R. v. Finnerty, 2013 ONCJ 60

Information No. 10-1454, 10-197 Citation: R. v. Finnerty , 2013 ONCJ 60 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JOHN FINNERTY R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on January 8, 2013 at ORANGEVILLE, Ontario

APPEARANCES : M. Balogh Counsel for the Crown D. Lent Counsel for J. Finnerty R E A S O N S F O R J U D G M E N T PUGSLEY, J. (Orally): John Finnerty faces a single count of impaired driving. The companion charge of driving with excess blood alcohol was withdrawn by the Crown earlier in the trial. The defence application under subsection 11(

b) of the Canadian Charter of Rights and Freedoms was dismissed on the first day scheduled for this trial. Although the trial time estimate was one day, parts or all of four days were spent on the matter. The trial commenced in April of 2012, and continued in July and November. At the end of the evidence, the defence made submissions on the merits and on several alleged charter breaches. I reserved my decision on all issues until today. At the end of the

Section 11 (

b) ruling in January of 2012, the Crown withdrew the over 80 charge, based upon a breach of the defendant’s right to consult with counsel in private. The matter proceeded as a blended trial and Charter application. The first Crown witness was Constable Joseph Kuzmich. Constable Kuzmich was sent to an incident on Humber Station Road in the Town of Caledon on the 28 th of October, 2010. The call concerned an alleged altercation between the defendant and another person. Constable Kuzmich had no dealings with the defendant at that time. He cleared the scene at one minute after noon.

At 12:20, he learned that the other officer who had been at the scene of the alleged altercation, Constable Aaltink, had stopped the defendant’s motor vehicle in another location not far away, in Caledon. Constable Kuzmich attended to assist two minutes later. He found that Constable Aaltink had arrested the defendant for impaired driving and he assisted her in searching the defendant.

While searching the defendant and lodging him in the rear of the arresting officer’s cruiser, this officer noted that the defendant had a very strong odour of alcohol on his breath, that his trouser fly was open and that he had urinated in his trousers. The defendant was searched again at the police station and then lodged in the cells there. The defendant’s vehicle was the same vehicle that he associated with the defendant at the scene of the earlier alleged altercation, which was roughly one to one and a half kilometres away from where the defendant’s vehicle was stopped.

Later, he assisted in transporting the defendant to the Bolton subdetachment of the O.P.P. for fingerprints and photographs. They arrived back at the main detachment in Caledon East at 5:25 p.m., and the defendant was relodged in the cells one minute later.

At the scene of the alleged earlier altercation, Constable Kuzmich dealt with the other involved party, one Mr. Graham. Constable Aaltink had dealings there with the defendant. The officer arrived at the scene of the defendant’s arrest on the roadside two minutes after he had received the radio call to assist his colleague. When he arrived the defendant was being placed in handcuffs. The officer identified several photographs of the defendant’s vehicle and the area of the vehicle stop. The video and audio record of the defendant’s attendance in the breath room at the Caledon East Detachment was played.

The audio portion of the recording catches some of the defendant’s side of his conversation with counsel in the privacy booth which is not far from the breath room, although indistinctly. This formed the basis for the Crown’s decision to withdraw the over 80 charge. Constable Aaltink can also be heard on this portion of the recording. It is apparent from her conversation that she is not paying attention to the defendant’s conversation in the booth. When the defendant entered the breath room, the very brief view of his walk is seen to be a wobble at one point.

When asked to place the mouthpiece of the Intoxilyzer in his mouth for the purpose of the breath test, the defendant placed the entire mouthpiece in his mouth. At points on the video the defendant appeared to be intoxicated. Constable Kuzmich drew a sketch of the layout of the detachment. He testified that subsequent to the defendant’s experience with the privacy booth, extra padding had been attached to the walls and door of the booth to add to its soundproofing. This officer had no role in the release of the defendant.

He testified that there is a security camera in place to view the foyer or hall area and other cameras that view the cells of the detachment. Some of the defendant’s movements in the detachment would have taken place in areas where the security cameras are placed. Constable Kuzmich was not aware if the camera views were recorded. About a week after the police learned of the accidental recording of the defendant’s voice coming from the privacy booth onto the record kept in the breath room, remedial work was started on the privacy booth. Constable Rachel Aaltink was the arresting officer here.

