R. v. Duque, 2013 ONCJ 648

Citation: R. v. Duque , 2013 ONCJ 648 ONTARIO COURT OF JUSTICE in the matter of the provincial offences act r.s.o. 1990 HER MAJESTY THE QUEEN v. GIOVANNI DUQUE * * * * * * * * P R O C E E D I N G S A T T R I A L BEFORE HIS WORSHIP JUSTICE OF THE PEACE V. BUBRIN on June 20, 2013, at 70 Centre Avenue, TORONTO, Ontario * * * * * * * * Charge: s. 149(2) – Workplace Safety and Insurance Act - * * * * * * * *

Appearances : Ms. R. Rosenberg WSIB Prosecutor Mr. M. Brodzky Counsel for the Defendant Mr. G. Duque The Defendant – In Person ontario court of justice TABLE OF CONTENTS Exam. Cr- Re- WITNESSES : in-Ch. exam. exam. ********** EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE ********** REASONS FOR JUDGMENT Page 3 **********

Transcript Ordered: __ June 20, 2013 Transcript Completed: __ September 23, 2013 Transcript Party Notified: ____________________ THURSDAY, JUNE 20, 2013 THE COURT: Okay. So we’re here with Mr. Duque and we have a Spanish language interpreter. MR. INTERPRETER: Good afternoon, Your Worship. My name is Hernando (ph) Coronell, Spanish interpreter. CLERK OF THE COURT: Can you.... MR. INTERPRETER: Last name is C-O-R-O-N-E-double L, Coronell, initial H. THE COURT: If I can just get organized here, and if the parties can re-introduce themselves. For the prosecution? MS. ROSENBERG: Rosenberg, initial R. Good afternoon.

THE COURT: Ms. Rosenberg, good afternoon to you. MR. BRODZKY: And good afternoon. Michael Brodzky. THE COURT: Mr. Brodzky. Okay, good afternoon to you. Okay. I think that the way we’re going to proceed, we’ll assist with the presence of the interpreter. I will endeavour to pace myself so that the interpreter will be able to follow and properly interpret. REASONS FOR JUDGMENT BUBRIN, J.P. (Orally) : The Court will now deliver its judgment into the case of R v Giovanni Duque. Mr.

Duque stands charged that, between the 11th day of October, 2010, and the 1st day of September, 2011, at or near the City of Toronto in the Toronto Region, and elsewhere in the Province of Ontario, did willfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred, contrary to s. 149(2) of the Workplace Safety Insurance Act of 1997, Statutes of Ontario, 1997, Ch. 16, as amended. The trial into Mr. Duque’s case took place on February 25th and 27th, 2013, earlier this year.

A full two days were required. The Court

heard from six witnesses called by the prosecution and the defence, including Mr. Duque. Called by the prosecution was, first, Ms. Consuela Gonzales (ph), a friend of Mr. Duque’s and the owner and operator of a restaurant in Toronto, Las Americas Café; the Workplace Safety and Insurance case manager, Elio Gallia (ph), who managed Mr. Duque’s WSIB claim file at its initial and earlier stages; George Banados (ph), an investigator with King-Reed and Associates, hired by the WSIB to conduct surveillance on Mr.

Duque on September 29, 2010, October 4 and 6, 2010; Margaret Hotten (ph), also a case manager with the Workplace Safety and Insurance Board who took over Mr. Duque’s file from Mr. Gallia. I should point out that the surveillance that was conducted by King-Reed and Associates also included a date in May of 2011. The surveillance took place when Ms. Hotten was managing Mr. Duque’s file when Ms. Hotten had the authority to make decisions regarding Mr. Duque’s entitlement to Workplace Safety and Insurance benefits.

The Court also heard from Diane Seminara (ph), another investigator with King-Reed and Associates, who conducted the surveillance on Mr. Duque on April 20th and 21st of 2011, and then subsequently on the 2nd, 4th and 5th of May, 2011. The Court also heard the evidence of Michael Logozny, Senior Investigator in the Investigations and Prosecutions Brach of the Workplace Safety and Insurance Board. And I should note that it was Mr. Logozny who swore the information laying the charge against Mr. Duque. As indicated above, the Court also heard from the defendant, Mr. Giovanni Duque.

According to the Workplace Safety and Insurance Act , there is a continuing obligation to provide information to the Workplace Safety Insurance Board and to give notice of any material change in circumstances. Sections 23(1) and (3) speak to this directly.

