Court File and Parties

COURT FILE NO.: CR-23-0000038-00 DATE: 2024-11-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – AYSAR YOUNES

COUNSEL: Michael Lunski and Monica Rodrigues, for the Crown R. Craig Bottomley and Alison Shields, for the Applicant

HEARD: August 19 and 20, 2024

RULING #2 – VOLUNTARINESS, OTHER DISCREDITABLE CONDUCT

MUSZYNSKI J.

Overview

1The accused, Aysar Younes, is charged with two counts of operating a conveyance causing death while impaired/over 80 [1] and two counts of operating a conveyance in a manner that was dangerous causing death [2] in relation to a fatal motor vehicle collision that occurred on October 3, 2021. The collision occurred in broad daylight when Mr. Younes’ vehicle crossed the centre line and struck an oncoming vehicle, killing the two occupants.

2The background of the collision was set out in Ruling #1 which relates to Mr. Younes’ Charter application. I will not repeat the background facts in detail here.

3In the Charter application ruling, I denied Mr. Younes’ application to exclude evidence police obtained from the airbag control module of Mr. Younes’ vehicle, Mr. Younes’ medical records from the day of the collision, and toxicology reports analyzing Mr. Younes’ blood, which was seized. I allowed Mr. Younes’ application to exclude evidence obtained by police from the overly broad search of his cell phone.

4The subject ruling relates to the Crown’s applications to have statements made by Mr. Younes to police be declared voluntary and to determine the admissibility of the anticipated evidence from Charlotte Koch, Mr. Younes’ friend, about the normality of cocaine use in their friend group.

Agreements

5The Crown applications were heard at the same time as Mr. Younes’ Charter application. The parties agreed that the applications could proceed on a written record. The complete transcripts of the preliminary hearing were filed as an exhibit on consent. Further, it was agreed that the collision reconstruction report of P/C Prent, the supplementary report of P/C Prent, the ambulance call report from October 3, 2021, the emergency department record from October 3, 2021, the toxicology reports of Ms. Shephard, and the mobile device report of P/C Clow would be admitted as exhibits to the hearing on consent.

6A further application related to expert evidence is anticipated, but dependent on the outcomes of the Charter application and the subject applications. Accordingly, it was agreed that it would be delayed until after the release of the preliminary two rulings.

Issues

I. Was Mr. Younes’ statement to police given voluntarily? II. Can the Crown lead evidence from Charlotte Koch regarding the normality of cocaine use in Mr. Younes’ friend group?

Voluntariness

7Mr. Younes provided an audio and video recorded statement to police on December 7, 2021.

8The Crown does not intend to use the statement as part of their case, but for cross-examination, if necessary. On this basis, at the hearing, Mr. Younes expressly conceded the voluntariness of his statement. Accordingly, the Crown may use Mr. Younes’ December 7, 2021 statement to police for the purposes of cross-examination at trial.

Other Discreditable Conduct

9The Crown’s application to determine the admissibility of evidence that could be perceived as off indictment discreditable conduct - specifically, the normality of cocaine use in Mr. Younes’ friend group - is more complicated.

10Following the collision, Mr. Younes was taken from the scene to Kingston General Hospital (“KGH”) by ambulance. In my ruling on the Charter application, I declined to exclude the following evidence relevant to Mr. Younes’ alleged cocaine use:

a) Evidence from the paramedic that transported Mr. Younes to KGH from the collision scene. The paramedic made a notation in the ambulance call report that, in response to a question about whether he had used any drugs, Mr. Younes stated he had done some cocaine. The paramedic noted that when asked if Mr. Younes had done any cocaine that day, he stated yes, but then stated he was not sure. The paramedic noted: “I question his ability to remember this as he cannot remember anything prior to and including the collision today, does not remember when he got up, what he ate today etc these were questions I had asked him prior to the drug/alcohol questions.”

b) Evidence from the emergency room physician that treated Mr. Younes once he was admitted to KGH. The treating physician noted that Mr. Younes reported drinking alcohol until 4:30 a.m. that morning and using cocaine. Mr. Younes reported that while driving his motor vehicle he was very tired and struggling to stay awake.

c) Evidence from Forensic Toxicologist, Cara Shepard, who authored a report explaining that Benzoylecgonine—an inactive breakdown product of cocaine—was found in Mr. Younes’ blood in a concentration of 0.25 mg/L. This level of concentration, Ms. Shepard concludes, indicates prior administration of cocaine. At the preliminary hearing, Ms. Shepard explained that she could not express an opinion as to whether Mr. Younes was impaired by virtue of cocaine use at the time of the collision, nor could she pinpoint precisely when Mr. Younes would have used the cocaine, other than it would have been in the days leading up to the collision. [3] Ms. Shepard noted the existence of a “crash phase” that can occur when cocaine wears off that can result in extreme fatigue. Ms. Shepard was unable to conclude whether Mr. Younes was experiencing a crash phase at the time of the collision.

11The Crown intends to call Charlotte Koch, Mr. Younes’ friend from McGill University, as a witness at trial. In a statement to police and at the preliminary inquiry, Ms. Koch confirmed that she was with Mr. Younes the night before the collision at a cottage party north of Kingston with a group of university friends. Ms. Koch’s evidence was that there had been drinking at the party and that Mr. Younes went to bed later than she did. Although she cannot recall specifically, Ms. Koch believes there was cocaine at the party as this was typical for this friend group.

