R. v. Miller, 2012 ONCJ 803

COURT FILE No.: 11-001156 Citation: R. v. Miller , 2012 ONCJ 803 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SABRINA MILLER Before Justice Robert S. Gee Heard on February 21, 22, 23, June 4 and November 9, 2012 Reasons for Judgment C. Good .................................................................................................................. for the Crown G.

Smits ............................................................................................................... for the Accused INTRODUCTION [ 1 ] On February 6, 2010, just after midnight, a 2007 Pontiac G5 motor vehicle owned by Sabrina Miller struck a tree head-on near 24 Greenfield Road in the City of Brantford. The motor vehicle struck the tree with considerable force and as a result of the collision the vehicle was completely destroyed. Upon police arrival Ms. Miller was the only person on the scene associated with the car. As a result of the investigation at the scene, Ms.

Miller was arrested for impaired driving and a demand for samples of her breath was made. However, due to what turned out to be significant injuries suffered as a result of the accident, including a shattered pelvis and broken heel bone, Ms. Miller was transported by ambulance to the Brantford General Hospital for treatment and samples of her breath were never obtained. Instead, the police subsequently obtained a search warrant and seized samples of Ms. Miller's blood from the hospital that had been drawn from her for medical purposes during the course of her treatment.

The blood samples were analyzed at the Centre of Forensic Sciences and as a result of that analysis a further charge of operating a motor vehicle while having more than 80 mg of alcohol in 100 ml of blood was laid against Ms. Miller. [ 2 ] Ms. Miller has pled not guilty to both charges and has denied being the driver of the motor vehicle that night. She has also brought an application to exclude the results of the analysis of her blood pursuant to section 24(2) of the Charter as a result of violations of her

section 8 and 10(

b) Charter Rights . This matter has proceeded on the consent of the parties as a blended voir dire and trial. [ 3 ] The issues to be decided in this matter are as follows: 1. Has the Crown proven beyond a reasonable doubt that Ms. Miller was the driver of the Pontiac motor vehicle? 2. Has Ms. Miller proven on a balance of probabilities that her right to counsel pursuant to

section 10(

b) Charter has been violated? 3. Has Ms. Miller proven on a balance of probabilities that her right to be free from unreasonable search and seizure pursuant to

section 8 Charter has been violated? 4. If any of Ms. Miller's Charter rights have been violated, should evidence of the results of the analysis of her blood be excluded from the trial pursuant to section 24(2) of the Charter ? 5. If Ms. Miller was the driver, was her ability to operate the motor vehicle impaired by alcohol at the time of the collision? 6. If Ms. Miller was the driver, and the result of the analysis of Ms.

Miller's blood are admissible, was she operating the motor vehicle at the time of the collision with more than 80 mg of alcohol in 100 ml of her blood? [ 4 ] I will deal with each of these issues in order. Although I have reviewed it in its entirety, I will only review the evidence necessary to support my findings. Was Ms. Miller the Driver? [ 5 ] The first issue to be determined is whether the Crown has proven beyond a reasonable doubt that Ms. Miller was the driver of the Pontiac when it struck the tree. Since Ms.

Miller testified and called several witnesses to support her contention that she was not the driver, an analysis of the evidence consistent with the framework as set out by Justice Cory in the case of R. v. W. D. [1991], 63 C.C.C.

[3D] 397 is appropriate. [ 6 ] The first part of the analysis states that if I believe Ms. Miller and her witnesses then I must acquit. The second part of the analysis states that even if I do not believe Ms. Miller and her witnesses but am left in a state of doubt by their evidence, then again I must acquit. The final part of the analysis is that even if I do not believe Ms.

Miller and her witnesses and I am not left in a state of doubt by their evidence, I must ask myself based on the evidence I do accept if I am satisfied beyond a reasonable doubt that she was the driver of the motor vehicle that night. [ 7 ] I can start by saying at the outset that in relation to the first and second parts of the W.D. analysis, I do not believe Ms. Miller or any witness she called that testified she was not the driver, nor does their evidence in that regard leave me in a state of doubt on this issue.

