R. v. Bagherli (A.), 2014 MBCA 105

Citation: R. v. Bagherli (A.), 2014 MBCA 105 Date: 20141124 Docket: AR 13-30-08042 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN : ) N. P. Steen HER MAJESTY THE QUEEN ) for the Appellant ) (Respondent) Appellant ) T. J. Valgardson ) for the Respondent - and - ) ) ALIREZA BAGHERLI ) Appeal heard: ) September 16, 2014 ) (Accused) (Appellant) Respondent ) Judgment delivered: ) November 24, 2014 MAINELLA J.A.

Introduction [ 1 ] The Crown’s appeal raises two questions involving the application of the Canadian Charter of Rights and Freedoms (the Charter ) in the context of an impaired driving investigation. The first issue is how the right to counsel guaranteed by s. 10(

b) of the Charter should be properly accommodated by police when a breath demand pursuant to s. 254(3) of the Criminal Code (the Code ) is made, and a detainee invokes his or her right to counsel. The second issue concerns s. 24(2) of the Charter . It focusses on the assessment of the admissibility of a verbal refusal to a breath demand in accordance with the first two lines of inquiry discussed in R. v. Grant , 2009 SCC 32 at paras. 72-78 , [2009] 2 S.C.R. 353. Background Facts [ 2 ] In the early morning hours of November 16, 2008, the accused was involved in a traffic accident in Winnipeg.

A witness suspected the accused was drunk and called police; Constables Friesen and MacDonald were dispatched. [ 3 ] The accused fled the scene of the accident on foot. He was quickly located and arrested for impaired driving. Constable Friesen immediately made a breath demand pursuant to s. 254(3) of the Code (the first demand). He said (at para. 6): …. I further believe that your abilities are impaired due to the consumption of alcohol. I will demand that you provide samples of your breath for analysis and if you refuse you will be charged with refusal. … Do you understand?

The accused replied by saying, “yes.” [4] Constable Friesen then advised the accused of his right to counsel and the police caution. The accused answered bysaying that he understood and wanted to speak to a lawyer. Constable Friesen then read, what he described in his testimony at trial as the“actual demand” for breath samples from the back of his notebook (the second demand) (at para. 7): …. In my opinion, your ability to operate a motor vehicle is impaired by alcohol. I demand you provide samples of your breath necessary todetermine the concentration, if any, of alcohol and to accompany me for that purpose.

Should you refuse this demand, you will becharged with the offence of refusal. Will you provide samples of your breath? The accused responded by answering, “[n]o.” [5] The accused was then arrested for refusing to comply with a demand for a breath sample and failure to remain at thescene of an accident under The Highway Traffic Act, C.C.S.M., c. H60 (the HTA). [6] On arrival at the police station, the accused was given an opportunity to contact counsel. The accused did not contactcounsel. He repeatedly passed out and was unresponsive to Cst. MacDonald’s inquiries.

Finally, he was asked if he wanted to try andspeak to his lawyer, to which he replied, “No, I’ll talk to him later” (at para. 9). The waiver of the right to counsel (i.e., the “Prosperwarning” (R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 at 274)) was then read to the accused, which he acknowledged asunderstanding. Decision of the Trial Judge [7] The trial judge found a breach of an implementational component of s. 10(

b) of the Charter, when Cst. Friesen failed tohold off asking the accused if he would provide breath samples until he had a reasonable opportunity to exercise his right to counsel. [8] The trial judge considered the three lines of inquiry for the exclusion of evidence pursuant to s. 24(2) of the Charterdiscussed in Grant, and decided not to exclude the evidence of the accused’s verbal refusal to provide breath samples. [9] On the first line of inquiry, the seriousness of the violation, the trial judge found that the Charter breach was not theproduct of egregious police conduct.

Rather, there had been an oversight by Cst. Friesen relying too heavily on the standard wording fora breath demand in his notebook; the right to counsel was properly respected at the police station. [10] On the second line of inquiry, the impact of the breach on the undermining of the accused’s protected interests, the trialjudge concluded that while a breath demand engages minimal privacy interests, the choice whether to provide breath samples isconsequential.

In his view, although the breach was not intrusive, it seriously undermined the accused’s interests before choosingwhether to provide breath samples. [11] On the third line of inquiry, the societal interest in the adjudication of the case on its merits, the trial judge characterizedthe evidence as reliable and central to the Crown’s case.

