R. v. Bagherli (A.), 2014 MBCA 14

Citation: R. v. Bagherli (A.), 2014 MBCA 14 Date: 20140128 Docket: AR 13-30-08042 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) N. P. Steen HER MAJESTY THE QUEEN ) for the Applicant ) (Respondent) Applicant ) T. J. Valgardson ) for the Respondent - and - ) ) ) Chambers motion heard: ALIREZA BAGHERLI ) December 19, 2013 ) (Accused) (Appellant) Respondent ) Decision pronounced: ) January 28, 2014 BURNETT J.A. [ 1 ] This is a motion by the Crown, pursuant to s. 839(1) (

a) of the Criminal Code (the Code ), for leave to appeal the decision of a

summary conviction appeal judge (the SCA judge) pronounced August 29, 2013. [ 2 ] The respondent was charged with impaired driving and refusing to comply with a demand for a breath sample (a breath demand), contrary to the Code , and with failing to remain at the scene of an accident, contrary to The Highway Traffic Act , C.C.S.M., c. H60 (the HTA ). The trial judge was not convinced beyond a reasonable doubt that the respondent’s ability to drive was impaired by his consumption of alcohol.

The respondent was therefore acquitted of the impaired driving charge, but he was convicted of the remaining two offences. [ 3 ] The respondent appealed both convictions. The SCA judge allowed the appeal of the refusal conviction and entered an acquittal, but she dismissed the appeal with respect to the HTA offence. [ 4 ] In this proceeding the Crown seeks leave to appeal the SCA judge’s decision relating to the refusal conviction. Background [ 5 ] The circumstances leading to the charges are described in detail in the SCA judge’s reasons.

For the purposes of this application, the following portion of her decision provides sufficient context (at paras. 6-10): …. Constable Friesen formed the opinion that the appellant was impaired by alcohol and at 1:50 a.m. advised him that he was under arrest for driving impaired. The appellant indicated he understood. Constable Friesen then said: 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 also be charged with refusal. ... Do you understand? The appellant responded, “Yes”.

Constable Friesen informed the appellant of his right to counsel. The appellant indicated that he understood and wanted to call a lawyer.

Following this, Constable Friesen read the police caution to the appellant which the appellant also advised he understood. ConstableFriesen then read the breath demand to the appellant. He said: 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 appellant answered, “No”.

Constable Friesen advised the appellant that he was under arrest for failing to provide samples of his breath. He asked the appellant if heunderstood and he responded, “Sure, whatever”. The appellant was also charged with failing to remain at the scene of the accidentpursuant to the HTA. The appellant was transported to the police station and placed in an interview room. At 2:20 a.m., Constable Ryan MacDonald providedhim with a telephone book to contact his lawyer. Constable MacDonald returned to the interview about ten minutes later and found theappellant slumped over, asleep, and unresponsive.

He asked the appellant once more if he wanted to try to speak to his lawyer and wastold, “No, I’ll talk to him later.” At 2:50 a.m. Constable Friesen read the appellant the warning in accordance with R. v. Prosper, (SCC), [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R. (2d) 321; 380 A.P.R. 321, advising that he was entitled to call a lawyerand while doing so the police could not take a statement from him or ask that he participate in any process that might provide evidenceagainst him. The appellant responded, “Yeah, whatever”.

He never offered to provide a breath sample, nor did the police re-read thedemand or offer him another opportunity to provide a breath sample. [10] At trial, the appellant alleged a breach of s. 10(

b) of the Charter [Canadian Charter of Rights and Freedoms] and sought exclusionof his statement of refusal. Constables Friesen and MacDonald testified on the voir dire. The trial judge concluded that the appellant’sright to counsel was violated because his refusal was elicited after he asked to speak to a lawyer but before he had the opportunity to doso. After conducting a s. 24(2) Charter analysis, the trial judge ruled that the statement refusing was admissible as the police conductwas not egregious or intrusive and its admission would not bring the administration of justice into disrepute.

