R. v. Bagherli, 2011 MBPC 25

CITATION: R. v. Bagherli, 2011 MBPC 25 Date: 2011 03 17 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Mitchell E. Lavitt, ) for the Crown ) and ) ) ) Alireza Bagherli ) Timothy J. Valgardson, ) for the Accused ) ) ) Reasons for Decision delivered: ) March 17, 2011 ) STEWART, P.J. [1] On November 16, 2008, Dr. Alireza Bagherli was charges with impaired driving and refusing to provide a breath sample to aWinnipeg Police officer. [2] Pursuant to section 24(2) of the Charter the accused seeks to exclude certain evidence from his trial on the basis that hissection 10(

b) rights were infringed. This evidence if excluded would in particular negate the charge of refusal. This is therefore adecision on a voir dire into the admissibility of the accused’s refusal to blow. [3] After a motor vehicle accident on Bishop Grandin freeway in the City of Winnipeg the accused left the accident scene, andwandered north towards the Waverley Street Auto Park. [4] Some 20 minutes later, the police arrived on the scene after being called by passersby and arrested the accused for impaireddriving. Const.

Friesen formed the opinion that the accused was impaired based on indicia of unsteady on his feet, (I supported him)eyes bloodshot, and a strong odor of liquor on his breath. At 1:50 a.m. the accused was charged and cautioned, was read the breathdemand, read his right to counsel and police caution. He indicated that he understood each caution. He asked to speak to a lawyer. Thereafter, Constable Friesen reread the accused his formal breath demand from his police card after which the accused said he wouldnot provide samples of his breath.

It was based on this formal demand and refusal that the charge of 254(5) was laid. [5] The evidence given by Constable Friesen and Constable MacDonald were given under a voir dire. The defense had inadvance, noted their belief of a 10(

b) violation and the need for a 24(2) Charter of Rights hearing. It is their argument that the refusalthat was stated by the accused to provide breath samples was made after his request to speak to a lawyer and is therefore a nullity due toa 10(

b) violation. As a result of there not being a second reading of the breath demand, it is the argument of the defense the chargeshould be judicially stayed under 24(2). It should be noted that the accused, once lodged at the local police station, was given the phonebook, access to the private telephone room and an opportunity to contact counsel on several occasions, and did not. [6] I do find that the accused’s right to counsel, as guaranteed by

section 10(

b) of the Charter was violated. I base this findingand am guided by the principles set out by the Supreme Court of Canada in the cases of Prosper (1994 (SCC), 3 SCR236), Bartle (1994 (SCC), 3 SCR 173) and Manninen (1987 (SCC), 1 SCR 1233).

[7] The question before me at this stage is whether or not on the facts of a 10(

b) breach finding and in light of the Supreme Courtcase of R. v. Grant a judicial stay or exclusion of evidence is appropriate on this 10(

b) breach. [8] The case of R. v. Grant 2009 SCC 32 , [2009] S.C.J. No. 32 is the most recent pronouncement of the Supreme Courtof Canada on the law pertaining to an s. 24(2) analysis. [9] The facts of that case involved the seizure of a gun by the Toronto police from an individual accused who was beingquestioned on the street. Eventually the court found that the accused was arbitrarily detained by the police who subsequently thenbreached his s. 10(

b) Charter rights. [10] With this backdrop, the Supreme Court of Canada briefly reviewed their previous decisions in R. v. Collins and R. v. Stillmanand found that there appears to have been a deviation from a proper s. 24(2) analysis that was to have been based on “all thecircumstances.” [11] The test set out by the Supreme of Canada from Grant onward, requires the court to assess and balance the effects ofadmittance of the evidence on societies confidence in the justice system based on the following factors: (

a) Seriousness of the Charter-infringing State Conduct; (

b) Impact on the Charter-Protected Interests of the Accused; (

c) Society’s Interest in an adjudication on the Merits. Seriousness of the Violation [12] The court must concern itself and assess whether the admission of the evidence would bring the administration of justice intodisrepute by sending the message that the court condones the transgression of the law. [13] The more severe or deliberate the conduct, the greater the need for the court to disassociate itself from that conduct. Theconcern in this inquiry is not to punish the police or to deter Charter breaches but rather to preserve public confidence in the rule of lawand its processes. This is a fact based analysis.

