R. v. Babrak, 2019 ONCJ 440

CITATION: R. v. Babrak, 2019 ONCJ 440

DATE: January 30, 2019

Toronto Region, Old City Hall Court

Info No. 15-12001886

ONTARIO COURT OF JUSTICE

BETWEEN:

Ms. Carla Agatiello HER MAJESTY THE QUEEN for the Crown

— AND —

Mr. Kenneth Anders BABRAK BABRAK for the Defendant

Heard: November 16 & 17, 2017; January 22, 24, 30, February 14, April 3, November 16, and December 12, 2018

K. Caldwell J.:

[1] Mr. Babrak is charged with refusing without reasonable excuse to provide a breath sample.

Overview

[2] Mr. Babrak and two friends left a friend’s house in northwest Toronto early on a Monday evening. Traffic was heavy. Around 7 pm he rear ended another car. Police arrived and he provided a breath sample into the approved screening device (“ASD”). He failed the ASD test, was arrested, given the breath demand, and taken to the Toronto OPP detachment. Ultimately he did not provide a suitable sample of his breath at the detachment and was charged.

The Issues

[3] There are three issues in this case.

[4] First, did the officer on scene possess a reasonable suspicion that Mr. Babrak had alcohol in his body when the officer gave the ASD demand?

[5] Secondly, was Mr. Babrak’s right to counsel violated given language issues?

[6] Thirdly, has the Crown proven beyond a reasonable doubt that Mr. Babrak possessed the necessary mens rea for the refuse charge?

[7] I can dispense with the first two issues quickly. The third issue, the most hotly contested issue, will be the focus of this judgment. Ultimately, however, I find that the charge has been proven beyond a reasonable doubt.

Lack of Reasonable Suspicion

[8] The arresting officer wrote in his notebook that he suspected the accused was impaired and it was for this reason that he detained Mr. Babrak and gave him the ASD demand. Mr. Anders argued that I should accept the officer’s notation as fact and find that the grounds were insufficient as the precursor to the demand is alcohol in the body, not impairment.

[9] The officer testified that he had been on the job for only six months when he made that notation in his notebook. He said he meant in substance that he had a reasonable suspicion that Mr. Babrak had alcohol in his body. He also agreed that at first he didn’t think alcohol was involved in the accident as it was early evening, rush hour, and collisions can occur at that hour just due to traffic congestion.

[10] I accept the officer’s explanation as fact. It makes logical sense and it also makes sense in the context of the notation – if the officer was of the view that Mr. Babrak was impaired, it follows that he thought Mr. Babrak had alcohol in his body.

[11] Further, Mr. Justice Trotter in R v. Tran, [2006] O.J. No. 1231 noted:

18 From a functional perspective, Parliament has provided police officers with the power to screen drivers when it is suspected that they have been drinking. There must be a statutory basis for the warrantless seizure of the accused's breath: see Regina v. Hass, supra. Section 254(2) establishes the threshold (i.e., reasonable suspicion) that must be met before a search is lawful. The section refers to alcohol being "in the person's body." There is no magic in these words. The focus is obviously on someone who has been drinking. There being no attack on the validity of s. 254(2) of the Criminal Code, the question becomes whether s. 254(2) was properly complied with in the circumstances. Compliance may be proved through the direct evidence of the officer who makes the demand, specifically articulating the words of the section. The presence of the requisite belief may also be based upon circumstantial evidence: see Regina v. Subramaniam (2004), 50 M.V.R. (4th) 161 (Ont. S.C.J.) and Regina v. Milanovski (2003), 41 M.V.R. (4th) 82 (Ont. S.C.J.) and Regina v. Clarke (2000), 1 M.V.R. (4th) 298 (Ont. S.C.J.).3 The decision in Regina v. Hass, supra, which clarifies that the onus is on the Crown to justify the reasonableness of warrantless seizures in the impaired driving context, does not alter the fact that the existence and basis of an officer's belief may be inferred from circumstantial evidence.

[12] I also infer that the officer had a reasonable suspicion based upon the other evidence in this case. There was a collision involving Mr. Babrak rear ending the car in front of him. Mr. Babrak testified that he had a few beers at a friend’s house that evening before driving. I find that this fact corroborates the officer’s testimony that he did smell alcohol on Mr. Babrak’s breath shortly after he began speaking with him. I infer from these facts that the officer did have a reasonable suspicion of alcohol in the body when he made the ASD demand.

