MANDEL: Brady Robertson guilty of impaired driving in deadly crash – but dependent on Charter challenge

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Brady Robertson has been found guilty of impaired driving by drugs in last year’s horrific collision that killed a Caledon mother and her three daughters — but those convictions could be thrown out if he’s successful in striking down the law.

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And there’s much more at stake: if a Brampton judge finds the current impairment law does violate the Charter, that precedent-setting decision could throw a wrench in prosecuting future drug-impaired driving cases.

At the start of his trial in July, Robertson, 21, pleaded guilty to four counts of dangerous driving causing the deaths of teacher Karolina Ciasullo, 36, and her daughters Klara, 6, Lilianna, 3 and Mila, 1, after his speeding car broadsided the family’s Volkswagen Atlas when he blew through a red light at Torbram Rd. on June 18, 2020.

But pleaded not guilty to impaired driving causing their deaths — despite having eight times the legal blood limit of THC, the main intoxicating ingredient in cannabis. In a constitutional challenge, defence lawyer Craig Bottomley is arguing the science is new and experts agree the current legal limit set at 5 ng/ml is arbitrary, with no established correlation with impairment.

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While the Charter case continues before Ontario Superior Court Justice Sandra Caponecchia, she delivered her ruling on the four counts Robertson faces of impaired driving causing death.

“It is my overall assessment that Mr. Robertson’s ability to operate a motor vehicle was probably and most likely impaired by drug(s) on June 18, 2020. Yet such a conclusion is not proof beyond a reasonable doubt,” Caponecchia said in her decision.\

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She convicted him — but based on his being over the legal limit and not by the section of the law that finds the “person’s ability to operate it is impaired to any degree” by drugs.

But those convictions, she said, “are subject to the outcome of the constitutional challenge.”

The defence has argued that studies show there is no exact cutoff with drugs as there is with alcohol to determine if a driver is impaired.

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Even the Crown’s witness, Centre of Forensic Sciences toxicologist Betty Chow, agreed there are too many variables — how was the cannabis ingested, how long before driving, was the person new to the drug — making it impossible to determine if a driver was impaired based just on a blood THC level.

She explained that unlike alcohol, which has been studied for decades, there’s no consensus on the more complicated THC. “I have seen studies where THC levels are close to zero and the individual is impaired and I have seen studies where THC levels are in excess of five, and not impaired,” Chow testified.

“I would say the way we use blood concentration shouldn’t be used to determine impairment.”

Robertson was rushed to Brampton Civic Hospital where a blood test taken 45 minutes after the fiery crash found 40 ng/ml of THC in his system as well as 21 ng/ml of the illegal sedative, flubromazolan.

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His lawyers lost an earlier Charter challenge to have that evidence excluded due to allegations that Peel Regional Police violated his rights to protection from unlawful search and seizure.

In her decision on the impaired driving, Caponecchia found that just before the crash, Robertson was trying to outrun an officer who had attempted to stop him for a missing front licence plate.

She said there were many reasons to explain Robertson’s “bad driving:” he was in a newly-purchased blue Infiniti he hadn’t registered, he had a baggie of four pills — one of which tested positive for fentanyl — in his glove box, and he’d been involved in a fail to remain accident two days earlier — for which she found him guilty of dangerous driving.

“Unexplained aberrant driving can be a strong indicator of impairment,” the judge noted. “This, however, is not a case of unexplained bad driving. There is evidence that Mr. Robertson was being followed by police when he was travelling at an excessive speed.”

When the two lanes ahead of him had cars stopped for a red light, Robertson swerved around them and right into the path of Ciasullo and her daughters entering the intersection on a green.

And no amount of legal gymnastics will bring them back.

The case resumes Wednesday.

mmandel@postmedia.com

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