On the date of the alleged offence, she had two contacts with the defendant. The first was in relation to a dispute between the defendant and Mr. Graham. She dealt with the defendant and Constable Kuzmich dealt with Mr. Graham. When she met the defendant at that scene, he appeared to be intoxicated by the consumption of alcohol. There was a smell of alcohol on his breath, he had a red face and glassy eyes and had trouble standing. He was repetitive and made answers that did not make sense and mispronounced words. She did not see him walk, only leaning against a vehicle.

Before she left that scene, she warned the defendant not to drive because he was too intoxicated to do so. She expressly told the defendant that she did not want to see him driving a motor vehicle. She completed her notes and cleared that scene, to set up radar on Highway 9, not far from the scene of this investigation. As she was readying her radar gun, she saw one of the vehicles that had been at her earlier investigation coming over the crest of the hill, near her location. She saw the vehicle to weave, including onto the eastbound shoulder.

She pulled out and followed that vehicle, which turned onto Duffy’s Lane, with what she described as a wide turn, and she immediately stopped it. The defendant was the driver. She approached the vehicle and the defendant lowered the rear driver’s side window instead of his window. She testified that the defendant could not figure out how to lower his window until she told him how to do so through the open rear window. She smelled an odour of alcohol before the defendant spoke. She advised the defendant why he had been stopped and asked for his driver’s licence, registration and insurance documentation.

The defendant looked in the centre console for 15 to 35 seconds, then turned back and told her that he did not understand what she was asking for. She repeated her request.

She described the defendant fumbling and finally pulling out a trailer registration document. Finally, the defendant handed her the insurance document envelope and told her to do it herself. She then smelled alcohol on the breath of the defendant. She told him to place the vehicle in park and turn off the engine. He placed the vehicle in park but left the engine running. She repeated her request and it was complied with. She asked him to get out and then arrested him for impaired driving. The defendant had repeatedly asked why he had been stopped.

She described his demeanour as being forceful and almost angry with her. As he exited the truck he used the door to brace himself and steadied himself on his vehicle as he moved back towards her cruiser. When he walked between the two vehicles he was unsteady on his feet. Constable Kuzmich assisted in searching the defendant. The defendant was placed in the rear of Constable Aaltink’s cruiser, where she gave him his rights to counsel and the police caution and the Intoxilyzer demand. At the detachment, Constable Aaltink immediately called the defendant’s lawyer of choice, Robert Burke.

Partway through the phone call the defendant said that the call had been lost. Constable Aaltink acted to re-establish the call on behalf of the defendant. Constable Aaltink testified that in the past she could hear voices and, sometimes, individual words from the privacy booth while it was being used by defendants to speak to counsel. She stated she was trained to stay close enough to observe the calling party through the observation window in the privacy booth door, and was also trained not to listen because it was a private conversation.

When a suspect is using the booth she stays six to eight feet away, so that she can see the suspect through the window in the door but cannot hear her or him. Constable Aaltink testified that she did not note or understand what this defendant said during his conversation with his counsel of choice. She could hear voices because the defendant was talking very loudly. Only when she listened to the breath room video audio tape could she hear some of the words because the audio volume was turned up very loudly.

She testified that soundproofing has been added at both Caledon East and in Bolton, to enhance the soundproofing of the booths. The door to the privacy booth was closed and no one was at any time attempting to listen in on the defendant’s call. Constable Aaltink also testified that she has seen the defendant at court and that the defendant looked different than what she saw on the day of his arrest. She observed him to be quieter, he had no trouble walking, a fairer complexion and his eyes were more alert. She also noted that his speech was better at the courthouse.

The fact that the defendant drove after being specifically told not to do so was also, in her view, a sign of his intoxication on the date of his arrest. She estimated his level of impairment as an 8 on a scale of 0 to 10. Constable Aaltink was not present when the defendant was released. In her view, the defendant had consumed too much alcohol to be released without a supervisor or when he had sobered up. She was off duty at 6 p.m. She briefed the Officer in Charge as to why the defendant was being held and left it up to that person to determine when the defendant was safe to be released.

