2018 QCCQ 8357, 2018 QCCQ 8357

R. c. Kharaghani 2018 QCCQ 8357 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-097998-175 DATE: November 8 th , 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. RIYAN KHARAGHANI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Kharaghani is being tried on a

summary charge of having failed or refused to comply with a demand made by a peace officer to provide a breath sample using an approved screening device. [ 2 ] The prosecution alleges that the defendant’s words and actions establish a clear intention not to provide the requested breath sample. [ 3 ] The defendant submits that the police officer never officially asked him to blow into the ASD. Moreover, he never categorically refused to provide the breath sample. The evidence instead reveals that he asked for time to think before deciding whether or not to take the screening test.

He alleges that the police officer too quickly and erroneously concluded that he refused the request. [ 4 ] The issue is whether the peace officer made a clear demand to provide a breath sample using an approved screening device and, if so, whether Mr. Kharaghani clearly and unequivocally failed or refused to comply with that demand. I. BACKGROUND [ 5 ] On December 4, 2016, Officers Kevin Desormeaux and Francis Desrochers were patrolling in the Aylmer sector of Gatineau. While they were at the intersection of Tournoi and Golf streets, they noticed two individuals leaving a building about 50 metres away.

One of them shouted that he was starving. The two people got into a black Volkswagen Jetta parked in the driveway at 48 Golf Street. The driver started the engine and backed the car onto the road. The car was on the street, ready to drive south. Then the car suddenly drove back into the driveway. [ 6 ] Given that it was 3:43 a.m., and considering the unexpected nature of the manoeuvre, the police officers decided to go see the driver and verify his condition to drive.

Despite the visual contact established between the officer and the driver, the driver ignored the officer and headed toward the entrance to the building. Officer Desormeaux rapidly approached the driver. While talking, he smelled alcohol on the man’s breath and noticed that his eyes were red and glassy. The officer than explained that he would have to provide a breath sample. Throughout the intervention, Mr. Kharaghani questioned the legality of the police intervention. After having identified the passenger, Officer Desrochers returned to his colleague, who was still with Mr. Kharaghani.

He observed the same symptoms of intoxication as his colleague. [ 7 ] At 3:48 a.m., Officer Desormeaux read Mr. Kharaghani the English version of the demand to provide a breath sample, using the card supplied by the police force . Mr. Kharaghani continued to claim that the intervention was illegal and that he did not have to take the test. He argued with the officer that he had not operated the vehicle, given the very short distance driven by the car.

On cross- examination, the officer added that the driver asked him to be humane and stated that he had only driven his vehicle onto the street. [ 8 ] The passenger frequently chimed in during the intervention. He spoke loudly and was rude to the officers. [ 9 ] The officer replied to Mr. Kharaghani that it was a demand and repeated the content of the card previously read. He explained to him that he had no choice and that his vehicle and licence would be seized if he refused to comply. Mr. Kharaghani said that he understood but insisted that he had not really driven.

The officer once again repeated his explanation. The passenger kept interfering during this conversation. The police officer even had to place his hand on the man’s chest to move him away.

[ 10 ] The officer repeated his explanation a third time . [ 11 ] The officer took the screening device and explained how it worked to Mr. Kharaghani, who asked for some time to think about it. The officer put the cap back on the device. The defendant again asked for more time to think. Another person near the front door told him several times not to provide the sample. The officer nonetheless gave him one to two minutes to think about it. The officer again explained how it worked and inserted the mouthpiece into the ASD. The defendant asked for more time.

The officer concluded that the defendant had refused and arrested him at 3:58 a.m. [ 12 ] Once the defendant was in the patrol car, his brother spoke to the officers. He said that he was a lawyer practising in Ontario. He asked if he could speak to his brother to try and convince him to provide the breath sample. Officer Desormeaux refused on the ground that he had already been given several chances to do so. [ 13 ] Mr. Kharaghani was released on a promise to appear. [ 14 ] The defendant opted not to enter any defence.

