol content of .180 or greater would correlate with significant impairment in the ability to operate a motor vehicle.

[47] A perplexing feature of Mr. Fracassi’s statements to the police is that he also indicated, repeatedly, that he had only consumed two beers during the evening prior to the collision. He said so no less than eleven times to officers Walton and Shantz. It is not scientifically possible for Mr. Fracassi to have consumed only two beers and yet have a blood-alcohol content of .170 or higher. He obviously consumed substantially more alcohol at some point prior to the breathalyzer tests.

[48] Mr. Fracassi testified that he really has no memory of what happened after he left the concert. His position at trial is that there are strong indicia present that point to the conclusion that he consumed a substantial amount of alcohol after getting home, even though he cannot recall doing so.

[49] Mr. Fracassi gave evidence that when he was released on bail several days after his arrest, he was bound by a condition that he not have alcohol in his house. When he arrived home, he checked to ensure that there was no alcohol present. One of the places he checked was a spot near his desk in the basement where he habitually hid a 26 oz. bottle of gin. He found that the bottle was empty and concluded that he must have consumed the contents of the bottle – whatever they may have been – while in a somnambulistic state when he got home from the concert.

[50] This factual scenario requires some explaining on my part.

[51] Mr. Fracassi testified that he and his wife had different views about the consumption of alcohol. She was against it. He was not. They reached a détente whereby he could consume a beer or glass of wine with dinner without upsetting her. What she did not know, according to him, is that he was drinking much more than that.

[52] Mr. and Mrs. Fracassi lived at 79 Nelson Street in Alliston. They had a finished basement. Mr. Fracassi had an office in the basement. He testified that he kept alcohol in his desk, or underneath a cardboard box by his desk. About a year prior to June 2014 he started drinking secretly in his basement. He said his drinking progressed throughout 2014. He was buying gin and sneaking it into the house. Throughout 2014 he was buying two 26 oz bottles of gin per week. He would wait until his wife was asleep, or putting the kids to bed, and he would run downstairs and guzzle gin. He said he would drink a third to a half of a bottle at a time. He’d gulp mouthfuls so he’d be done drinking in about a minute.

[53] According to Mr. Fracassi’s testimony, he got to the point where he did not know how he would go without it most days, so he would ensure that he would have at least one bottle in the basement.

[54] When Mr. Fracassi got home and found an empty gin bottle in his basement, he followed a process of inductive reasoning to conclude that he must have consumed gin in his basement when he got home from the concert. He attributes his lack of recollection about it to an ongoing parasomnia.

[55] His reasoning process relied on the following facts to support the inference that he must have consumed alcohol when he got home, even though he could not recall doing so:

(a) He was regularly drinking enough that he ensured that he had a bottle of gin available to him in his basement at all times;

(b) If he had emptied the bottle before the night he was arrested, he would have purchased a replacement, such was his dependency. He said that if he knew he was out of gin, he would have bought more when he went to the LCBO in the hours before the concert; and,

(c) He knew that prior to the collision he had only consumed 2 tall boy cans of beer, a double gin and tonic, two to three ounces of Jagermeister and a regular beer, yet at 6:00 a.m., some six hours after the concert ended, his blood-alcohol content was in excess of 170 mg.

[56] Mr. Fracassi’s counsel argued that if he did not consume sufficient alcohol before the collision, by simple process of elimination, he must have consumed alcohol after the collision.

[57] Counsel asked the toxicologist to prepare calculations indicting how much gin Mr. Fracassi would have to have consumed after arriving home from the concert to reach a blood-alcohol content of .170 at 6:00 a.m. If he accurately reported his alcohol consumption before arriving home, he would have to have consumed some 15 ¼ fluid ounces of gin after arriving home. This is about 60% of a 26 ounce bottle – a figure arguably consistent with Mr. Fracassi’s frequent evening consumption.

[58] Mr. Fracassi’s inference drawing is heavily dependent on the evidence of how much he drank before the collision. All four concertgoers testified at trial about the amount of drinking that took place during the evening. I will review their evidence in turn.

[59] Mr. Fracassi testified, and I find, that he and three friends travelled to Toronto on the evening of June 19, 2014 to attend a Mushoogah concert. The friends, as I mentioned, were Brian Lafazanos, Josh Hutchinson and Kyle Conway. Mr. Fracassi drove to the concert venue. He testified that he had nothing to drink until they got to Toronto at about 9:00 p.m. He also said that before picking up his friends, he stopped by the LCBO and purchased a 210 ml bottle of Jagermeister and a six pack of tall cans of beer.

[60] All four of the concertgoers described a brief tailgate party when they arrived in Toronto. Mr. Fracassi testified that he had a “tall boy” beer at the back of his truck and about a third of the bottle of Jagermeister. A tall boy is typically 473 ml of beer.

[61] Mr. Fracassi said that the tailgate drinks ended after about fifteen minutes, after which they headed into the venue. Once inside, Mr. Lafazanos bought him a double gin and tonic. He said he also bought and consumed another tall boy Budweiser at some point during the show.

[62] The concert wrapped up around midnight. The four friends then proceeded to a strip bar known as Whiskey A Go-Go in Vaughan. Mr. Fracassi testified that he has no recollection of being at Whiskey A Go-Go, but accepts that he drank a beer while he was there. He testified that he consumed no alcohol between the time he left Whiskey A Go-Go and the time of the collision at about 2:50 a.m.

[63] In summary, Mr. Fracassi’s testimony is that between 9 p.m. and 2:50 p.m., he consumed 2 tall boy cans of beer, one regular-sized beer, one double gin and tonic and two shots of Jagermeister.

[64] Mr. Conway testified that he arrived at Brian Lafazanos’ home in Alliston at about 3:30 or 4:00 p.m. on June 19, 2014. He brought two or three regular-sized cans of beer with him. Shortly after he arrived, however, he and Mr. Lafazanos went to the local beer store together to re-supply. He said he bought another 4 tall boy beers, while Mr. Lafazanos bought 12 tall boys of Moosehead. They proceeded back to Mr. Lafazanos’ home. They sat in a river behind his back yard for some time drinking beer.

[65] Mr. Conway testified that he had about three or four tall boys in the river between 4:30 and 7:15 p.m. He brought the rest of his beer in a cooler bag in the truck. He said Mr. Fracassi picked him and Mr. Lafazanos up at about 7:15 p.m. He had an open beer which he finished in the truck.

[66] According to Mr. Conway’s testimony, when they arrived in Toronto they parked in a No Frills parking lot near the concert venue. He said that everyone but Josh Hutchinson had a beer in the No Frills lot. He and Mr. Fracassi had a couple sips each out of a bottle of Jagermeister. In addition, he and Mr. Lafazanos smoked a joint of marijuana.

[67] Inside the concert venue, he bought himself a beer. He said that Mr. Lafazanos purchased a double gin and tonic for Mr. Fracassi. Later, he saw Mr. Fracassi with a beer as well. He himself drank three or four beers throughout the concert and described himself as quite intoxicated by the time it was over. He testified that he has limited recollection of what happened after they left the concert.

[68] Brian Lafazanos testified that Mr. Conway arrived at his house at about 5:00 p.m., though he conceded under cross-examination that it could have been as early as 4:00 p.m. He did not recall the trip to the Beer Store.

[69] He said that he and Mr. Conway went down to the river to drink some beers. In direct examination he said they drank for 30-60 minutes, though he said in cross-examination that it could have been as long as 2 ½ hours.

[70] He confirmed that Mr. Fracassi picked him and Mr. Conway up and drove to Toronto. He denied that anyone had any open alcohol in the truck on the journey. When they arrived at No Frills they drank some beers at the back of the truck and he also drank some Jagermeister, which he said he, Mr. Conway and Mr. Fracassi were passing around. He added that he and Mr. Conway smoked a joint.

[71] Inside the venue he went and purchased two double gin and tonics – one for him and one for Mr. Fracassi. He testified that he did not buy any more drinks throughout the night, though Mr. Fracassi testified that he purchased Mr. Lafazanos a beer later in the evening. He did not recall seeing any further drinks in Mr. Fracassi’s hand.

[72] Mr. Lafazanos further testified that he had a beer in a brown bottle at Whiskey A-Go-Go but he did not remember who bought it.

