ONTARIO COURT OF JUSTICE
CITATION: R. v. Karunakaran, 2021 ONCJ 607
DATE: March 2, 2021
Brampton Information No. 19-13113
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KESAVAN KARUNAKARAN
Before Justice Hafeez S. Amarshi
Heard on September 28 & 29; October 15 & November 4, 2020
Oral Judgment: February 1, 2021
Written reasons for judgment released on March 2, 2021
Y. Brar ...................................................................................................... counsel for the Crown
R. Tomowski ………………………………………………counsel for Kesavan Karunakaran
H.S. Amarshi J.:
A. Overview
Kesavan Karunakaran was involved in an accident in the early morning hours of June 22, 2019. After a brief investigation he was arrested for impaired driving and taken to a police division for a breath sample test. At the division he failed to provide a suitable sample for analysis.
As a result of those events, Mr. Karunakaran is charged that contrary to s. 320.15(1) of the Criminal Code, he did knowing that a demand had been made, fail or refused to comply with the demand made by a police officer under s. 320.27 or s. 320.28 of the Criminal Code. Further he is charged with impaired driving contrary to s. 320.14 (1)(a) of the Criminal Code.[^1]
The defence argues that the defendant’s limited English comprehension interfered with his ability to understand a qualified breath technician’s instructions during the testing process and further appreciate the consequences of failing to provide a breath sample. Specifically, there ought to be a reasonable doubt whether Mr. Karunakaran’s failure to provide a breath sample was intentional.
The defence also alleges the arresting officer lacked the necessary grounds to make an arrest for impaired operation. Further, once Mr. Karunakaran was arrested, the officer failed to make a demand "as soon as practicable" as required by s. 320.28 of the Criminal Code.
Finally, in the event this court finds Mr. Karunakaran’s arrest for impaired driving was based on reasonable grounds, there is a lack of reliable indicia to support a conviction under s. 320.14.
Two witnesses were called by the Crown in this case – a civilian whose car was rear ended by the defendant and the arresting officer, who is also a qualified breath technician.
Mr. Karunakaran did not testify.
B. Relevant Evidence
Khaliq Shafiq
Mr. Shafiq testified that on June 22, 2019 he was driving home after his shift at work ended at 2 a.m. He was stopped at a red light at the intersection of McLaughlin Rd and Courtney Park Drive in Mississauga when he was rear ended. He testified that his car was pushed into the intersection.
According to Mr. Shafiq, the driver of the vehicle Kesavan Karunakaran, told him not to call police and offered him money.
He observed the defendant, who had exited his car not to be walking normally, that he was shaking and smelling of alcohol.
However, in cross-examination, he conceded that he had never told the investigating officer at the scene of the accident, Cst. Michael Babore, of his observation that Mr. Karunakaran was not walking normally.
Mr. Shafiq testified that when he asked the defendant for his driver’s licence, Mr. Karunakaran handed over three or four different cards before he located his driver’s licence. Again Mr. Shafiq agreed that he never told the investigating officer that the defendant gave him a driver’s licence.
In describing the accident, Mr. Shafiq stated that he had suffered “minor injuries.” He conceded however that in his statement to police he told Officer Babore that he suffered no injuries. He further agreed that although there was an ambulance on the scene, he declined medical attention. He says however that he went to the hospital after a few hours.
Mr. Shafiq acknowledged that he had brought a civil suit and that he was suing Mr. Karunakaran for $300,000 claiming he had suffered permanent serious injuries. He further agreed that in his statement of claim he also alleges he had suffered permanent serious disfigurement as a result of the accident. Mr. Shafiq explained, however, that it was only after the accident that he began to feel pain in his back and shoulders and that he is currently on medication.
The statement of claim was made an exhibit in this trial.
Mr. Tomovski in cross-examination put to the witness that he did not appear to have any difficulty as he walked to the witness stand nor did he have any obvious discomfort standing or sitting while testifying. In response, Mr. Shafiq explained that it was only after he had to stand or sit for a long period of time that he would feel pain in his lower back.