It goes without saying that the Court cannot draw any negative inference from that strategy, as it is the defendant’s prerogative. II. ANALYSIS [ 15 ] In cases involving a refusal to comply with a demand made under s. 254(5) Cr. C. , the prosecution must prove the constituent elements of the offence beyond a reasonable doubt, as established in R. v. Lewko , [1] namely:

i) a proper demand made by a peace officer to provide a breath sample; ii) the failure or refusal on the part of the accused to produce an adequate breath sample; and iii) an intent on the part of the accused to fail or refuse to produce an adequate breath sample. [2] [ 16 ] In R. v. Degiorgio , [3] the Court of Appeal for Ontario added two non-negligible additional elements: the individual must have understood the demand and the individual did not have a reasonable excuse for refusing. Moreover, the request does not have to be made any specific way.

In another case, the Ontario Court of Appeal noted that “[t]he demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the ‘tenor [of the officer's] discussion with the accused.’" [4] [ 17 ] Once all these elements have been established beyond a reasonable doubt, the accused is presumed to have committed the offence unless he or she enters a defence or presents a reasonable excuse. [ 18 ] Further, the Supreme Court ruled in R. v.

Green [5] that a refusal to comply with a demand that has not been validly made is not an offence under s. 254(5) Cr. C. [ 19 ] In this case, there is no doubt that the demand was validly made. Officer Desormeaux had reasonable grounds to suspect that the defendant had alcohol in his body and that he had operated his vehicle within the preceding three hours; he could demand that he provide forthwith a breath sample for analysis by means of an approved screening device, which he was able to do right away at the scene. Nor is there any doubt that the requests to blow into the device were unequivocal.

The police officer read the demand using the police force’s card. That demand is clear and unequivocal. The defendant was given many explanations of the consequences so that he could decide, with full knowledge, whether or not to take the test. The testimony of both police officers is uncontradicted in this regard. It matters little that the police officer failed to formally or officially make the demand, after the periods of reflection granted, to provide the sample. The periods of reflection requested by Mr. Kharaghani were related to the officer’s repeated demands.

Not to mention the fact that the officer had the device in hand, ready to be used. [ 20 ] Did the defendant fail or refuse to comply with that demand? [ 21 ] The defence argues that he never categorically refused to comply. The evidence reveals that Mr. Kharaghani never verbally refused to provide the requested breath sample. [ 22 ] The Court of Appeal has noted many times that the offence of refusing to take a screening test is committed where a person receives a valid demand from a police officer and fails to comply therewith. [6] In R. v.

Degiorgi , supra , the Ontario Court of Appeal had this to say on the issue: [ 65] The offence created by s. 254(2) is complete upon the refusal. In the face of such a refusal, the police are not obliged to carry on as if there had been no refusal and the court is not obliged to speculate as to what might have happened had the police officer carried on . The offence is complete upon proof that the preconditions to the demand in s. 254(2) existed, the officer demanded a sample “forthwith”, and the appellant unequivocally refused, without any reasonable excuse, to provide that sample. [ 23 ] In Boucher c.

R. , [7] the Honourable Michel Pennou noted that to determine whether an accused’s conduct constitutes a refusal or failure to comply, the trial judge must consider the entire interaction between the police officer who made the demand and the individual who must comply. A series of elements may come into play during this analysis. These elements may be related to 1) the acts of the ASD operator, for example, the sufficiency of explanations provided on how to take the test; 2) the accused’s acts, for example, the effort or lack of effort by the accused to provide the requested breath sample, based on his

statements; 3) the circumstances of their interaction, for example, its duration and the number of tests taken; 4) the ASD itself, for example, verifying that the ASD and its mouthpiece work properly . [ 24 ] The Court adopts the observations of the Honourable Michel Babin in R. c. Richard : [8] [ translation ] 18 In certain cases, the refusal might be quick and unequivocal. If so, only a few minutes are needed to ascertain the offence. 19 In other cases, the decision is more difficult and can take longer.

