R. v. Martin, 2012 ONCJ 789

Information No.: 10-003018 DATE: 2012-11-26 Citation: R. v. Martin , 2012 ONCJ 789 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Crown -and- PHILIP MARTIN Accused REASONS FOR JUDGMENT APPEARANCES: D. Zuraw Counsel on behalf of the Crown D. Clarke Counsel on behalf of the Accused Trial Date : August 15, 20 and 21, and September 17, 2012 Offence : Section 145(3) CCC – Fail to comply with recognizance Section 255(2) CCC x 4 – Operate a motor vehicle while impaired by alcohol, causing bodily harm

Section 255 CCC (3) x 2 – Operate a motor vehicle while impaired by alcohol, causing death Reasons for Judgment dated : November 26, 2012

Thibideau, J.: (Written) [ 1 ] Mr. Philip Martin is charged with seven offences arising out of an automobile accident that occurred on the 29 th of August 2010 on Third Concession Line Tuscarora, east of the intersection of Third Line and Chiefswood Road on the Six Nations Territory. [ 2 ] Two motor vehicles were involved, a Ford pickup truck driven by its sole occupant, Keith Jonathan, a Saturn motor vehicle driven by the accused Philip Martin, which also contained five other persons. Two persons, in the front passenger area of the vehicle, were declared “vital signs absent” by the first responders.

The three individuals in the rear of the motor vehicle, passenger #1 behind the driver, passenger #2 in the centre of the backseat, and passenger #3 on the passenger’s side of the vehicle all received varying degrees of serious accident injuries from the collision, as did Mr. Philip Martin as outlined in the medical briefs contained in Exhibit 3 filed at trial.

It is not disputed that the two persons situate in the passenger front seat area were both deceased as a result of accident injuries and the three persons seated in the rear passenger compartment of the motor vehicle had significant injuries attributable to the accident, all named properly in the counts in the information before the Court. PC T.

Monture of the Six Nations Police observed the configuration of the individuals involved and further observed that Philip Martin, whom he concluded was the driver of the motor vehicle, was situate behind the driver’s door on the outside of the motor vehicle, on the roadway, when he arrived some five to seven minutes after the accident occurred. That evidence, along with the uncontradicted evidence of rear passengers that Philip Martin was operating the motor vehicle at the time of the accident, is conclusive on this point. [ 3 ] The uncontradicted evidence of the technical traffic collision investigator, PC A.

Williams and other professionals responding to the accident set the scene. [ 4 ] The accident occurred at night in an unlit rural area at approximately 2:37 a.m. The Ford pickup truck driven by Mr. Jonathan, which had been proceeding in an easterly direction on the Third Line, made a left hand turn in front of the Saturn motor vehicle driven by Mr. Martin. The road at the accident location was a paved roadway running from east to west with one lane in each direction, with a broken centre line and gravel shoulders.

Road conditions were dry, but some responders who were asked the question described conditions of patchy or intermittent fog on Third Line and Chiefswood Road to the east. Some of the photos filed in evidence demonstrated some mist and fog at the accident scene when taken some two and one quarter hours after the event. [ 5 ] The front of the Saturn motor vehicle first came into contact with the front passenger side portion of the pickup truck. The Saturn motor vehicle never left its lane of travel.

One side of the vehicle left skid marks of 23.56 metres and the other side of the motor vehicle left no skid marks from braking. There was some grooving on the pavement caused by the undercarriage of the Saturn motor vehicle coming into contact with the roadway. This unusual skid pattern caused Constable Williams to form the opinion that the front and rear brakes on one side of the motor vehicle may not have been working properly. Both vehicles had their headlight switch in the “on” position. The tires on the Ford pickup were unremarkable and in good condition.

The tires on the Saturn were considered of poor quality with the tread depth on the rear two tires the poorest causing Constable Williams to form the opinion that the condition of the tires resulted in poor stopping ability. Neither driver, nor any of the passengers of the Saturn vehicle, were using a seatbelt at the time of collision. [ 6 ] Constable Williams made calculations to determine that the road surface drag factor was .67, unexpectedly less than what his experienced visual observation caused him to believe.

This was in the midrange of drag factor, the lesser the number from zero to 1.00 the more travel distance required to stop a motor vehicle without impact. His evidence showed two factors which contributed to slow deceleration – the drag factor of the road surface and the poor brake performance of the Saturn motor vehicle. The third factor, reaction time, will be dealt with. [ 7 ] Some of the responders to the accident scene made observations with respect to alcohol on scene and the sobriety of the two drivers. Constable T.