Mr. Shafiq denied being inattentive at the intersection and that he was stationary after the traffic light had turned green, before being struck by the defendant. He agreed that Mr. Karunakaran had a thick and heavy accent.
Cst. Michael Babore
On June 22, 2019, Officer Babore was in uniform and responded to a radio call he received at 2:47 a.m. of an accident involving a possible drunk driver. The officer arrived at the scene eleven minutes later and observed two cars in the curb lane of an intersection. The officer did not observe any skid or drag marks on the road nor any physical debris in the intersection.
Cst. Babore first spoke to Khaliq Shafiq about the accident. When speaking to the defendant, the officer testified that he detected an odour of an alcoholic beverage emanating from Mr. Karunakaran’s breath and he noticed he had red and watery eyes. Further that the defendant, who he says had “a bit of slurred speech,” was swaying and that he tripped a little to his right.
During cross-examination, Officer Babore was asked to view Mr. Karunakaran’s eyes as he stood at a distance of about 10-12 feet away from the defendant in the courtroom. At one point the officer stepped closer. When asked if he observed a red tone, the officer responded no, but agreed that the defendant’s right eye appeared to be off centre and leaning a little to the right. In re-examination, he testified that on the night of the accident, Mr. Karunakaran’s eyes were “a lot more red” than they were in court.
The Crown and Defence subsequently provided an agreed statement of facts on this issue. It reads: “In court, at the trial, on Tuesday, September 29, 2020, the whites of Mr. Karunakaran’s eyes appeared slightly darker and more tinged with colour than the average person’s.”
After speaking to Mr. Karunakaran, the officer concluded the defendant was operating a motor vehicle, while his ability was impaired by alcohol. According to Cst. Babore he had been speaking to Mr. Karunakaran for about three minutes before he came to this conclusion and arrested the defendant at 3:01 a.m.
Officer Babore says he gave the defendant a right to counsel caution and breath demand. Mr. Karunakaran advised that although he understood English, it was not his first language, which he said was Tamil. Cst. Babore called for a Tamil speaking officer over his radio but with negative results. At some point, the officer learned the defendant had come to Canada within the last five years.
Cst. Babore testified that he re-cautioned the defendant, “In a better way that he would understand, to make it, make it so that he does understand.”
Mr. Karunakaran was taken to a police division and spoke to duty counsel with the assistance of a Tamil interpreter at 3:42 a.m., after which he was escorted to a breath room.
As part of the Crown’s case a video and audio recording from the breath testing room at 12 Division was played in court. The recording documents attempts by Mr. Karunakaran to provide a suitable sample for breath testing. The test was conducted by Officer Babore, who had been designated as a Qualified Breath Technician two months earlier. The most relevant section of this video commences at 4:06 a.m. and runs to 4:35 a.m. at which point Mr. Karunakaran is charged with failing to provide a breath sample.
During the testing process, the defendant does not have the assistance of an interpreter and Cst. Babore agreed had there been a Tamil speaking officer available he would have sought assistance.
C. Applicable Principles & Analysis
Impaired Operation
- The relevant principle to guide this court’s analysis is outlined in R. v. Stellato, 1993 3375 (ON CA), [1993] O.J. No. 18 (OCA), at para. 14, affirmed 1994 94 (SCC), [1994] SCJ No. 51.
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
In R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (CA), at para. 17, the Alberta Court of Appeal cautioned that in consideration of whether the person’s ability to drive is impaired to any degree by alcohol, judges must be careful not to assume that where a motorist’s “functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.”
In assessing whether the Crown has met their onus, the court must consider the cumulative effect of all of the indicia.[^2]
Conclusion – Impaired Operation not proven
The prosecution relied on the observations of both Khaliq Shafiq and Officer Michael Babore in support of the impaired driving count. My conclusions on whether the Crown has met their onus turns in part on my assessment of the credibility of the two witnesses and the reliability of their observations.