[73] Josh Hutchinson was the designated driver on June 19, 2014. He was not much of a drinker generally. He testified that he had nothing to drink that day or night.

[74] Mr. Hutchinson testified that he worked for Mr. Fracassi and that they had worked together in Collinwood during the day on June 19. He said Mr. Fracassi had nothing to drink throughout the day. He said that both Mr. Conway and Mr. Lafazanos drank beer on the drive to Toronto, but that Mr. Fracassi did not. The first time he saw Mr. Fracassi with a beer was behind the truck in the parking lot of No Frills. He also saw a bottle of Jagermeister being passed around.

[75] Mr. Hutchison went on to testify that he saw Mr. Fracassi with a beer in his hand during the concert. He did not see anyone drinking at Whiskey A Go-Go. It was his birthday and he said Mr. Fracassi bought him a private dance with one of the exotic dancers. He was off in a more intimate location for much of the time at Whiskey A Go-Go.

[76] Suffice it to say that the evidence of Messrs. Conway, Lafazanos and Hutchinson is largely consistent, each with the others, and also with the evidence of Mr. Fracassi in terms of how much Mr. Fracassi drank on the night in issue.

[77] The toxicologist was provided with a number of scenarios involving a variety of combinations of drinks and elimination rates and asked to assess what Mr. Fracassi’s blood-alcohol content was likely to have been at 2:50 a.m. depending on the different variables.

[78] She testified that average elimination rates – the rate at which the liver metabolizes alcohol – ranges between 10 and 20 mg per 100 ml of blood per hour. She offered that more recent scientific literature actually supports a high average rate of elimination in the range of 15 to 25 mg per hour, with a numerical average of about 18-19 mg. She said forensic toxicologists continue to use the 10-20 mg range because they are typically backtracking to determine historical blood-alcohol contents and the 10-20 mg rate is the more conservative rate.

[79] In any event, Ms. Gorczynski opined that had Mr. Fracassi consumed 2 tall boys of beer, one regular beer, a double gin and tonic and 3 fluid oz. of Jagermeister between 9:00 p.m. and 2:50 a.m., his blood-alcohol content at 2:50 a.m. would be:

(a) 5 to 60 mg in 100 mL of blood assuming an elimination range of 10-20 mg per hour;

(b) 35 mg assuming an elimination rate of 15 mg per hour; and

(c) 15 mg. assuming an elimination rate of 18 mg per hour.

[80] Obviously the level of pre-collision alcohol consumption described by the four concertgoers does not support the 6 a.m. breathalyzer results.

[81] Mr. Fracassi essentially testified that his ability to operate a motor vehicle was not impaired at the time he got behind the wheel of his truck, though he was unable to specifically remember that moment. He supported his assertion with evidence of the alcohol consumed before, and inferentially after, the collision.

[82] The evidence of drinking – direct from the concertgoers and circumstantial from the empty gin bottle – has a tendency to exculpate Mr. Fracassi in terms of counts 1, 2 and 3.

[83] Given the exculpatory nature of the evidence of Mr. Fracassi and the other concertgoers, at least as to alcohol consumption, I must be mindful of the principles discussed by the Supreme Court in R. v. W.(D.) (1991), 1991 SCC 93, 63 C.C.C. (3d) 397 (“W.D.”). My assessment of the four concertgoers’ evidence involves a consideration of its credibility and reliability. It is important to recognize that there is more to the assessment than simply deciding whether to accept or reject their evidence. The reasonable doubt standard must be applied. Ultimately the question is whether, considering the evidence on the whole, I have a reasonable doubt about the guilt of Mr. Fracassi on one or more counts.

[84] The application of the reasonable doubt standard to issues of credibility and reliability is often expressed in language similar to that used in W.D. In particular, if, after considering the evidence of consumption in the context of all of the evidence adduced at trial, I believe that Mr. Fracassi was not impaired when he assumed care and control of his truck, then I must acquit Mr. Fracassi of the drinking and driving offences (counts 1-3). But even if I am not prepared to believe and rely on the concertgoers’ evidence of consumption, I must still acquit Mr. Fracassi of counts 1 to 3 if the evidence of consumption, when considered in the context of all the evidence, leaves me in a state of reasonable doubt about whether Mr. Fracassi was impaired at the relevant times. Finally, even if the concertgoers’ evidence does not leave me in a state of reasonable doubt, I may only convict Mr. Fracassi of any offence if I am satisfied beyond a reasonable doubt by evidence that I do chose to believe and rely upon that he is guilty of that offence.

[85] With these general comments in mind, I will turn to my assessment of the evidence of Mr. Fracassi and his companions as to his alcohol consumption prior to the collision.

[86] Mr. Fracassi testified here, as I mentioned, that he consumed two tall boys, two sips of Jagermeister, a double gin and tonic and a regular beer between 9:00 p.m. on June 19 and 2:50 a.m. on June 20, 2014.

[87] Mr. Fracassi has a very evident credibility problem; one which his experienced counsel recognized and worked diligently to attempt to rehabilitate. In particular, Mr. Fracassi lied repeatedly to the police in the hours after his arrest about his alcohol consumption and other matters.

[88] When Mr. Fracassi was first confronted by Nottawasaga O.P.P. officers at his front door at about 5:00 a.m. on June 20, he was asked if he had been driving his truck the previous night. . Officer Walton testified that Mr. Fracassi answered, “yes I drove my truck home.” Officer Walton testified that he then advised Mr. Fracassi that he could be arrested if he was driving the vehicle. Mr. Fracassi then said he wasn’t driving and had actually been driven home by his friend Brian.

[89] Mr. Fracassi testified that he has no recollection of being asked by the police if he drove home or of telling them that Brian drove him home. He accepts the testimony of Officers Walton and Shantz that he did say as much, but he does not remember it. He said in cross-examination that he was not purposefully lying if he mentioned Brian driving. He was only remembering and relating snippets of the night. He denied that he was attempting to distance himself from driving the truck.

[90] Perhaps more compelling is the content of Mr. Fracassi’s statement given to Officer Walton a short time later at the O.P.P. detachment in Alliston. Mr. Fracassi was conveyed to the detachment immediately upon his arrest. He was read his right to counsel and cautioned. He indicated that he wished to speak to duty counsel and a call was arranged. He made statements both before and after the call with duty counsel occurred. Voluntariness of his statements was admitted and no issue raised with respect to Charter compliance.

[91] Mr. Fracassi made statements to Officers Walton, Shantz and Fischer-Jenssen which were video-recorded and entered as part of the Crown’s case in chief. Over the course of those statements he repeated over and over that he had consumed only two beers the previous night. He expressed surprise and dismay that he was unable to remember the events leading up to, during and following the collision.

[92] Mr. Fracassi was quite adamant that he had consumed only two beers. He said so no less than 12 times between 5:02 a.m. and 6:17 a.m. At one point, in an admitted effort to persuade the police, he went so far as to say,

I’m telling you the God’s honest truth and I’m a God believing man. I did not have more than two beers tonight.

[93] At trial he admitted that he lied to the police repeatedly. He had more than two beers. When cross-examined by the Crown about why he lied he said he was scared and confused. Giving a safe answer was better for him. He decided that his own self-interest was more important than the truth.

[94] In addition to the obvious lies about alcohol consumption, there are a number of inconsistencies between Mr. Fracassi’s trial testimony and his statement to the police. They include:

(a) Mr. Fracassi admits that after he left Mr. Lafazanos’ home, he drove along Victoria Street and struck the Township workers. He told the police however, that he drove from Mr. Lafazanos’ house on Boyne, down Lorne, across Albert and up Paris Street to his house on Nelson. The route described would have avoided the area of the collision altogether. He testified here that when talking to the police he did not actually remember the route he drove but was trying to fill in the blanks, so he described the route he would normally take;

(b) He told the police that he remembered “being like, no I’m cool to drive home; I felt totally fine”. In his trial testimony, he said he had no memory of going to Brian’s house, but just knows the transaction happened. He can remember the quick transaction of being asked, “are you ok to drive?” and answering yes, but he only remembers, in his words, “blackness surrounded by the words, ‘are you ok to drive?’”;

(c) He told the police he remembered coming into his kitchen, getting into his bathroom and going pee, not brushing his teeth before going to bed. At trial he said he had no recollection of any of this.