He noted that the accused, a medical doctor, was an educated person who,when given a proper opportunity to speak to counsel, chose not to do so. [12] Once the evidence of the verbal refusal at the roadside was admitted, counsel for the accused invited the trial judge toconvict on the refusal offence. The accused was also convicted of failing to remain at the scene of an accident under the HTA, but wasacquitted of impaired driving. Decision of the

Summary Conviction Appeal Judge [13] The

summary conviction appeal judge (the SCA judge) dismissed the accused’s conviction appeal for the HTA offence,but allowed his appeal of the refusal offence and entered an acquittal. She agreed with the trial judge that there had been a violation ofthe s. 10(

b) duty to hold off, but went on to make further comments critical of the police investigation. She stated (at para. 47): I am of the view that the [accused]’s s. 10(

b) rights were breached when Constable Friesen required him to answer the breath demandand acted on that answer before he had the opportunity to consult a lawyer. Having done so, he should have made it clear to the[accused] that he was not bound by his earlier response, that he could change his mind after he spoke with a lawyer, and should have re-read the breath demand at the police station. [emphasis added] [14] The SCA judge concluded that four errors committed by the trial judge, in his consideration and application of the testregarding the exclusion of evidence, necessitated her to interfere with his s. 24(2) Charter decision and exclude the evidence of the

verbal refusal. [15] The first two errors related to the assessment of the seriousness of the police conduct. In her view, the trial judge failedto consider, in addition to the accused being denied a reasonable opportunity to contact counsel, that he was also arrested for refusing tocomply with a demand before his request to contact counsel was accommodated. She also disagreed with the trial judge’scharacterization of the seriousness of Cst. Friesen’s conduct given there was no urgency to make the second demand. She stated (atpara. 52): ….

While I am not suggesting that the officer acted in bad faith, as noted in Grant, “ignorance of Charter standards must not berewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” ([Grant at] para. 75). [16] She further concluded that the trial judge had mischaracterized the impact of the Charter breach on the accused’sinterests. She disagreed with the notion that a demand for a breath sample is only a minimal invasion of privacy.

Properly analyzed, theverbal refusal was, in her view, a self-incriminating statement and, therefore, “the breach was intrusive as it provided evidence of thecrime and prevented the [accused] from making an informed choice of whether to provide a sample” (at para. 53). [17] Finally, she said the trial judge erred in concluding that what occurred at the police station mitigated the effect of theCharter breach and favoured admitting the evidence in furtherance of society’s interest in having an adjudication of the case on itsmerits.

She noted that by that point in the investigation, the accused was already arrested for refusing to comply with a demand, was nottold by the police that he could change his mind, and the breath demand was not reread to him. Decision Granting Leave to Appeal [18] Burnett J.A. granted the Crown leave to appeal pursuant to s. 839(1)(

a) of the Code on the following questions of law (atpara. 26): …. 1. Did the SCA judge err in law in finding a violation of the [accused]’s right to counsel as contemplated by s. 10(

b) of the Charter? 2. When the SCA judge excluded the [accused]’s refusal to provide a breath sample, did she err in law by not according properdeference to the trial judge’s decision and by considering inappropriate factors? Discussion Question One -

Section 10(

b) of the Charter Position of the Crown [19] The Crown argues that the s. 10(

b) implementational duty to hold off attempting to elicit evidence does not apply to abreath demand from a detainee who has invoked his or her right to counsel because any refusal is deemed at law to be conditional orequivocal until the detainee has a reasonable opportunity to contact counsel (R. v. Sullivan (1991), (BC CA), 1B.C.A.C. 312). According to the Crown, the refusal “crystallizes” only when the right to counsel has been properly exhausted. [20] The Crown addresses the further comments of the SCA judge on s. 10(

b) of the Charter by submitting that the policeare not required by law to provide multiple demands for breath samples, nor are they required to provide what amounts to legal adviceabout a detainee’s rights as to providing a breath sample when they have previously refused. Position of the Accused [21] The accused says the lower courts were correct to conclude that Cst. Friesen violated his s. 10(

b) implementational dutyof holding off attempting to elicit evidence from the accused until he had a reasonable opportunity to contact counsel. [22] Counsel for the accused concedes that the SCA judge “went a step too far” in stating that s. 10(

b) of the Charterrequires police to reread the breath demand after the right to counsel is exhausted. Rather, he argues the police should initially make ademand that complies with the requirements of s. 254(3) of the Code, but then wait until after the right to counsel is exhausted beforecontinuing their investigation by asking the detainee whether he or she will provide breath samples.

Analysis and Decision (

i) Introduction [23] Reconciling the interests of ensuring the effective enforcement of impaired driving laws designed to maintain road safetyand deter potential offenders with individual rights guaranteed by the Charter, such as the right to counsel, is a delicate exercise. [24] Operating a motor vehicle is a privilege, not a right; it is a highly regulated activity because, for the vast majority ofCanadians, getting into a motor vehicle is the most dangerous activity they do. Impaired driving is a clear and ever-present threat to roadsafety (R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621 at 636-37; and R. v.

Bernshaw, (SCC), [1995] 1S.C.R. 254 at paras. 16-19). Submitting to some infringements of personal liberty is the compromise motorists accept so that there canbe effective enforcement of driving laws for the purpose of ensuring road safety. Parliament’s legislative scheme to combat impaireddriving includes placing a legal duty on individuals to comply with a validly made breath demand and criminalizing non-compliance (R.v. Woods, 2005 SCC 42 at paras. 30-31, [2005] 2 S.C.R. 205). The utility of these laws to ensuring road safety has long been recognizedby this court (see R. v.

