R. v. Roy

Citation: 2012 ONCJ 514

Court: Ontario Court of Justice

Parties: Her Majesty the Queen v. Kevin Roy

Before: The Honourable Justice B.E. Pugsley

Date: June 26, 2012

Location: Orangeville, Ontario

Appearances

Counsel for the Crown: L. Marcon

Counsel for K. Roy: S. Darroch

Reasons for Judgment

PUGSLEY, J. (Orally):

The defendant Kevin Roy faces a single count of driving a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The date of the alleged offence was August 5, 2010.

At the start of the trial on January 31, 2012, the defendant brought an unsuccessful application under subsection 11(b) of the Canadian Charter of Rights and Freedoms seeking a stay of proceeding for excess delay. For reasons I provided earlier that application was dismissed and Mr. Roy's trial then commenced after lunch on the 31st of January of this year.

Due to the fact that a large part of the time allocated for the trial had been taken up by the subsection 11(b) motion brought on the trial date, the trial did not complete on the date scheduled. The matter was adjourned for further evidence, which was heard on May 11, 2012. At the end of the evidence and submissions I reserved my decision in order to continue another trial matter that in turn had not completed as scheduled on its first day, due to a misestimating of trial length by counsel on that matter.

Crown's Position

The Crown submits that all necessary aspects of this offence had been made out.

Defence Position

The defendant submits that the Crown cannot demonstrate beyond a reasonable doubt that the defendant drove, or was in care or control of a motor vehicle at the required time. The defence submits that the defendant has successfully rebutted any presumption of care or control that the Crown may seek to rely upon here.

Facts

The facts are not unduly complex.

On August 5, 2010, Constable Bucsis was on duty as an O.P.P. officer in Bolton, Ontario in this judicial district. Just before 7:00 p.m. the officer was dispatched to pick up dinner at the local Swiss Chalet restaurant. At the Swiss Chalet parking lot his attention was directed by a civilian to the defendant's motor vehicle. The civilian told the officer that a male person was passed out in a car that was parked across two parking spots on an angle and that there was alcohol visible in the vehicle. Constable Bucsis easily located the defendant's vehicle, walked over to it and noted that the four-way flashers were on.

The defendant was the only person in the vehicle.

Constable Bucsis looked in and found the defendant seated in the driver's seat. He was leaning back and his feet were by the pedals. His arm was over the passenger seat to the right. His eyes were closed and the defendant's mouth was open. The car windows were down and there was an excessive amount of garbage in the backseat of the vehicle. Constable Bucsis also saw an open bottle of vodka in the front seat and a full bottle of alcohol resting on the front passenger seat.

Constable Bucsis went to the driver's side window and tried to speak to the defendant. The defendant was slow to wake up. He was disoriented. His movements were slow. His eyes were red and glossy.

As he exited the vehicle, the officer could see that the car key was on the floor of the front seat where the defendant's left hand had been. The key was a proximity key, such that the driver could start the car by pushing the start button on the dashboard if the key was close enough to the car.

The officer asked the defendant for his documentation. The defendant produced a valid driver's licence and the ownership for that vehicle. He was the registered owner.

Constable Bucsis engaged the defendant in conversation as to what he was doing and when he had last consumed alcohol and had last smoked a cigarette. The defendant admitted to past alcohol consumption.

Based on his observations and that admission, the officer demanded that the defendant provide a sample of his breath for analysis by an approved screening device. Constable Bucsis had such a device and the defendant provided a proper sample and the result was a fail. The officer then arrested the defendant for having care or control of a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

The officer's attention was first directed to the defendant's vehicle by the civilian at approximately 6:55 p.m. on the date of the alleged offence. The approved screening device demand was at about 7:10 p.m. The fail at about 7:15 p.m. and the defendant was arrested at 7:18 p.m.

Constable Bucsis then gave the defendant his right to counsel, cautioned him and made a breath demand for intoxilyzer sample between 7:18 and 7:20 p.m. The qualified technician was available at the Caledon East Detachment of the O.P.P. and the officer determined to transport the defendant there for breath tests.