Monture observed the driver of the Ford pickup truck, to have observable signs of intoxication as follows:

a) Hard time standing up, but also had a leg injury

b) Slurred speech

c) Glassy eyes

d) Odour of alcohol on breath Inspector D. Monture of the Six Nations Police observed Mr. Jonathan in the emergency ward at the local hospital with the following signs of intoxication:

a) Eyes glassy and red

b) Head bobbing

c) Slurred speech all with respect to a person known to Inspector Monture for decades. [ 8 ] Paramedic M. Homorodean attended Philip Martin and had him on a fracture board with cervical collar with respect to his injuries in her emergency vehicle. She observed Philip Martin to be conscious and responding with some undetermined right side injuries. There was no observable head or neck injury. She formed the opinion that he had consumed alcohol prior to her examination of him as a result of the following observations:

a) He was unable to locate what part of his body was in pain, although he was in pain. In her experience this usually meant a victim, unable to verbally locate pain, was either under the influence of alcohol or there was some other specific medical reason for such inability.

b) He had slow speech

c) He was slow in enunciating his words

d) He had the odour of alcohol about him

e) His eyes were not focussed on her as she questioned him

f) He responded slowly to questions

g) He was sweating [ 9 ] Witnesses observed containers of Bud beer in the interior of the Saturn sedan, with the odour of alcohol very prevalent at the scene of the crash and various smashed alcohol bottles in the Saturn motor vehicle. [ 10 ] The three rear occupants of the Saturn motor vehicle gave evidence about the activities and the alcohol consumption of Mr. Philip Martin and others in the hours leading up to the motor vehicle collision. [ 11 ] Passenger #3 had, before the accident, consumed three to four rye and coke after dinner at a wedding reception in Cambridge.

He returned to the Reserve where he had five or six Budweiser, all of which he described as “not that much” consumption of alcohol, but admitted to blurred memory. He assessed the driver, Mr. Martin, as at one time seeming all right, then getting a little more drunk. [ 12 ] Passenger #2 described how she was at a birthday party on the evening before, on the Reserve, and from 9:00 a.m. to 1:00 a.m. she had Budweiser beer and shared a 26 oz. bottle of Jack Daniels, the exact quantity not known. At a second party between 1:00 a.m. and 2:00 a.m. she had more of the Jack Daniels.

From the party she and the other five persons who were in the motor vehicle at the time of the accident, including Philip Martin driving, attended at her house, her bank, the bootlegger’s, where they obtained a case of 28 Budweiser and a 26 oz. bottle of Wiser’s whiskey to continue drinking. The next event of significance was the accident itself. [ 13 ] She remembers that the driving of Mr. Martin immediately before the accident was unremarkable as follows:

a) He was not driving noticeably fast

b) Weather was clear

c) He stayed in his own lane

d) No apparent effect of consumption of alcohol while driving

e) He was not showing off

However, this evidence with respect to speed and weather is not in accord with other eye witness and expert evidence. [ 14 ] Passenger #1 had, before the accident, consumed two to four shots of vodka at a birthday party over a period of four to five hours. She then went to another party between the hours of 1:00 a.m. and 2:00 a.m. where she did not drink but where she observed Philip Martin drinking beer.

From there the six occupants of the Saturn went to the bootlegger’s for more alcohol. [ 15 ] This witness remembered a conversation about who should be driving, centreing on the ability to drive and the effect of alcohol. It was decided she would drive the vehicle as the least intoxicated person present. However she could not drive the standard shift Saturn and this plan was abandoned, with Mr. Martin to continue to drive his own vehicle. [ 16 ] As the least intoxicated person, she observed Mr. Martin as speeding, with the passengers telling him from time to time to slow down.

She stated he did slow down “the first couple of times”, when requested to. Later she changed this testimony to refer to one request to slow down. Her first version was more spontaneous, detailed, and in accord with other evidence, particularly calculated speed at impact. She remembers fog in some spots as they drove along. She and at least one other passenger took photos inside the car as they drove along before the accident. One of her photos shows Philip Martin driving. [ 17 ] The other driver, operating the Ford pickup gave evidence.

He had consumed some 10 beer that day, mostly in the evening and early morning hours before the accident. He observed low lying intermittent road fog. He turned left into his driveway, signal on, no vehicle approaching. The collision occurred as he made his turn. At the last moment he saw a black, dark car, without headlights. [ 18 ] Another witness wanting to enter the Third Line roadway from a private driveway saw the Martin vehicle go by as he waited. He observed it to be travelling faster than the speed limit and without headlights.