The defendant was indeed released, but not until 9:30 p.m. In her view, that was a little earlier than he should have been released, due to his severe level of impairment. Constable Aaltink testified that there are two different video systems at the detachment in Caledon East. In the breath room there is a system that records video and audio onto a DVD. An officer inserts the DVD into the recording device and presses record, and when the breath test is completed, hits the stop button. The video taken of the hall and cell area is automatic and is motion activated.

The video is used for officer and prisoner safety and is not disclosed.

In cross-examination, Constable Aaltink testified that the automatic video monitoring system records some parts of the building but not others. The garage is not recorded. The foyer is under video surveillance for part of its length. There is one fixed camera that covers that foyer. It might see the door to the breath room but cannot see into that room. There is a second fixed camera focused on Cell Number 1, and a third fixed camera for Cell Number 2. Only the hall and the two cells are on the video system.

As the defendant travelled to the cells and then back to the privacy booth and back and forth to the breath room, his passage in the foyer would be on the fixed camera there. The defendant’s actions while in Cell Number 2 would also be on the video for that cell. Constable Aaltink agreed that the defence disclosure request was stated as being a request for all video records, but stated that it was not customary to disclose the security camera video, and no one asked for them before the system overwrote the record, one year after the date when the defendant was in the detachment.

At the time the officer saw the defendant driving on Highway 9, on the date of the alleged offence, she had not yet completed testing her radar unit in preparation for monitoring the speed of vehicles on Highway 9. She recalled the defendant’s vehicle leaving the pavement for a short time, then going onto the shoulder before he was pulled over. She saw his vehicle for a short time, but also recognized it and that was one reason why she stopped the defendant. The defendant was driving well under the speed limit. She was west of where the defendant suggested her car was when she first saw the defendant’s vehicle.

When the defendant walked back to her cruiser, he did not fall nor stumble nor stagger, but was unsteady on his feet. Constable Aaltink was between the privacy booth and the breath room where the microphone picked up the defendant’s voice from time to time while he was on the phone with his lawyer. In her experience, before the booth had extra soundproofing added, voices could be heard but not what was being said. She described the defendant as being very loud when he was on the phone to his lawyer.

The Officer in Charge and/or the qualified technician would make the call on when it was safe to release the defendant without risk to himself or members of the public. At 2:28 p.m., Constable Aaltink asked the defendant if he had someone who could come and pick him up but did not note this in her notes. She recalls asking him when she told him the breath room test results. Constable Aaltink disagreed when it was suggested that, with his truck impounded and his driver’s licence suspended, there was no problem concerning the defendant driving had he been released earlier.

She testified that she had already told the defendant not to drive and he had done so anyway. Constable Andrew Munro was the qualified technician who performed the breath tests on the defendant. While in the breath room he noted the defendant’s physical signs entering and leaving the breath room as good, that there was a strong odour of alcohol on his breath, that his eyes were watery, he had a red face, his speech was fair at best, his words were not slurred but were delayed and deliberate.

The defendant had trouble opening the mouthpiece and could not understand the instructions on how to blow through the mouthpiece. The defendant placed the entire mouthpiece into his mouth. The defendant was cooperative and was a fairly loud talker. Constable Munro’s observations of the defendant at court were different. The defendant’s speech was far better, he was much faster in responding to questions, his face was not as red. He concluded that the defendant’s ability to drive was impaired by alcohol. The decision to release the defendant was delayed to protect the defendant and the public.

The defendant had no sober person to be released to and his blood alcohol readings were more than three times the legal limit. He gave the Officer in Charge and the Shift Commander his opinion with respect to the defendant’s level of intoxication and the final call on when to release the defendant was up to them. The rate of elimination of alcohol is approximately 15 milligrams per hour. Constable Munro went off shift at 6 p.m.

The cell area and the hall of the foyer were video recorded, but had not been consistently recorded during the time he spent at the Caledon Detachment in his career. When he viewed the breath room video, he heard a male voice in the background while the defendant was in the privacy booth. He presumed it to be the defendant’s voice. The microphone in the breath room is adjacent to the camera there. Louder defendants, such as the defendant, could be easier to hear sometimes. Quieter defendants could not be.

To this witness’ knowledge, this was the first time the privacy booth had ever been an issue in court and the first time that a defendant’s voice could be heard on the breath room video record. Until he reviewed the video, he did not know that this defendant’s conversation could be heard from the privacy booth. Constable Munro agreed that the defendant did not show notable signs of impairment while in his presence. The arresting officer had sufficient grounds to arrest for impaired driving.