Section 23(1) states that “a person receiving benefits under the insurance plan, or who may be entitled to do so, shall give the Board such information as the Board may require from time to time in connection with the person’s claim.” From that flow subsections(1) and (3), which state that “a person receiving benefits under the insurance plan, or who may be entitled to do so, shall notify the Board of a material change in circumstances in connection with the entitlement within 10 days after the material change occurs.” The consequences of failing to comply with the requirements under s. 23(1) and s. 23(3), are described under the Offences and Penalty

section of the Act. Thus in s. 149(1) and (2), specifically (2), we read that “persons who willfully fail to inform the Workplace Safety and Insurance Board of such material change within 10 days of the change are guilty of the offence.” Section 149(5) states that “if persons are convicted of an offence, the Court may also order them to repay the Workplace Safety and Insurance Board any money received because of this offence.

This is considered an amount owing under this Act.” Subsection 149(7), states that “this does not limit or replace the Safety Insurance Board’s right to take such other steps as it considers appropriate to recover an amount owing it.” I should also address what is prescribed by the Act as penalty, and that is described in s. 158. “A person who is convicted of an offence is liable to the following penalty: If the person is an individual...” - is the case here - “...the person is liable to a fine of not exceeding $25,000, or to imprisonment not exceeding six months, or to both.” The Workplace Safety Insurance Act itself, does not define the term “material change in circumstances.” That term is defined in the Board’s policy (Exhibit 1) and I will read what that policy says and how it defines the term “material change in circumstances.” “Material change in circumstances is any change that affects a person’s entitlement to benefits and services under the Act.

If a person fails to inform the Workplace Safety and Insurance Board of a material change in circumstances, the WSIB presumes that this is intentional and willful unless the person can demonstrate having no knowledge of the change. Decision makers determine whether the person reasonably should have been aware of the change by reviewing the facts of the case.” Like in all Provincial Offences charges, the onus is on the prosecution to prove the charge beyond a reasonable doubt. Most Provincial Offences are categorized as strict liability offences where a defence of due diligence is available to the defendant.

Given the wording of the sections of the Workplace Safety and Insurance Act pertaining to Mr. Duque’s case, particularly the wording in s. 149(2), which states that “a person who willfully fails to inform the Board,” this term “willfully” leads the Court to categorize the offence at trial, as a mens rea offence. I don't recall that this was a contested point, but I raise it at the outset of these Reasons, firstly to provide some clarity to the standard with which to look at the evidence and, secondly, to address a theme that appears to have been present in Mr.

Brodzky’s cross-examination and the Crown’s witnesses, that is the cross-examination of the Crown’s witnesses, and a theme present in Mr. Duque’s own testimony, namely his suggestion that he has a poor knowledge of the English language. There is evidence in other places

in the exhibits which describe Mr. Duque as functionally illiterate or operating at a very low level of literacy. The inference here is thatMr. Duque did not really understanding what were his obligations and that he did not know. In this regard, I found the case of R v Kester (1982, (ON CA), 38 O.R. (2nd) 294) quite helpful. In this case, it wouldappear the mens rea categorization places a higher onus on the prosecution. However, at the same time, as I will cite from Kester, theproof also may be by inference.

R v Kester also suggests that ignorance of the law is no excuse for committing the offence, and parallels will be drawn between theWorkplace Safety and Insurance Act and the Business Practices Act of Ontario, which was the subject of the case in R v Kester. In Kester, the accused is alleged to have made false, misleading, deceptive or unconscionable consumer representations, knowing thatthese were unfair practice. So the element of knowledge is present there.

In R v Kester, the Ontario Court of Appeal ruled that the phrase “knowing it to be an unfair practice” requires proof by the Crown of aspecific mens rea or a guilty state of mind. Counsel for the appellant argued indeed that those words placed a higher onus on the Crownthan the obligation merely of proving mens rea. In a subsequent paragraph, the decision goes on to say that “proof of the mens rearequired by s. 17(2) of the Business Practices Act involves proof of a question of fact, not of law.

If the accused did not know that herconduct was unlawful, that is not a defence, for it is a question of law and not of fact. Ignorance of the law is no excuse.” I draw a parallel in this case between the Business Practices Act and the Workplace Safety and Insurance Act, and the phrases, “knowingit to be unfair practice” in the Business Practices Act and “willfully”, the phrase used in the Workplace Safety and Insurance Act.