In relation to the final part of the analysis, based on the evidence which I do accept, I have no hesitation in holding that the Crown has proven beyond a reasonable doubt that Ms. Miller was the driver of the Pontiac when it struck the tree. [ 8 ] I will explain more fully in a moment but state for now that Ms. Miller's evidence and that of her witnesses who state she was not the driver is simply not believable. There are too many inconsistencies within and between the evidence of the defence witnesses, too many instances where the evidence of Ms.

Miller or her witnesses simply defies logic or common sense, and too many instances where Ms. Miller's version of events is inconsistent with the physical evidence found at the scene. [ 9 ] The Crown filed a number of photographs of the Pontiac that clearly attests to how violent the impact with the tree was. The front centre of the Pontiac struck the tree and deformed around it. Any item that was unsecured in the vehicle flew forward upon impact. For example beer bottles and a computer tower that had been in the trunk, dislodged the back upright portion of the rear seat.

Many of the bottles were broken and strewn about the passenger compartment. The computer tower was against the rear of the front passenger seat. As well, clothing items and the rear view mirror were on the front passenger seat upon arrival by the police. [ 10 ] Sgt. Bradley Muir was called by the Crown and qualified as an expert in Collision Reconstruction and in the

interpretation and analysis of reports generated by Crash Data Retrieval Systems. Sgt. Muir reviewed crash data from the Pontiac and determined that at the moment of impact, the car was traveling 45 mph or 72 km/h and the brakes on the car were not engaged. The data also revealed that at the time of impact the driver’s seat belt was buckled while the passenger’s was not. Additionally, as a result of the crash, the driver’s side airbag deployed while the passenger’s side airbag did not. [ 11 ] According to Sgt.

Muir, an unbuckled occupant of the passenger seat when the car hit the tree would have struck the dash and windshield at 45 mph. The occupant’s head and face would have shattered the windshield leaving what was described as a tell-tale starburst pattern. The occupant would have injuries to their legs and knees as well as injuries to their head and face from the impact with the windshield. [ 12 ] Ms.

Miller testified she was the front seat passenger at the time of the collision and that the vehicle was being driven by a person by the name of Tyler whom she had met earlier that evening at a party and whose last name no one could remember. The party had been at the residence of Tyler Hughes, a different Tyler than the alleged driver. She testified when she left the party her cousin Spencer General, also known by his nickname Trey, was the front seat passenger. She was in the backseat with her friend Jessica Robinson-Davy and Ms. Robinson-Davy’s friend Randy, another person whose last name no one seems to know.

Mr. General was dropped off first and after doing so Ms. Miller claims to have taken his place in the front passenger seat, leaving Ms. Robinson-Davy directly behind her in the backseat while Randy was behind Tyler, the driver. [ 13 ] There are a number of problems with Ms. Miller's version that lead me to conclude she was not the passenger but in fact the driver at the time of the collision. For instance, the passenger side airbag is set to deploy when someone 105 pounds or greater is sitting in the seat.

In order to explain why the seat belt was not buckled and why the airbag did not deploy, even though she weighed 115 pounds at the time, Ms. Miller testified that she had unbuckled her seat belt, turned in her seat and was reaching into the back seat area to retrieve her sweater at the moment of impact. She suggests this manoeuvre by her must have resulted in less than 105 pounds of pressure on the seat. This however, is inconsistent with the testimony of Ms. Robinson-Davy who testified that at the moment of impact Ms. Miller was sitting in the passenger seat facing forward. [ 14 ] The next problem with Ms.

Miller's version is that after the collision the windshield of the Pontiac remained intact. The windshield was not shattered with the tell-tale starburst pattern one would expect if the airbag did not deploy and there was an unsecured front seat passenger. To explain this, Ms. Miller testified that upon impact she did not come into contact with the windshield but that she was thrown against the passenger door. Her explanation simply does not fit the physical evidence. As testified to by Sgt. Muir, any unsecured item in the motor vehicle would have migrated forward at the moment of impact.