The SCA Judge’s Reasons [6] The SCA judge agreed with the trial judge that the respondent’s rights under s. 10(

b) of the Canadian Charter ofRights and Freedoms (the Charter) were breached by the police, and she concluded (at para. 47): I am of the view that the appellant’s s. 10(

b) rights were breached when Constable Friesen required him to answer the breath demand andacted on that answer before he had the opportunity to consult a lawyer. Having done so, he should have made it clear to the appellantthat 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 thebreath demand at the police station. [emphasis added] [7] However, unlike the trial judge, the SCA judge concluded that the respondent’s statement of refusal at the roadsideshould be excluded pursuant to s. 24(2) of the Charter. In her view (at paras. 55, 63, 66): The infringement of the appellant’s s. 10(

b) rights deprived the appellant of the opportunity to make an informed choice about whetherto provide a breath sample and provided evidence of the crime itself. As the breach was serious and the impact on the appellant’sCharter interest profound, notwithstanding the truth-seeking function of the courts, the balancing of the factors favour exclusion of hisstatement of refusal. …. I have already expressed my view in concluding that there was a Charter breach, that it should have been explained to the appellant

that he could still offer to provide a breath sample after he called a lawyer, and the breath demand should have been re-read. At the veryleast, having already arrested the appellant for refusing, this case falls within the category recognized in Sullivan [(1992), (BC CA), 1 B.C.A.C. 312] and Dotremont [2011 MBQB 88, 264 Man.R. (2d) 120], where the police should have re-read thedemand at the police station as they conducted themselves in such a way that the appellant might reasonably conclude that the demandhad been withdrawn or ceased to have further effect (see Gratto [2006 NSSC 65, 241 N.S.R. (2d) 288]).

Finally, I reiterate that even if the appellant’s verbal refusal was not excluded in a s. 24(2) voir dire but, rather, the refusal offence wasinterpreted and applied in light of s. 10(

b) of the Charter, the result would be the same. It is inconsistent with the right to counsel totreat the appellant’s statement of refusal at the roadside as a refusal within the meaning of s. 254(5) as it occurred before he was given anopportunity to speak to a lawyer. Further, since he was already arrested for refusing a breath demand and the breath demand was neverrepeated, the Crown cannot rely on his conduct at the police station as amounting to a definitive refusal or confirmation of his earlierresponse.

That is to say, even applying the Crown’s approach and the appellant’s initial refusal was admissible as a “conditionalrefusal”, his subsequent conduct considered in light of the failure to implement his right to counsel and his arrest, does not establish anunequivocal refusal to comply. Crown’s Position [8] The Crown submits that the SCA judge erred in law by finding that: 1. the respondent’s right to counsel as contemplated by s. 10(

b) of the Charter was breached when the police elicited aresponse to the breath demand before the respondent had an opportunity to speak to counsel; 2. the police had an obligation to inform the respondent that he could withdraw his refusal to provide a breath sample, and theywere obliged to make a second demand at the police station; 3. the respondent did not waive his right to counsel, having previously found that a waiver of counsel warning was providedand that it was consistent with the Supreme Court of Canada decision in R. v.

Prosper, (SCC), [1994] 3 S.C.R. 236; and 4. the breach was of such significance that the evidence relating to the statement of the respondent’s refusal should beexcluded pursuant to s. 24(2) of the Charter. In other words, the SCA judge erred in assessing the seriousness of the breach. [9] With respect to the first error, the Crown says that when the police made the breath demand, they were not elicitingevidence from the respondent before he had an opportunity to exercise his right to counsel.

They were simply complying with therequirement in s. 254(3) of the Code to do so “as soon as practicable.” It is the Crown’s position that the SCA judge misinterpretedLamer J.’s judgment in R. v. Therens, (SCC), [1985] 1 S.C.R. 613, and the Nova Scotia Court of Appeal decision in R. v.McKeen (T.I.), 2001 NSCA 14, 190 N.S.R. (2d) 322. The police did not breach the “hold-off” requirement described in R. v. Bartle, (SCC), [1994] 3 S.C.R.

Section 10(

b) of the Charter does not protect detainees from admission of non-compelledevidence, nor does it protect them from crimes they commit while in custody (R. v. Sidhu, 2013 ONCJ 131 at para. 22 (QL)). [10] With respect to the second error, the Crown says that the offence is complete when the words of a refusal are uttered. On the basis of R. v. Rowe (1973), (BC CA), 12 C.C.C. (2d) 24 (B.C. C.A.), and R. v. Sullivan (1991), (BC CA), 1 B.C.A.C. 312, the Crown submits there is no obligation to make a second demand after the right to counsel isfacilitated.