I quote further from Kester. “In proving the mens rea required by this section, the prosecution...” and this is very important, “...is notlimited to direct evidence of the facts to be proved, for proof may be made by inference as well. It is open to the trier of fact, employingordinary logic and common sense, to draw the inference from the facts proved that the accused knew that the representations were untrueor unconscionable.” Given the apparent theme that ran through Mr.

Duque’s line of defence, even though I keep in mind at all points that the onus is on theprosecution to prove the charge against him beyond a reasonable doubt, let me at least address some of the points that he raised in hisdefence. His ignorance of the law, if he so claimed that he was ignorant, is not an excuse for committing the offence. The Court furthernotes that Mr.

Duque understood his right to his entitlement to benefits and he engaged to this end throughout the history of his – thehistory of his WSIB file the services of several workers’ advisors, who are well-versed both in the legislation, the policies, the practices,and the obligations of workers. If Mr. Duque understood and exercised his entitlement to benefits, it is reasonable to expect that he alsounderstood, or ought to have understood, his obligations, in this case a duty to report any material change. The Court notes that, in the correspondence to Mr.

Duque before the Court in different exhibits, the WSIB warns and reminds Mr.Duque, as it does other claimants, of their obligations. Exhibit 27 is one such example, and this is a letter September 17, 2010, to Mr.Duque. In the middle of this page, Mr. Duque is reminded that “A worker who receives or claims benefits from the WSIB has certainresponsibilities. You must report any material change in circumstances to the Workplace Safety and Insurance Board within 10 days ofthe change.

A material change could include any of the following: an improvement or worsening in your condition, an increase ordecrease in your wages, beginning to get or changes to Canada Pension Plan Disability Benefits, a change in your job duties or hours, achange in your ability to cooperate in treatment, early and safe return to work activities, or a labour market re-entry program.” A similar reminder is repeated on different occasions in the correspondence to Mr. Duque, including the letter from Ms. Hotten to Mr.Duque, dated September 12th, 2011, which ultimately advises Mr.

Duque that there will be a discontinuation of his benefits. (SeeExhibit 56). The Court also heard the evidence of Mr. Mike Logozny, a senior investigator who interviewed Mr. Duque extensively. The transcriptof that interview is found in Exhibit 62. From that transcript, the Court notes that Mr. Duque does not appear to be a very articulateindividual, particularly endeavoring to articulate his thoughts in English. And there was no interpreter at that interview. At the same time, the sense the Court gets from the flow of the interview, is that Mr. Duque was able to follow the thought process. He

appeared to understand the questions. He was alert enough to ask that the question be repeated. So, in that regard, Mr. Duque, in spite of his limitations in the English language and literacy, in the Court’s opinion was aware, or ought to have been aware of his responsibilities. Now, notwithstanding the categorization of the offence as a mens rea , before asking the question whether Mr. Duque willfully failed to inform the Board of any material change in circumstances in connection with his entitlement to benefits, it has to be established first that there was material change in circumstances for Mr.

Duque to report to begin with. The history of Mr. Duque’s WSIB claims and benefits is very well documented, and this the Court concludes from the ample evidence by the witnesses by the prosecution and some 65 accompanying exhibits, from the initial reports, from the initial accident report at his place of employment at Ace Bakery as a driver and delivery man on September 20, 2005, to the discontinuation of his benefits announced in a letter to Mr. Duque by the WSIB case manager, Ms. Hotten, on September 12, 2011. I don’t consider that it is necessary to recount the entire detailed history of Mr.

Duque’s claims, because not everything in that documentation and evidence impacts on the decision that the Court needs to make on that narrow point of willfully failing to report a change in circumstances. I will, therefore, rely on a fairly good

summary provided in evidence in – and specifically Ms. Hotten’s letter to Mr. Duque on September 12th, 2011, which was the document announcing the discontinuation of Mr. Duque’s benefits. And Ms. Hotten summaries the history of Mr. Duque’s case in the first paragraph, and I quote: “On September 20, 2005, you sustained injury to your neck and upper back which was attributed to your assigned work duties as a delivery driver for a bakery. You reported the injury to your employer and sought appropriate medical attention. Your case was allowed, with entitlement to the neck and upper back.