He had many conversations with the defendant while in the breath room, and described the defendant’s speech as fair, not good. All of the defendant’s speech was delayed and the defendant’s thought process was also delayed. It was not, in his opinion, a normal, fluid conversation. Typically, given the defendant’s breath test results of 283 and 267 milligrams of alcohol in 100 millilitres of blood, he would not have released the defendant to an adult person. Constable Eric Kerr was the officer who released the defendant. On October 28 th , 2010, he came on shift at 4 p.m.

His first contact with the defendant was when he got the defendant a meal. Constable Kerr assumed that the shift supervisor tasked him to release the defendant. He did not test the defendant’s blood alcohol level before releasing him. Sergeant Nicol Randall testified as to the security video system at the Caledon East Detachment. She described that as of October 28 th , 2010, the security cameras caught video only of the two cells and the main entry foyer into the lower level of the detachment. There is no audio recorded.

The cameras are motion activated and set to collect video from 5 seconds before the activation to 5 or 10 seconds after the motion has ceased. The system monitors the lower level foyer and the cells for the safety of officers and members of the public. She has never used these videos to document impairment. There have been requests for copies before, and they have always replied that the videos are for safety and are not an evidentiary tool, so they do not burn DVD discs for evidence for either the Crown or the defence.

They have made DVD copies to document mischief to the cell area and to refute statements made by a person in custody of an assault by a police officer. The cell and foyer video goes directly to a computer server. In October of 2010, there were three officers who could burn DVDs from that server and she was one of them. The process is not complicated, but very time consuming, as all cameras have to be searched for the appropriate subject and others persons screened out of the record, to protect their privacy. Essentially the video cameras have to be watched in real time.

The data is stored on the server for 365 days and then is dumped. Her practice in releasing drink-drive defendants, as an officer and qualified technician, is that if the breath readings are more than 200, there needs to be a special release to an adult person who agrees to care for the defendant, otherwise an estimate is made of when the defendant’s blood alcohol concentration would be under 100, and the defendant is held until that time and then released. The average rate of elimination is 15 milligrams per hour.

If a defendant had a blood alcohol level of over 290 milligrams of alcohol in 100 millilitres of blood, she would have had them taken to the hospital. In Sergeant Randall’s experience, she has never overheard a conversation between a defendant and counsel when the defendant spoke to counsel in the privacy booth. She could hear a voice and if the defendant screamed or yelled, she could hear their words as they yelled. In her experience since 1998, she has never heard a defendant’s voice from the privacy booth recorded on the breath room video. When Mr.

Finnerty’s matter came up, the booth was modified with substantial extra padding. The video cameras in the foyer and the cell areas show an image on a video monitor on the second level of the detachment. Unless there was a prisoner in custody, no one is likely looking at those monitors. If a prisoner will be held for a short time, then an officer watches the monitor from time to time. If a prisoner will be held for a longer time, then a guard is called into the detachment and monitors the prisoner every 15 minutes. These cameras are used only to monitor the detachment.

On hundreds of occasions, she has never once heard the voice of a defendant from the privacy booth recorded on the breath room video. The defendant testified on the

Section 9 Charter application only. He testified that the breath tests were completed at 2:03 p.m. and that he was released at 9:24 p.m. Apart from going by cruiser to Bolton for pictures and prints, he was in the cell at Caledon East for

all of that time. He testified that no one ever asked him if he had someone to pick him up. If they had, he would have found someone to do so. Twice he asked the guards when he was going to be released. He would have called his sister in Orangeville to pick him up, or other relatives. In cross-examination, the defendant agreed that he gave testimony on the subsection 11(

b) Charter application and that, during that testimony, he had no memory of the time during his time in custody, due to his level of intoxication. He stated that he recalled some things and not others. He does not recall the breath test, except from seeing the video. He slept on a cot in the cell. He does not remember Constable Aaltink asking if he had someone to pick him up and could not recall that she was a female officer. When he was released, he did not call his sister, rather he took a cab home. He believed that his sister was working in the afternoon but she could have left her work to pick him up.