Constable Bucsis had also seized an open 375 millilitre part bottle of vodka from under the steering wheel of the defendant's car. It had roughly two ounces of vodka remaining in it.

The defendant's car keys were located near where his hand had been in the vehicle and the officer observed the rear seat of the vehicle to be full of garbage - fast food wrappers and the like.

At roughly 7:26 p.m. the officer left the scene with the defendant to travel to Caledon East for breath tests. He arrived there at 7:49 p.m. The custody of the defendant was given to Constable Roberts at about 8:15 p.m. and the defendant was returned to the officer in charge after breath tests at 8:49 p.m. He was made aware that the intoxilyzer test results were in excess of the legal limit, he was processed and released.

Constable Bucsis's Evidence

The officer agreed that the defendant's car was parked in an angle across two parking slots in the parking lot and that the car was a sporty Hyundai Genesis car. The lot was busy and nearly fully. Constable Bucsis agreed that he did not know how long the defendant's car had been parked in the lot when he first saw the defendant. At that time the parking lot was very full.

The defendant's driver seat was reclined and the defendant's seatbelt was off. The defendant was asleep, but woke when the officer spoke to him. The defendant was able to get out of the car and to produce his papers without problem and understood what the officer had asked him.

The officer described the layout of the front seat where he found the car keys. The vehicle was not running. He did not test the car keys and believed that part of the key set was as he described it, "a remote start button." There was a push button in the vehicle to start the car if the key fob was within a certain range of the car.

Officer Bucsis also described the layout of stores near where the defendant's car was located. There was a Kelsey's restaurant bar nearby. The car was not interfering with traffic flow in the parking lot.

The defendant's physical signs were not such that the officer thought that he was impaired by alcohol, although when the officer learned of the intoxilyzer test results he concluded that the defendant was also impaired in his care or control of his vehicle. He described the defendant as being co-operative and polite with him.

Breath Test Results

Constable Shaun Roberts was the qualified technician who tested the defendant. On August 5, 2010 he was called to the Caledon East Detachment to test Mr. Roy. He prepared the approved instrument and the defendant came into his care at 8:15 p.m. Two suitable breath samples were obtained from the defendant for analysis. The results were as follows:

• At 8:23 p.m., 146 milligrams of alcohol in 100 millilitres of blood; and
• At 8:45 p.m., 136 milligrams of alcohol in 100 millilitres of blood.

The officer's dealings with Mr. Roy were video and audio taped and the DVD record of those dealings was entered as an exhibit after the video was played at the trial.

Between the two breath samples, the defendant voluntarily answered a series of questions posed by the officer for the purpose of completing his alcohol influence report.

The defendant stated that he had consumed two Labatt's Triple X beers after work with his fellow workers. He stated that he drank daily and had a drinking problem and that he drank about six beers a day. He was also on medication for depression. He assessed the effects of alcohol in his body at about four on a scale of one to ten. The defendant was very relaxed and talkative with the officer. Constable Roberts observed that the defendant had an odor of alcohol on his breath, red rimmed and glossy eyes and his speech was good.

Defence Evidence - Mr. Roy's Testimony

Mr. Roy testified as the first of the two defence witnesses on the second day of the trial.

The defendant testified that after 25 years as a millwright, he now worked for Molson's Breweries in Toronto. He admitted to a short criminal record, including a conviction for impaired driving that postdates the date of the alleged offence in this case.

Mr. Roy testified that on August 5, 2010, it was a very hot day and he had worked on the roof of his employer's house in Woodbridge. He worked from eight to four that Thursday. After work at about 5:00 p.m. he described having one beer and part of a second beer.

At around 5:00 p.m. he left Woodbridge. He planned to meet his friend Mr. Ricci at Kelsey's in Bolton. He got to the parking lot of the Kelsey's restaurant in Bolton between 5:20 and 5:30 p.m. That parking lot is roughly five kilometres from his home. Mr. Roy stated that he parked his car on an angle over two parking spots because it was a brand new car and he parks that way to avoid the car being damaged.