[95] Dr. Shapiro testified that it is common for those who experience a parasomnia to remember only parts of what happened. They often attempt to fill in the blanks of their narrative with things they think must have happened in order to provide a coherent account – they confabulate.

[96] Mr. Fracassi testified that he was doing just that. Trying to fill in blanks in his memory when he spoke to the police. He actually has no recollection of driving home, of entering his house, of drinking or not drinking when he got home, or of anything else he did or did not do when he got home.

[97] I do not believe that Mr. Fracassi consumed 15 or more ounces of gin before going to bed on the night in issue. I think it far more likely, and in fact find, that he was being truthful when he told the police he had not consumed any alcohol after getting home. I find that he drank far more than he says he did prior to the collision.

[98] I must address, of course, the evidence of his three friends. Defence counsel submitted to me that in order to conclude that Mr. Fracassi drank more than he testified to, I would have to conclude that his three friends perjured themselves. I disagree. Disbelieving a witness’s testimony is not the same as concluding that he or she fabricated it.

[99] I do not accept the testimony of the three friends for a number of reasons:

(a) First, they are all friends of Mr. Fracassi’s and though I would not go so far as to say their relationships are a sufficient motivation to lie under oath, I would say that they are a motivation to try to help Mr. Fracassi as much as possible;

(b) None of the three spoke to the police initially. Indeed it was many months before they would speak to the police. In the meantime, of course, they spoke with one another about what happened that night. I am not satisfied, in the circumstances, that their evidence is free from the taint of collusion;

(c) Josh Hutchinson became separated from the group at the concert and then again at Whiskey A Go-Go’s. He is not in a position to say with any confidence how much alcohol Mr. Fracassi consumed;

(d) Kyle Conway was admittedly quite intoxicated by the end of the night and has little recollection of what happened after they left the concert venue. His evidence about alcohol consumption is not, in the circumstances, reliable;

(e) Brian Lafazanos handed the keys to Mr. Fracassi moments before the collision that killed Mr. Gaston. Self-preservation has been a motivating factor for him to downplay alcohol consumption that night. He has demonstrated a clear tendency to understate alcohol consumption on the night in issue. In particular, he forgot that he and Mr. Conway went to the beer store to acquire more alcohol. He initially estimated that he and Mr. Conway spent 30-60 minutes drinking beer in the river behind his house. Under cross-examinatinon, he agreed it could have been as long as 2 ½ hours. He agreed he was likely trying to minimize the amount of alcohol he had consumed that day. He testified in that no one had open alcohol in the truck on the drive to Toronto, though Mr. Conway admitted that he had a beer on the way. When he gave a statement to the police in March 2015, he knew the police were interested to know how much each of them had to drink on the night in issue, yet he omitted to tell them about the tailgate drinking and the consumption of Jagermeister. And he said nothing about smoking a joint of marijuana. He explained that he was still concerned about his own jeopardy. He agreed with the Crown’s suggestion that he wanted to minimize his and Mr. Fracassi’s alcohol and drug consumption. Ultimately, he stated that he did not keep track of and could not remember what Mr. Fracassi had to drink that night.

[100] In short, I find that none of the three friends was a reliable historian in terms of Mr. Fracassi’s drinking on the evening of June 19, 2014. To be fair to them, none of them was aware of Mr. Fracassi’s well-developed drinking problem at the time. None of them knew that it was a common practice of his to guzzle a third to a half of a 26 ounce bottle of gin in the evening. It would not be out-of-the-ordinary if Mr. Fracassi had consumed substantial amounts of alcohol without his friends’ awareness.

[101] Mr. Fracassi was, by his own admission, regularly consuming large quantities of alcohol in short periods of time. He testified that he had, by the Spring of 2014, gotten to the point where he did not know how he would get by without alcohol. He regularly snuck down to his basement to secretly guzzle gin. He drank as a maladaptive way to cope with the stress and anxiety in his life. And he testified that the week prior to the collision was the highest stress and anxiety he had ever had. In the all the circumstances, the notion that he chose the boys’ night out – involving a cooler of beer, a tailgate party, a heavy metal concert and a trip to a strip bar – to go easy on the booze is highly improbable. Particularly when there was a designated driver in place.

[102] Returning to the WD framework, I do not accept or rely upon Mr. Fracassi’s, or his friends’, evidence about alcohol consumption before the collision. That evidence does not leave me in a state of reasonable doubt about his impairment, or more particularly, whether he was impaired at the time of the collision.

[103] I am left in the following position. I find that there is no plausible evidence that Mr. Fracassi consumed any alcohol after the collision. I accept his repeated assurances to the police that did not drink when he got home. His inference that he must have sleep guzzled half a bottle of gin or more when he got home is beyond weak in my view and I completely reject it.

[104] If Mr. Fracassi did not consume alcohol after the collision, it follows that he must have consumed it before the collision. He does not dispute that he drank before the collision. The amount of consumption is, however, in issue. I find his evidence and that of his three friends as to his level of consumption neither trustworthy nor reliable.

[105] I am unable to say for certain what his blood-alcohol content was at 2:50 a.m. It was certainly not less than 175 mg in 100 ml of blood. In fact, it was likely in the range of 200 mg based on the evidence of the toxicologist. In any event, it was most certainly over 80 mg and it most certainly was sufficient to render Mr. Fracassi’s ability to operate a motor vehicle significantly impaired.

[106] I will move on to the next issue, which engages Mr. Fracassi’s principal defence.

Issue Two: Was Mr. Fracassi’s operation of his truck voluntary?

[107] I said earlier that the onus remains, at all times, on the Crown to prove Mr. Fracassi’s guilt. That rule never changes. Mr. Fracassi is not required to prove his innocence because he is presumed to be innocent. That is a fundamental principle upon which our criminal law is built. The general rule that Mr. Fracassi has no obligation to prove anything in this case is subject to a qualification. In this instance, that qualification arises in the context of the defence of automatism, which Mr. Fracassi has raised.

[108] The law presumes that people act in a voluntary way. For this reason the onus is on an accused person advancing a defence of automatism to demonstrate, on a balance of probabilities, that he or she was not acting voluntarily at the time that the acts giving rise to criminal charges occurred.

[109] Mr. Fracassi tendered significant evidence in an effort to establish that he was not acting voluntarily when he got behind the wheel of his truck at roughly 2:45 a.m on June 20, 2014, nor when he collided with the Township workers, nor when he continued home, parked his truck and went to bed. That evidence included:

(a) A family history of somnambulism;

(b) His own personal health background and his own experiences with parasomnias;

(c) The circumstances of the evening in question; and

(d) Expert evidence from two psychiatrists: Dr. Shapiro and Dr. Gojer.

[110] It is necessary that I review this evidence in some detail.

Family History

[111] Angela Fracassi-Lescard is Mr. Fracassi’s mother. She was married to Mr. Fracassi’s father, Vince, for some 33 years, until his death 16 years ago. She testified about a number of parasomniac episodes she experienced involving Vince. She said they were building a house at one point in their relationship and it was a high stress time. She described Vince having construction-related discussions in his sleep. On one occasion he got up in the night, climbed onto a coffee table and appeared to be trying to hammer phantom nails into the ceiling with a phantom hammer. She carefully guided him back to bed. She said he also had sleep sex with her on occasion.

[112] Mrs. Fracassi-Lescard also described anecdotes she had heard about other family members walking in their sleep.

Personal History

[113] Marcello Fracassi left home when he was 18. His mom said he had a number of sleepwalking incidents when he was little. Up to about 18 months he was often in a trance-like state according to her evidence. She said there were numerous times between ages 4 and 8 when she would awaken to find him standing at the foot of her bed, just staring blankly. She would guide him back to bed. These incidents stopped after about age 8.

[114] Dr. Shapiro testified that a minimum of about 15% of the general population are affected by parasomnias. One in six kids have a parasomnia. Some research suggests that as many as one in two occasionally experience a parasomnia. By age 14, the rate is down to about 3-4%, which is the same as the adult rate.

[115] Mr. Fracassi has been married to his wife Rachel for 15 years. They have four children. He testified that two of the four sleepwalk.

[116] During his marriage his tendency to sleepwalk has returned. He described experiencing a number of incidents where he and his wife would have conversations that he would not remember the next day. Other times he would sleep eat. Still other times he would get out of bed and urinate in unexpected places.