This is precisely what other unsecured items like the beer bottles and the computer tower did. Ms. Miller's version has her not being thrown forward upon impact but sideways into the door. This is not only inconsistent with the physical evidence, it simply defies common sense. [ 15 ] In examination in chief, Ms. Miller testified after the collision, Tyler the driver got out and fled. She last observed him running south toward Dunsdon Street. She also testified Ms. Robinson-Davy and Randy got out and ran in the opposite direction, north toward Powerline Road. In cross-examination Ms.

Miller testified somewhat differently in that she stated Ms. Robinson-Davy and Randy, after getting out of the car, asked her if she was okay and then left to go to the house of someone they knew in the area. [ 16 ] However, Ms. Robinson-Davy told a different account. She stated after the accident everyone got out of the car. According to her, Ms. Miller asked her and Randy if they were okay, and when they said they were, Ms. Miller told them they did not need to remain and to leave. According to her, they were outside the car after the accident for a couple minutes before leaving.

As well, when she and Randy left, Tyler the driver was still present. Ms. Robinson-Davy also testified that sometime after leaving the scene the accident, she returned. She saw Ms. Miller again and asked her if she was okay, however, she stated that a police officer advised her to leave. Ms. Miller did not make any mention of this encounter in her testimony. [ 17 ] Geoffrey Charlebois lives on the opposite side Greenfield Road, about 100 feet from the site of the accident. He was in his carport just finishing a cigarette when he heard the accident. He immediately looked and noticed Ms.

Miller's car had hit the tree. From his carport, he opened the door to his house and called for his wife to phone 911. He then ran the 100 feet from his house to the scene of

the accident. He estimated from the time the car hit the tree until he arrived at the scene of the accident was approximately 10 to 15 seconds. He also testified he was able to see Ms. Miller's car for this entire time. I found Mr. Charlebois to be a very credible independent witness. He was consistent throughout his testimony, he had an excellent opportunity to observe the events which he described, he was not under the influence of alcohol or drugs and having never met Ms. Miller before, there is no reason for him to flavour his testimony either for or against her. [ 18 ] It was submitted on Ms.

Miller's behalf that Mr. Charlebois’ estimate of the time he took to reach the car was inaccurate. People often do inaccurately estimate the passage of time in situations like this. However in this case, I find that Mr. Charlebois’ estimation that it took him 10 to 15 seconds to call for his wife to phone 911 and then cover the 100 feet to reach the scene of the accident, reasonable in the circumstances and I accept it. [ 19 ] I find I cannot accept any of this testimony from Ms. Miller or Ms. Robinson-Davy. There are too many inconsistencies in Ms.

Miller's testimony itself and too many inconsistencies between the testimony of Ms. Miller and Ms. Robinson-Davy. Also, Ms. Robinson-Davy’s testimony in several aspects simply defies common sense. First, the severity of the accident was obvious. That the police were going to be involved would have been equally as obvious. That Ms. Robinson-Davy would get out of the vehicle and leave the scene when she knew her friend was about to be involved in a police investigation does not make sense.

That she would return to the scene of the accident, obviously at a time after the driver allegedly fled, and not make it known to the police that she was a witness and had information concerning the missing driver, also does not make sense. As well, if she and Randy were passengers in the backseat as she claims, it is unlikely the upright portion of the backseat would have been dislodged as it was.

However, even assuming it could have been dislodged, it is unlikely she could have escaped injury from the computer tower that came through from the trunk of the car into the passenger compartment where she was seated. [ 20 ] Tyler the driver was never again seen by Ms. Miller or anyone involved since. She claims to have not been able to locate him since and that anyone who may have had information as to his whereabouts refused to cooperate with her. The physical description of him given by the witnesses varied significantly. He was as tall as 6'2" according to Ms. Miller or as short as 5'8" according to Ms.