I did not find Mr. Shafiq credible and I gave no weight to his evidence. Mr. Shafiq told Officer Babore he suffered no injuries at the scene of the accident. In his evidence at trial he characterized his injuries as “minor.” An ambulance was at the scene and he declined medical assistance. This self-assessment at the scene of the accident by Mr. Shafiq is contradicted by his own statement of claim, where the witness alleges that he sustained both serious injuries and permanent serious disfigurement and impairment.
At paragraph seven of his claim, he cites a number of injuries including injury to his neck, mid and low back, upper and lower extremities, and a spraining, straining and tearing of the muscles, tendons, ligaments, discs, nerves and vessels throughout the body. It is hard to reconcile these two versions of his injuries. When challenged about these obvious discrepancies, Mr. Shafiq stated that it was only after the accident that he began to feel pain in his back and shoulders. Even if this is the case, these ailments bear little resemblance to the injuries he claimed he suffered in his statement of claim.
I note that Mr. Shafiq on more than one occasion during cross-examination claimed he was not prepared to speak about the civil suit and attempted to deflect questions about his statement of claim. This negatively impacted his credibility.
There is a further area of concern. There are discrepancies between Mr. Shafiq’s testimony at trial and what he told Cst. Babore at the scene of the accident. For example, the witness testified that he observed Mr. Karunakaran to be shaking and not walking normally, however, he conceded he never told this to the investigating officer. Further in his police statement he told Officer Babore when describing his interaction with the defendant, “He could not even give me his driver’s licence.” However, at trial Mr. Shafiq contradicts this statement and testified that he did indeed receive a driver’s licence from Mr. Karunakaran, albeit after the defendant pulled out a number of different cards first.
These are not minor inconsistencies when considered in the context of this court’s underlying concern about Mr. Shafiq’s statement of claim.
I want to be cautious given the pending civil claim – I have not concluded nor is it my task to assess whether Mr. Shafiq indeed suffers pain as a result of the accident. That may well be the case. I have only concluded that in the context of this criminal trial I have concerns about Mr. Shafiq’s credibility and the reliability of his evidence.
What remains are the observations made by Officer Babore who I found to a reliable and credible witness. I discuss the reasons for this conclusion later in this decision. The officer detected alcohol on Mr. Karunakaran’s breath, red and watery eyes, and “a bit of slurred” and slowed speech.
Although Cst. Babore observed the defendant swaying and at one point tripping a little to his right at the scene of the accident, he fairly conceded that the video evidence from the booking area at the police division, approximately 15 minutes after Mr. Karunakaran was arrested, showed no deterioration in the defendant’s motor skills. Further, he made no additional observations of Mr. Karunakaran having any difficulty moving, sitting or standing while at the police division.
As is often the case involving an accident it is hard to determine whether the observed indicia is related to alcohol consumption or the accident. I cannot draw any definite conclusions about the accident and given my reliability concerns with Mr. Shafiq’s evidence I am not prepared to accept his evidence that the light was red when he was rear-ended by the defendant. I accept however that an unexplained accident can be a factor suggesting impairment, which I have considered.
The brief agreed statement of facts which was filed with the court about the defendant’s eyes appearing slightly darker and more tinged with colour than the average persons may account for Cst. Babore observations at the roadside, although the officer noted that the defendant’s eyes were a lot redder on the day of the accident.
By my observation, based on the video evidence, Mr. Karunakaran does speak slowly naturally and has a thick accent when speaking English. The officer’s conclusion that the defendant has a bit of a slurred speech is not a compelling observation in that context.
I note the officer did detect an odour of alcohol which confirms the consumption of alcohol, however the evidence when considered in totality does not satisfy me beyond a reasonable doubt that Mr. Karunakaran was impaired by alcohol when he was driving that early morning. The indicia of impairment in this case evaluated as a whole is frail and cannot support a conviction.
Count one on this information is dismissed.