According to the Crown, the offence of refusal is complete when a detainee, having previously refused, does not withdrawthe refusal after the right to counsel has been properly facilitated. The Crown argues that since a demand for a breath sample is a properdemand only if it is made “forthwith or as soon as practicable” (R. v.

Squires (2002), (ON CA), 59 O.R. (3d) 765 atpara. 24 (C.A.)), a second demand after a detainee has spoken to counsel would not satisfy this requirement and would be invalid. [11] With respect to the third error, it is the Crown’s position that the respondent voluntarily and unequivocally waived hisright to counsel and that the refusal was complete at that time. If, as the SCA judge suggests, “a waiver of rights must be clear andunequivocal with full knowledge of the rights the individual is waiving” (at para. 40), the police would be required to provide legaladvice.

But other courts have found that “[t]here is no duty on the police to give the detained person legal advice, including advice onhow he should exercise his right to counsel” (R. v. Willier (S.J.), 2008 ABCA 126 at para. 36, and see para. 51, 429 A.R. 135). [12] Finally, with respect to the fourth error, the Crown submits that the nature of the breach was not aggravated because thepolice arrested the accused for refusing.

The Crown argues that this should not have any bearing on the seriousness of the breachbecause the respondent was under arrest for impaired driving before the purported breach took place, and he would have remained underarrest whether or not he refused the breath demand. The Crown rejects the suggestion that a breath demand is more intrusive thanobtaining a breath sample.

When all relevant factors are considered, the Crown says that the breach is at the lower end of the spectrumof seriousness. [13] The Crown asserts that the errors committed by the SCA judge raise an arguable case of sufficient importance to meritthis court’s attention because the findings of the SCA judge contradict an existing line of authorities from various appellate courts. Inparticular, the Crown refers to the appellate decisions in R. v. Matthews (1973), (MB CA), 14 C.C.C. (2d) 1 (Man.C.A.); Rowe; Sullivan; R. v. Stapleton (1982), (ON CA), 134 D.L.R. (3d) 239 (Ont. C.A.); and R. v.

Bowman (1978), (NS CA), 25 N.S.R. (2d) 716 (S.C. (A.D.)). It is the Crown’s submission that the authorities confirm that there is noobligation to make a second breath demand. [14] More importantly, says the Crown, the decision is new law which imposes significant requirements on the police. To

comply with the SCA judge’s decision, the police will have to drastically alter their procedures when making breath demands in impaireddriving investigations. In particular: 1. police will have to make it clear before a detainee responds to a breath demand that he has the right to consult with a lawyerbefore making that demand (at para. 34); and 2. if a detainee refuses before speaking with counsel, the police should advise the detainee that he is not bound by the initialrefusal so he understands that he has a choice to comply and can obtain legal advice to make that choice (at para. 41).

The impact of the decision on the administration of justice will therefore reach beyond the four corners of this case. Respondent’s Position [15] The respondent’s position is succinctly summarized in his brief as follows: …. … [T]he Respondent submits that the Learned SCA Judge appropriately and thoroughly reviewed all of the relevant case law inconfirming that the Trial Judge was correct in finding there had been a violation of the Respondent’s right to counsel as enshrined in s.10(

b) of the Charter.

Further, the Respondent submits that the SCA Judge correctly applied the appropriate principals set out in R. v.Grant, 2009 SCC 32 [2009] 2 S.C.R. 353 in concluding that the Respondent’s statement should be excluded under s. 24(2) of theCharter. [16] In specific response to the first three errors which the Crown says the SCA judge made, the respondent submits that: 1. an accused who has received a breath demand and who has made a request to speak to counsel must be given an opportunityto consult with counsel before being asked whether he will comply with the demand; 2. the comments by the SCA judge regarding a second breath demand were obiter and were provided to give guidance on howto remedy a violation of the right to counsel in an impaired driving investigation; and 3. the Crown failed to establish that the respondent had waived his right to counsel. [17] And in response to the Crown’s argument that the SCA judge’s findings contradict an existing line of authorities, therespondent observes that those authorities can be factually distinguished and largely predate the Charter.