Right to Counsel

[13] It is clear that Mr. Babrak’s first language is not English. I also accept as a fact that his primary language is Dari, not Farsi. It is also clear that the translating officer, who speaks Farsi, came to realize that Mr. Babrak was more fluent in Dari. There is significant overlap, however, between the two languages.

[14] Mr. Babrak requested a Farsi-speaking lawyer and was put in touch with a Farsi-speaking defense counsel. At no point at the police station did he even hint at any issues understanding the counsel with whom he spoke.

[15] The thrust of the defense argument is that the Farsi-speaking police officer should have overridden Mr. Babrak’s request for a Farsi lawyer and put him in touch with a Dari-speaking lawyer once he came to conclude that Mr. Babrak had greater facility in Dari than he did in Farsi.

[16] Mr. Babrak agreed that he requested a Farsi lawyer and said that he didn’t tell the police about his comprehension issues because he was frightened. I have had the benefit of observing Mr. Babrak on video in the breath room. He does not convey fear through either words or body language and appears to be quite relaxed with the officers. I accept that he may have felt nervous internally but I also find as a fact that there was nothing in his words or behaviour that would have indicated that to the officers.

[17] Regardless, I find that the officer was under no obligation, pursuant to section 10(b) of the Charter, to override Mr. Babrak’s request for a Farsi counsel and obtain a Dari-speaking counsel instead. Mr. Babrak has the right to counsel of choice. He requested a lawyer who spoke Farsi. If the officer had overridden that decision, there would be arguable grounds for a claim that his right to counsel of choice was breached. I find that the officers were under no obligation to go further regarding provision of counsel without more from Mr. Babrak to indicate that there was an issue with the counsel with whom he spoke.

[18] I therefore dismiss the section 10(b) application.

Did Mr. Babrak Possess the Necessary Mens Rea?

The Law

[19] The Crown argues that it only must prove that Mr. Babrak was aware that he failed to provide a sufficient sample and the charge then is made out absent proof by Mr. Babrak of a reasonable excuse on the balance of probabilities. The Superior Court decision of R v. Porter is cited in support. [^1]

[20] The defense argues that more is required. He advocates the so-called “Lewko position” which holds that the Crown must prove that the accused intentionally refused or failed to provide a sufficient sample. If Mr. Babrak genuinely tried to provide a sample yet failed to do so, the mens rea is not made out even if, as per Porter, Mr. Babrak knew that he had failed to provide. [^2]

[21] These arguably are conflicting lines of summary conviction appeal decisions given the Ontario Superior Court’s adoption of the principles in Lewko, a Saskatchewan Court of Appeal case. No Ontario Court of Appeal decision has been rendered on this point.

[22] Mr. Justice Paciocco, now on the Ontario Court of Appeal, extensively discussed the two lines of cases in R. v. Soucy[^3] when he was a member of this Court. Ultimately, he endorsed the Lewko line of reasoning. I will not repeat that reasoning here but I agree with it and find that the Crown must prove that Mr. Babrak not only knew that he failed to provide a sample but that he did so on purpose. I agree with Justice Paciocco that requiring this line of reasoning is more in keeping with the moral fault requirement inherent in criminal law.[^4]

[23] Mr. Justice Nordheimer of the Ontario Superior Court questioned in R v. Slater[^5] whether the Porter/Lewko divide even existed. His view was that the decision in Porter merely held that a failure to provide after multiple attempts, without more, leads to the inescapable inference that the accused intended to cause that result. [^6]

Application of the Law to the Facts

[24] I find that the Crown has established the requisite mens rea beyond a reasonable doubt for the following reasons:

• Mr. Babrak failed to provide a suitable sample and was aware of that failure;

• He provided a suitable sample into the ASD with no issues;

• Despite language issues, I find as a fact that Mr. Babrak knew what was required of him when attempting to blow into the breathalyzer;

• He completed the testing process with the comment that even an extra ten chances would not lead to a different result;

• It is clear from watching the video of the breath room and I find as a fact that he was just doing short puffs into the breathalyzer.

[25] The thrust of Mr. Babrak’s defense is that he was trying his best and did not understand the officer’s instructions 50% of the time.

[26] I accept that Mr. Babrak did not understand everything the officer said. The perfection of the officer’s translation is not on trial in this case, however, and Mr. Babrak’s absolute comprehension of all that was said is not the issue. The question is whether Mr. Babrak knew what was required of him and yet deliberately failed to comply with those requirements.