There were reasonable grounds to arrest the defendant
Mr. Tomovski argues that Officer Babore lacked the necessary grounds to make an arrest for impaired operation as required by s. 320.28(1) of the Criminal Code. He submits if this court finds a breach of Mr. Karunakaran’s ss. 8 and 9 Charter rights, then the subsequent breath demand would be unlawful, and the defendant cannot refuse an invalid or unlawful demand.
Grounds to arrest must be honestly and subjectively held by the officer and his or her honest belief must be objectively justified.[^3]
The test for establishing reasonable grounds is not onerous and the officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of the alternative explanations for the observed conduct.[^4]
The officer’s opinion I note must be judged by reference to the totality of the circumstances, and in the situation in which it was formed; a roadside investigation that demands a quick and informed decision, without the luxury of reflection.[^5]
Although I have concluded that the impaired count cannot be sustained, Cst. Babore possessed the reasonable grounds necessary to arrest the defendant. The officer responded to a radio call of a possible drunk driver and attended an accident scene, where he learns that Mr. Karunakaran rear-ended another car. There is no evidence of braking or skid marks. He detects an odour of alcohol on the breath of the defendant and observed red-rimmed and watery eyes. Mr. Karunakaran was momentarily unstable while speaking to the officer.
On the totality of these circumstances known to Cst Babore at the scene of the accident, it was reasonable for him to believe the defendant was impaired even to a slight degree. The officer had sufficient grounds to arrest Mr. Karunakaran and I do not find that the defendant’s ss. 8 and 9 Charter rights were breached by police.
Refuse or failure to provide a breath sample
- The elements of an offence under s. 320.15 are the following:
(i) A proper demand.
(ii) A failure or refusal by the accused to produce the required sample.
(iii) An intention as explained by the court in R. v. Slater, 2016 ONSC 2161. That intention may be inferred from the circumstances.
It is well established that when considering whether the Crown has proved beyond a reasonable doubt that the accused has failed to comply with a breath demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused.[^6]
Once the Crown proves these elements of the refusal offence, an accused can still avoid a conviction if he or she establishes a reasonable excuse on a balance of probabilities.[^7] In this case, Mr. Tomovski stated that he is not raising “reasonable excuse” as a potential defence in this case.
Conclusion – a proper demand was made
Officer Babore said that he arrested the defendant at 3:01 a.m. and subsequently made a breath demand at 3:07 a.m. Although the exact wording is not contained in his notes, Cst Babore testified he told the defendant that he had to come to the station to provide two samples of his breath into an intoxilyzer. He makes a second breath demand at 4:12 a.m. at the police division which is on the breath room video.
Mr. Tomovski argues that it is reasonable to conclude that the officer failed or forgot to make a breath demand at the roadside given the lack of detail in his police notes. Further, evidence to support this conclusion the defence submits, is Mr. Karunakaran’s apparent confusion in the breath room when asked on video why he had been brought to the police station - he responds by saying “because of an accident,” which suggests he did not understand that he was being detained for breath sample testing.
I find there was a proper demand at the roadside. As I previously noted, I found Officer Babore to be a credible and reliable witness. He had a strong recollection of events at the roadside, including observations he made at the scene and the information he conveyed to the defendant about exercising his legal rights. He gave careful evidence and readily conceded those areas of his evidence where he was unsure. The officer provided a detailed narrative in this investigation and I accepted his evidence that he made a breath demand some six minutes after the defendant’s arrest.
This is further buttressed by his evidence that he initially relied on his preprinted notes, which contains standard language and information that is to be conveyed to a detainee during an impaired investigation. It would be odd in the circumstances that he would omit making a formal breath demand when he was using his notes as a guide.
(ii) Actus Reus
- It is not disputed that there was a failure on part of Mr. Karunakaran to provide a suitable breath sample at the police division.
(iii) Mens Rea
There have been divergent views in the interpretation of the mens rea component for this offence.