Forsyth (1973), (MB CA), 15 C.C.C. (2d) 23 at 26 (Man. C.A.)). [25] The accused concedes that Cst. Friesen’s roadside breath demands met the requirements of s. 254(3) of the Code. Sections 254(3) and 254(5) of the Code provide: Samples of breath or blood 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. Failure or refusal to comply with demand 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under thissection. (ii) Parameters of s. 10(

b) of the Charter [26] Because a breath demand is compulsory, once it is made the person is detained for the purposes of s. 10(

b) of theCharter (R. v. Therens et al., (SCC), [1985] 1 S.C.R. 613 at 644; and R. v. Schmautz, (SCC), [1990] 1S.C.R. 398 at 412). A person who is the subject of a breath demand, unlike a person who is subject to an approved screening devicedemand or request to perform physical sobriety tests pursuant to s. 254(2) of the Code, is entitled to the full benefit of s. 10(

b) of theCharter (Therens at p. 645; R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640 at 655; and R. v. Orbanski; R. v. Elias, 2005SCC 37 at paras. 52-60, [2005] 2 S.C.R. 3). [27] The purpose of s. 10(

b) was explained in the following manner by Abella J. in R. v. Taylor, 2014 SCC 50 (at para. 21): The purpose of the s. 10(

b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equallyif not more important, to obtain advice as to how to exercise those rights”: Manninen [ (SCC), [1987] 1 S.C.R. 1233], atpp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk ofinvoluntary self-incrimination”: R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensuresthat an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the policeinvestigators that is both free and informed”: R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. [28] In practice, these objectives of s. 10(

b) are achieved by police observing certain duties in relation to the right to counsel.

Those duties were described in the following manner by McLachlin C.J. and Charron J. in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R.310 (at para. 27):

Section 10(

b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called theinformational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This iscalled the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(

b) and resultsin a breach of the detainee’s rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until thedetainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(

b) are not absolute. Unless adetainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonableopportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. [29] Police are obligated to fulfill their informational and implementational duties relating to the right to counselimmediately.

The only exceptions to the “without delay” rule are where there are concerns about officer or public safety, or thecircumstances for the delay are a reasonable limit of the right to counsel within the meaning of s. 1 of the Charter (R. v. Suberu, 2009SCC 33 at para. 42, [2009] 2 S.C.R. 460). [30] Where police satisfy the informational component of s. 10(b), it falls to the detainee to invoke his or her s. 10(

b) rightsfor the implementational duties on police to arise (Sinclair at paras. 27-28). If a detainee fails to invoke their s. 10(

b) rights, an officer isfree to proceed with the impaired driving investigation and inquire into the detainee’s intentions of complying with a breath demand(Sinclair at paras. 27-28; and R. v. McKeen (T.I.), 2001 NSCA 14 at paras. 21-31, 190 N.S.R. (2d) 322, leave to appeal to S.C.C. ref’d,[2001] S.C.C.A. No. 162 (QL)). In such a scenario (failure to invoke one’s s. 10(

b) rights), a question like what Cst. Friesen asked theaccused at the end of the second demand can be put to a detainee concurrently or shortly after the reading of the breath demand, withoutviolating s. 10(

b) of the Charter. (iii) Duty to “hold off” [31] If, however, a detainee invokes his or her right to counsel, as was the case here, police must hold off attempting to elicitevidence from a detainee in any manner until he or she has a reasonable opportunity to contact counsel (R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233 at 1243-44; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 at 192; Prosper at p. 269; and Taylorat para. 26).

McLachlin C.J. and Charron J. explained in Suberu that this duty (at para. 38): …. … [R]equires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonableopportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. [32] The question at the end of the second demand by Cst. Friesen was an attempt to elicit incriminating evidence. Ifcomplied with, the police would have obtained breath sample evidence to further their investigation.

The reverse is also true, becauserefusing to comply with a breath demand is evidence per se. [33] The Crown’s argument that a refusal to a breath demand is not evidence for the purposes of the s. 10(

b) duty to hold off,because it is the actus reus of a separate offence, ignores the wording of the Code. A refusal to a breath demand has two qualities: it isthe actus reus of a separate offence as the Crown argues, and it is admissible evidence, for the various forms of impaired driving relatedoffences in the Code. A trier of fact may use the refusal to draw the adverse inference that an accused refused to provide breath samplesbecause he or she knew they were impaired at the time (s. 258(3) of the Code; and R. v.