You later claimed entitlement to major depression and your bilateral shoulders. Entitlement to major depression was allowed, however entitlement to the bilateral shoulders was denied. Your employer was unable to accommodate with suitable modified work and you were referred for work transition services. A suitable occupation of customer service clerk was identified and you received training to acquire the required skills to obtain this position.

Noting that the SO of consumer services clerk did not mitigate your wage loss, you have continued to receive a partial loss earnings benefit since completion of the work transition services.” This, I believe, is a fair

summary of Mr. Duque’s claim and the history of that claim up to the discontinuation of the benefits. Now continuing with the history of Mr. Duque’s claim and file at the WSIB, an apparent combination of two events in 2010 and 2011 caused the Board to question the legitimacy of Mr. Duque’s entitlement, and by this time this entitlement was based on an assessment of 10 per cent and 35 per cent psychological disability. The first event was his apparent lack of motivation for retraining, based on his performance at the Labour Market Retraining program, including his frequent absences from the program.

It was later established that these absences amounted to well over 30 days in a period of two years. All the while he was on full benefits, that is, 85 per cent of his pre-injury earnings, which the Court understands are non- taxable, and costing the Board, as the Court learned, over $70,000 (as spelled out in Exhibit 12), in occupational retraining and educational upgrading.

The second event was an anonymous tip, at the beginning of June, I believe it was June 2nd, 2012 (see Exhibit 19) in which the Board was informed by this anonymous caller that Giovanni Duque, while on compensation benefits has been seen working at a restaurant for at least the last year. It, is believed he will be receiving money for compensation and is usually at the restaurant on Monday and Wednesday. So this is the second event that gets the ball rolling with respect to the investigation calling into question the legitimacy of Mr. Duque’s claims.

Two asides connected to this particular period in the history of Mr. Duque’s WSIB file should be noted. One, there appears to have been a disagreement between the LMR program and WSIB and Mr. Duque regarding the direction of his retraining. The LMR identified that Mr. Duque would be suitable for retraining in customer services, while Mr. Duque expressed a desire and preference for outdoors work and woodworking.

It is the second point that is particularly interesting, though it too is not determinative in what the Court needs to decide, and is the following: As the Board embarked on investigating the legitimacy of Mr. Duque’s claim, and only three months prior to the letter of September 12, 2011, which announced the discontinuation of his WSIB benefits, Mr. Duque was reassessed for his physical disability and granted a two per cent increase, now recognizing a mild thoracic injury in addition to the previously assessed 10 per cent cervical area injury. This is spelled out in Exhibit 52.

The Workplace Safety and Insurance Board’s investigation that I mentioned earlier was done in the form of surveillance, both photo and video, for which the Board hired the services of King-Reed and Associates. Video footage is contained in Exhibit 45, investigation report from 2010, specifically September 29 and October 4 and 6 in Exhibit 46, and the investigation report and surveillance on April 20, 21st, 2011, and May 2, 4, 5, 2011. These reports and video surveillance captured several activities that Mr.

Duque was engaged in: driving and picking up and dropping off and picking up his children at school, attending a shopping grocery store, reaching out for produce, pushing a grocery cart, carrying as many as two or three bags of groceries in one episode and loading these in the car, carrying what appeared to be a case of beer, an 18 pack. In another episode in the back of a restaurant, Mr. Duque was seen carrying empty milk crates and, at one point, counting money. As a result of this surveillance and the analysis of the evidence in that surveillance, Mr.

Duque’s WSIB benefits were cut off and charges under the WSI Act were brought before this Court. These events came through in the testimony of the witnesses and the exhibits before the Court. So, for example – and chronologically, there was a cautioned statement taken by Mr. Logozny from Mr. Duque on July 12th, 2012, in Exhibit 62. Following this statement, Mr. Logozny had issued a memo to the case manager of Mr. Duque’s file in Exhibit 59. The case manager’s assessment of the report from Mr. Logozny is captured in Exhibit 55 in the form of a memo to file. And all this culminated in a letter to Mr.

Duque, informing him of the termination of his benefits, a letter from Ms. Hotten to Mr. Duque (Exhibit 56). And this letter to Mr. Duque states as follows. “New information was recently received in your case and, as a result, your benefits were reviewed further. The information provided supports that you have failed to report a material change and have been gainfully employed since September 29, 2010, or prior. You confirmed that you have been working for your wife’s bakery as a delivery driver, as well as cleaning and cooking for a restaurant and performing other work-related duties.