In the Court’s opinion, the accused does not commit the offence as long as he or she has not clearly refused, either through words or acts. The accused must, however, take a position within a reasonable period time.

And that period of time depends on the circumstances. 20 The prevailing line of authority instructs the courts to analyze the circumstances of the event, in a conciliatory manner, when the accused claims to have changed his or her mind shortly after what, at first glance, could be considered as a refusal and, in particular, where nothing prevents, without any inconvenience, the test from being taken. [ 25 ] Thus, a driver’s attitude may amount to a refusal.

The prosecution must establish that the driver’s conduct is voluntary and that such conduct and/or any reply are a final refusal. [ 26 ] The uncontradicted evidence reveals that the police officer spent ten minutes asking the defendant to comply with the demand to provide a breath sample. Mr. Kharaghani asked him for some time to decide whether or not he would comply. The officer twice gave him time. Officer Desormeaux stated during his direct examination that he told Mr. Kharaghani, shortly before recording his refusal, that it was his last chance.

In cross-examination, he said that he did not think that he told him that it was his last chance. If that contradiction affects his credibility or the reliability of his testimony, the Court finds that it has little impact on the evidence. The act of giving or not giving a last chance does not diminish the driver’s obligation to comply with the clear demand of an officer under s. 254(5)(

b) Cr. C. forthwith. [ 27 ] The officers contradicted each other on whether Officer Desormeaux refused to allow the defendant to provide the breath sample after recording the refusal. Officer Desormeaux denied telling Mr. Kharaghani that it was too late and that he was refusing his offer to cooperate because the alcohol level would no longer be the same. Officer Desrochers testified that Officer Desormeaux said that it was too late because the alcohol level would be different.

He stated, however, that he could not say whether it was the defendant who offered to blow and even added that it was the brother who made the request. He stated that this happened after his colleague had repeated several times the consequences of refusing. If there is a contradiction, it is not very significant because the evidence does not reveal that the offer came from the defendant . Officer Desrochers’ testimony is far from conclusive that the offer to provide the sample came from the defendant. It is, however, established that the brother made the request. The evidence does not establish that Mr.

Kharaghani in any way changed his mind within a short period of time about what, at first glance, could be considered as a refusal . Not to mention that, if there was such an offer, it came late and in circumstances where third parties were involved, one encouraging him not to blow and the other insisting that he wanted to talk to him and convince him to blow. Logically, if the brother wanted to talk to the defendant to convince him, it was because the defendant obviously refused to comply.

If not, there would have been no point in wanting to talk to the defendant to convince him. [ 28 ] Officer Desormeaux showed great patience in explaining several times the consequences of refusing to provide the requested sample. Mr. Kharaghani’s incessant argument that the interception was illegal, his repeated requests for time to think about whether or not he should provide the sample, and his request that the police act “humanely” toward him all establish that he understood the demand, but also that he did not intend to blow into the ASD.

Especially given that his passenger was encouraging him to not blow into the device. After all the explanations given by the officer, Mr. Kharaghani’s statements, his lack of cooperation, and the absence of any effort by the accused to provide the requested sample, Officer Desormeaux was reasonably entitled to conclude that he was refusing to provide “forthwith” a sample of breath as required by s. 254(2)(

b) Cr. C. At the very least, despite the repeated demands and explanations of the consequences, Mr. Kharaghani failed to comply with the demand forthwith, or even within a reasonable time. His failure was voluntary, intentional and deliberate. [ 29 ] It is useful to recall that the charge he is facing criminalizes the refusal or failure to comply with a demand, nothing more. As soon as the evidence establishes that refusal or failure beyond a reasonable doubt, barring the matter of a reasonable excuse, the offence is committed and guilt must follow . No evidence was entered as to any reasonable excuse. FOR THESE REASONS, THE COURT: FINDS the accused GUILTY.

__________________________________ RICHARD LAFLAMME, J.C.Q. Mtre Isabelle Desharnais Criminal and penal prosecutor Mtre James Foord Counsel for the defendant Date of hearing: July 18, 2018