Lesuk (R.W.), 2000 MBCA 24 at para. 23, 148Man.R. (2d) 39). [34] In the wording of s. 254(3) of the Code, Parliament has recognized that the context of the police using the investigativetechnique of an “approved instrument” to determine a person’s blood alcohol content based on their breath necessitates some delay. Practically, the approved instrument is typically at a police station rather than at the roadside which means some delay is inevitable inorder to get the person to the machine (Woods at para. 6).

Also, a person does not have to provide breath samples immediately or inclose proximity to the breath demand, rather only “as soon as practicable” (s. 254(3)(

a) of the Code). This can be contrasted with anapproved screening device demand pursuant to s. 254(2)(

b) of the Code where the breath sample must be provided “forthwith” (see R. v.MacKinnon (1985), (PE SCAD), 54 Nfld. & P.E.I.R. 237 at para. 24 (P.E.I. C.A.); and Woods at para. 44). [35] The Crown’s argument that the s. 10(

b) implementational duty of police to hold off attempting to elicit evidence from adetainee in any manner did not apply to the second demand is unpersuasive because Cst. Friesen went beyond what s. 254(3) of the Coderequired him to do. [36] There is no mandatory wording of a breath demand required by s. 254(3) of the Code. A demand is sufficient as long asthe words used by the officer and the circumstances surrounding their use convey to the person that they must give samples of theirbreath and failing or refusing to do so is an offence (R. v. Ackerman (1972), (SK CA), 6 C.C.C. (2d) 425 at 427 (Sask.C.A.); R. v.

Flegel (1972), (SK CA), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.); and R. v. Burkart (1985), (MB CA), 37 Man.R. (2d) 239 at para. 25 (C.A.)). [37] It was entirely appropriate for Cst. Friesen to read the second demand to the accused after he had invoked his right tocounsel save for the question at the end of it. The mere reading of a properly worded breath demand after the right to counsel has been

invoked by a detainee does not, in my view, contravene the s. 10(

b) duty to hold off because the officer is only providing informationabout the nature of the detainee’s jeopardy as well as satisfying the officer’s duties under s. 254(3) of the Code as to the timing of a validbreath demand. However, the question at the end of the second demand was not necessary for the breath demand to be valid for thepurposes of s. 254(3) of the Code. The sole purpose of the question was to further the impaired driving investigation. [38] The Crown’s position cannot be reconciled with the police’s s. 10(

b) duty to hold off attempting to elicit evidence froma detainee in any manner until he or she has had a reasonable opportunity to contact counsel. To allow police inquiries about a detainee’sintentions during the hold off period, before they have had a reasonable opportunity to obtain the advice of counsel they desire, runsafoul of s. 10(b). It makes the detainee’s invocation of his or her s. 10(

b) right to counsel illusory. [39] I also do not read Sullivan as supporting the Crown’s position on whether s. 10(

b) was breached. A person must bereasonably diligent in exercising his or her right to retain and instruct counsel (R. v. Tremblay, (SCC), [1987] 2 S.C.R.435 at 439; and Sinclair at para. 27). Sullivan was a case where the individual was not reasonably diligent in exercising his right tocounsel after the breath demand.

After requesting to speak to counsel, he voluntarily incriminated himself by telling the officer, while enroute to the police station, he was going to refuse to provide a breath sample. [40] Constable Friesen should have delayed his inquiry into the accused’s intention about complying with the breath demand. There was no urgency for him to inquire at the roadside whether the accused would provide breath samples. The accused was at thepolice station within about an hour of the traffic accident.

If he had decided to provide breath samples after briefly speaking to counsel,the first breath sample could have been taken within two hours of him operating his vehicle. This would have allowed for reliance onthe statutory presumption in s. 258(1)(

c) of the Code for the breath test results of the approved instrument in the prosecution of theaccused for impaired driving. Therefore, the police investigation would not have been unreasonably impeded if Cst. Friesen had waiteduntil the accused had a reasonable opportunity to contact counsel before asking him if he was going to provide samples of his breath. [41] The Crown’s argument based on Sullivan that an initial refusal to provide a breath sample may be conditional orequivocal until the exhaustion of the right to counsel was put in its appropriate context in R. v.

Mandryk, 2012 ONSC 3964 at paras. 54-68, 291 C.C.C. (3d) 182. As Code J. explained in Mandryk, an initial refusal accompanied by a request to speak to counsel may not,depending on all of the circumstances of the incident, be considered a definitive refusal for the purpose of making out the offence unders. 254(5) of the Code until the right to counsel is exhausted. I agree. [42] The issue before this court, however, is a different one. The trial judge was deciding whether the verbal refusal wasadmissible evidence, not whether that evidence, if admitted, made out the refusal offence.