Noting that you have demonstrated your ability to perform your pre-injury position since September 29, 2010, and this position is available in the general labour market, entitlement to the PLOE benefit ceased effective September 29, 2010. A recoverable overpayment will be created for benefits paid after September 29, 2010, and there is no entitlement to further loss of income benefits in this case.” “I have also reviewed,” Ms. Hotton continues, “your entitlement to the recognized permanent impairments for your neck, upper back, and major depression.

With respect to your neck and upper back, in review of your demonstrated functional abilities, I am unable to determine that there is any ongoing impairment. As there is no evidence of an ongoing impairment, the permanent impairment which was previously accepted for your neck and upper back is no longer recognized under this claim. The non-economic loss (NEL) award you received in relation to your neck and upper back will be rescinded and a recoverable overpayment will be created.” And the third paragraph that I wish to quote from Ms.

Hotten’s letter states that “with respect to the permanent impairment for major depression, you have demonstrated that you are capable of performing all activities of daily life, including obtaining and sustaining gainful employment. The diagnosis of major depression was provided based on inaccurate and subjective information you provided to treating professionals. There is no objective evidence to support that you are suffering from major depression.

As there is no evidence of an ongoing psychological condition, the permanent impairment which was previously accepted for major depression is no longer recognized under this case. The non-economic loss award you received in relation to the psychological condition will be rescinded and a recoverable overpayment will be created.” All this leads to the key question that this Court needs to decide. Does the Board’s

interpretation of the surveillance videos and reports support the conclusion that material changes, which Mr. Duque willfully failed to report, occurred? The evidence in answer to this key question relates to three specific areas, and these areas are in line with the Board’s allegations: Mr. Duque’s alleged gainful employment since September 29, 2010, or prior; evidence related to and pertaining to Mr. Duque’s physical functioning as seen on the video and as documented in the file; and evidence pertaining to Mr. Duque’s psychological functioning as reported by the investigators and as documented on Mr.

Duque’s WSIB file. With respect to the issue of gainful employment, in the Court’s review of the evidence, the anonymous tip that set the investigation off, the Court finds that this anonymous tip did not yield any concrete evidence that Mr. Duque was gainfully employed during the time in question. The anonymous caller was never identified and it would appear that the anonymous caller never followed up with concrete information with respect to what it was that led the caller to believe that Mr. Duque was gainfully employed. The prosecution’s first witness, Ms.

Consuela Gonzales, the owner of Las Americas Café, testified that Mr. Duque would occasionally come to the restaurant and assist at the cash register while she was absent, for which she gave Mr. Duque food and, occasionally and against his will, slipped him a $5 tip for his assistance. In the Court’s view, this cannot be considered as gainful employment. The suspicion, or the suggestion that Mr. Duque worked at Los Arieros (ph) Restaurant, which the investigators appear to have followed up more closely, was not substantiated. In fact, when Mr.

Duque was interviewed, when he gave his statement to the Board investigator, he provided an explanation, that his business at Arieros was to deliver tortillas made by his wife after hours and that he helped his wife make those deliveries. Assisting his wife delivering a tray or two of tortillas does not constitute, in the Court’s view, gainful employment that would obligate Mr. Duque to report to the Board.

Counting money outside of Los Arieros Restaurant, while suggestive, is inconclusive proof of gainful employment. In fact, if he was delivering tortillas on occasion for his wife, it stands to reason that he would be paid and that he would take that money to his wife. No indication of amount of money involved was proffered, so the evidence with respect to Mr. Duque’s involvement with Arieros too is inconclusive with respect to any proof of gainful employment. With respect to the Board’s conclusion that Mr.

Duque failed to report an improvement in his physical and psychological condition which were previously recognized for compensation, the Board relied on the surveillance video footage and reports to determine that Mr. Duque was now demonstrating full functional abilities, and the Board therefore ruled out any ongoing physical impairment and identified that as objective evidence to support that Mr. Duque was no longer suffering from major depression or physical disability.

In my opinion, these conclusions are not supported by the evidence before the Court, and not supported by the evidence found in the Board’s own documents pertaining to Mr. Duque’s compensable disabilities, both physical and psychological. The Court is left with the impression that, in this regard, the Board failed to consider and appreciate its own medical reports on Mr. Duque’s WSIB file. In this Court’s view, the standard against which the Board ought to have assessed its suspicion of material changes in Mr.