He had planned to get a card for his girlfriend at the Hallmark store in the mall, but he went into Kelsey's where by his evidence he had several drinks as he said, "quite a few." He then left Kelsey's and went to the liquor store where he bought a mickey. He was waiting for his friend to arrive so he could talk to Mr. Ricci about problems that the defendant was having with his ex-wife. He planned to wait for Mr. Ricci, eat at Kelsey's and then Mr. Ricci would drive him home.

Mr. Roy went back to his car and reclined the seat. This was at about 6:30 p.m. Mr. Roy testified that there was just no way he was going to drive because he knew he was impaired. When in his vehicle he accidentally activated the four-way flashers.

He described the steps he would have had to take to place his car in motion had he decided to do so. He had a proximity key, but testified that the key wouldn't work if it was lying on the floor, it had to be off the floor a few inches higher to work and close to the dashboard. The key did not need to be inserted into the dash to start the car, only the start button needed to be pressed.

Mr. Roy testified that he expected to meet Mr. Ricci between six and 7:00 p.m. The defendant said that if he had woken up he would have called a cab, because there was just no way he was going to drive while impaired. He would just leave his car there and pick it up the next day.

Cross-Examination of Mr. Roy

The defendant was rigorously cross-examined by the Crown attorney. Mr. Roy testified that he had arranged to meet Mr. Ricci after work in person when they met the day before. At the time the defendant admitted he drank a fair bit and described himself as not an alcoholic. He had been to Alcoholic Anonymous in the past, but he did not drink everyday at the time.

When Mr. Roy arrived in Bolton he parked in the middle of the parking lot. He first planned to go to Hallmark Cards but then stated he changed his mind and decided to go into Kelsey's instead. Then he testified that he did check out the cards at Hallmark, but found none that caught his eye. He stated that he planned to wait for Mr. Ricci in Kelsey's, but Mr. Ricci was a little late and so instead he decided to lay down in his car. He stopped work at 4:00 p.m. and drank there until five or so and arrived at the mall at about 5:25 p.m. He stated he then spent five or ten minutes at the Hallmark store and then went into Kelsey's where he had a couple of caesars and some beer by his evidence. He then corrected himself stating that he had four beer and three caesars in just over an hour.

Mr. Ricci did not arrive so the defendant then left between six and 6:30 p.m. He went to the liquor store and bought a mickey of vodka. When asked about the partial bottle of vodka seen by the officer on the driver's floor, the defendant said he had a bag of garbage in the backseat which had ripped open and the bottle had come out of it and made its way into the front. The vodka he bought at the LCBO on the 5th of August was to drink at his home later with Mr. Ricci. He stated that Mr. Ricci was a good friend and neighbour of the defendant and he had known him for at least 10 years.

Mr. Roy confirmed that he was too impaired to drive while in his car. He did not call a cab because he knew that Mr. Ricci was coming and that Mr. Ricci was very reliable and then stated that he could not call.

The key was on the floor because he knew it would not work there. He knew this because the key had fallen on the floor before and then the proximity key would not work to start the car.

Mr. Roy accepted that he would never have driven while impaired, but did admit that he had done so after the date of this alleged offence. He said he did not intend to drive on August 5th and that in any event it would not happen again.

By his assessment he was passed out in the car when Constable Bucsis woke him, so the effects of alcohol were by his estimate close to 10 on a scale of one to 10.

He knew that Mr. Ricci would be able to find him when he got to the Kelsey's parking lot because Mr. Ricci would phone when he got there and Mr. Roy's car was in any event a bright blue in colour and easily spotted.

Mr. Roy stated that he didn't think it was illegal to sleep in his car when he was drunk. He knew the telephone number of a cab company off by heart. He testified that he was on medication for depression at the time and knew that he should drink no alcohol while taking that medication.

He stated that he would not have driven, or he would have done so. His home was only five kilometres away.