The reasonableness of the verdict, if theverbal refusal is admissible, is not properly before this court pursuant to s. 839(1)(

a) of the Code. (iv) Decision [43] I would, therefore, answer the first question on which leave to appeal was granted in the negative. For the reasons justexplained, the SCA judge did not err in law in finding a violation of the accused’s right to counsel as contemplated by s. 10(

b) of theCharter because Cst. Friesen failed to hold off asking the accused if he would provide breath samples until he had a reasonableopportunity to exercise his right to counsel. (

v) SCA Judge’s Additional Comments on s. 10(

b) of the Charter [44] While concluding that the SCA judge did not err in law in finding a violation of the accused’s right to counsel ascontemplated by s. 10(

b) of the Charter, I wish to note that I do not share the SCA judge’s obiter comments on the parameters of s. 10(b)in the context of an impaired driving investigation. [45] As explained earlier, the SCA judge concluded, as part of the accused’s waiver of his right to contact counsel at thepolice station, the police were obligated to tell the accused, in addition to providing a “Prosper warning,” that he was not bound by hisverbal refusal at the roadside and that he could change his mind after speaking to a lawyer.

In my view, such an obligation places thepolice in the position of providing legal advice to a detainee as to the exercise of his or her rights. [46] The informational component of s. 10(

b) of the Charter is for the police to advise a person of their right to retain andinstruct counsel without delay and to the existence and availability of legal aid and duty counsel (Bartle at p. 192).

That informationalduty does not require police to advise a detainee how to exercise those rights or require police to provide legal advice to a detainee (R. v.Willier (S.J.), 2008 ABCA 126 at paras. 36-40, 429 A.R. 135, aff’d, 2010 SCC 37, [2010] 2 S.C.R. 429). [47] There are many possible criminal and civil consequences associated with the decision to provide breath samples that arebest left to conversations in private with a lawyer as opposed to a discussion with a police officer.

As Slatter J.A. commented in Willier,“were the police to give legal advice to the detained person, that might confuse or even mislead the detained person about his rights” (atpara. 36). [48] Once the police complied with the requirements of Prosper, after the accused told Cst.

MacDonald that he had changedhis mind about speaking to counsel, the accused’s right to counsel was exhausted. [49] The SCA judge also concluded that to be compliant with s. 10(b), where there is a refusal to provide a breath samplebefore the right to counsel is facilitated, police should “not rely on [the initial] response as a refusal, explain that the detainee is notbound by the initial response, and repeat the demand” (at para. 41).

In my view, the SCA judge was in error. [50] Absent the withdrawal of an initial breath demand, there is no legal obligation on police to make multiple demands forbreath samples in an impaired driving investigation. Only one properly made breath demand is required and it continues in effectthroughout the impaired driving investigation (R. v. Townsend, 2007 ONCA 332 at para. 2, 46 M.V.R. (5th) 159; Sullivan at para. 17;

and R. v. Dotremont (A.M.), 2011 MBQB 88 at para. 40, 2011 MBQB 88 , 264 Man.R. (2d) 120). [51] The SCA judge mistakenly saw Cst. Friesen’s question at the end of the second demand as necessary to the validity ofthe breath demand. As stated previously, it was not. The question played no

part in triggering the duty on the accused under s. 254(3)(a)(

i) of the Code to provide breath samples. The Winnipeg Police Service may have inserted the question into their standard wording for abreath demand, but that is a matter not of law, but of the practice of that one police force. [52] There is no consistency in the wording of breath demands under s. 254(3) of the Code across Canada (see R. v. Emery,2012 ABPC 197 at paras. 32-38 (QL)). Some police forces in their standard wordings for officers use a question similar to what Cst.Friesen read to the accused, others do not (e.g., Emery at para. 6; R. v. Kitine, 2014 ABPC 96 at para. 83 (QL); and R. v.

Singh, 2012ABPC 91 at para. 15 (QL)). [53] Counsel for the accused fairly conceded that the SCA judge’s reasoning of requiring multiple breath demands wouldunreasonably disrupt impaired driving investigations. Controversy would undoubtedly arise whether a subsequent breath demand wasmade “as soon as practicable” as s. 254(3) of the Code requires, thereby casting doubt on both the validity of the breath demand and theadmissibility of any resulting analysis. Requiring the police to make multiple breath demands tips the balance too much against effectiveenforcement of impaired driving laws.

Question Two - Section 24(2) of the Charter Position of the Crown [54] The Crown argues that the trial judge considered the proper factors discussed in Grant as to the exclusion of evidencepursuant to s. 24(2) of the Charter, and did not make any unreasonable findings. It submits that the trial judge’s s. 24(2) determinationshould have been given considerable deference by the SCA judge, which she failed to do. Position of the Accused [55] The accused says the SCA judge applied the correct standard of review before interfering with the trial judge’s s. 24(2)decision.

He argues that she was correct to consider that the trial judge’s determination on the seriousness of the Charter breach wasunreasonable because Cst. Friesen was negligent. The accused also submits that the SCA judge was correct to conclude that the trialjudge had mischaracterized the impact of the Charter breach on the protected interests of the accused. This was a self-incriminatorystatement obtained without an informed choice and, therefore, should have been excluded.

