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The Ontario Superior Court of Justice will not stay proceedings in the case of a teen charged with impaired driving causing death despite the “unacceptable negligence” of scientists at the Centre of Forensic Science and that the young man’s Charter rights were breached.

Toronto criminal lawyer Graham Clark says that while Justice Glenn Hainey’s decision to proceed to verdict in this matter is not at all surprising, the case does raise an important question of whether a right is truly a right when no remedy is available for a breach.

“Here, the Centre of Forensic Science was notionally held accountable for allowing the accused’s blood sample to leak and become unavailable to the defence. However, that is cold comfort to an accused who is effectively told to carry on defending himself without access to the evidence,” he tells

“That is the nature of a ‘hard case’ — one in which there is no room for a compromise between the defence and Crown positions, where the only remedy that could assist the defence is a stay of proceedings.”

Sabastian Prosa, 21, is facing 12 charges related to a fatal collision on Aug. 5, 2012.

He has admitted to having a blood alcohol level that was about twice the legal limit when he drove his SUV the wrong way down Highway 427 and crashed into a minivan carrying three people; two of whom died in the crash, reports the Toronto Star.

The defence argued at trial that Prosa, who was at a nightclub earlier on the evening, may have had his drink spiked, says the newspaper.

But the accused’s last remaining blood sample leaked while in transit to an independent lab for testing because it wasn’t properly sealed at the Centre of Forensic Sciences, says the article.

His lawyer, Alan Gold, argued that the loss of critical evidence should lead to a stay of the proceedings because it “has resulted in irreparable harm to Mr. Prosa’s ability to make full answer and defence.”

Clark says the essence of the defence motion is that state agents have a higher duty than to simply secure a conviction; the state must investigate in a manner that also preserves the accused’s access to evidence that could assist the defence.

“This is not a charity to accused persons but a component of the principles of fundamental justice that strike a balance between preserving public safety at large and ensuring individuals are not convicted where there is a doubt about their guilt, and/or where the investigation is of a nature that the court must disassociate itself to preserve its own integrity,” he says.

Clark notes that it is often said that by dismissing a defence motion, the trial judge is assuring the public of a “trial on the merits.”

“But this case illustrates how that can be a misnomer sometimes,” he says. “Mr. Gold was arguing that a stay of proceedings was required precisely because CFS’ negligence made a ‘trial on the merits’ impossible.

“Some might say that the accused’s admission to having consumed twice the legal limit of alcohol renders a suggestion of an involuntary drugging to be without merit in the big picture, but a victim’s family, or an under-informed member of the public might not go on to enquire as to whether an involuntary drugging somehow rendered the alcohol consumption involuntary. Such precise details of the case will hopefully be addressed in the trial judge’s judgement, which will be available in due course.”

The judge is expected to deliver his verdict on the 12 charges on June 26, says The Star.

Clark says he expects that if there is a conviction, it won’t be the end of the matter.

“Mr. Gold is one of the finest criminal lawyers in the country at both the trial and appellate levels and if there is a conviction here, depending upon his client’s instruction, I expect to see this case appealed,” he says.