Defence Evidence - Mr. Ricci's Testimony

Mr. Julio Ricci testified as the final witness. The defendant is a neighbour and a good friend. At the date of the alleged offence they were not as close because the defendant and his then girlfriend were a problem in their neighbourhood. In June and July of 2010 he and the defendant met for meals and to talk from time to time.

On the evening of August 5, 2010 the defendant texted Mr. Ricci to meet him for dinner at Kelsey's at about six. Mr. Ricci arrived at about 6:45 p.m. and the defendant wasn't there. He therefore went home and he saw that the defendant's car was not parked at his home. He texted the defendant and much later the defendant replied and told him about being arrested.

In his evidence in-chief defence counsel tried to stretch the time when Mr. Ricci arrived at the restaurant to make that time extend into a time after Constable Bucsis engaged Mr. Roy, but that timeframe simply makes no sense at all. The witness said six forty-five or closer to seven, or around then. The witness was then asked some later time and agreed with the suggestion, stating it had been so long ago. He would have had no problem transporting the defendant home if he had been asked to do so.

Mr. Ricci testified that the defendant called him during the day to plan to meet at roughly six at Kelsey's. When he was late he did not call the defendant to say that he was late, because he knew that the defendant would wait.

When he arrived at Kelsey's he saw nothing, not the defendant and not his car. The defendant usually parks far away from the buildings. In his presence the defendant has never parked over two spots on an angle. He had no plans to drive the defendant home, but he would have done so if he had been asked to do so. The defendant did not ask him to do so before when they set up the dinner.

Legal Analysis

The only real issue here is whether the defendant has rebutted the subsection 258(1) Criminal Code presumption of care or control.

The defence took no issue with the process used by the police, nor that the intoxilyzer result was valid. The presumption applies because the defendant was found seated in the driver seat of his car. The defence submits that the defendant's evidence as to intent not to drive rebuts the presumption.

As counsel submits the defendant knew he was drunk, was meeting a friend who would drive him home and in any event had memorized the cab company phone number to call if he had to. The defendant simply was not going to drive home because he knew he was too drunk to drive. Further, the defendant's motor vehicle could not have been set in motion accidentally and there would be nothing but speculation as to whether the defendant might have changed his mind about not driving, and in any event, the defendant was only five kilometres from home.

The Crown submits that the defendant's evidence is unsupported and incredible. Clearly, he was in care or control of his car when Constable Bucsis came upon him and has in no way rebutted the resulting presumption by the Crown submission.

Credibility Assessment

I do not find the defendant to be a credible witness here.

The defendant's evidence suffered in a number of aspects. For example, the defendant's evidence was that he parked across two parking spots in order to protect his new car. Mr. Ricci testified that he has never seen that happen. Rather, the defendant parks far away from other cars, unlike here where he parked in the middle of a parking lot.

Further, it is hard to reconcile the defendant's car proud nature with the evidence of a rear seat filled with garbage including by his evidence, a ripped open garbage bag from which a part bottle of vodka somehow ejected itself into the front seat moments after he had been to the LCBO.

I cannot credit the defendant, at least at that time, with being the type of person who drank six beers a day, but who would discard a bottle of alcohol before it was completely empty. Nor do I accept his evidence that he did not finish his second bottle of beer at work.

Further the defendant testified that he and Mr. Ricci had not communicated at all on the offence date. He had arranged to meet for dinner the previous day. Mr. Ricci's evidence was that the plan came about by text earlier that same evening.

Mr. Roy testified that at the time of the offence he was not a daily drinker and yet he told Constable Roberts in his voluntary statement that day, that he had a drinking problem and drank six beers a day.

The defendant testified that he didn't go to Hallmark as intended but then stated that he did go to it before Kelsey's.

The defendant testified that the car could be started with the proximity key nearby, except not if it was on the floor of the vehicle, only if it was inches higher on the seat. This may be so, although it sounded to me entirely concocted, but of course the key was only on the floor by mistake having fallen there by his left hand and would have been picked up in a moment at will by the defendant. Indeed the key may as well have been in the ignition here given the way the vehicle could be started.