He turned and followed for a short distance, coming upon the accident scene. [ 19 ] An expert in crash reconstruction and use of Event Data Recorder (EDR), and use of speed data to determine distance and time of impact gave evidence. His credentials as an expert were unchallenged. Filed as Exhibit 15 are his notes and calculations to assist in understanding how he came to his conclusions.

He explained in some detail the purpose of his involvement – to supply after the fact detailed evidence of what had happened related to apparent driver action, time lines, and distances involved from start of event to resting position of both vehicles. He explained how he did this; interpreting the data stored on the Saturn’s EDR, part of the vehicle’s airbag control module. He calculated the speed of both vehicles at point of impact and at other times during the crash event.

He explained how various factors, data recorder info, skid marks, position of each vehicle, extent of damage, and other factors were used to reach his conclusions. The evidence supplied in his lengthy examination in-Chief was not seriously challenged on the cross-examination in relation to his findings, arrived at by different and independent methods of calculation. [ 20 ] He found the following. The pre-braking speed of the Saturn was about 120 kph, given a five to six kph margin of error. The Saturn speed at initial impact was approximately 99.2 kph, given a five percent margin for error.

The speed of the pickup truck was approximately 25 kph. The single Saturn skid mark was made over a time period of 8/10’s of a second, far short of the stopping time required to make a full stop without impact. [ 21 ] He assessed driver reaction time in a general way. He stated the normal reaction time for a male like Mr. Martin to be 1.5 to 2 seconds. [ 22 ] He determined the various scenarios related to speed and how those scenarios would have different results.

If the Saturn had been moving at the speed limit of 80 kph there would not have been a collision because the Ford pickup would have cleared the roadway. At calculated speeds of 90 kph, 100 kph, 110 kph, and 120 kph there would have been a collision between the two vehicles, the point of impact on the pickup changing as speed changed. At 100 kph he calculated the point of impact on the pickup would have been the middle passenger’s side.

The higher the speed at impact the closer the point of impact on the pickup would be to the front of that vehicle. [ 23 ] In fact it is proven by photographs and other evidence that the main impact was between the front of the Saturn and the front passenger’s side corner of the pickup, with secondary contact at the passenger’s side rear corner of the pickup. The combination of physical evidence and this expert’s evidence demonstrates that the “conservative” estimate of speed at point of impact of 100 kph was indeed conservative.

Based upon all the evidence the rate of speed at the point of impact of the Saturn was between 100 kph and 120 kph with a 10 percent margin for error when using the scientific method to determine speed.

[ 24 ] He determined that a combination of speed and normal reaction time (not making any comment on the unique reaction time of Mr.

Martin) that contact was inevitable if the Saturn motor vehicle maintained its line of travel to impact which it did. [ 25 ] Finally, the damage to the Saturn would have been pretty much the same at speeds between 100 kph and 120 kph but less severe at 90 kph because, at 90 kph the Saturn would have hit near the rear of the pickup, further away from the pickup’s centre of mass. [ 26 ] The remaining expert witness was the forensic toxicologist who offered expert and opinion evidence on the following: 1) Alcohol ingestion, absorption, distribution and elimination rates in the human body 2) Calculation of blood alcohol in the body 3) Analysis of bodily fluids to determine concentration of alcohol in the fluids 4)

Interpretation of medical records regarding alcohol 5) Effects of alcohol on human body re operation of a motor vehicle. [ 27 ] Part of this evidence related to the fact that the blood alcohol concentration of the accused at the time of the collision was between 66 and 144 milligrams of alcohol in 100 millilitres of blood, which range is an admission of fact on consent in this case.

It is also admitted that blood alcohol concentration of the driver of the pickup was between 205 and 274 milligrams of alcohol in 100 millilitres of blood at the time of the collision. [ 28 ] There is no dispute that the accident occurred at or about 2:37 a.m. on the day in question and a blood sample was taken from Mr. Martin at a hospital at approximately 8:25 a.m. on the same morning. It is not disputed that there is no actual evidence of alcohol consumption in the period between the time of the accident and the drawing of the blood.

In addition to an opinion with respect to the range of alcohol content of the blood at the time of the accident this expert also gave opinion on the ability of a person with such alcohol in blood to operate a motor vehicle, specifically whether they would be impaired or not. Succinctly his opinion was that there would be some impairment of ability to operate a motor vehicle for all members of the general population, including Mr. Martin, without statistical significance otherwise, at a level of 66 milligrams of alcohol in 100 millilitres of blood.