Analysis and Decision [56] For the following reasons, I would answer the second question on which leave to appeal was granted, in the affirmative. In my view, the SCA judge erred in law by not according proper deference to the trial judge’s s. 24(2) decision and by consideringinappropriate factors. [57] However, I am satisfied that on proper review of the trial judge’s s. 24(2) decision it, nevertheless, must be set aside. (

i) Standard of Review [58] A trial judge’s determination on whether to exclude evidence pursuant to s. 24(2) of the Charter cannot be interferedwith on appeal absent an incorrect application of a legal principle or an unreasonable finding of fact (R. v. Mian, 2014 SCC 54 at para.77). Appellate review of how a trial judge has balanced the relevant factors as to whether the admission of evidence would bring theadministration of justice into disrepute does not allow for recharacterization of evidence absent palpable and overriding error (Grant atpara. 129; and R. v. Côté, 2011 SCC 46 at para. 51, [2011] 3 S.C.R. 215). [59] The primary function of an appellate court, such as a

summary conviction appeal court, is to review for error. If an erroris found on appellate review, it must be “plainly identified” by the appellate court (R. v. Clark, 2005 SCC 2 at para. 9, [2005] 1 S.C.R.6). Although leave to appeal has been granted pursuant to s. 839(1)(

a) of the Code, the focus of this court, as a second level of appeal ina

summary conviction proceeding, is not to be a second appeal of the trial judge’s decision, rather it is limited to examining the error(s)identified by the SCA judge to determine whether she erred in law in reaching her decision (R. v. Banman, 2007 MBCA 139 at para. 3;R. v. R.R., 2008 ONCA 497 at para. 24, 238 O.A.C. 242; and R. v. Winfield (P.A.), 2009 YKCA 9 at para. 12, 273 B.C.A.C. 152).

However, where error is identified in the SCA judge’s decision, no deference is owed to the decision, and then the trial judge’s decisionmust be reviewed by this court. (ii) Review of the SCA Judge’s s. 24(2) Decision [60] The SCA judge’s concern that the trial judge did not rely on the fact that the accused was arrested for refusal in hisassessment of the first line of inquiry in Grant is, in my view, misplaced. The accused was lawfully arrested for impaired driving and theHTA offence, and was also lawfully detained for a breath demand under s. 254(3) of the Code.

In such circumstances, the arrest forrefusal added nothing to the seriousness of the Charter breach of the right to counsel [61] I also cannot agree with the SCA judge’s conclusion relating to the purpose for which the trial judge used the evidenceof the efforts of the police to facilitate the right to counsel at the police station. The trial judge did not, as the SCA judge concluded, usethis evidence to attenuate the seriousness of the Charter breach. To the contrary he found the breach of s. 10(

b) to be significant. Hestated: “a key fundamental right has been abrogated” (at para. 21). [62] The trial judge’s use of the conduct of the officers at the police station was simply to identify where the breach fell onthe continuum. He concluded that Cst. Friesen’s error, although significant, was not at the most serious end of the spectrum asamounting to a brazen and deliberate disregard of the accused’s right to counsel (Grant at para. 74; and R. v. Harrison, 2009 SCC 34 at

paras. 23-24, [2009] 2 S.C.R. 494). The trial judge found that the “investigation was poorly conducted” (at para. 20) despite there beingthe requisite grounds to make the breath demand. Nowhere in his reasons does he equate Cst. Friesen’s oversight with “good faith”(Grant at para. 75). [63] I must also disagree with the SCA judge’s conclusion that the trial judge did not correctly identify the impact of theCharter breach on the accused’s protected interests because he did not treat the verbal refusal as an “unlawfully obtained [statement]” (atpara. 53).

She focussed exclusively on the fact that the evidence in dispute had a self-incriminatory quality because it was conscripted,contrary to the flexible multi-factored approach set out in Grant. By doing so, she overlooked the important differences between the typeof statement the Supreme Court of Canada was discussing in Grant (at paras. 89-92) as opposed to statements resulting from a validbreath demand. [64] As the Supreme Court of Canada explained in Grant, focussing too much on the conscriptive nature of evidence canproduce “anomalous results” (at para. 106).

In my view, the reasoning of the SCA judge creates such an anomaly, in the second line ofinquiry in Grant, for two hypothetical individuals making different choices when faced with a breath demand, but whose s. 10(

b) rightswere violated in the same way. [65] For person X, who verbally refuses to provide breath samples, according to the SCA judge that refusal is akin to anillegally obtained statement thus, there is a presumption of exclusion (Grant at para. 92).

For person Y, who complies with the demandleading to a blood-alcohol reading over the legal limit, because a breath sample is not highly intrusive of a person’s privacy, bodilyintegrity and human dignity that favours admitting such evidence (Grant at paras. 109, 111). [66] The impact of a Charter breach on an accused’s protected interests will vary with the particular circumstances. It canrange “from fleeting and technical to profoundly intrusive” (Grant at para. 76).