Similarly, the defendant described the complexity of placing his vehicle into motion. This like the place where the key was located, are pieces of evidence designed to fit the thesis of the defendant that he couldn't easily start his car. As a driver these are steps taken at least daily as a matter of routine to place his vehicle into motion. More to the point was the fact that uncharacteristically the vehicle was parked on an angle across two spots and had the four-way flashers on by accident.

The defendant's evidence is that he had a plan not to drive. But even he had trouble explaining this plan. He would not have driven home, or he would have done so before he went to sleep. Further his home was only five kilometres away. This latter point raised by the defence cuts both ways. His home being only five kilometres away makes it more likely that he would have chanced the drive.

The defendant placed his character in issue on the issue of whether he had a plan, or if he had such a plan whether he would have changed his mind and driven anyway. He testified that after this charge was laid he did drink and drive, but also that he has now learned his lesson from this evening. This was a candid admission made without objection and does affect his evidence of his plan on the evening in question.

In the end however I need give little effect to this admission because clearly there was never any plan at all. As Mr. Ricci said, had the defendant asked he would have had no problem driving him home. There was no plan to do so however, and Mr. Roy had never asked.

Mr. Roy said that Mr. Ricci would have had no problem connecting with him at the restaurant because he would call him on his cell phone, or spot the defendant's distinctive blue car in the lot.

By Mr. Ricci's evidence he arrived at the lot at 6:45 p.m., before Constable Bucsis had even met Mr. Roy. Mr. Ricci did not find Mr. Roy's distinctive blue car nor Mr. Roy, and so he just went home. Only then did he try to contact the defendant by text message when he saw his car was not in the defendant's driveway.

This was said to be a key part of the defendant's plan, but it was stillborn before it started.

In-chief, counsel tried to stretch the time when Mr. Ricci arrived at the restaurant to make that time extend into a time after Constable Bucsis engaged Mr. Roy, but that timeframe simply makes no sense at all. Surely Mr. Ricci would have been bound to notice Mr. Roy if his car was in the presence of first one and then perhaps a second police officer and one or two police cars and later a tow truck.

Instead, I conclude that Mr. Ricci indeed arrived when he said he did, before the police were directed to the defendant, and not seeing the defendant he just went home. This of course greatly increases the risk that the defendant would change his mind and drive, even if he ever decided not to do so, which I do not accept. Without Mr. Ricci as the already present potential driver Mr. Roy is left with the bald assertion that in any event he would have called a cab.

With respect, the circumstances here are exactly the risk that the law is intended to prevent. Mr. Roy was passed out in the driver's seat of his car. His intended ride was gone. He was drunk as he says a 10 out of 10. The key was by his left hand, and open and closed vodka bottles were in the car. The car was parked askew and the four-way flashers were on.

There was no plan and the risk was not just real, but virtually certain that the defendant waking up in his readily operable car and only five kilometres from home, would have driven those five kilometres. After all he said he was only three or four on a scale of one to 10. The defendant's assertion that he would, of course, have called a cab is just incredible.

The defendant was co-operative, candid and voluble with the breath technician on the video, almost carefree in describing his trials and tribulations to a complete stranger. He thought he was a three out of 10 to drive. I have no doubt at all that had he awoken he would have done so on this pleasant summer evening.

To recapitulate there was no plan not to drive. The defendant was drunk and beyond making a reasoned decision not to drive and represented an extreme risk to do so. I do not believe his evidence when he says otherwise and find rather that he has concocted a plan after the fact to try and avoid the plain evidence of his care or control. His evidence is not believable, is not supported by Mr. Ricci and leads me to no doubt.

Rather, the Crown has established care or control not only by virtue of the presumption, but also in the evidence.

The defendant's blood alcohol concentration was clearly over the legal limit. The Crown has proven this count beyond a reasonable doubt, the defendant is therefore convicted.

Sentencing

THE COURT: The Crown alleging a record?