Robinson-Davy. Ms. Miller describes him as having an average build, while Ms. Robinson-Davy and Mr. General said he was slim. Ms. Miller recalls him having facial hair while Ms. Robinson-Davy and Mr. General either did not mention or recall facial hair. [ 21 ] Furthermore, the evidence of Ms. Miller and Ms. Robinson-Davy is inconsistent with the evidence which I do accept, that being the evidence of Mr. Charlebois. As stated earlier, Mr. Charlebois had a clear view of the car after it hit the tree and arrived at it within 15 seconds after the accident. Mr.

Charlebois stated upon his arrival at the car, the driver's door was closed and Ms. Miller was seated and slumped in the driver’s seat unconscious. At no time did anyone get out of the car before he arrived. This is obviously inconsistent with the version given by both Ms. Miller and Ms. Robinson-Davy. [ 22 ] It took some time for Mr. Charlebois to get a response from Ms. Miller after arriving at the car. Eventually she started to respond and attempted to get out of the car. Mr. Charlebois urged her to remain in the vehicle as she may be injured and advised her help was on the way. Ms.

Miller responded to this by asking Mr. Charlebois to let her go, stating to him that she had children. She also asked Mr. Charlebois to hide her in his house. These are the type of statements only someone who was the driver of the vehicle would make. As well, at no time during Mr. Charlebois’ interaction with her before the arrival of the police, did Ms. Miller claim anyone else was driving the car. [ 23 ] Ms. Miller’s testimony explaining how Mr. Charlebois found her seated in the driver’s seat of the car is also implausible.

She stated after exiting the car and carrying on a conversation for approximately two minutes with Ms. Robinson-Davy and Randy, after they left and Tyler fled, she got back in the driver’s seat of the car, closed the door and started to search for her cell phone. It was at this point when Mr. Charlebois found her. That she would have to get fully back inside the car and close the door simply to look for her cell phone does not make sense. Moreover, the amount of time this activity would have taken is inconsistent with Mr.

Charlebois’ recounting of the events and I find his version to be the accurate one. [ 24 ] The name given by Ms. Miller of the alleged driver has also varied over time. At the scene of the accident she advised the police that “Trey” was the driver. In her affidavit filed in support of her Charter Application, she alleged the driver was named “Trevor” although she claimed this was a typographical error that went unnoticed. I do not accept this explanation.

The identity of the driver is one of the most important aspects to her defence, and for her to not notice this error in her review of the materials defies belief. Then, when Ms. Miller testified at trial, “Tyler” was alleged to be the driver for the first time. [ 25 ] Throughout her testimony, Ms. Miller alleged that police, and specifically Officer Brandon Kelly, had treated her inappropriately. She alleged that Officer Kelly had, during the course of his interactions with her, treated her rudely and made racially insulting comments to her concerning her Native heritage.

She also alleged Officer Kelly lost his temper with her to the point where he at one time took her to the ground and kneed her, which either caused or exacerbated her existing injuries. She alleged this assault, as she described it, occurred in the presence of other officers, the paramedics and members of the public. However, no one else at the scene testified that any of this activity took place. That Officer Kelly would assault an injured detainee, in the presence of other officers and others who were strangers to him is not believable.

The fact that all other witnesses denied this activity took place is not due to any conspiracy of silence but, I am satisfied, due to the fact it simply did not happen. Making these types of unfounded allegations detracts significantly from Ms. Miller’s credibility as well. [ 26 ] It is for these reasons, that I reject the evidence of Ms. Miller and her witnesses who claimed she was not the driver. I find that based on the evidence which I do accept, that being the evidence of Mr.