It is an error in principle to follow the logic that becausea verbal refusal has self-incriminating qualities that means necessarily that the impact of a Charter breach on an accused’s protectedinterests is at or near the profoundly intrusive end of the spectrum in the second branch of the Grant test. Here, the SCA judge failed tofirst properly identify the “interests engaged by the infringed right” (Grant at para. 77).

A detainee’s statement in response to a breathdemand is not analogous to an illegally obtained statement as discussed in Grant (at paras. 89-92). [67] One difference is that the confessions rule does not apply to statements in answer to a breath demand (R. v. Stapleton(1982), (ON CA), 134 D.L.R. (3d) 239 at 241-42 (Ont. C.A.)). Under the confessions rule, if a police officerexplicitly threatens a suspect with a criminal offence if they do not cooperate, any subsequent statement would be excluded.

The sameresult does not occur in impaired driving cases because statements following a breath demand do not resemble traditional policeinterrogations and there is a need to ensure the efficacy of the impaired driving legislation which relies heavily on the breath demand togather evidence and the refusal offence to ensure motorist compliance with the statutory regime. [68] A second difference between a detainee’s statement in response to a breath demand and the type of illegally obtainedstatement discussed in Grant (at paras. 89-92), is the question of self-incrimination.

The protection against self-incrimination afforded bythe Charter is not a free-standing right equally applicable in all situations (R. v. S.A.B., 2003 SCC 60 at para. 57, [2003] 2 S.C.R. 678). Any analysis of situations involving self-incrimination (which includes the right to remain silent) is “specific, and contextually-sensitive” (R. v. White, (SCC), [1999] 2 S.C.R. 417 at para. 45). [69] The scope of the protection against self-incrimination in a given context requires examination of its underlying rationale: to protect against unreliable confessions and abuses of power by the state (White at para. 43).

These concerns are manageable in theimpaired driving context because the legislative scheme authorized by Parliament precisely defines when a breath demand can be madeand the police power is not open-ended such that it can be easily abused with impunity. [70] The typical consequence of the right to silence guaranteed by s. 7 of the Charter during the investigation stage, is that asuspect has a choice whether to assist a police investigation, has no legal obligation to do so and cannot be prosecuted for non-compliance (R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151 at 180). [71] The situation, however, is different for individuals subject to a valid breath demand because of statutory compulsion(see R. v. Singh, 2007 SCC 48 at para. 27, [2007] 3 S.C.R. 405). Parliament, through s. 254(3) of the Code, has imposed a duty onindividuals to, in essence, assist an impaired driving investigation by providing breath samples, failure or refusal to do so being anoffence under s. 245(5) of the Code (Bartle at pp. 215-16). Such laws are seen as necessary “to control the tragic chaos caused bydrinking and driving” (R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607 at para. 90). [72] Therefore, in considering the second line of inquiry in Grant, it is important to remember that in an impaired drivinginvestigation, a suspect subject to a valid breath demand has legal duties that suspects in other types of criminal investigations do nothave. Police powers are also greater than in other types of criminal investigations to lawfully compel cooperation with the impaireddriving investigation.

Put another way, in considering the impact of the Charter breach, a judge must correctly identify the scope of anaccused’s “protected interests.” Here, the accused’s right to remain silent and not cooperate with the police was not protected in the sameway as it usually is in other types of criminal investigations.

A reviewing court must take this context into account when consideringwhether a trial judge has erred in his or her assessment of the “degree to which the [Charter] violation impacted” an accused’s interests(Grant at para. 77). [73] Finally, the SCA judge’s analysis of the third line of inquiry in Grant, regarding society’s interest in the adjudication onits merits, appears to have been affected by the mistaken view that the police were legally obligated to make multiple breath demandsand to tell the accused that he was not bound by his verbal refusal at the roadside and that he could change his mind. [74] In light of the above, no appellate deference is owed to the SCA judge’s s. 24(2) decision.

Further, it becomes necessaryfor this court to make its own review of the trial judge’s s. 24(2) determination, mindful of the standard of review of such a decision onappeal as previously stated. (iii) Review of the Trial Judge’s s. 24(2) Decision

[ 75 ] The analysis on the first line of inquiry in Grant is on the nature of state misconduct. The greater that misconduct the more there is a need for the court to disassociate itself from it to preserve public confidence and adherence to the rule of law ( Grant at para. 72 ). [ 76 ] The trial judge found that Cst. Friesen was not motivated by bad faith in breaching s. 10(

b) of the Charter . Rather, this was a situation of negligence, albeit not one approaching the gross neglect in Taylor where the officer made no effort whatsoever to facilitate the right to counsel. These findings are reasonable in the circumstances and entitled to deference. [ 77 ] However, the trial judge made an error in principle in terms of the first line of inquiry for s. 24(2), by failing to go on to consider the reasonableness of Cst. Friesen’s oversight in the circumstances.