The higher the alcohol content the greater degree of impairment. [ 29 ] He described the driving skills that would be affected by any degree of impairment, the greater degree of impairment the greater negative effect in relation to the following:

a) Divided attention

b) Choice reaction time

c) Judgment of speed and distance

d) Tracking skill

e) Decision making

f) Alertness

g) Vision skills, especially at night [ 30 ] He explained the driving skills and functions required. All of these skills interplay with respect to the operation of a large moving motor vehicle, operating at speed, requiring multi-function attention. The ability to cope with other motor vehicles, lights, intersections, sounds and other issues as they arise while driving, are all controlled by the divided attention part of the brain with sensory input at a fast pace when driving, and with a need to discriminate as to function as one operates the vehicle.

His professional opinion was that the base level of intoxication below which there would be little or no demonstrable impairment of function is considered to be 50 milligrams of alcohol in 100 millilitres of blood. The range of alcohol in blood determined by the analysis provided at trial by this expert was, in the expert’s opinion, sufficient for low end impairment progressing through to significant impairment at the higher levels of alcohol in blood which were possible based upon the analysis done. One of the skills particularly affected is choice reaction time.

In this case the choice between continuing to operate the motor vehicle at speed and applying the brakes.

[ 31 ] He was specific. He indicated that at 40 milligrams of alcohol in 100 millilitres of blood there would be little or no detectable impairment. At 50 milligrams studies have shown some minor effect. At 60 milligrams studies have shown the risk is double that of a sober person in a simple accident situation. In serious accident situations the risk rises to seven times more than a sober person at the 60 milligrams level. As the situation becomes more complex or critical, the behaviour demand increases and the danger of impairment effecting performance is manifested more.

As expressed by the expert, the greater the behaviour demand the greater the risk. [ 32 ] He assessed the particular behavioural demands in this particular event as follows. The situation arose at night on a rural road without lighting, with speeds of approximately 100 kilometres per hour (or more), with a vehicle making a left hand turn into the path of the subject motor vehicle. If the lights of the vehicle making the left turn were observed by Mr.

Martin as the driver, the glare from those lights would require a recovery time with respect to the glare, which recovery time would be longer as the amount of alcohol in blood increases. With impairment it would be more difficult to identify the vehicle through the divided attention process in the brain. There would be slower reaction times depending on the degree of alcohol in blood and the degree of impairment. In short there would be a slower response than that for a non-intoxicated person. [ 33 ] The signs of intoxication would be manifested in several ways.

Personal observation would show a deteriorating effect on motor skills, resulting in non-normal walking and slurred speech. However, tolerance to alcohol and practiced tasks while intoxicated, would mask the degree of intoxication. The physiological response within the body would be the same despite the outward signs to the contrary, the masking. Specifically motor vehicle operation skills are impervious to tolerance or habit and the result would be the same whether or not there was practice, whether or not there was built up tolerance.

This is why there can be instances of no outward signs of intoxication while at the same time there is a physiological state of impairment. [ 34 ] A significant and lengthy cross-examination of this witness did not bring into question the core elements of this witness’ evidence. First, that Mr. Martin had an alcohol content as stated and as agreed during the course of trial.

Second, that all persons in the community who have a blood alcohol content of 50 milligrams of alcohol in 100 millilitres of blood are impaired to some degree, with the statistical probability that some person in society is not impaired at that level being insignificant. [ 35 ] Keeping in mind the minimum and maximum range of blood alcohol content as determined, the minimal of alcohol consumed by a person of Mr.

Martin’s body weight of approximately 250 pounds, would be almost four beer and the maximum almost nine beer extrapolated back to the time of the accident. [ 36 ] There was no expert evidence called to contradict the evidence of this witness. [ 37 ] The expert opinion and scientific evidence must be interpreted in combination with the eye witness evidence of the various witnesses and the physical evidence, all evidence forming a total evidence package before the Court. The eye witness evidence may undermine or strengthen the expert opinion and scientific evidence.

There may be a negative, neutral, or positive correlation between the two types of evidence. The Court must also resolve issues of contradiction or incompatibility when assessing all of the evidence, including such issues within a category of evidence like eye witness evidence, or contradictory expert opinion. [ 38 ] In this case there is consistent, uncontradicted expert opinion and scientific evidence related to the various topics encompassed by that evidence, for example, speed, stopping distance, degree of intoxication and degree of impairment of function.