Mary Horan, the defendant’s sister, testified that she worked from noon to 10 p.m. on October 28 th , 2010. No one called her to pick the defendant up, and she would have gone had she been called, as soon as she could find someone to relieve her at work. The Crown submits that the impaired driving charge is proven beyond a reasonable doubt. The defence makes three Charter arguments, based on alleged violations of

Section 7,

Section 9 and subsection 10(

b) of the Charter . Individually and cumulatively, all breaches add up to a

Section 24 stay, according to the defence submission. The defence also submits that the charge itself has not been proven beyond a reasonable doubt and points to incredible statements by Constable Aaltink in particular. The first Charter application is founded upon the destruction of the security video record of the foyer and the two holding cells at the Caledon East Detachment. The defendant submits that the police deliberately destroyed, or allowed to be destroyed, very relevant evidence requested by the defence.

The defendant notes that the request in the request for disclosure was for “all videos” and that the defendant can, therefore, not make full answer and defence to this charge. The defendant submits that the videos are very relevant, if not essential, to the issue of the defendant’s impairment and that the only appropriate remedy is a stay of this charge. The Crown submits that the evidence is clear that the video record was made for the purpose of security and safety of officers and the public in the detachment, including the defendant himself.

The camera is monitored when a prisoner is held in the cells and is not intended to ever be used as evidence by the Crown or the defence. Notably, by the Crown’s submission, no officer testified that the defendant was walking badly at the station in any area where the cameras were located. Further, there was no evidence of any bad faith. The records were never burned on a DVD because they have never been in such a case as this ever, and the process would require one of three available officers to actually watch the entire video in real time to create a tape. I find that no

Section 7 Charter violation has occurred here and had I done so, this would not be one of the clearest of cases where a stay is an appropriate remedy. The relevance of these videos is marginal and speculative at best, and in no way essential to challenge the defendant’s level of impairment, let alone to infringe the defendant’s right to make full answer and defence. Not every possible source of evidence must be seized and stored and edited by the police to protect a

Section 7 right. There was no basis to disclose the security tapes, nor was the failure to do so a

Section 7 violation. The Crown established why the video was not retained. The police did not act in bad faith and the relevance of the security video was marginal. A Section 24(2) Charter stay is clearly not appropriate on these facts. The defendant submits further that the charge ought to be stayed based on a

Section 9 Charter violation, founded upon the failure of the police to release the defendant from custody in a timely fashion. The defendant testified that he would have called his sister and his sister testified that even though she was working, she would have left work to come and pick him up, much earlier than his time of release. Notably, when the defendant was released, he did not call his sister or anyone else to take him home. Instead he took a cab. This defence application, in my view, has no basis on these facts. The evidence here is very clear.

The defendant’s unchallenged blood alcohol concentration was measured as 283 and 267 milligrams of alcohol in 100 millilitres of blood in the two Intoxilyzer tests. Sergeant Randall testified that at a blood alcohol concentration of 290 milligrams, just 7 more than the highest reading this defendant gave, the defendant was not only not going to be released, they were going to be taken to the hospital.

The defendant’s own evidence shows an admitted almost total lack of memory of any of the events at the station. Much of the time he was simply sleeping in the cell. I accept without question that the police were entirely within their right and duty to the defendant and to the public at large, to protect the defendant and the public from this defendant by holding him until his blood alcohol concentration approximated 100 milligrams of alcohol in 100 millilitres of blood, that is, the top end of the warn range on the roadside screening device.

Further, I accept Constable Aaltink’s evidence that she asked the defendant if he had anyone to pick him up and he did not answer. At an elimination rate 15 milligrams per hour, the defendant could have been held for 10 hours, not 7, to protect himself and others. Plainly put, the possibility of being held in custody until reasonably sober is a risk one takes when one is charged with a drink- drive offence and has a measured blood alcohol concentration of more than three times the legal limit. This is in no way a

Section 9 violation and had it been, it would not in any event have generated a Section 24(2) stay. The third Charter breach alleged is a subsection 10(

b) breach related to the sporadic record made on the breath room video of the defendant’s very loud voice while he was in the neighbouring privacy booth speaking to counsel. The Crown, anticipating a strong defence argument to exclude the breath test result under Section 24(1) of the Charter withdrew that charge. The defendant now submits that the subsection 10(

b) breach is so egregious that the impaired driving charge ought to be stayed. This application too, I find, cannot succeed. First, while the sound of a voice and occasional words had been, at the most, heard before at this detachment, I accept that on no prior occasion had the defendant spoken so loudly that his or her voice could be heard on the breath room video. Second, during the momentary very loud voice, Constable Aaltink is continuing another, quite unrelated conversation, so clearly, she is not eavesdropping.