[117] Rachel Fracassi testified that her earliest memory of her husband’s sleepwalking was early in the marriage. He would sit up in bed and talk. Once he sat up and asked her if she wanted a piece of the Bible to eat. Other times he would just say odd things in the night. Sleep talking was the principal issue initially.

[118] Things progressed to the point where Mr. Fracassi would fall asleep; he would awaken and they would have conversations – often unpleasant – and he would not remember them in the morning. She eventually determined that he was actually not awake during the conversations. If she let him go back to sleep, everything would be okay.

[119] By June 2014, Mr. Fracassi was having a lot of memory problems relating to things that happened in the night. And he was getting out of bed and urinating in different places – on a booster seat; on a dress; on a Play Station.

[120] In May and June 2014, Mrs. Fracassi did not think her husband was doing well at all. He was having incidents in the night because he was exhausted. He was overworking and trying to get the house in order to sell. He was working 18 hours a day. He was getting very little sleep – perhaps three hours a night.

[121] There were times, she said, prior to June 2014, when she questioned whether alcohol had anything to do with what was happening with Mr. Fracassi in the night. She did not know, of course, that he was drinking gin like he was. She said she would have been furious had she known. Nevertheless, she testified that Mr. Fracassi has not consumed any alcohol since he was released on bail, yet his parasomnias have continued.

The Circumstances on June 19-20, 2014

[122] Rachel Fracassi testified that on June 19, 2014 she called Mr. Fracassi on his cell phone as he was heading into the concert. She said she had a very, very bad feeling that day. She asked him not to drink. He said he deflected the question.

[123] Mr. Fracassi obviously did drink, as did his companions, save for Mr. Hutchinson. When they left the concert it was about midnight. Mr. Hutchinson drove. He said that Mr. Fracassi was in the front passenger seat, while their other two companions were in the back. He conveyed them all to the strip club in Vaughan where they all got out and went inside.

[124] Mr. Hutchinson indicated here that Mr. Fracassi was awake for the first ten minutes after they left the concert, but then fell asleep, as did Mr. Conway. In a statement he gave to the police in March 2015, he said everyone was awake during the drive from the concert to Whiskey A Go-Go. At the preliminary hearing, he said Mr. Fracassi was asleep for most of the drive. He explained the discrepancies in his different versions as the result of his memory not being so good.

[125] According to Mr. Hutchinson, when they got inside the strip club, he thinks Mr. Fracassi gave him $20 to pay for a private dance. He was gone from the group for much of the time they were there.

[126] Mr. Lafazanos confirmed in his testimony that it was Mr. Hutchinson who drove to Whiskey A Go-Go. He said Mr. Fracassi was in the front passenger seat and he and Mr. Conway were in the back seat. He said they talked on the 30 minute drive and that, in his recollection, no one slept. They spent about an hour or less at the strip club, then got back into the truck to go home. He recalled having a round of drinks at the club, but not who paid for them.

[127] Mr. Conway has virtually no recollection of events after they left the concert. He could not say who drove to the Whiskey A Go-Go.

[128] Similarly, Mr. Fracassi has little recollection of events after they left the concert. He said he got into the front passenger seat of the truck. Five to ten minutes into the drive he put the hoodie of his sweatshirt up, rested his head against the window and fell asleep. He has no recollection of being at Whiskey A Go-Go.

[129] Following Whiskey A Go-Go, the four friends returned to the truck for the trip home. Mr. Hutchinson was again driving. He said he is pretty sure that Mr. Fracassi was in the back seat. He said they stopped at a McDonald’s not far from the strip club and that everyone ordered food. It was about another forty minutes back to his home in Tottenham.

[130] Mr. Lafazanos also testified that they went to McDonalds, though he placed Mr. Fracassi in the front passenger seat for the ride home after the strip club. He said everyone was awake when they went through McDonalds. Everyone had something to eat.

[131] Neither Mr. Conway nor Mr. Fracassi recalled the visit to McDonalds.

[132] The next stop was Mr. Hutchinson’s home in Tottenham. He testified that there was some talking in the truck for five or ten minutes, then it was all quiet. He thinks Mr. Fracassi was asleep. He pulled into his driveway when he got home. He said Mr. Lafazanos got out of the truck and said good-bye. He thinks Mr. Fracassi gave him a small wave and said, “see you tomorrow.” Mr. Lafazanos drove the truck away.

[133] Mr. Hutchinson testified that there was nothing unusual about Mr. Fracassi during the night.

[134] Mr. Lafazanos testified that he and the others, save for Mr. Hutchinson, slept on the drive to Tottenham. When they arrived, they said good-bye to Mr. Hutchinson. He said Mr. Fracassi got out of the truck and hugged Mr. Hutchinson and wished him a happy birthday. He then got into the back passenger side seat. He seemed normal. Everything he said made sense in the circumstances.

[135] Mr. Fracassi testified that he does recall Mr. Hutchinson getting out of the truck. He described “the concept of the fact of Josh getting out of the vehicle” but does not recall saying good-bye to him. He does not remember getting out of the truck to switch seats.

[136] The next stop was Mr. Lafazanos’ residence on Boyne Crescent in Alliston. Mr. Lafazanos testified that both Mr. Fracassi and Mr. Conway slept on the drive from Tottenham to Alliston. When he arrived at his house, he parked on the street, perpendicular to his driveway, with the nose of the truck pointed west – the direction Mr. Fracassi would have to drive away in.

[137] Mr. Lafazanos said everyone got out of the truck at his house. He initially said he cannot recall if he took the keys out of the ignition, though under cross-examination he indicated that he thinks he did and that he handed them to Mr. Fracassi. He made an offer to Mr. Fracassi to stay at his house for the night, but Mr. Fracassi declined. There was a brief conversation at the end of his driveway. They talked about the night. He believes they made plans to see each other later during the weekend. Mr. Lafazanos said he knew that Mr. Fracassi had just woken up and he wanted to make sure he was okay to drive. He satisfied himself that he was. He said both he and Mr. Conway asked Mr. Fracassi if he was okay to drive and he said he was. He seemed like normal Marcello and appeared fine to drive.

[138] More generally, he testified that Mr. Fracassi did not appear to have any issues going on that night. He appeared normal. Nothing changed about his personality over the course of the night.

[139] Mr. Fracassi said he remembers Mr. Lafazanos asking him if he was okay and responding, “I’m good”. He said he does not remember anything else about the circumstances, just the words, “are you okay?” surrounded by darkness.

[140] Mr. Fracassi drove away from Mr. Lafazanos’ house in a westerly direction. He made his way to Victoria Street. He crossed the intersection at Church Street and continued westbound towards Mill Street and the Township crew.

[141] Yves Tetreault drives truck. At 2:50 a.m. he was driving his tractor eastbound along Victoria Street on his way home from a trip to Windsor. He witnessed the collision between Mr. Fracassi’s truck and the work crew.

[142] The weather was clear and dry. It was a warm evening. He saw the work crew and he saw the white truck coming “pretty fast” as he described it. He said a female employee was hit in the back by the right side rear view mirror. Then the truck struck the male worker and the equipment he was working with. Mr. Tetreault said that he could hear the truck revving on impact. Its rear end lifted a bit and swerved. There were parts flying. One of the truck’s headlights was knocked out. The vehicle didn’t stop. He said he swerved his tractor into the westbound lane to slow or stop the vehicle. But it didn’t slow so he pulled back into the eastbound lane. He said the truck kind of slowed down, but then sped up and went around him.

[143] The OPP investigated the collision scene. Brian McLaughlin is an OPP officer whom I certified as an expert in forensic mechanics and accident reconstruction. He attended the collision scene and made certain observations. One of those observations was that there was no evidence of braking. This observation is consistent with the eyewitness evidence of Mr. Tetreault. There is no indication that the F150 attempted to brake before striking the road crew.

[144] Officer McLaughlin was able to follow a debris trail from the impact sight to the Fracassi residence at 79 Nelson Street.

[145] When PC Walton located the F150, he found it parked in a more or less normal manner, in the driveway, or slightly beside the driveway, and beside Ms. Fracassi’s vehicle. There was, in short, nothing unusual about the way the truck was parked. There was no evidence of any attempt to conceal the damage to the front of the truck, which was considerable.