With respect to eye witness evidence there are minor discrepancies, as to be expected, but no substantial contradictions. Mr. Martin was driving, there were passenger comments about excessive speed, the occupants of the motor vehicle consumed significant amounts of alcohol, Mr,. Martin so much so, that his passengers were concerned about his ability to drive safely. Road conditions were not ideal, there were driving issues related to the patchy ground fog at night. Mr.

Martin was operating his own motor vehicle with defective tires and partially defective brakes. [ 39 ] When all of the evidence is viewed as a whole it becomes clear that the scientific evidence meshes with, is compatible with, the anecdotal evidence of the witnesses, each type of evidence reinforcing the other. It is also clear that when there is a range of probabilities – speed, reaction time, amount of alcohol consumed, degree of impairment – the anecdotal evidence shifts the scientific evidence into the higher ranges for such factors. Speed – the speed limit was 80 kph.

The passengers brought excessive driving speed to the attention of Mr. Martin before the accident. The point of impact was at the front corner of the pickup truck, scientifically indicating a speed in the upper range of the range of probable speeds at time of impact – closer to 120 kph than 100 kph. [ 40 ] Alcohol consumption – There is little, but some, evidence of observed consumption of alcohol by Mr. Martin.

However the other anecdotal evidence of the driving to several destinations including a successful trip to the bootlegger, the speed involved, the post- accident investigation, the group’s concern over his impaired ability to drive, all lead to the inevitable conclusion that the lower range of

alcohol in blood at time of accident does not reflect his true blood alcohol level at that time. The anecdotal evidence suggests a figurecloser to 144 milligrams of alcohol in 100 millilitres of blood rather than 66 milligrams of alcohol in 100 millilitres of blood. [41] These findings of fact must then be used with a consideration of the uncontradicted evidence of the forensic toxicologist.

Muchtime was spent cross-examining this witness with respect to what, if any, impairment of function would result with a blood alcohol levelof 50, 60, 66 milligrams of alcohol in 100 millilitres of blood, in an attempt to make the motor responses and cognitive function of Mr.Martin appear to be normal or virtually normal at these levels. But these scenarios do not reflect the true facts situation in this case. [42] The anecdotal evidence of many witnesses, some observing Mr. Martin before, some after the fact, was consistent andcompelling.

They describe a person showing visible signs of significant alcohol impairment of function all within the backgroundcontext of a group of people consuming alcohol in various significant amounts on a night out together. The inescapable conclusions arethese: 1) Mr. Martin operated the Saturn motor vehicle at the time and date in question. 2) He did so while his ability to operate was significantly impaired by the consumption of alcohol. 3) He operated a defective vehicle at speeds between 20 kph and 40 kph above the legal speed limit at night in patchy fog. RESOLUTION [43] The onus is on the Crown to prove that Mr.

Martin’s ability to operate his motor vehicle was impaired by alcohol and that theimpairment contributed to or caused the death of two of his passengers and contributed to or caused bodily harm to three otherpassengers in his vehicle as he operated it. This is a summarized statement of the law as set out in the leading cases. R. v. Smithers (1977) (SCC), 34 C.C.C. 427 (S.C.C.) R. v. Nette 158 C.C.C. 486 (S.C.C.) R. v. Stellato (SCC), 31 C.R. (4th) 60 (S.C.C.) on appeal from (ON CA), 18 C.R. (4th) 127 (O.C.A.) For a fuller discussion see R. v. Shingler 2011 SKPC 192 , para 40-43 et al. [44] R. v.

Smithers is particularly pertinent to this case. In that case the issue was causation of death and the probability that theaccused caused such death. The expert evidence was inconclusive, other causes being statistically probable. However the eye witnessevidence as to acts done and time elapsed was substantial evidence that could result in a conviction. In short the range of probabilitiescreated by the expert evidence was reduced when viewed through the prism of the anecdotal or eye witness evidence. The SupremeCourt of Canada made it clear that expert evidence was not required for conviction.

What was required was an assessment of all theevidence to reach a conclusion, based on that evidence the blows were a contributory cause to death outside the de minimus range, allthat the Crown was required to prove. [45] In this case the fact that the pickup driver was impaired, that he may have made a left turn not in safety, are not determinativefactors, they are only part of the evidence to be considered. The whole of the event must be examined and that examination requires anassessment, based on proven fact, that the driving action of Mr.

Martin, in an impaired state, did or did not contribute to the resultantharm to five people. [46] R. v. Nette more fully set out the test to be met for conviction. Causation has a factual and a legal component. Factually thephysical event must implicate the accused – were acts done, was there a result from those acts. In this case was there driving withresultant death and injuries. This is not disputed. Legally, is there culpability such that the acts of Mr. Martin require legal sanction withthe result that he be held criminally responsible in law.