[27] The translating officer spoke Farsi and was aware that Mr. Babrak’s first language was Dari. It was clear, however, that there is significant overlap between the two languages. The defense called Mr. Salim Nabi as an expert in the Dari and Farsi languages. Mr. Nabi speaks Dari, Farsi and English fluently. He has lived for extensive periods of time in Afghanistan, Iran, Canada and Europe.

[28] He differentiated between the spoken and written languages in both Iran and Afghanistan. The differences between the written languages in both countries are much more minimal than the differences in the spoken languages. For the purposes of this trial, it is the spoken languages that are relevant. Dari is spoken in Afghanistan and Farsi is spoken in Iran but both stem from the same ancient Old Persian root. In his opinion, a Dari speaking Afghani with no or limited exposure to the Farsi spoken in Iran would understand 30 to 40% of the Farsi spoken by someone from Iran.

[29] I was provided with a transcript containing a translation of both the Farsi spoken by the officer and the Dari spoken by Mr. Babrak. An enormous amount of time was spent in this trial addressing the specifics and quality of the translation. Both the officer and Mr. Nabi provided their own translations of what was said and there were points in which I had three versions – the transcriptionist’s version, the officer’s version, and Mr. Nabi’s version. I note, however, that translation is not a precise science. I also note that in most if not all instances, the substance of what was said was agreed upon though there were differences in the specifics of certain words.

[30] For example, I received the following English translations of what was said by the Farsi-speaking officer at 10:03:17:

(a) Transcriptionist’s version: “No, you must breathe. If you have any problems, you have to tell us. Do you have any medical problems?”

(b) Farsi-speaking officer’s version: “No, you have to provide a breath sample. And if you have a problem, you have to advise us right now. If you have asthma or something like that or a medical problem”

(c) Mr. Nabi’s version: “You have to give breath. If you have any medical condition such as asthma, you have to tell us”

[31] The gist of the message was the same in all instances – Mr. Babrak must breathe and must tell the officers if he cannot due to medical problems. If these were the only instructions Mr. Babrak received, they might lead me to have a reasonable doubt regarding Mr. Babrak’s comprehension of what was required.

[32] This passage, however, was only a small portion of a very extensive dialogue. Thirteen pages of dense transcription were provided. The interchange between the Farsi-speaking officer, the English-speaking officer, and Mr. Babrak went on for fifteen minutes, all focused upon the breathalyzer requirements.

[33] It also was clear that the officer and Mr. Babrak understood the gist of what each was saying. This is not a case of two individuals attempting to communicate who speak two totally unrelated languages – a German speaker attempting to understand a Hindi speaker, for example. Their responses to one another made sense and there was a flow to the dialogue.

[34] Further, I also observed Mr. Babrak’s actions on the video. He testified at trial that he tried his very best to blow into the machine but was simply unsuccessful. No further elaboration or explanation was provided. I reject Mr. Babrak’s contention and find that it does not leave me with a reasonable doubt when assessed in the context of all of the evidence.

[35] Mr. Babrak blew with no difficulty into the ASD device. It is clear from the video that he was providing light, short, puffs of breath into the breathalyzer. He was told repeatedly that he needed to blow with more force – he was told to blow harder, or blow as if blowing up a balloon. It is clear that he understood the necessity of blowing harder as he responded at 10:10:53 that he was blowing as hard as he could, at 10:10:58 that he was blowing very hard, and similar comments were made at other points. The accuracy of those comments, however, are contradicted by his physical actions.

[36] I find that the Crown has established beyond a reasonable doubt that Mr. Babrak both failed to provide a suitable sample and that he intended that result.

Conclusion

[37] I therefore find Mr. Babrak guilty of the charge.

Released: January 30, 2019

Signed: K.J. Caldwell J.

[^1]: 2012 ONSC 3504 [^2]: R. v. Lewko, 2002 SKCA 121 (Sask.CA). as applied in R. v. Stanley (2003), 42 MVR (4th) 95 (Ont SCJ), R. v. Campbell (2008), 2008 203 (Ont. SCJ). and other SCJ summary conviction appeal decisions [^3]: 2014 ONCJ 497 [^4]: Ibid, at para. 55. [^5]: [2016] O.J. 1592 [^6]: Ibid, at paras. 9 and 12.