This was not a case like Grant where the officer’s error of judgment was “understandable” because the law was uncertain ( Grant at para. 133 ) or there was some other extenuating circumstance ( Grant at para. 75 ). The s. 10(

b) duty to hold off attempting to elicit evidence from a detainee after making a breath demand until he or she has a reasonable opportunity to contact counsel, is a longstanding principle of law (see Prosper at pp. 269-78). [ 78 ] The trial judge should have asked himself whether “[Cst. Friesen] knew (or should have known) that [his] conduct was not Charter -compliant” to assess the reasonableness of the error in the circumstances in terms of whether or not it favoured disassociation ( Harrison at para. 22 ).

While there was no suggestion that members of the Winnipeg Police Service using the standard breath demand warning in their notebooks routinely breach the duty to hold off required by s. 10(

b) of the Charter , I am satisfied that in the circumstances of this case, this branch of the Grant test favours exclusion. [ 79 ] The public is entitled to expect that the police do not conduct an impaired driving investigation at the expense of Charter rights that are well-established, as was the case here. If a properly informed detainee invokes his or her right to contact counsel, the officer is obligated to hold off inquiring into the detainee’s intentions of complying with the breath demand until the right to counsel is exhausted by exercise or a proper waiver. Failure to do so is a breach of s. 10(

b) of the Charter ( Propser at p. 269). Where police have fully afforded a detainee a reasonable opportunity to contact counsel, but the detainee is not reasonably diligent, then the duty to hold off proceeding with the impaired driving investigation is suspended ( Tremblay at p. 439; and Sinclair at para. 27 ), and the officer may then inquire into the detainee’s intention regarding complying with the breath demand. [ 80 ] The analysis on the second line of inquiry in Grant is on the impact of the breach on an accused’s Charter -protected interests.

The greater the impact, the more there is a need for the court to disassociate itself from the breach to preserve public confidence ( Grant at para. 76 ). The trial judge’s finding here was that the breach was “a serious undermining of the accused’s interests” (at para. 25), although a breath demand is minimally intrusive to a person’s protected interests, is reasonable. Although other trial courts in similar breath demand cases have assessed the impact of a s. 10(

b) breach on an accused’s interests differently than the trial judge did here because of the context, considerable appellate deference must be shown to the trial judge’s finding ( Mian at para. 87 ). The trial judge’s finding favours exclusion of the evidence. [ 81 ] It is noteworthy that the Crown did not argue at trial, and the trial judge did not conclude, that the accused would still have refused to comply with the breath demand notwithstanding the Charter breach ( Grant at para. 96 ). If the Crown had proven that the accused would not have acted differently had his s. 10(

b) rights been respected, the impact of the breach for the purposes of this branch of the Grant test would have been attenuated ( Bartle at pp. 211-13; Grant at para. 96 ; and R. v. Cole (T.A.) , 2011 MBQB 221 at para. 28 , 276 Man.R. (2d) 299). [ 82 ] The analysis on the third line of inquiry in Grant is on society’s interest in adjudication of the case on its merits and whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence ( Grant at para. 79 ).

The finding of the trial judge was that the evidence of the verbal refusal was reliable and was central to the Crown’s case and thereby favoured admitting the evidence. That finding was reasonable and is entitled to deference. [ 83 ] Because of the trial judge’s error in principle on the first line of inquiry in Grant , it is necessary to re-evaluate the relevant considerations in this court mindful that as an appeal court we cannot recharacterize the evidence in a way that is contrary to a s. 24(2) finding of the trial judge that is not tainted by clear and determinative error (see R. v.

Koczab (A.) , 2013 MBCA 43 at para. 117 , 294 Man.R. (2d) 24 (Marc Monnin J.A. dissenting); 2014 SCC 9 , [2014] 1 S.C.R. 138, affirming Marc Monnin J.A.’s dissenting reasons). (iv) Decision [ 84 ] Although I agree with the trial judge’s finding that society’s interest in adjudication of the case on its merits favours admitting the evidence, the seriousness of the Charter breach, as I have explained, and the trial judge’s finding that the impact of the breach seriously undermined the accused’s interests leads inexorably to the conclusion that in the circumstances, the admission of the evidence of the accused’s verbal refusal would impair public confidence in the administration of justice so as to warrant its exclusion.

The long term reputation of the administration of justice would be adversely affected if police do not assiduously respect an individual’s legal right to reasonably delay making a consequential decision in relation to a breath demand, particularly if the delay is brief and is for the purpose of obtaining the assistance of counsel. Disposition [ 85 ] Given the trial judge’s determination that exclusion of the verbal refusal evidence would, in the circumstances, “negate the charge of refusal” (at para. 2), I would dismiss the appeal and uphold the acquittal on the refusal offence entered by the SCA judge. J.A.

I agree: J.A. I agree: J.A.