There is authority that holds the refusal must be proved by the Crown to be intentional in order to ground liability under this offence.[^8] A second line of authority based on a 2012 decision by Justice Code - R. v. Porter, 2012 ONSC 3504, holds that knowledge of the prohibited act itself, that is, a failure to provide a suitable sample is sufficient to satisfy the mens rea component for this offence.
This debate is thoroughly canvassed in a decision by Justice Paciocco, as he then was, in R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No 4518 (OCJ), which is not necessary to repeat in this decision.
Mr. Tomovski in his submissions alerted me to a decision by Justice Nordheimer, as he then was, in R. v. Slater, supra – a summary conviction appeal judgment, which reconciles these competing lines of authority and is binding in these circumstances:
At paragraph 12, Nordheimer J. stated:
The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.
Under this approach, the Crown is still obligated to prove mens rea, but an inescapable inference makes this task straightforward. Proof of mens rea will be met by the application of the general principle that a person usually intends to cause consequences which are predictable.[^9]
In 2018 Parliament repealed and replaced all driving provisions in the Criminal Code of Canada. The provision governing a failure or refusal to provide a screening or breath demand has been amended. The amendment post-dates Justice Nordheimer’s decision, however both Crown and Defence agree that R. v. Slater continues to apply.
The following is an agreed statement on the law from the prosecution and defence which was filed with this court and which I accept:
“Currently, s. 320.15(1) of the Criminal Code states that "[e]veryone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28”. Prior to the most recent amendments, s. 254(5) read “[e]veryone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section”. The only change post-amendments is the insertion of the following “, knowing that a demand has been made,”. The addition of the word “knowing” is included within the commas with the phrase “knowing that a demand has been made” and serves simply to add a mental (intent) requirement to the words “that a demand has been made”. Thus, an accused must know that a demand has been made. The addition of the word “knowing” does not relate to the portion that previously and continues to be outside the commas, that is “fails or refuses to comply.” As such, R. v. Slater 2016 ONSC 2161 (Ont. S.C.J.) remains good law.”
The defendant’s lack of language comprehension
Mr. Tomovski argues the requisite mens rea is lacking to support a conviction under s. 320.15. He specifically references the defendant’s poor English language skills. Counsel submits that although Mr. Karunakaran understands some English - it does not lead to an inescapable inference that the defendant understood it for all purposes. He points to the fact that Officer Babore was sufficiently concerned about the defendant’s ability to understand English that he sought out a Tamil speaking police officer to assist during the breath testing procedure and other aspects of the investigation. One was ultimately not available. Further, he coordinated a Tamil interpreter be on the line when Mr. Karunakaran was speaking to duty counsel. Absent a Tamil speaking officer, Cst. Babore testified that there was no third-party service available for interpretation during the breath testing investigation, which he believed was a budgetary consideration.
In addition to the officer’s concerns about the defendant’s language abilities, Mr. Tomovski references a number of occasions on the breath room video which he says clearly demonstrates Mr. Karunakaran’s lack of understanding during the breath testing procedure. Further, there were gaps in Officer Babore’s explanation as to the consequences of not providing a suitable sample.
To support his position, counsel identifies an occasion on the video recording when Officer Babore asks the defendant to blow on his hand in an effort to demonstrate the amount of effort required to provide a breath sample - Mr. Karunakaran instead gives the officer a high five.
On another occasion earlier referred to in this decision – the defendant when asked by the officer why he is in the breath room, responds because of an accident. This demonstrates according to Mr. Tomovski, a lack or misunderstanding by the defendant as to why he had been brought to the police division.
In another instance Officer Babore tells the defendant he can be charged criminally if he doesn’t blow into the machine and asks Mr. Karunakaran if he understands – there is no response from the defendant. The officer proceeds to continue with the breath testing.
Counsel also references an exchange between the officer and Mr. Karunakaran after he has been arrested for failing to provide a breath sample. Cst. Babore tells the defendant he will have to go to court in a couple of weeks, to which Mr. Karunakaran inquires, “Today I have to go to court?” A clear misunderstanding of information he just received. The officer again explains he is to attend court in a couple of weeks, to which the defendant says, “Yeah.”