Charlebois and the physical evidence of the state of the car, that I have no hesitation in finding the Crown has proven beyond a reasonable doubt that Ms. Miller was driving when the tree was struck. Were Ms. Miller's 10(

b) Charter Rights violated? [ 27 ] Officer Kelly was dispatched to the scene of the accident and arrived at approximately 12:05 a.m. He observed the motor vehicle, spoke to other officers on scene and was advised of Mr. Charlebois’ observations. He also spoke to Ms. Miller and in doing so,

he observed signs that she was impaired. These signs included a strong odour of alcohol on her breath, as well as red, bloodshot andglassy eyes. As a result of the information he received and observations he made, he arrested Ms. Miller for impaired driving at 12:12a.m. At approximately 12:16 a.m., Officer Kelly read Ms. Miller her rights to counsel and asked her if she would like to speak to alawyer. She responded that she wanted speak to a lawyer now. At 12:18 a.m., Officer Kelly read Ms. Miller the demand for samples ofher breath. [28] At no time that evening was Ms.

Miller provided with an opportunity to speak to counsel. It is her contention that this was aviolation of her rights pursuant to

section 10(

b) of the Charter. [29] Once a detainee has been advised of their right to counsel and requests to speak to counsel, the police are obligated to provide thedetainee a reasonable opportunity to contact counsel in private and they are required to hold off eliciting further evidence from them untilthat opportunity has been given. (see: the Supreme Court of Canada cases of R. v. Manninen (1987), (SCC), 58 C.R.(3d) 97 and R. v. Leclair and Ross (1989), (SCC), 67 C.R. (3d) 209). [30] A reasonable opportunity to consult counsel means just that, a reasonable opportunity. It does not equate to immediately orinstantly.

Determining what is reasonable is contextual. What is reasonable will vary according to the circumstances of each case. Inthis case, it is the position of the Crown that while the police were involved with Ms. Miller that night there was no reasonableopportunity to provide her with the ability to contact counsel in private, and in any event, the police refrained from eliciting any evidencefrom her after she expressed her desire to speak to a lawyer. As a result, the Crown contends, in these circumstances, her right to counselhas not been violated. I agree with the Crown. I find that in the circumstances Ms.

Miller has failed to satisfy me on a balance ofprobabilities that her right to counsel was violated. [31] When Officer Kelly arrived on scene, the ambulance was already there. Ms. Miller appeared to him to be in a considerableamount of pain as a result of the collision. He testified his main concern was convincing her to seek medical attention for her injuries,which she initially was refusing. [32] Eventually Ms. Miller agreed to seek medical attention and she left in the ambulance for the Brantford General Hospital at 12:19a.m.

This was approximately three minutes after she was read her rights to counsel and expressed a desire to call a lawyer. In thesecircumstances, I find that there was no reasonable opportunity to allow her to consult with a lawyer in private, at the scene of theaccident. [33] Officer Kelly rode in the ambulance with Ms. Miller to the hospital. During the ride, he sat back, out of the way, and allowed herto be treated by the paramedics. The ambulance arrived at the hospital at approximately 12:26 a.m. and Ms.

Miller was immediatelytaken into the emergency department where medical personnel commenced treatment of her injuries. While in the emergencydepartment, Ms. Miller was exhibiting signs of being in extreme pain and distress from her injuries, to the point where at approximately1:16 a.m. she was sedated. It was after she was sedated that the police determined that obtaining samples of Ms. Miller’s breath thatnight was not possible. [34] After being sedated, blood was drawn from Ms. Miller for medical purposes. Some of this blood was later seized by the policeafter obtaining a search warrant.

Sometime later, after the sedation wore off, a nurse attempted to draw more blood from Ms. Miller butshe refused, and on that occasion, none was taken. The blood that was drawn that night was done on orders of a doctor for medicalpurposes. No blood was drawn at the request of the police or for the purposes of the police investigation. At all times, police allowed themedical personnel to treat Ms. Miller without interfering. [35] For all practical purposes, from the time she was in the ambulance and left the scene of the accident until Officer Kelly left thehospital at approximately 4:00 a.m., Ms.