MS. MARCON: Court's indulgence, please. It's admitted Your Honour.

EXHIBIT NUMBER 1: Criminal Record - produced and marked.

THE COURT: Exhibit one, on sentence. The Crown's position on the drive over 80 and I think there was a plea to the open liquor and the drive no insurance as well, is there not?

MR. DARROCH: No that, those I believe those were withdrawn. Certainly the no insurance was withdrawn, Your Honour.

THE COURT: They're still on the docket. Do you have those informations?

MR. DARROCH: I had provided Mr. Fetterly with information about...

THE COURT: Yes, I recall that.

MR. DARROCH: ...his insurance.

THE COURT: He had insurance at the time.

CLERK REGISTRAR: Your Honour, there's no, there's no, nothing endorsed on the docket yet to, withdrawn or a plea.

MS. MARCON: I apologize Your Honour, I don't have a note with respect to, well I should rephrase. The last note was with a different Crown indicating that we would proceed, but I don't have an indication that anything is provided to Mr. Fetterly. So, I will have to take a moment to determine what's to happen with those. I can tell you with respect to the criminal code matter Your Honour and you've heard as part of the evidence that post this offence...

THE COURT: Yes.

MS. MARCON: ...there was a conviction. So, at the time of this offence certainly he would not have had any kind of a record for this type of offence. We are asking Your Honour in light of the situation to consider a fine in the amount of $1,300.00 and followed by 15 months of prohibition and I will endeavour to reach Mr. Fetterly with respect to the Provincial offence matters.

THE COURT: Yes, submissions on the criminal code charge Mr. Darroch?

MR. DARROCH: Yes, Your Honour. This gentleman is 46 years of age. He has had a difficult decade really. In 2004 his marriage broke down, that was just before suffering a very serious motorcycle accident that left him very badly injured as well as suffering from a post-traumatic stress disorder which led to some depression. He also as Your Honour heard about during the course of trial, he was working as a millwright for over 20 years at Kodak and lost that job. That all happened within a very compressed period of time. That was in late 2004 and early 2005. He struggled Your Honour for years to get things back in the right direction. Thankfully he has done so Your Honour. He's now working very successfully, he's working as a millwright again for Molson's Brewery in Toronto. He's living in Bolton. He has taken counselling through the Vitanova Treatment Program, Your Honour. That's V-I-T-A-N-O-V-A treatment program. He commenced that treatment in, following um, in the Fall of 2010 and into the Spring of 2011. He advises that he also attends AA meetings and his, been absent from alcohol for a considerable period of time Your Honour and intends to stay abstinent for the remainder of his life. He recognizes that alcohol has caused tremendous problems for him and this, this new job has been a real beacon for him that he's, he's, it's been a real life changing event getting this job and he hopes to be able to keep it. It's, the transportation is gonna be extremely difficult for him Your Honour. I gonna, also given his background that Your Honour knows about, the Highway Traffic Act is gonna have a very lengthy, it's going to impose a very lengthy licence suspension regardless of the length of the prohibition. However, in the circumstances I gonna suggest a fine. I don't take issue with the quantum my friend suggests, but I think a 12 month driving prohibition reflects the circumstances of this case, Your Honour. Subject to any questions, those are my submissions.

THE COURT: Yes, Mr. Roy would you stand up please. Is there anything you would like to say before sentencing? You don't have to, but now is your chance if you want to.