In the joint experience of Sergeant Randall since 1998, and Constable Munro, there at the detachment for many years, there had never been a result such as this which might have indicated a need to strengthen the soundproofing in the privacy booth. Further, the defendant himself must take some responsibility for the protection of his own private right to counsel. No amount of soundproofing will be 100 percent effective in stopping words, or even parts of a conversation from escaping from the small phone booth if a defendant is talking very loudly or yelling.

The defendant was in custody and, as such, must always be under supervision to prevent harm to himself or to equipment. The fact that the issue has not arisen over a long period of time, speaks to the general effectiveness of the police balancing of the defendant’s privacy interest and the public’s interest in security. Steps were immediately taken to remedy the problem when it came to the attention of the police as part of this case. The subsection 10(

b) infringement was remedied by the withdrawal of the over 80 charge, that is by the effective exclusion of the breath test results to prove that charge. No bad faith existed here. A stay of proceeding is the remedy saved for the most serious of breaches and this breach does not come near that level of seriousness. In addition to his submissions on each individual breach alleged, the defendant submitted that weighed together, three such Charter breaches should lead to a stay. I have, however, found no

Section 7 nor

Section 9 breach, and the appropriate

Section 10(

b) remedy has already been applied by the Crown withdrawal of that charge. The defendant’s Charter applications are, therefore, dismissed. The defendant submits on the merits that the evidence of the arresting officer as to the defendant’s impairment to drive a motor vehicle should be rejected as unreliable. Further, the defendant points to differences in the assessment of the defendant’s state of impairment by Constable Aaltink, Constable Kuzmich and Constable Munro. In my view, any such differences are a matter of context based on how and when each officer had contact with the defendant.

Constable Aaltink was the only officer to have contact with the defendant before he drove. She was the officer who observed his driving and stopped him. She was the officer who had the majority of contact with the defendant at the roadside. I found Constable Aaltink to be a careful and credible witness, and I accept her evidence fully. There is a preponderance of evidence before me, proving beyond a reasonable doubt that the defendant drove his truck while his ability to do so was impaired by the consumption of alcohol.

For example: First, he was obviously intoxicated when Constable Aaltink first had contact with him at the scene of the initial complaint involving Mr. Graham.

Second, Constable Aaltink expressly told the defendant he was not to drive because he was impaired. Third, by happenstance, only a short while later, Constable Aaltink saw the defendant’s truck driving and weaving, and making a wide turn. The photos relied upon by the defendant are not relevant because the officer, as she testified, was further west than the defendant asserted. Fourth, the defendant lowered the driver’s side passenger window when the officer approached the vehicle he was in and could not figure out how to put down his driver’s window until Constable Aaltink told him how to do so.

Fifth, the defendant fumbled with his documents and produced a trailer registration card, finally telling the officer to get his documents herself. Sixth, the defendant drove without his driver’s licence and had no glasses on. Seventh, the defendant was unsteady on his feet and used supports, both at the earlier scene and when exiting his truck and walking back to the police car. Eighth, the defendant’s trouser fly was down and he had urinated in his trousers. Ninth, at the scene of his arrest and at the station, the defendant did not comprehend simple explanations and repeatedly asked for the same clarification.

Tenth, the defendant wobbled visibly when entering the breath room on the video. Eleventh, the defendant could not understand how to place the mouthpiece in his mouth when giving his Intoxilyzer sample and had to be told three times to blow air out before he did so. Twelfth, the defendant’s demeanour on the video was remarkably different than when seen by witnesses and the Court at the courthouse, with a loud voice and broad sweeping arm gestures. Thirteenth, the defendant leaned to support himself at one point on the breath room video.

Fourteenth, there were multiple physical signs of impairment by alcohol, including a very strong odour of alcohol on the defendant’s breath, red, flushed face and watery eyes, his speech was fair, was delayed and his thought process was delayed. Without any doubt, the Crown has proven each necessary aspect of this charge. The defendant must be found guilty of impaired driving. Is the Crown alleging a record? MS BALOGH: I don’ t believe so, Your Honour. THE COURT: Crown position, please. MS BALOGH: If I could just have a moment. THE COURT: Do you want me to come back to you after I’ve heard from your friend?