Miller was under the continuous care of medical personnel while her injuries were beingtreated. The injuries suffered by Ms. Miller were significant and required immediate medical treatment. To expect the police to interferewith her necessary medical care in order to insist she be provided access to a phone to call a lawyer in private is unreasonable in thecircumstances. Stated differently, the decision by the police to not interrupt her medical treatment was reasonable in the circumstances. Moreover, the police upheld the other duty imposed upon them by

section 10(

b) of the Charter by not eliciting any evidence against Ms.Miller after she expressed her desire to call a lawyer. For a similar conclusion, in similar circumstances, see the decision of the AlbertaCourt of Queen’s Bench in R. v. Taylor (2011), 22 M.V.R. (6th) 228. [36] As such, I have concluded that in the circumstances there was no reasonable opportunity for Ms. Miller to contact counsel inprivate and that her

section 10(

b) Charter rights have not been violated. Were Ms. Miller's

section 8 Charter rights violated? [37] Ms. Miller contends that the seizure by police of the samples of her blood was a violation of her

section 8 Charter rights. Sincethe seizure was carried out pursuant to a search warrant, it is necessary for Ms. Miller to demonstrate that there were insufficient groundsfor the issuance of the warrant. [38] A judge reviewing the authorization of the issuance of a warrant has a limited mandate. As the reviewing judge, I am not tosubstitute my view for that of the issuing justice.

After removing any illegally obtained and any misleading or inaccurate informationfrom the record, and after providing an opportunity for the record to be amplified on the review, if I conclude, based on what is left, thatthe justice could have granted authorization for the warrant, then I am not to interfere. See: R. v. Garofoli (SCC),[1990] 2 S.C.R. 1421, (S.C.C.). [39] The Information to Obtain (ITO) the search warrant was sworn by Officer Kelly on February 10, 2010. In it, Officer Kelly setout the history of the investigation. He stated on his arrival at the scene he saw Ms.

Miller's car with severe front end damage, with Ms.Miller leaning against it. He also indicated that she had been identified as the driver of the vehicle and that she denied this. He set outhis observations that led him to believe she was impaired by alcohol, and as well, he detailed her treatment at the hospital including the

drawing of her blood for medical purposes. [ 40 ] The final sentence of paragraph 2.2 of the ITO states: "Geof (sic) Charlebois provided a written statement indicating he had witness (sic) the collision, and observed Miller driving the motor vehicle." Ms. Miller contends this statement is inaccurate and ought to be excised from the ITO. [ 41 ] This statement is not an accurate reflection of Mr. Charlebois’ testimony. Mr. Charlebois testified he did not actually see the vehicle strike the tree, but heard it and immediately turned and saw it against the tree.

He then stated when he arrived at the car approximately 10 to 15 seconds later he observed Ms. Miller unconscious, slumped in the driver’s seat. [ 42 ] The test then is whether if this sentence were removed from the ITO, and given the amplification of the record on review, there was a basis for the issuance of the warrant. The Crown contends there is, while Ms. Miller contends there is not. [ 43 ] I find that even with this sentence excised from the ITO, there was still sufficient information for the issuance of the warrant, even without any amplification. There was evidence before the justice pointing to Ms.

Miller as the driver, even though she denied this; there was evidence that her ability to operate the motor vehicle was impaired by alcohol at the time, and there was evidence that the blood in the possession of the hospital would provide evidence of the commission of an offense. [ 44 ] However, after the record was amplified, primarily by the detailed evidence of Mr. Charlebois, there was more than a sufficient basis for the issuance of the warrant. As such, I find that there was a sufficient basis upon which the justice could have issued the warrant, and as a result, Ms. Miller's

section 8 Charter rights have not been violated. If Ms. Miller's Charter rights have been violated, should evidence of the results of the analysis of her blood be excluded from the trial pursuant to section 24(2) of the Charter ? [ 45 ] Since I have found that Ms. Miller's Charter rights have not been violated, it is unnecessary to determine whether the results of the analysis of blood ought to be excluded. Has the Crown proven beyond a reasonable doubt that Ms.