[146] Mr. Fracassi testified that he has no recollection of the drive from Mr. Lafazanos’ home to his own, nor of what happened when he got home. He said he has no recollection of the collision or of swerving around Mr. Tetreault’s truck.

[147] When he made a statement to the police, Mr. Fracassi indicated that he was not aware that he had struck anyone while driving home. He did say, however, that he remembered dropping of Mr. Lafazanos. He said, “I literally dropped him off and switched seats and came home”. He said he remembered telling Mr. Lafazanos that he was okay, then walking through his front door. He said he thinks he left his keys with his wallet in the kitchen and otherwise went to the bathroom then straight to bed.

Expert Evidence

[148] Mr. Fracassi attributes his lack of recollection of the bulk of the night, post-concert, to a parasomniac event. Three expert witnesses testified about sleep disorders and about whether it is likely that Mr. Fracassi was in the throes of a parasomnia at the time the offences were allegedly committed.

[149] All three, Dr. Shapiro, Dr. Gojer and Dr. Murray, agreed that Mr. Fracassi has a diagnosis of parasomnia. He has had parasomniac incidents in the past. The crucial issue for each of them was whether he was in one of those episodes at the time the offences were allegedly committed.

[150] I accept their common diagnosis as accurate. In my view, some of the incidents attributed to parasomnias in Mr. Fracassi’s recent history are readily explained by his drinking habit. Waking up and saying unpleasant things to his wife; or waking up and urinating in an unusual location are readily explained by the fact that Mr. Fracassi frequently consumed large quantities of hard liquor in very short time spaces. If one guzzled back half a bottle of gin in a minute or so then retired to bed, it would not be the least bit surprising to me if odd behaviours manifested themselves in the night. But there are other experiences described by Rachel and Marcello Fracassi that appear to be explained by parasomnias and which do not appear to be drinking related. Moreover, there is a family history, a personal history, and a number of triggers present that support a diagnosis of parasomnia.

[151] I further agree with the experts that the crucial issue is not whether Mr. Fracassi has experienced parasomnias in the past. He has. The crucial issue is whether, on a balance of probabilities, he was experiencing one on the night in question.

[152] Dr. Shapiro is a world-renowned expert in sleep disorders. His expertise was not questioned at trial. He ultimately opined that Mr. Fracassi was likely in a parasomniac state when he collided with the Township crew, then continued to drive home.

[153] Dr. Shapiro explained that sleep is divided into two types: non-rapid eye movement (NREM) and rapid eye movement (REM). NREM sleep accounts for about 80% of an average person’s sleep. Parasomnias occur primarily, though not exclusively, during NREM sleep.

[154] There are three stages of NREM sleep – light, medium and deep, sometimes referred to as N1, N2 and N3 sleep. Parasomnias are associated most commonly, though not exclusively, with deep sleep. The highest percentage of deep sleep occurs in the first third of the night and, correspondingly, the highest percentage of parasomnias are seen in the first third of the night.

[155] Dr. Shapiro said that parasomnias are associated with a number of different triggers. In general, the more deep sleep a person has, the greater the potential for a parasomnia. For that reason, factors that increase deep sleep are associated triggers for parasomnias. Heavy exercise, extreme fatigue, or chemical agents for instance. There is debate in the research community about whether alcohol is a contributing factor. He falls on the yes side.

[156] There must be a triggering of an arousal from deep sleep. It need only be a brief arousal of one or two seconds, but there must be something. Arousals may be caused by any number of things. For instance: stress, sleep apnea, or withdrawal from alcohol.

[157] According to Dr. Shapiro, a person in a parasomniac episode is not unconscious, but neither are they conscious. They have been aroused from a deep sleep but are not fully awake. They may have some level of awareness. They may perform actions that at times appear quite purposeful, then veer off into things that are disoriented.

[158] Sleepwalking incidents tend to be of short duration. A twenty minute long sleepwalking incident would be unusual in Dr. Shapiro’s opinion. Forty minutes would be even more unusual, though he does know of one patient who experienced a two hour period of sleep driving. Usually sleepwalking “declares itself”. It would be unusual, in Dr. Shapiro’s opinion, for someone to keep it together for a long period of time while in a parasomnia.

[159] The vast majority of people who experience parasomnias will have one episode in a night, though two is not unusual. Three or more incidents in one night would be unusual.

[160] Dr. Shapiro said that he was asked if the collision and subsequent driving home were related to a sleep issue. He concluded that they were. He reached his conclusion by examining a constellation of factors. To him this was not a clear cut case. He agreed that there is a fine distinction between sleep-driving (in a parasomniac state) and sleeping while driving. He said nuance is important.

[161] For Dr. Shapiro, the circumstances that tipped the scales towards the likelihood of a parasomnia were the following:

(a) The family history of sleepwalking. He indicated that there is a very clear genetic component to parasomnias;

(b) Mr. Fracassi’s self-reported positive features of parasomnia, including talking in his sleep, walking in his sleep, eating in his sleep and urinating in random places;

(c) Mr. Fracassi’s extreme fatigue in the period leading up to the collision;

(d) Mr. Fracassi’s consumption of alcohol while in a sleep-deprived state;

(e) Mr. Fracassi’s stress and depression at the time of the incident;

(f) The results of two sleep studies conducted in July 2015. On the whole the studies did not provide strong evidence one way or the other, but Mr. Fracassi did exhibit clear signs of sleep apnea, which is a known arousal trigger, as well as a pattern of arousals;

(g) Mr. Fracassi’s lack of recollection of the drive from Mr. Lafazanos’ home to his own home and his absence of recollection of the collision;

(h) The absence of any attempt to brake prior to the collision and the carrying on regardless of the collision;

(i) The absence of any attempt to hide his truck or conceal the damage done to it; and,

(j) His surprised reaction when seeing the damage done to his truck.

[162] It is the practice of Dr. Shapiro to have his patients complete a questionnaire before he meets with them. Mr. Fracassi completed his questionnaire on July 10, 2015. Dr. Shapiro met with him after that. To some degree, of course, Dr. Shapiro’s views were formed on information provided to him by Mr. Fracassi. Though the questionnaire is available, Dr. Shapiro does not, as a matter of practice, keep notes of his discussions with patients. In the result, it is difficult to assess the accuracy of Mr. Fracassi’s self-reporting, save as it may be manifested in the questionnaire and the written report ultimately generated by Dr. Shapiro.

[163] It is apparent that there were inaccuracies in the answers Mr. Fracassi provided on the questionnaire, particularly in the area of alcohol consumption. One question was whether any friends or family members had ever expressed concerns about his drinking. Mr. Fracassi answered no, when clearly the correct answer was yes. Another was whether he ever thought he was a heavy drinker. Again, he answered no, when the correct answer was yes. He was also asked if there was ever a time when he was drinking 7 or more drinks per day. He said no. But, again, that answer was not correct.

[164] Dr. Shapiro did not know that Mr. Fracassi had been secretly consuming large amounts of gin before going to bed, nor did he appreciate that Mr. Fracassi was using alcohol as a sleep-inducing agent. These are relevant issues in Dr. Shapiro’s opinion, but they were not “game changers” for him.

[165] Dr. Julian Gojer is a forensic psychiatrist. He has been involved in hundreds of criminal cases involving mental disorders and has appeared frequently in criminal courts. He has performed hundreds of court-ordered assessments. Since 2007 he has managed a sleep clinic at Toronto Western Hospital.

[166] Dr. Gojer defined “parasomnia” as a “broad category of abnormal events arising out of sleep”. These may include sleepwalking, sleep talking, sleep sex, or sleep driving. Quoting the DSM-V he noted that approximately 80% of individuals who have a history of sleepwalking have a family history of this disorder. He said, however, that environmental triggers account for most instances of sleepwalking. Sedative use, sleep deprivation, sleep-wake schedule disruptions, sleep apnea, neurological problems, alcohol, fatigue and physical or emotional stress increase the likelihood of parasomniac episodes.

[167] Dr. Gojer agreed with Dr. Shapiro that most parasomnias occur during NREM sleep. Often, rapid arousals during NREM sleep are associated with parasomnias. He agreed that there is a lack of consensus in the research literature and among experts as to the role that alcohol may play in parasomaniac disorders. His view is that there is some correlation. Withdrawal from alcohol may cause arousal during deep sleep, which may contribute to a parasomnia.