MS BALOGH: Sure, thank you.

THE COURT: Mr. Lent, submissions as to sentence. MR. LENT: Yes, Your Honour. You’ve heard a lot of what I’ m going to say, but I’ll just bring you refreshing evidence. He’s 54 years of age. He’s resided in Caledon basically all his life. He presently resides at 7615 County Road Number 1, in Tottenham. He is a single person, although he does have one child who’s in his early 20’s. You’ve heard that he’s a self employed truck driver. He’s been in this business for approximately 35 years. He’s been driving since age 17.

He has no drinking and driving convictions on his record and this is an event that is unusual in his history. THE COURT: In addition, I understand from his evidence that he drives to the U.S.... MR. LENT: Absolutely. THE COURT: ...and a criminal record which is inevitable, will severely interfere with that, unless he gets a waiver. MR. LENT: There’s no question about that, in my submission, Your Honour. If he was a truck driver that was within Canada, the penalty would be severe enough because of his loss of ability to have income.

In his case, even after his licence is given back to him by the court order and/or Ministry of Transport, he may still be inhibited from pursuing his employment because of international orders. So, his penalty, in my submission, is gonna be much more severe than most people who are facing a first offence type of penalty.

My submission to you is that he was polite and cooperative with the police upon apprehension, You’re aware, of course, there was no property damage or physical injury here and he of course, through his own instructions, has been in court for a lengthy period of time, a number of dates which, of course, financially have taken a toll as well. So, I’m asking you to consider a reasonable fine. I’m asking you to consider a one year driving prohibition order, sir. THE COURT: Thank you. Yes, is the Crown able to make submissions now? MS BALOGH: Yes, if I could just have a moment.

THE COURT: Are there other Informations before the Court? I should indicate as well that there is a Provincial Offences Information, and there was a plea of not guilty entered back in December of 2011, on both of those counts and, at some point during the trial with respect to the fail to surrender licence and the unlawfully drive without his glasses on, I forgot that those matters were in issue as well, and frankly, from my standpoint, those Provincial Offences matters ought to be stayed. MS BALOGH: Yes, and I was about to say that. Yes, thank you, Your Honour. THE COURT: Okay, Mr.

Lent, those charges are stayed. MR. LENT: Thank you, Your Honour. MS BALOGH: Yes, thank.... THE COURT: The Crown position, please. MS BALOGH: The Crown position, Your Honour, is in my respectful submission, although I was not party to the trial matter, from hearing the evidence, the Crown’s position is that a fine of $1700 and an 18 month prohibition is appropriate in the circumstances of, of this offence, in view of the very high readings and the nature of the driving. THE COURT: Thank you. Will you stand up, please, Mr. Finnerty? Is there anything you would like to say before sentence?

You do not have to, but now is your chance, if you wish. JOHN FINNERTY: No, Your Honour. THE COURT: The Crown is seeking to have the very high readings recognized by both the higher fine and the lengthier driving prohibition. In my view, there were valid issues that required this Court to have a full hearing and I do not fault you from pressing all of your legal rights on this case. The readings are my only concern with respect to sentencing, and in my view, the very high readings can be dealt with by way of a higher fine.

So you will be fined the sum of $1700, plus the Victim Fine Surcharge, and prohibited from operating a motor vehicle anywhere in Canada for one year. You may be able to drive under certain conditions at an earlier date. Mr. Lent can assist you with that. Time to pay that large fine and surcharge? MR. LENT: We ask three months. THE COURT: Three months to allow the paperwork to go through makes sense, I think, so three months to pay the fine and the surcharge. Does the defendant have a driver’s licence in his possession, Mr. Lent? If so, please surrender it to the Court. MR. LENT: I’m told he does.

He’s gonna get it for us, Your Honour. THE COURT: All right. I think that is the matter. MR. LENT: Thank you.

WHEREUPON THIS MATTER CONCLUDES ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S ​ENTERED ON PAGE REASONS FOR JUDGMENT 1 Submissions 26

Transcript Ordered: January 8, 2013 Transcript Completed: January 23, 2013 Ordering Party Notified: January 23, 2013