Miller's ability to operate her motor vehicle was impaired by alcohol? [ 46 ] On this issue, I find that the Crown has proven beyond a reasonable doubt that Ms. Miller's ability to operate her motor vehicle was impaired by alcohol when she struck the tree. Ms. Miller's entire defence that she was not the driver was premised on the fact that she was too impaired to drive that night.

Additionally, under cross-examination she testified she consumed five to eight drinks, some of which were doubles, and she candidly admitted that when she was leaving the party her ability to drive her motor vehicle was impaired. [ 47 ] Her cousin Spencer General who was with her at the party, also testified when it was time to leave she was too impaired to drive. Riley Marshall, Ms. Miller's then boyfriend and now husband, brought a 40 ounce bottle of whiskey to the party which he shared with Ms. Miller.

He was mixing drinks for her, at least some of which were doubles, and by the time the party ended, the bottle of whiskey was almost all gone. [ 48 ] As well, as mentioned earlier, at the scene of the accident Ms. Miller was exhibiting signs that Officer Kelly observed that led him to believe her ability to operate her motor vehicle was impaired by alcohol. [ 49 ] In the circumstances, I find that the Crown has proven beyond a reasonable doubt that Ms. Miller’s ability to operate her motor vehicle was impaired by alcohol at the time she struck the tree. Did Ms.

Miller have more than 80 mg of alcohol in 100 ml of blood while operating her motor vehicle? [ 50 ] Having concluded that Ms. Miller's

section 8 Charter rights have not been violated, evidence of the results of the analysis of her blood seized pursuant to the search warrant are admissible at trial. [ 51 ] The samples of Ms. Miller's blood were sent to the Centre of Forensic Sciences and were analyzed by Inger Bugyra, an expert in the calculation of blood alcohol concentrations in the body. According to the analysis conducted by Ms. Bugyra, the alcohol concentration in Ms.

Miller's blood would have ranged from a high of 186 mg of alcohol in 100 ml of blood at 11:40 p.m. to a low of 129 mg of alcohol in 100 ml of blood at 12:10 a.m. [ 52 ] One of the assumptions this calculation is based on is that there was not any of what is commonly referred to as “bolus drinking”. Bolus drinking is defined as one or more standard drinks within 15 minutes of the time of driving. There was some discussion at trial that this might be an issue, but based on the timelines provided by Ms.

Miller, her last drink was consumed at least 25 minutes before the time of the accident and as such bolus drinking is not an issue. [ 53 ] Based on Ms. Bugyra’s testimony of her analysis of Ms. Miller’s blood, I find that the Crown has proven beyond a reasonable doubt that at the time of the accident Ms. Miller had more than 80 mg of alcohol in 100 ml of her blood. Conclusion

[ 54 ] Based on the foregoing, I have concluded that the Crown has proven beyond a reasonable doubt that Ms. Miller was the driver of her motor vehicle when it struck the tree just shortly after midnight on February 6, 2010 near 24 Greenfield Road in the City of Brantford. [ 55 ] I have also concluded that there were no violations of Ms. Miller's Charter rights by the police during the course of their investigation. As a result of these findings, the seizure of the samples of Ms.

Miller's blood was lawful, and evidence of the result of the analysis of the concentration of alcohol in her blood is admissible at trial. [ 56 ] Based on the evidence which I do accept, I am satisfied beyond a reasonable doubt that Ms. Miller's ability to operate a motor vehicle was impaired by alcohol when she struck the tree, and that the concentration of alcohol in her blood exceeded 80 mg of alcohol in 100 ml of her blood at the time. As a result, findings of guilt will be made in relation to both charges.

To avoid multiple convictions, at the Crown's discretion a conviction will be entered on one of the charges and a conditional stay on the other. Dated at Brantford, Ontario This 14 th day of December, 2012 The Honourable Mr. Justice R.S. Gee