[168] Like Dr. Shapiro, Dr. Gojer diagnosed Mr. Fracassi with a parasomnia disorder. His diagnosis was based on his examination of the family history of sleepwalking, Mr. Fracassi’s personal history of sleepwalking, his self-reports and the reports of Rachel Fracassi about his abnormal nighttime behaviour, and his examination of Dr. Shapiro’s sleep study results.

[169] He noted, however, that a diagnosis of parasomnia disorder does not equate to the presence of such a disorder at the time of the incidents giving rise to the criminal charges Mr. Fracassi now faces.

[170] Dr. Gojer said he was skeptical when this case was first presented to him. If Mr. Fracassi was intoxicated at the time of the collision, that intoxication may explain the collision and may explain why he left the scene. An alcoholic blackout may explain his lack of memory, or he may simply be lying about his inability to remember the collision or other events of that night.

[171] Dr. Gojer did a holistic examination of Mr. Fracassi. In the final analysis he diagnosed Mr. Fracassi as having:

(a) an NREM-related parasomnia;

(b) persistent depressive disorder;

(c) chronic anxiety; and

(d) several obsessive-compulsive disorders including obsessional ruminations, hair plucking and picking on his skin and nails.

[172] Considering Mr. Fracassi’s overall health profile and having reviewed the evidence of Mr. Fracassi and his three friends about the amount of alcohol consumed on the night in question, Dr. Gojer concluded that should the consumption evidence be accepted, intoxication and alcohol-related blackout would not explain the behaviour in issue. In his view, assuming that Mr. Fracassi was not intoxicated at the time of the collision, sleep driving appears to be a likely explanation for what happened.

[173] Dr. Gojer’s conclusion was based on a consideration of the following particular factors:

(a) The evidence of the toxicologist that Mr. Fracassi’s blood-alcohol content would have likely been between 0 and 25 mg of alcohol per 100 ml of blood at the time of the collision (should Mr. Fracassi’s consumption evidence be accepted);

(b) Mr. Fracassi’s family history of sleepwalking and his own personal history of such episodes;

(c) Mr. Fracassi’s fatigue, depression and stress at the time;

(d) Mr. Fracassi’s interrupted sleep on the drive home;

(e) Mr. Fracassi’s lack of memory and the surprise he expressed when he saw his vehicle, which he had left in plain view; and,

(f) The sleep study evidence which demonstrated that Mr. Fracassi suffers from sleep apnea as well as a heightened frequency of arousals during sleep.

[174] Dr. Gojer opined that it was more likely than not that Mr. Fracassi, who was essentially sleeping for most of the drive home, got into his truck and fell asleep and went into an altered state of consciousness, understood as a parasomnia. From a clinical point of view, he considered the explanation of an alcohol-related blackout to be a low likelihood, while the explanation of a parasomnia is a high likelihood.

[175] Under cross-examination, Dr. Gojer agreed with a number of suggestions made to him by Crown counsel. These included:

(a) If the court does not accept that Mr. Fracassi drank a significant amount of alcohol when he got home, then the rest of what he says about sleep driving does not make a lot of sense;

(b) A lot hinges on the court’s determination of how much Mr. Fracassi drank. If he drank a lot before going home, alcoholic blackout becomes a more compelling explanation;

(c) It seems unlikely that Mr. Fracassi had one long parasomnia after leaving the club in Toronto. It also seems unlikely that he had a series of small parasomnias throughout the night; and,

(d) The absence of memory stretching over the whole trip home is consistent with alcohol-related blackout and inconsistent with a parasomnia.

[176] Dr. Brian Murray is a neurologist at Sunnybrook Hospital in Toronto. He has a special expertise in neurological aspects of sleep disorders. He is a member of the American Academy of Sleep Medicine. He has been running a sleep clinic at Sunnybrook since 2004. He has treated thousands of patients since that time for sleep disorders. He was, like Drs. Shapiro and Gojer, certified by me as an expert in sleep and sleep disorders.

[177] Dr. Murray never met with Mr. Fracassi and to that extent is at somewhat of a disadvantage to Dr. Shapiro and Dr. Gojer who each had an opportunity to meet with both Mr. and Mrs. Fracassi. He did receive and review the reports of both Dr. Shapiro and Dr. Gojer and he had an opportunity to review Dr. Shapiro’s sleep study results.

[178] Dr. Murray testified that sleep generally follows 90 minute repeating cycles. Sleepers cycle through three levels of NREM sleep (N1, N2 and N3), then one level of REM sleep, every 90 minutes. If aroused, the cycle starts over at N1. Sleep is not, however, distributed evenly through the different levels. Dr. Murray said that a normal person’s sleep is divided up as follows: 50% of the night is N2; 25% is REM sleep; 5% is N1; and 20% is N3.

[179] Most parasomnias occur in N3 sleep. This is deep sleep; sometimes called slow wave sleep. As the night goes on, N3 stage sleep becomes shorter. In the result, most N3 sleep occurs in the first third of the night and that is when most parasomnias occur.

[180] Dr. Murray testified that in his experience, most sleepwalking episodes are about a minute or two in duration. Sometimes they are as long as ten minutes. In rare occasions, they can go on longer, sometimes considerably so.

[181] Dr. Murray further testified that from a neurological perspective, there are electrical and chemical changes in the brain that occur during N3 sleep. Parasomnias are triggered by a sudden arousal. The subject is awakened but not fully. He or she is stuck somewhere between N3 and wakefulness. It takes time for the cerebral cortex to return to normal chemical and electrical functioning.

[182] Dr. Murray’s interpretation of the sleep studies did not vary significantly from the interpretations of Drs. Shapiro and Gojer.

[183] Mr. Fracassi did not demonstrate any parasomnias during the two nights studied. The results of the studies are not conclusive either way. They do demonstrate clear evidence of a sleep apnea disorder. Dr. Murray indicated that they also show that Mr. Fracassi has N3 sleep of about 50% of what one would normally see. Dr. Shapiro also noted reduced N3 sleep in the studies.

[184] Dr. Murray concluded, like Drs. Shapiro and Gojer, that Mr. Fracassi has a history of parasomnias. In terms of the night in question, he said the issue is whether the hypothesis of sleep-driving makes sense or whether there is another plausible explanation.

[185] In this instance, it is difficult, he said, to arrive at a diagnosis of parasomnia given the presence of significant alcohol.

[186] Dr. Murray expressed the opinion that it was only a remote possibility that Mr. Fracassi was in a parasomniac state when he collided with the Township crew on June 20, 2014. He reached his conclusion based on a cluster of factors which included:

(a) The presence of alcohol in possibly significant amounts;

(b) The absence of any clear evidence of a parasomnia disorder in the sleep studies;

(c) The reduced N3 sleep demonstrated in the sleep studies. He said the less N3 sleep there is, the less opportunity there is for a parasomnia to occur;

(d) The fact that Mr. Fracassi slept on the way home from the concert makes it likely that he paid off some of his sleep debt on the way home through N3 sleep during the drive. This fact, if true, would reduce the likelihood of a parasomnia even further; and,

(e) The fact that the collision occurred roughly three minutes after Mr. Fracassi got behind the wheel at Mr. Lafazanos’ house. This would mean that Mr. Fracassi would have to have reached N3 sleep and been suddenly aroused within 3 minutes. He said that he has never seen anyone reach N3 sleep in 3 minutes in the thousands of sleep studies he has done.

[187] Under cross-examination, Dr. Murray agreed that a person who was significantly sleep deprived could fall asleep very quickly, particularly if that fatigue was mixed with alcohol consumption. He also agreed that sleep apnea is sufficient to trigger an arousal.

Conclusion Regarding the Parasomnia Issue

[188] Having carefully considered the evidence tendered on the issue of sleep-driving, I am not satisfied that the defendant has met his onus of establishing that he was acting in an automatistic state at the time the alleged offences were committed.

[189] There are a number of factors that were vitally important to me in reaching my conclusion.

[190] First, Mr. Fracassi has virtually no credibility with me. He lied to the police about his alcohol consumption and stuck to the lie even after the breathalyzer results provided compelling proof that he had not been truthful. He continued to under-report his alcohol consumption to Drs. Shapiro and Gojer when he consulted with them, which undermines the weight to be placed on their opinions.

