Ontario Court of Justice

CITATION: R. v. Kubacsek, 2019 ONCJ 31

DATE: 2019·01·22

COURT FILE No.: Newmarket 17-01080

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EVA KUBACSEK

SENTENCE

Heard and Delivered: January 22, 2019.

Ms. Lesley Pasquino ............................................................................. counsel for the Crown

Mr. David Cohn ............................................................................... counsel for the defendant

KENKEL J.:

[1] Ms. Kubacsek was convicted at trial of operating a motor vehicle with a blood alcohol level in excess of the legal limit, “Over 80”. She came to the attention of an officer doing paperwork in a parking lot when she parked on top of a marked line straddling two spaces in front of the LCBO store that was about to open at 11:00 a.m. on a Sunday morning. She later exited the store with a brown bag in her hand. As she drove away she made an improper turn into a wrong lane and then another improper turn. The car she was driving had an expired plate validation. She was stopped and she failed an Approved Screening Device test at the scene.

[2] While waiting for the screening device to be brought Ms. Kubacsek took a bottle that she’d purchased from the LCBO and put it in her cup holder. She did this despite being cautioned by the officer not to drink further after the stop. The officer intervened, reminded her she could not drink further and put the wine bottles in her trunk.

[3] Ms. Kubacsek chose to drive that Sunday morning with a blood alcohol level double the legal limit – 160mgs. That is a significant aggravating factor. In that state she posed a risk of harm to herself and everyone else on the roads. She was found guilty of impaired driving in 2010. The Crown has served and filed a Notice of Increased Penalty.

[4] Ms. Kubacsek is a smart woman, a chemist who continues full time employment. It’s been two years since the date of the offence. Since that time she says that she has stopped drinking. She’s taking treatment with medication for depression.

[5] The Crown and defence jointly submit that a 30 day sentence should be imposed. The defence requests that she be permitted to serve that sentence on an intermittent basis so she does not lose her employment. The Crown requests a probation order and a 2 year prohibition order.

[6] This sentence must denounce the unlawful conduct and the threat it posed to the community. Unfortunately in York Region we’ve had direct experience with the tragedy that can result where persons choose to drive in this condition. Given the joint submission I find that a 30 day sentence is sufficient to denounce and deter this offender and others like her. Given her good conduct over two years and the need for rehabilitation I agree with the defence that the sentence may be served intermittently.

[7] It’s necessary to prohibit her from operating a motor vehicle for a period of two years. To provide for public safety and ensure continued rehabilitation I find it necessary to place Ms. Kubacsek on probation for two years on the following conditions:

• Keep the peace

• Report within 7 working days of release and thereafter as required

• Not operate a motor vehicle

• Not occupy the driver’s seat of any motor vehicle

• Take counselling with respect to alcohol abuse as directed by probation

• Sign releases necessary for probation to monitor compliance with the counselling condition

Delivered: January 22, 2019

Justice Joseph F. Kenkel