R. v. B.
Halton Region Court File No. 04-8181-00
Ontario Court of Justice
T. Wolder J.
Heard: December 20, 2004.
Judgment: January 31, 2005.
My client in this case had a very poor grasp of English. This usually means added problems for an individual charged with a criminal offence, but here we used police intolerance of his difficulty with the language to win the case.
Trial of B. on a charge of refusing to provide a breath sample. Burko was pulled over for speeding. The arresting officer smelled alcohol coming from the car and driver, noticed that B.’s eyes were glossy, and requested a breath sample. Burko who had immediately requested a Russian interpreter and a lawyer, repeatedly refused to provide the sample. He was read his rights. At no point did he indicate that he did not understand what was being said to him, and he answered, albeit briefly, all questions posed to him in English. Burko was then driven to the police station where he contacted his lawyer. The officer refused the lawyer’s request that a formal breath sample be taken at that point, one hour after Burko was initially stopped. At trial, Burko claimed that he had not understood anything said to him by the officer, did not understand that a breath sample had been requested.
HELD: Burko was acquitted. The Crown had not established that Burko fully understood the particulars or the significance of the demands and the legal peril he faced. In those circumstances, a formal breathalyzer test sample should have been taken at the station as suc
h would have been well within the two hour time limit. Indeed, Burko and the officer would then have been in the same position as if Burko had initially failed the roadside screening test.
Statutes, Regulations and Rules Cited:
Criminal Code, ss. 253(b), 254(2), 254(5)
Counsel:
Harutyun Apel, for the Crown
Reid Rusonik, for the defendant
BACKGROUND
2 During the early morning hours of March 6, 2004, Constable Alan Walker stopped the accused for speeding on the westbound QEW between highways 403 and Royal Windsor Drive in Oakville. The accused’s speed was determined through a laser device which found the accused’s vehicle to be travelling between 148 to 170 kilometres per hour. Constable Walker pulled over the accused’s motor vehicle and asked the driver for his identification. He detected an odour of alcohol coming from the motor vehicle and the driver. He then had a reasonable suspicion that the driver, who was identified as the accused, Volodymyr Burko, had alcohol in his body. As a result, he asked Mr. Burko to come back to his cruiser so that he could verify the quantity of alcohol in his body. Constable Walker had a Drager Alcotest Model 7410GLC in his cruiser which is an approved screening device under the criminal code and regulations. He wanted Mr. Burko to provide a sample of breath into the device so he could determine the level of alcohol in Mr. Burko’s body. Constable Walker noted that when the accused was placed in the rear of the cruiser, he detected an odour of alcohol coming from Mr. Burko’s breath and found the accused’s eyes to be glossy with the interior lights on. Upon making the initial request of Mr. Burko, the accused stated that he wanted a Russian interpreter and his lawyer. Notwithstanding this request, Constable Walker continued to read the roadside screening demand to him in English.
3 The accused was born in the Ukraine and moved to Canada in 1993 where he has lived since. He operates a small business with his wife. He claims to be fluent in Ukrainian, his birth language, Russian, which he learned in the army, and Polish which he learned in school. He claims that he understood no English when he first moved to Canada and that his present understanding of English is very limited.
4 Constable Walker demonstrated the use of the Drager Alcotest screening device to the accused and showed him how to use it. He then presented the screening device to the accused and asked him to provide a sample of his breath. The accused refused. Constable Walker testified that when he asked the accused whether he was going to blow, the accused responded that he needed a doctor, that he had asthma and wanted an interpreter and his lawyer present. When asked again by Constable Walker whether he was going to provide a sample of his breath into the screening device, the accused replied, “No, I require my interpreter.” Constable Walker then explained to him that the consequences for refusing to provide a sample would be the same as for failing a sample as impaired driving and that it would result in a loss of his licence for a year. The accused again said “No,” that he wanted his interpreter. As a result, Constable Walker arrested the accused for refusing to provide a sample of his breath into the approved roadside screening device. Constable Walker then proceeded to read the accused his rights to counsel. The accused interrupted Constable Walker during the reading of the rights by handing him a card which he had in his possession which contained the name of Reid Rusonik and a telephone number. Mr. Rusonik is the accused’s counsel. Constable Walker then completed reading his rights to counsel and asked whether the accused understood, to which the accused replied, “Of course.” In response to the question, “Do you wish to call a lawyer, now?”, the accused answered, “Of course.” When read the subsequent police caution and asked whether he understood, the accused replied, “Yeah.” After securing the accused’s property and arranging for the accused’s automobile to be towed, Constable Walker took the accused to the Burlington OPP detachment where they arrived at 3:00 a.m., approximately 46 minutes after Mr. Burko had first been observed speeding. While walking Mr. Burko to the cell area, Constable Walker asked if he wanted to call a lawyer to which Mr. Burko replied “Yeah,” indicating that he wanted to call his own lawyer. Constable Walker then placed a call to the phone number on the card that had previously been handed to him by Mr. Burko.
5 At 3:12 a.m., Constable Walker was alerted by Mr. Burko to return to the cell area. Mr. Burko advised Constable Walker that his lawyer was the person on the phone and wanted to speak to Constable Walker. As a result, Constable Walker spoke to him. After completing the conversation, he returned the telephone to Mr. Burko and allowed him to complete his discussion with his lawyer in private.
6 In the conversation with Mr. Burko’s lawyer, Mr. Rusonik asked that a breathalyzer test be performed on Mr. Burko. Constable Walker replied that it was too late.