[191] Second, the comprehensive memory loss described by Mr. Fracassi is simply not consistent with a parasomnia. None of the experts was of the view that Mr. Fracassi experienced a three hour episode of somnambulism. None of them thought it likely that he experienced a series of smaller parasomnias either. None reconciled the extensive memory loss with the conclusion that Mr. Fracassi had been in a parasomniac state at some point before and at the time of the collision.

[192] Dr. Shapiro testified that it sounded like Mr. Fracassi was awake when the four friends went to Whiskey A Go-Go. He said it sounded like Mr. Fracassi was awake when they went to McDonalds and all ordered food. It sounded like Mr. Fracassi woke up in Tottenham and again at Mr. Lafazanos’ house.

[193] Dr. Gojer said it sounds, based on the evidence heard in this case, like Mr. Fracassi was awake at Whiskey A Go-Go and he would expect Mr. Fracassi to remember that. It also sounds like he was awake at McDonald’s and should remember that too. It further sounds like he was awake at both Mr. Hutchinson’s and Mr. Lafazanos’ homes.

[194] Dr. Murray similarly said it sounded as though Mr. Fracassi was awake at these same four points in time. He said that if Mr. Fracassi bought a round of drinks at Whiskey A Go-Go he would have to have been awake. The same would presumably hold true if he bought a lap dance for Mr. Hutchinson. He further indicated that if Mr. Fracassi was discussing weekend plans with Mr. Lafazanos, when back in Alliston, he must have been awake given that forward planning requires a functioning frontal cortex.

[195] I find that Mr. Fracassi may have slept somewhat on the drive to Whiskey A Go-Go, but that he was awake and alert while there. His friends noticed nothing unusual about him or his behaviour and he was able to pay for a lap dance for his friend. I similarly find that Mr. Fracassi was awake when he ordered and ate food from McDonalds a short time after the strip club. I accept that he slept en route to Mr. Hutchinson’s home, but find that he awoke, at least briefly, to say goodnight to Mr. Hutchinson. I further accept that he slept en route to Alliston, but again find that he was awake and conversing normally with Mr. Lafazanos when they arrived. I find that he was awake at the time he got behind the wheel of his truck and pulled away from Mr. Lafazanos’ house.

[196] On the evidentiary record before me, I am left with two possibilities to explain the extensive memory loss. The first is that Mr. Fracassi is lying about it. The second is that he has a genuine memory loss, but that it is due to alcohol-related blackout, similar to his friend Mr. Conway.

[197] I am persuaded that the memory loss is due to alcoholic blackout. I have already concluded that Mr. Fracassi’s blood-alcohol content was higher than .175 at 2:50 a.m. If his extensive memory loss is not explained by any neurological disorder, or by a parasomnia, then I am left to conclude that it is alcohol-related.

[198] When Mr. Fracassi first spoke with the police he said when he was awakened by the police he wanted to die. PC Walton asked, “wanted to die?” He replied:

Because I’m like holy fuck, man, how the fuck did I do that? It’s just like an ongoing thing building up with me blacking out from alcohol for a good two years and now I’m like did I literally black out from two beers this time?

[199] In my view, Mr. Fracassi associated his memory loss with an alcoholic black out. And I believe he was justified in doing so.

[200] Third, while I am satisfied that Mr. Fracassi was asleep at the wheel when he struck the Township workers, I am not satisfied that it was due to a parasomnia. I find that he was awake at Mr. Lafazanos’ home. He had only about three minutes between leaving Mr. Lafazanos’ residence and the collision to fall into a deep sleep. While it is possible that a parasomnia could happen in sleep states other than N3, it is uncommon according to all the experts. There is no compelling evidence that that is what happened here. I find that there simply was not sufficient time for a parasomnia to manifest itself, though there was sufficient time for an intoxicated and sleep-deprived driver to fall asleep. Dr. Shapiro conceded that it is pretty difficult to tell the difference between sleep-driving and driving while sleeping. This case, in my view, is a case of driving while sleeping.

[201] I am supported in the view that Mr. Fracassi was asleep when the collision occurred by the complete absence of evidence that he even attempted to brake. I accept the defence position that the work area was not as safe as it could or should have been. But the workers would have been visible at some point, even if it was too late to avoid a collision. Still, there would, one would expect, be some attempt at avoidance or braking. There is no such evidence in this case, leading me to conclude that Mr. Fracassi was asleep at the wheel.

[202] I am further of the view that Mr. Fracassi was startled awake by the collision. He was able to swerve to avoid Mr. Tetreault’s oncoming truck mere seconds after the collision. Dr. Murray expressed the opinion that, while some level of awareness is entirely possible during an episode of somnambulism, the subject would either have that awareness or not. In other words, it is unlikely that Mr. Fracassi would be unaware of the workers, but aware of the truck.

[203] Dr. Shapiro testified that he was unable to integrate the swerving around the truck. He was unable to say whether there was some awareness during a parasomnia or whether the collision jolted Mr. Fracassi awake. I find that it was the latter.

[204] The parking of the truck in relatively plain view in Mr. Fracassi’s driveway and what appears to have been an expression of genuine surprise when shown the truck by the police are perplexing facts. That said, I have concluded that Mr. Fracassi was asleep when he struck the Township workers. I have found that he was jolted awake. He immediately had to contend with avoiding Mr. Tetreault’s oncoming truck and that’s where his attention would have been. In other words, his focus would have necessarily been on what was in front of him and not what was behind him. He carried on home from there – a distance of just about 900 metres. He pulled into his driveway, in an intoxicated condition and went inside and fell asleep. I am of the view that he was genuinely unaware of the circumstances of the collision due to the way the collision played out, combined with his intoxicated and sleepy state. His lack of awareness tends to explain the way in which he parked his truck. I agree with defence counsel’s suggestion that it would have been monstrous of Mr. Fracassi, after striking two people with his truck, to have been able to simply drive off and go home to bed. I do not see Mr. Fracassi as that type of person.

[205] I want to return now to the essential elements of Counts 1, 2 and 3 because I have made sufficient factual determinations to deal with those counts.

[206] Count 3 is relatively easy. Mr. Fracassi concedes that he had care and control of his vehicle after about 2:50 a.m. on June 20, 2014. I have found that his blood-alcohol content at the time was in excess of 175 mg of alcohol in 100 ml of blood. A finding of guilt on Count 3 necessarily follows.

[207] With respect to Counts 1 and 2, I have found that at the time Mr. Fracassi operated his truck during the early morning hours of June 20, 2014, his ability to do so was impaired by alcohol. Alcohol consumption was, on its own, sufficient to create an impairment. But in Mr. Fracassi’s case, the impairment was intensified by the combination of alcohol and extreme fatigue.

[208] The law presumes that Mr. Fracassi’s actions were voluntary when he drove his truck. I am not satisfied, on a balance of probabilities, that he has established an automatism at the relevant times. I am satisfied, over and above the presumption, that both his impairment by alcohol and his operation of his truck were voluntary. As a result of this finding, I need not deal with what I identified as the third issue – determining if this was a case of non-mental disorder automatism or mental disorder automatism. I will proceed, in the circumstances, to the fourth issue.

Issue Four: Did the impaired driving cause the death of Mr. Gaston and the injuries to Ms. Fuller?

[209] Legal causation requires that the court be satisfied beyond a reasonable doubt that the impaired driving was a significant cause of the death of Mr. Gaston and the injuries suffered by Ms. Fuller. “Significant” means a contribution beyond the de minimus range: R. v. Nette, 2001 SCC 78; 158 C.C.C. (3d) 486. The criminal law does not concern itself with contributory negligence or the apportionment of blame. It is immaterial that there may be other contributing factors. Indeed those other factors may well be more significant than the contribution of the impairment: R. v. K.L., 2009 ONCA 141. So long as the impaired driving is a significant contributing cause – one beyond the de minimus range – then legal causation is made out.