Duque’s physical and psychological disabilities were the conclusions confirmed by medical professionals, and not simply the observations made during a brief and limited episodes of surveillance. The observations that Mr. Duque was able to walk, drive a family vehicle, shop for groceries, carry grocery bags, carry an 18 bottle case of beer, carry one or two empty cartons of milk, these episodes do not, in and of themselves, prove that Mr. Duque was now able to function in excess of his previously recognized and compensable disabilities. Even a cursory review of the medical reports on Mr.

Duque’s WSIB file show that what Mr. Duque was observed doing in the course of the surveillance does not match the limitations assessed by the Board. In Exhibit 8, for example, Mr. Duque was informed that “you are considered to be permanently partially disabled and fit to return to suitable work. A permanent impairment is evident with respect to your neck and upper back. Permanent restrictions are to avoid no above shoulder work, no repetitive use of the neck, upper back, and shoulder area, no heavy lifting, pushing or pulling.” These are the limitations described by the Board. What Mr.

Duque was observed doing does not match with the above-described limitations. There’s nothing in the evidence to show that Mr. Duque was doing any above-shoulder work. There’s nothing in the surveillance video report to indicate that there was a repetitive use of the neck, upper back, and shoulder areas. There’s nothing in the surveillance videos or reports to indicate that Mr. Duque was engaged in any heavy lifting, heavy pushing or heavy pulling. Similar evidence is found in Exhibit 9, where Mr. Duque’s persistent symptoms were described in similar terms.

This seems to be consistent with information found throughout Mr. Duque’s file and I will just mention the ergonomist’s report at Exhibit 33 as an example, the physical and psychological report in Exhibit 22, the psycho-vocational report in Exhibit 38. All these appear to describe Mr. Duque’s limitations pertaining to the already-mentioned affected areas of his body. I have carefully reviewed the description of these and I do not find that they match the activities that Mr. Duque was performing when he was being monitored.

Those activities that he was conducting when he was being monitored, in the Court’s view, do not exceed Mr. Duque’s limitations that are described in the medical reports. The Court also takes into consideration the lack of evidence that the Board consulted with its medical professionals to get an opinion whether the activities Mr. Duque was engaged in when monitored were consistent or inconsistent with his compensable disabilities as documented on the WSIB file. I note that there are no physicians’ reports after the letter by Ms. Hotten to Mr. Duque, announcing the discontinuation of his benefits.

There is, however, a letter from Dr. Rodin (ph), the psychiatrist, in Exhibit 65, dated February 21, 2013, in which the doctor provides an opinion, confirming that Mr. Duque continues to suffer from depression. The Court also notes that the Board did not consider Mr. Duque to be totally disabled and unable to function with respect to normal daily activities when they discontinued his benefits. In fact, at the time the Board was investigating Mr. Duque, he was considered stable and fit enough to participate in the LMR program to determine his occupational options in the light of his disabilities.

While the Board may have had good reason to reassess Mr. Duque’s levels of disability and assess him for his eligibility for non-economic loss benefits, given his poor performance and attendance in the LMR program, the evidence gathered by the investigators was, in this Court’s view, insufficient to show that there was material change in Mr. Duque’s physical and psychological condition to obligate him to report to the WSIB. Based on this

interpretation and analysis of the evidence before it, the Court concludes that the prosecution has not proven the charge against Mr. Duque beyond a reasonable doubt, and the charge against Mr. Duque is therefore dismissed.

Thank you for your indulgence. I have not prepared a written copy of my Reasons. However, should one be required, we would order a transcript. MS. ROSENBERG: Yes, I think so. THE COURT: Yes. MS. ROSENBERG: Thank you. THE COURT: Do you wish a transcript to be ordered? MS. ROSENBERG: Yes, please, Your Worship. THE COURT: We will – okay, we’ll order a transcript and then distribute it.

I’ll have a look at it first, and then, and then we will distribute it to counsel. * * * * * * FORM 2 Certificate of Transcript Evidence Act, S.S. 5(2) I, Judy Denny , certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Giovanni Duque , in the Ontario Court of Justice , Provincial Offences Court , held at 70 Centre Avenue, TORONTO, Ontario, taken from Recording No.

C2-20130620-1500 , dated June 20, 2013 which has been certified in Form 1 . _September 23, 2013 __ ________________________________ (Date) (Signature of authorized person) On behalf of Durham Reporting & Mediation Services