7 The accused testified that he did not know why he was stopped by Constable Walker. He claimed that he was not speeding. He claims not to have to understood Constable Walker who only spoke in the English language. He claims that he handed his driver’s license to Constable Walker because he did understand the word “driver’s licence.” He also got out of his car and walked over to and sat in the back of Constable Walker’s cruiser because Constable Walker signalled him with his hands to go there. He testified that he did not understand any of the warnings that were given by Constable Walker. He further testified that since he did not know why he was being stopped by the police, he asked for a Russian interpreter to assist him in understanding the situation. While he acknowledges that Constable Walker had some device in his hands which he was manipulating, and put up his mouth, he claims that he did not know that it was a screening device and thought it was some sort of tape recorder into which Constable Walker was dictating some information. He thought that perhaps Constable Walker wanted to give him a ticket but he was not sure why. Although the accused had a valid Ontario driver’s licence, he claims that he passed the driver’s exam because he was allowed to take the exam in the Russian language at the Ministry of Transportation.
8 Mr. Burko denies that he told the officer that he had asthma. He claims that he was trying to tell the officer that he had pneumonia and that he was drinking antibiotics that the doctor had prescribed and that the pneumonia was connected with his breathing. When asked by Constable Walker whether he had been drinking, he had replied, “No, I didn’t drink.” He claimed that he was prepared to do whatever Constable Walker wanted him to do but at no time did he understand that Constable Walker was trying to communicate to him that he wanted him to provide a sample of his breath into an instrument. He testified that he first understood that he was required to give the police officer a sample of his breath only after he had spoken to his lawyer. Mr. Burko acknowledged that although he can say, in English, the words “I don’t understand” or the words “I don’t speak English,” he did not use those words to Constable Walker but merely asked for an interpreter in the Russian language.
9 Constable Walker testified that Mr. Burko had responded, “Of course” to the question, “Do you understand?” after he was read the rights to counsel, and to the question of whether he wished to call a lawyer now. While Mr. Burko did not agree that he said those words, he explained that he was simply trying to express to Constable Walker that he did not understand what was being said to him.
10 Later in the morning, after Constable Walker became concerned about Mr. Burko’s illness and injuries, he took Mr. Burko to the hospital. At the hospital, Constable Walker did ask for the assistance of a Polish-speaking nurse to assist Mr. Burko. A Polish-speaking nurse was made available to speak to him.
11 If the accused honestly did not understand what was being demanded of him by Constable Walker when Constable Walker wanted him to provide a suitable sample of his breath into an approved screening device, then such would provide a reasonable excuse for not complying with the demand.
12 While I believe that Mr. Burko is much more fluent in the English language than he was prepared to admit in his evidence, there is no doubt that his first language is Ukrainian and that since he has been in Canada for only ten years and since his wife communicates in the English language in the business, whereas he communicates in Ukrainian, Russian and Polish, I believe that the accused would likely have experienced some difficulty in understanding much of the technical wording or phrases in the English language. I note that when the police officer read the rights to counsel and caution from his notebook, it was read quickly. Therefore, I believe that it would have been quite difficult for someone like Mr. Burko, whose first language is not English, to understand exactly what is being said to him. While Mr. Burko’s responses to some of the questions may have given the impression to Constable Walker that he had some understanding of what was being requested from him, I am not satisfied beyond a reasonable doubt that he fully understood the particulars or the significance of the demands and the legal peril that he faced by his responses.
13 In this case, the doubt about Mr. Burko having fully understood what was being said to him and the demands being made of him could have been resolved by having allowed the accused to take a breathalyzer at the detachment when he, through his counsel, offered to do so. At the time that counsel for Mr. Burko spoke to Constable Walker and asked that the accused be allowed to take a breathalyzer test, it was still well within two hours from the time that the accused had first been stopped.
14 The purpose of a driver submitting to a roadside screening demand is to determine the level of alcohol in the driver’s body and to allow the investigating officer to gain reasonable and probable grounds to determine whether or not the driver has a level of alcohol in his body in excess of 80 milligrams of alcohol per 100 millilitres of blood. Therefore, had Mr. Burko complied with the demand and had the device registered a fail, then the results would have given Constable Walker reasonable and probable grounds to believe that a section 253(b) offence had been committed. Constable Walker then would have arrested the accused and made a formal breathalyzer demand upon him. He would then have escorted him to the detachment for the purpose of having him provide a sample of his breath into the Intoxilyzer 5000C which is normally located at the detachment. Therefore, had Mr. Burko been permitted to take a breath test into the Intoxilyzer 5000C, this would have placed him and Constable Walker’s investigation in the same position as if the accused had taken and failed the roadside test. If the accused had failed the subsequent breath tests, he could have been charged with s. 253(b) of the Criminal Code as well as with this present offence, in the event that he should thereafter argue that the presumption of earlier driving could not be applied to the voluntary Intoxilyzer 5000C test…
17 In this case, I find that although the request was made by Mr. Burko’s counsel, this ought not to attract any significance since Mr. Burko’s counsel was obviously much better versed in the English language than was Mr. Burko.
18 Accordingly, while I find that Mr. Burko may have stretched the truth about the extent of his limitations in the English language, the fact that he asked for a Russian interpreter when he first spoke to Constable Walker combined with the fact that, after he had spoken to counsel, he, through his counsel, offered to submit to a formal breathalyzer test which could have resolved the issue, creates some doubt that the Crown has proven the element of mens rea of this offence. When Mr. Burko asked for the assistance of a Russian interpreter when first stopped by Constable Walker, Constable Walker had an obligation to make some reasonable inquiries into the extent of Mr. Burko’s ability to understand the English language. Constable Walker’s decision to ignore that request and just continue to make demands in the English language also raises a reasonable doubt about the accused’s ability to understand what he was being told by the officer. Such doubts must be discharged in favour of the accused. I therefore find Mr. Burko not guilty.