Impact of the Breach [14] Here a court is to look at the seriousness of the breach on the accused’s Charter protected interests. In the case of anunreasonable search, the court in Grant commented that where it intrudes on an area in which the individual reasonably enjoys a highexpectation of privacy, or that demeans his dignity, it is more serious than one that does not. The scale of breaches goes from meretechnicality to significantly intrusive. Societies Interest in an Adjudication [15] Society expects that matters in the criminal courts will be determined based on the merits of the case.

In this stage of theinquiry a court must ask itself whether the quest for the truth would be better served by the admission or exclusion of the impugnedevidence. [16] A further consideration for the court in this stage is the reliability of the evidence. If the evidence obtained as a result of thebreach is unreliable, its admission does not assist the court nor advance the public interest of uncovering the truth.

Conversely, theexclusion of relevant and reliable evidence may undermine the quest for the truth and bring the administration of justice into disrepute. [17] Although somewhat related to the issue of reliability, a court is also to consider the importance of the evidence to the case forthe Crown. Analysis [18] It is these three categories that must be considered by the court pursuant to a s. 24(2) analysis of the evidence obtained inbreach of the Charter of Rights and Freedoms.

It is not a mathematical calculation for the court but rather a consideration of “all thecircumstances”, as that term is used by the Supreme Court of Canada. [19] In the case at bar, the evidence at issue is the refusal to provide a breath sample by his word “no”.

The issue of conscriptedevidence is no longer thought to be the overriding consideration for courts concerning bodily samples but rather it is suggested thatreferences to the interests of privacy, bodily integrity and human dignity should be the primary consideration when assessingadmissibility. [20] When one assesses the first inquiry to be made, in the case at bar, there is no doubt that the investigation was poorlyconducted. Reasonable and probable grounds in this case were agreed to exist by the defence.

However, the investigation lackedvigilance and is highlighted by the fact the officer relied upon his reading of the standard charge and cautions only and appeared tooverlook the importance of the accused requesting to speak to counsel. [21] To be clear, however, it is my view that the actions of the officer on this date were not those of an officer intentionally anddeliberately disavowing the accused of the protections of the Charter and refusing the accused to exercise his right to counsel.

In fact atthe police station the police officer and his partner provided the accused with a phone book at least two times to call the lawyer of hischoice which offer was not taken up. In the end though a key fundamental right has been abrogated. [22] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the accusedprotected interest. It is also focused on the important societal interest in respecting and taking seriously the Charter and its specific

rights. [ 23 ] The Supreme Court in Grant made comment that there are a range of intrusions into bodily integrity and privacy from illegal blood tests (which are extremely intrusive because of the information that the blood sample can reveal about a person), to breath test which are minimally intrusive due to their limited informational value. The category of a verbal refusal from an accused is in my opinion not intrusive or is the least and most minimal intrusion upon the accused’s privacy interest and bodily integrity in such s. 24(2) cases. Its breach however triggers an immediate and absolute consequence.

Secondly, it is clear that Canadian society expects and should be ensured that all citizens have the right to legal advice in all circumstances. [ 24 ] At the third stage of inquiry, the Court asks whether the truth seeking function of the trial process would be better served by the admission of the evidence or its exclusion. The reliability of the evidence and its importance to the Crown’s case are factors to be considered. I am aware of the public outcry as it pertains to impaired driving. The parliament of our nation has long ago established this

section of the Criminal Code to trigger an automatic consequence to refuse a breath demand that is an offence with no other drinking evidence necessary. This clearly underlines the view that government has towards stopping drinking and driving even to enact such draconian provisions. [ 25 ] In my view, the breach before the court did not come about because of egregious conduct by the officer, nor resulted in an affront to bodily integrity or personal privacy. It was a non-intrusive breach. It was however a serious undermining of the accused interests in outcome.

Despite this however, the accused, an educated man, had the opportunity at least twice to look up and contact the lawyer of his own choice at the police station and chose not to. Finally, this evidence in its context of the facts is clearly reliable. [ 26 ] On this basis I conclude that the breach did not come about because of the egregious conduct of the police officer, nor resulted in an affront to bodily integrity or personal privacy. This breach was not intrusive.

As a result I am of the view that the admission of the refusal to provide the breath samples at issue would not bring the administration of justice into disrepute. Therefore the statement of “no” to the request for breath sample is admissible. STEWART, P.J.