[210] Defence counsel’s position was that even if the defendant’s driving was voluntary at the outset, it was no longer voluntary at the time of the collision because he was asleep. I have found that he was indeed asleep behind the wheel at the time of the collision. But in my view that is not a dispositive factor. The harm done by the impaired driving – bodily harm and death – are aggravating factors to the offence of impaired driving. They do not, in my view, require proof of a further actus reus beyond that associated with the impaired driving. When Mr. Fracassi pulled away from Mr. Lafazanos’ driveway, the offence of impaired operation of a motor vehicle was complete. The element of causation addresses only the relationship between the impaired driving and the harm done. In this sense, it is irrelevant whether Mr. Fracassi experienced a parasomnia after he voluntarily assumed control of his truck while impaired.

[211] I have found that Mr. Fracassi’s ability to operate a motor vehicle was impaired by a combination of alcohol and extreme fatigue. Those factors, combined, caused him to fall asleep behind the wheel within minutes of leaving Mr. Lafazanos’ home. There is a direct causal chain between the impairment and the collision. There is no doubt in my mind that the impairment was a contributing cause, well beyond the de minimus range, of the injuries sustained by Ms. Fuller and Mr. Gaston.

[212] There will be, in the result, a finding of guilt on Counts 1 and 2. Given the convictions on Counts 1 and 2, the conviction on Count 3 will be conditionally stayed, in accordance with the principles set out in R. v. Kienapple, 1974 SCC 14, [1975] 1 S.C.R. 729. Those principles preclude multiple convictions arising from the same delict.

[213] In light of the factual findings I have made thus far, I am also in a position to deal with Counts 6 and 7. Obviously Mr. Fracassi failed to stop at the scene of the collision. But the charged offences require that the Crown establish, to the reasonable doubt standard, that he both knew he was involved in an accident and that he intended to escape civil or criminal liability by fleeing.

[214] I have concluded that Mr. Fracassi did not know he had been involved in an accident. Even without that positive conclusion, at its highest and best the evidence of Mr. Fracassi’s knowledge and intent was equivocal. The only direct evidence of his intent came from Mr. Fracassi himself. He denied knowing that he had been involved in a collision. If that evidence is rejected, as it would have to be to convict him on Counts 6 and 7, Mr. Fracassi’s knowledge and intent would have to be inferred from the circumstantial evidence presented in the case.

[215] On the one hand, there is evidence of the force of the impact and the damage done to Mr. Fracassi’s truck – including the smashed passenger window that sprayed glass inside the cabin. There is also evidence of the intentional swerve around Mr. Tetreault’s truck. These factors support an inference that Mr. Fracassi knew he had been involved in an accident.

[216] On the other hand, there is the evidence that Mr. Fracassi was asleep at the time of the collision, that he was significantly intoxicated and that he parked his truck in a normal fashion. As defence counsel put it, “A person who could drive and hit and kill a man, then go home and go to sleep would be evil and a coward, and incredibly stupid to leave a debris trail and park out in the open.” I agree.

[217] In my view, it is impossible to say, having considered the circumstantial evidence in the context of all of the evidence in the case, that the only rational inference is that Mr. Fracassi knew he had been involved in an accident: see R. v. Griffin, 2009 SCC 28. In the result, an acquittal will be registered on Counts 6 and 7. This finding obviates the need to address those questions I identified as Issues 7 and 8.

[218] I come now to the dangerous driving offences: Counts 4 and 5.

Issue Five: Did Mr. Fracassi operate the F150 in a manner dangerous to the public?

[219] There is a distinction recognized in law between impaired driving offences and dangerous driving offences. As Doherty J.A. described in R. v. Ramage, 2010 ONCA 488,

An impaired driving charge focuses on an accused’s ability to operate a motor vehicle or, more specifically, on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove and, in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code. The driver’s impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focussing on different dangers posed to road safety. Impaired driving looks to the driver’s ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle.

[220] The requisite actus reus and mens rea for dangerous driving offences was described by Justice Charron in R. v. Beatty, 2008 SCC 5 at para. 43 as follows:

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[221] In this instance, the manner of driving has been well-documented. Mr. Fracassi was travelling at roughly 76 km/hr in a 50 km/hr zone. He was driving across a main downtown thoroughfare, but it was close to 3:00 a.m. He was impaired. He was asleep. He came upon a works crew operating equipment that exposed them to live traffic lanes. He made no attempt to brake or to avoid the crew because of course he did not see them in view of his state of sleep.

[222] I will address the actus reus first. Here, the issue is whether I am satisfied beyond a reasonable doubt that the manner of driving by Mr. Fracassi was objectively dangerous to the public.

[223] I must consider the speed factor. Mr. Fracassi was doing about 25 km/hr above the posted speed limit. That said, it was not mid-day. It was the middle of the night. I suspect that elevated rates of speed along Victoria Street are not uncommon in the middle of the night. That said, the fact that others may also speed along that stretch of road at that time of night does not render the speed less objectively dangerous. I find that his speed was excessive in the circumstances.

[224] There is also the presence of the road crew to consider. I accept the defence position that the Township crew did not have adequate signage or other safety features in place. But they did have some signage and they were wearing clothing that would have been visible for some distance. Moreover, it is not unusual in the summer months in Ontario to find road crews working in the nighttime hours. Mr. Fracassi did not slow down as he approached the crew nor did he make any attempt to steer around them.

[225] All things considered, I am satisfied beyond a reasonable doubt that his manner of driving was objectively dangerous to the public.

[226] I must, however, address the fact that Mr. Fracassi was asleep at the time of the collision. One question that arises from his being asleep at the wheel is whether he was driving voluntarily at the time of the collision. His manner of driving may have been one way when awake and alert and another altogether after he fell asleep.

[227] The British Columbia Court of Appeal addressed this issue directly in R. v. Jiang (2007), 2007 BCCA 270, 220 C.C.C. (3d) 55. In Jaing, the accused was charged with dangerous driving causing death and dangerous driving causing bodily harm after she fell asleep at the wheel and struck two children, killing one and injuring the other.

[228] After reviewing the requisite actus reus and mens rea components of dangerous driving, Smith J.A. held that a sleeping driver is not driving of his or her own volition and is, instead, in a state of non-insane automatism. That does not end the matter, however, as he went on to say, at para. 22:

…[A] sleeping driver is in a state of non-insane automatism and cannot be convicted of dangerous driving on the basis of acts of driving committed while in that state, since such acts are involuntary and cannot form the actus reus of the offence. However, such a driver may be convicted of dangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive in circumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fall asleep at the wheel.

[229] I confess that to me, Justice Smith’s description sounds much like an objective mens rea. That said, to be fair, he explained that the actus reus of dangerous driving may consist not of the driving while asleep, but of embarking on a drive, or continuing to drive, in the face of a real risk of falling asleep. In other words, if it is reasonably foreseeable to a driver that he or she will fall asleep at the wheel, yet he or she drives anyways, the driving in that condition may constitute “driving in a manner dangerous to the public”.

[230] I have some philosophical difficulty with this concept. It means that a person who reasonably foresees that he or she may fall asleep while driving may commit the actus reus of the offence even if he or she manages to stay awake and drives in an otherwise responsible manner. As a practical matter, I expect that it is highly unlikely that a dangerous driving charge would be laid unless something untoward occurred during the drive. In any event, nothing will ultimately turn on this issue in this case.

[231] In this instance, I have found that Mr. Fracassi was asleep at the wheel at the time the collision took place. His manner of driving, at that point, while clearly dangerous, was not voluntary. I am, moreover, not satisfied beyond a reasonable doubt that falling asleep at the wheel was reasonably foreseeable to Mr. Fracassi when he embarked on the drive home.

[232] Admittedly, Mr. Fracassi was extremely fatigued. It was almost 3 a.m. He was also intoxicated. That combination should generally cause a reasonable person to appreciate that there is a real risk of falling asleep behind the wheel. At the same time, however, the drive from the Lafazanos residence to the Fracassi residence was quite short, perhaps five minutes at most. One might reasonably expect to be able to make the few blocks from one home to the other without falling asleep, even in Mr. Fracassi’s condition.

[233] In the circumstances, I am unable to conclude, to the reasonable doubt standard, that Mr. Fracassi knew or ought to have known that there was a real risk that he would fall asleep behind the wheel. In the result, I am unable to conclude to the reasonable doubt standard that, at the time his driving was voluntary, he was driving in a manner dangerous to the public.

[234] There will be an acquittal on Counts 4 and 5.

Boswell J.

Released: November 1, 2016