Is there an element of fault sufficient to create criminal responsibility. [47] The principle behind the impaired driving sections of the Criminal Code is this – a person who is intoxicated and operating amotor vehicle is prone to do things, or not do things, which result in substandard driving conduct making harm to others or property morelikely than if the person was sober. The issue is impairment of judgement and performance.

The evidence here is beyond reasonabledoubt that both the judgment and performance was negatively affected by the level of alcohol in the blood at time of the accident causingimpairment of the ability to drive properly. Some facts are obvious, the observable affect of alcohol on the demeanour of Mr. Martin,the high speed in problematic driving circumstances and slowed reaction time. Less obvious was the decision to continue driving when

others had called his ability into question and to operate a motor vehicle with defective tires and brakes directly contributing to the fact ofthe accident and the severity of the accident. [48] In short there is ample evidence to conclude that there was an element of fault sufficient to have Mr. Martin bear criminalresponsibility, despite the contributory condition and behaviour of the other driver involved. On that night Mr. Martin was drinking anddriving and this constituted a “significant contributing cause” to the deaths and injuries within the meaning of that phrase as interpretedby the Court in R. v.

Nette, supra. [49] In R. v. Stellato, supra, the issue was whether or not the conduct required for conviction is a marked departure from that of anormal person where impaired conduct constitutes an essential element of the offence. The answer is no. It is well settled law beginningwith R. v. Stellato that any degree of impairment beyond reasonable doubt ranging from slight to great makes out the offence. Thedefence relied on the lower end scientific opinion and extrapolated time of offence blood alcohol content to argue the Crown could notprove the degree of impairment beyond an insignificant minimum.

The argument was that a reading of 66 milligrams of alcohol in 100millilitres of blood, and the opinions of the expert in relation to that figure, did not make out the offence. [50] There are two difficulties with this argument. [51] The expert’s opinion was unequivocal and uncontradicted. A reading of 66 milligrams of alcohol in 100 millilitres of blood willresult in observable impairment of function while operating a motor vehicle, particularly under difficult conditions like night driving,foggy patches and glare of oncoming headlights.

Such impairment of function demonstrating an ability to drive substantially andsignificantly inferior to the driving ability of Mr. Martin’s in a sober state. [52] The defence argument asks the Court to view the scientific and opinion evidence in isolation, away from and separate from theeye witness evidence. This cannot be done. An overview of all the evidence shows that both kinds of evidence are compatible and thatwhen all of the evidence is taken together the inevitable conclusion is that impairment of function in this case was much more than slightor minimal.

The degree of impairment was closer to great than slight, and the function impaired was the ability to operate a motorvehicle. [53] The defence argues the potential of bolus drinking, significant consumption of alcohol immediately before the event, led to aspiked reading looking backwards from blood samples taken two or more hours after the event, skewing the scientific evidence results. This argument fails. Again the scientific and opinion evidence is compatible with the eye witness evidence, much of which related totime periods much more than 15 or 20 minutes before the accident.

In addition there is no evidence of bolus consumption of alcohol byMr. Martin before the event. There was alcohol in the motor vehicle. But the only evidence on point is that Mr. Martin was notobserved to be drinking while driving and he had been driving for some time, to a party, to a passenger’s home, to a passenger’s bank, tothe bootlegger’s, to the accident scene. [54] The Crown is entitled to the common sense inference, unless there is real accepted evidence to the contrary, that a motor vehicleoperator does not normally ingest large amounts of alcohol just before or during driving. [55] In addition Mr.

Martin exhibited signs of intoxication at the scene of the accident, within minutes of the accident event, and thisin itself helps to negate this argument. R. v. Paszczenko 2010 ONCA 615 , [2010] O.J. No. 3974 (O.C.A.) R. v. Hall (2007) 2007 ONCA 8 , 83 O.R. (3rd) 641 (C.A.) [56] Whether or not bolus drinking exists is a matter of fact for the trial judge. R. v. Calabretta 2008 ONCJ 27 affirmed on appeal [2008] O.J. No. 411 (S.C.) [57] In

summary the Crown has proved beyond a reasonable doubt the essential elements of the offences before the Court, the defencenot having raised a reasonable doubt as to those essential elements.

Dated at Brantford, Ontario This 26 th day of November, 2012 The Honourable Justice L. P. Thibideau