MR. ROY: Your Honour, I went through a very hard time. I got rear ended by a hit and run on my motorcycle which nearly killed me and I went, went through a lot of pain for a long time. I had to do two and a half years of physiotherapy three times a week. I had to go for counselling for post-traumatic stress disorder with a physiotherapist. A month after the accident I lost, they announced I'm losing my job of 20 years as a millwright at Kodak and then a month after that my ex decided that she was gonna leave me, take me to the cleaners. She took my severance package from work. I struggled to try and make, try and make money to keep my home and um, I couldn't really get a full-time job because I was doing two and a half years of physiotherapy. There's no way I could have held a proper job and I had problems collecting money off people for the work I was doing. I've never ever had a problem before. Once this motorcycle accident happened, my life just went downhill slide. I've never in my life, ever had a problem. I help people. I help all my elderly neighbours. I volunteer at the Bolton United Church. I, I've volunteer for grade five reading program at Ellwood Public, Junior Public School. When I was doing those days of physiotherapy I would go in and volunteer. And then I've had the problems with my ex and, and now I'm blessed with this, this new job, it just totally changed my life around. It's, it will never happen again. I'm just, I just did not know how to handle what had happened and all that happened in a short time. It was, it was terrible. And I'm a very giving person, I help, very helpful, if anybody asked me for help I'm always there. This job that I have now I need to drive because they send me for training and I want to go to school and take instrumentation at night school and it's, that plan is very difficult to get to. I was working weekend shift, weekend crew shift so I could get rides in. Now they've taken me off that weekend shift. Now I'm working Monday to Friday days and nights shift, like I worked last night, and um, I don't ever, I just want to move forward with my life. I just wanna, I just wanna move forward with my life and be productive and never come here again.

THE COURT: Very wise words, sir.

MR. ROY: Never.

THE COURT: Thank you. If you could remain standing.

MR. ROY: Okay.

Reasons for Sentence

PUGSLEY, J. (Orally):

On the Criminal Code charge, I agree that the matter should be dealt with as a fine. At the time when you were charged you had no prior record for this and you'll be fined the sum of $1,300.00, plus the victim fine surcharge. Time to pay that fine and the surcharge Mr. Darroch?

MR. DARROCH: Six months please, Your Honour.

THE COURT: Six months to pay the fine and the surcharge. I agree with Mr. Darroch the minimum prohibition is appropriate here and you'll be prohibited from driving a motor vehicle anywhere in Canada for 12 months. If the defendant has a driver's licence, Mr. Darroch it needs to be handed in.

MR. DARROCH: He'll turn that in at the desk upstairs, Your Honour. He has it out in his vehicle.

THE COURT: All right, you'll explain to your client he can't be in possession of a driver's licence...

MR. DARROCH: Yes.

THE COURT: ...now that he's been prohibited. The other counts are the open liquor and the drive no insurance. Those are still before the court Ms. Marcon.

MS. MARCON: Yes, I summoned Mr. Fetterly...

THE COURT: Oh, Mr. Fetterly.

MS. MARCON: ...out to see if he recalls the situation.

MR. DARROCH: If I could have a brief indulgence with Mr. Fetterly, Your Honour.

MR. FETTERLY: Yes.

THE COURT: Well, sure or we could hold it down...

MR. FETTERLY: My recollection...

THE COURT: ...if you need more time.

MR. FETTERLY: ...is, I think I was shown a, a valid insurance...

MR. DARROCH: Yes.

MR. FETTERLY: ...document the last time.

MR. DARROCH: And I think, I think you or the officer called, called and confirmed.

MR. FETTERLY: And I would be satisfied, satisfied in that Your Honour would of taken the open liquor into account in the other matters.

THE COURT: So, the insurance charge is withdrawn?

MR. FETTERLY: Yes, thank you.

THE COURT: And also the open liquor. All right, the two POA charges are withdrawn Mr. Darroch at the request of the Crown.

MR. DARROCH: Thank you, Your Honour.

MR. FETTERLY: Okay.

THE COURT: All right. Thanks. Good luck, sir. I agree you've probably turned the corner now and that's to your benefit and society's as well. Thank you.

MR. ROY: Thank you.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, K.J. McFadden certify that this document is a true and accurate transcript of the recording of R. v. Kevin Roy in the Ontario Court of Justice, held at 10 Louisa Street, Orangeville, Ontario taken from Recording #0611-101-20120626-090214, which has been certified in Form 1.

Dated: August 7, 2012

K.J. McFadden

Note: This certification does not apply to the Reasons for Judgment and Reasons for Sentence, which were judicially edited.