Conclusion – language comprehension was not a bar
Although Mr. Tomovski makes a persuasive argument, a careful review of the videotape leads me to conclude that Mr. Karunakaran understood the breath demand and that he did have a sufficient understanding during the breath testing process. Indeed, the video evidence supports the conclusion that Mr. Karunakaran purposely evaded providing a suitable breath sample.
I will first address the issue of language comprehension. It is clear that English is not the defendant’s first language and Officer Babore was correct to have a Tamil interpreter assist with Mr. Karunakaran’s communication with duty counsel. However, there are multiple instances where the defendant responds to information or inquires put to him which demonstrates a sufficient level of understanding.
For example, Cst Babore inquired often - either after a demonstration in the breath room or when conveying information to the defendant whether Mr. Karunakaran understood – to which the defendant would answer, “Yeah” or “Yes.” This occurred on multiple occasions.
This alone does not suggest comprehension, because I accept there can be instances when a defendant unfamiliar with the language or nervous in the company of police will respond simply and affirmatively to police inquiries despite a real lack of understanding. However, that was not my conclusion in this case. There was one occasion in particular that stood out on the video in which Officer Babore pressed the defendant on his level of understanding – specifically Mr. Karunakaran said, “Yeah” in response to whether he understood he would lose his licence for 30 days if he did not “blow.” Dissatisfied with this reply, the officer stated, “Are you just saying yeah, or do you understand?” - to which Mr. Karunakaran responded, “Yeah I understand.” Albeit a brief response – it is a positive confirmation on the part of the defendant that he appreciated the potential consequence of failing to provide a breath sample.
Further, Mr. Karunakaran consistently followed instructions and directions from the qualified breath technician. For example, although initially confused, he followed Cst. Babore’s instruction to blow on the officer’s hand. He followed without difficulty a further instruction that he practice providing a breath sample by blowing into the mouthpiece detached from the intoxilyzer. He was successful in that exercise because a faint whistle is audible – meaning he was expelling air into the mouthpiece. When told to take the mouthpiece out of its plastic wrapping, he dutifully complied. When asked to conduct breathing exercises following the example of the officer – the defendant competently followed those instructions. In all of these instances Mr. Karunakaran was immediately responsive to directions and explanations provided to him by Officer Babore.
I further observed over the totality of the video that the defendant did appear to understand and coherently respond to inquiries put to him by the officer – when asked if he was the registered owner of the motor vehicle, he responds affirmatively, confirming he understood the officer’s inquiry. When asked if he needed an ambulance because he was rubbing his chest, he said, “No.” When asked if he required another mouthpiece after the intoxilyzer timed out and the officer was preparing for another round of testing, Mr. Karunakaran replied, “No.”
I appreciate that having some English language proficiency is not the same as understanding rights and potential legal consequences. If I had any doubt in this case about Mr. Karunakaran’s ability to meaningfully understand the breath demand and testing procedure, I would have resolved that doubt in his favour.
It is concerning that the Peel Regional Police Service, especially given the diverse nature of this jurisdiction, have declined to have translation services available during breath testing. Police resort to third-party interpretation in other circumstances. There is a positive obligation on police to provide language services in situations where there is a reasonable basis to conclude that a detainee lacks basic English sufficiency and is required by law to proffer a breath sample.
I have considered carefully whether Mr. Karunakaran’s failure to provide a suitable sample is a result of not understanding the instructions or breath demand and I have concluded that language comprehension was not a bar in his failed attempts at blowing into the intoxilyzer. Instead the breath room video evidence amply supports the conclusion that the defendant was purposely evasive.
Conclusion – failure to provide a breath sample was intentional
There were 16 separate attempts by the defendant during the breath testing period. On only one occasion does Mr. Karunakaran provide a sufficient sample of breath for a tone to emit indicating a steady breath flow – this was only momentarily.