Positions of the parties

12The Crown seeks to introduce Ms. Koch’s evidence about the normality of cocaine use at these parties in combination with the evidence of the paramedic, ER doctor, and the toxicologist to put a “finer point on and narrow down the time frame of Mr. Younes’ cocaine use in relation to the timing of the collision.” The Crown takes the position that Ms. Koch’s evidence will establish that it is more likely than not that at the time of the collision, the cocaine in Mr. Younes’ system was consumed at the party, which adds probative value to the proposition that Mr. Younes would have been feeling the “crash phase” effects of that cocaine use at the time of the collision, thereby impairing his ability to drive.

13The defence opposes the Crown’s application on the basis that the potential prejudicial effect of Ms. Koch’s testimony in relation to cocaine use exceeds any probative value, particularly since this is a jury trial.

Law and Analysis

Routine, custom, or habit

14Although not identifying it as such, in essence, the Crown seeks to demonstrate that cocaine use was such a routine, custom, or habit with this friend group, that it can act as circumstantial evidence to support the Crown position that cocaine use occurred on the weekend in question. If such a routine, custom, or habit can be established, the probative value versus prejudicial effect of the evidence must be undertaken.

15When asked about the normality of cocaine use amongst the friend group at the preliminary inquiry, Ms. Koch testified that cocaine usage was “fairly normal” and that no one would be phased or have considered it abnormal if someone brought cocaine to, or used cocaine at, one of the group’s social gatherings. I find that Ms. Koch’s evidence falls short of establishing that cocaine use in her friend group was a routine, custom, or habit – which “involves a repeated and specific response to a particular situation”. [4]

Other discreditable conduct

16Evidence about an accused person’s off indictment discreditable conduct, which may include bad character evidence or similar fact evidence, is presumptively inadmissible. This is to guard against the trier of fact incorrectly using this evidence to reach a finding of guilt. The parties agree that the admissibility analysis first requires that a probative purpose for admitting the evidence be established, followed by a weighing of the probative value against the potential prejudicial effect of the impugned evidence. [5]

Probative value

17Mr. Younes has been charged with dangerous driving causing death and impaired driving causing death. In general, evidence about cocaine consumption leading up to the collision would be considered probative to the issues before the court.

18However, the best evidence that Ms. Koch can offer in relation to Mr. Younes’ alleged cocaine use on the weekend of the collision, is that Mr. Younes was at a party where there was likely, but not positively, cocaine and where she has no recollection of observing Mr. Younes using cocaine.

19The probative value of Ms. Koch’s anticipated evidence about cocaine use is low.

Prejudicial effect

20Ms. Koch speculates that cocaine was likely present at the cottage because cocaine use was not an uncommon practice with this friend group.

21Ms. Koch’s proposed evidence would place before the trier of fact that it was not abnormal for Mr. Younes’ friend group, possibly including Mr. Younes, to engage in the use of an illegal substance. Mr. Younes expresses concern that Ms. Koch’s evidence could cause the trier of fact to conclude:

a) That Mr. Younes is a bad person and convict him on this basis. b) That Mr. Younes is the type of person more likely to have committed the offences charged.

22There are two types of prejudice to consider: moral prejudice and reasoning prejudice.

23Moral prejudice is the risk that an accused will be convicted because the proposed evidence supports the inference that they are a bad person who is likely to have committed the offence as opposed to on the evidence. [6]

24I find that there is a risk of moral prejudice in this case. Will the jury find illicit drug use contemptable? Will they want to punish Mr. Younes for his illicit drug use? Will they conclude that Mr. Younes is more likely to be guilty of the offences charged because he is involved in a friend group that regularly uses illicit drugs?

25Reasoning prejudice is the risk that a trier of fact, most typically a jury, would get confused about their task and which could also distract from the actual issues by consuming trial time [7] Although I am less concerned about the risk of reasoning prejudice in this case, it is still a live issue. How much time will be spent on establishing the normality of this friend group’s cocaine use at trial or trying to pin down the timing of Mr. Younes’ alleged cocaine use? This could be particularly confusing to a jury when the toxicologist does not opine that Mr. Younes was impaired by cocaine at the time of the collision and is unable to conclude that Mr. Younes was in fact experiencing a crash phase.

Weighing of probative value vs. prejudicial effect

26Given the minimal probative value that I assign to Ms. Koch’s anticipated evidence about cocaine use, I find the existence of any prejudice tips the scales in favour of the exclusion of the evidence as part of the prosecution’s case.

Conclusion

27On consent of the parties, the voluntariness of Mr. Younes’ statement to police is conceded on the basis that it will be used for the purposes of cross-examination.

28The Crown’s application to admit Ms. Koch’s evidence about the normality of cocaine use amongst Mr. Younes’ university friend group is dismissed.

Muszynski J.

Released: November 26, 2024

Footnotes

1Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 320.14(1) [CCC].

2CCC, s. 320.13(3).

3The admissibility of Ms. Shepard’s toxicology report relating to cocaine will be the subject of a further application. Mr. Younes takes the position that the conclusion in Ms. Shepard’s report, that Mr. Younes likely used cocaine at some point in the days leading up to the collision, is more prejudicial than probative and thus should not be admitted at trial.

4R. v. Watson (1996), 108 C.C.C. (3d) 310 (Ont. C.A.), at pp. 324-26.

5R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

6R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 102.

7Ibid, at para. 103.