There are multiple instances on the video when Mr. Karunakaran was not blowing any air into the machine. For example during the defendant’s second attempt at approximately 4:19 a.m. – Officer Babore pulls the mouthpiece away from him and comments, “I see when you are not blowing because when I pull it out, you’re not going “pff” – there’s nothing there, you have to blow into the machine.” The officer is referring to the residual sound when the mouthpiece is removed to indicate that air is being pushed into the instrument.
The officer made the same observation at Mr. Karunakaran’s seventh attempt at 4:22 a.m., where again he observes the defendant not to be blowing any air into the intoxilyzer and says, “I was pulling out the piece and you still weren’t blowing, you're just putting it to your mouth.”
On other occasions, Cst. Babore observes the defendant to be obstructing the mouthpiece with his tongue. He makes these observations on three different occasions. For example, during Mr. Karunakaran’s 11th attempt at approximately 4:35 a.m., the officer states, “I see you put your tongue there.” And, “Put your tongue down, don’t put your tongue in it.” And again, “You can't put your tongue on the piece because you will block the air.” And, finally, “I see you putting your tongue into it.”
Even if I were to accept the defence argument that Mr. Karunakaran’s language difficulties impaired his ability to understand instructions in the breath room, such a deficiency could not account for the defendant’s active efforts to block the mouthpiece with his tongue.
Of note, Officer Babore who I found to be particularly patient and conscientious in his interactions with the defendant, makes a considered effort to encourage Mr. Karunakaran to provide a breath sample. For example, he conducts a self-test on two different occasions to demonstrate to Mr. Karunakaran how to provide a suitable breath sample. Further, he had the defendant complete breathing exercises. He had Mr. Karunakaran blow on his hand to assess the volume of air and deems the effort satisfactory.
Some of the defendant’s actions were simply confusing. At one point the officer observed the defendant to be sucking on the mouthpiece at 4:20 a.m., yet just moments before he was able to successfully blow on the officer’s hand.
There is at least one occasion where Mr. Karunakaran can be observed to be puffing his cheeks out, yet no air is being pushed into the instrument.
My conclusion after closely reviewing the videotape evidence and considering all of the evidence, is that Mr. Karunakaran’s failure to provide a breath sample was intentional and that language comprehension was not a bar to his understanding of the breath testing process and breath demand.
A conviction is to be entered on count two of the information
There is one remaining issue to address. The defence alleges that once arrested, Cst. Babore failed to make a demand "as soon as practicable," as required by s. 320.28 of the Criminal Code.
I previously made a finding of fact during a discussion of the essential elements under s. 320.15, in that I concluded Cst. Babore did make an initial breath demand at the accident scene at 3:07 a.m. - which I note was 6 minutes after the defendant was arrested.
In the event of that finding, Mr. Tomovski reasonably conceded in his submissions that the requirements under s. 320.28 would have been satisfied by police.
I want to thank both Crown and Defence for their fulsome and thoughtful submissions in this case.
[^1]: On February 1, 2021, an oral judgment was rendered in this matter. On that date, I indicated the following: “This is an oral decision for today’s purposes, but in the event a written decision is released, where there is a conflict between the two versions, it is the written decision that takes precedence – although any changes, if there are any, would be limited to grammar and readability and not legal principles, analysis or conclusions.
[^2]: R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (CA), at para. 28.
[^3]: R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35.
[^4]: R. v. Mitchell, [2004] O.J. No. 435 (SCJ), at para. 10.
[^5]: R. v. Bush, 2010 ONCA 554, at paras. 42, 45 and 55.
[^6]: R. v. Tavangari, [2002] O.J. No. 3173 (OCJ).
[^7]: R. v. Goleski, [2015] S.C.J. No. 6.
[^8]: See R. v. Lewko, 2002 SKCA 121.
[^9]: R. v. DeClair, 2020 ONSC 2033, at para 40.