Moreover, the SCA judge didnot direct police to give legal advice to detainees, and her decision does not significantly alter the procedures for administering Charterrights and making breath demands. Analysis and Decision [18] There are three criteria which must be met before leave will be granted on a

summary conviction appeal, namely: 1. the ground of appeal must involve a question of law alone; 2. the ground of appeal must raise an arguable matter of substance; and 3. the arguable matter must be of sufficient importance to merit the attention of the full court. These criteria are well established and have been the subject of commentary in recent decisions of this court. See, for example, R. v.Mitchell (R.), 2012 MBCA 59, and the authorities referred to in paras. 6-8 (inclusive), and R. v. Steuart (N.), 2014 MBCA 7 at para. 19. Leave to appeal is to be granted sparingly.

With respect to the third criterion, the authorities (e.g., R. v.

R.W.M., 2011 MBCA 74 at para.36, 270 Man.R. (2d) 29), confirm that one example of an exceptional circumstance or compelling reason is that the issue is ofsignificance to the administration of justice or the development of the law beyond this case. [19] While counsel for the respondent concedes that the Crown’s application for leave to appeal involves a question (orquestions) of law, he argues that the Crown has failed to raise an arguable case of substance and that there are no exceptionalcircumstances which would justify a further appeal. [20] I do not agree. [21] Because this is a leave application, my comments will be brief.

I am satisfied that the matters raised in this appealinvolve questions of law. In R. v. Dunnett (B.) (1990), (NB CA), 111 N.B.R. (2d) 67 (C.A.), the accused appealed hisconviction for refusing to provide a breath sample on the ground that his right to retain and instruct counsel was violated. The NewBrunswick Court of Appeal concluded that, in those circumstances, the determination as to whether the accused’s constitutional right hadbeen infringed was a question of law. [22] I am also of the view that the matters raised are arguable matters of substance which warrant the attention of the fullcourt.

In Mitchell, Hamilton J.A., in circumstances relating to a conviction under s. 253(1)(

b) of the Code for driving over .08,concluded that (at paras. 47-48, 50):

The respondent rightly highlighted that this case is fact-driven. That is the nature of cases such as this. The question of law is the application of the applicable legal principles to those facts. This is an area of the law that affects the administration of justice on a daily basis. I am persuaded that the breach question has significance for the administration of the roadside-screening process and therefore the enforcement of the “over 80” offence in general. This goes beyond the facts of this particular case. See Jacob [2012 MBCA 19 , 280 Man.R. (2d) 6 ].

The appeal will be an opportunity for this court to provide at least some guidance to police, counsel and the courts on what constitutes a reasonable suspicion for an ASD [approved screening device] demand. …. Again, the key consideration for me is whether the Crown has established exceptional circumstances for the s. 24(2) question, which I am satisfied is an arguable question of law. Given Grant and subsequent jurisprudence, I agree with the respondent that the legal principles are well known.

If the s. 24(2) question was the only ground of appeal put forward by the Crown, I would be hard pressed to permit a second-level appeal. However, because I am granting leave on the breach question, I am of the view that the s. 24(2) question should be before the court for completeness and to preserve remedial flexibility in the event the court agrees with the trial judge and the appeal judge that there was a breach.

Those comments are particularly appropriate in the present circumstances. [ 23 ] Similar to the approach taken in Mitchell , I am persuaded that the issues raised in this appeal have significance for the administration of breath demands and the offence of refusing to comply with a demand contrary to s. 254(5) of the Code .

In this regard I observe, without deciding, that the SCA judge’s comments in para. 47 of her decision (quoted previously) appear to be much more than simply obiter and may effect a change in the existing law (e.g. the authorities that say that there is no obligation to make a second demand or to provide legal advice). [ 24 ] At the hearing of the leave application, respondent’s counsel acknowledged that the crux of this case is how far the police can go when they make a breath demand. The SCA judge observed (at para. 20): ....

Unlike an approved screening device demand where the right to counsel is suspended, an accused faced with a breathalyzer demand (the results of which can be evidence at trial) has the right to be provided with an opportunity to consult counsel.

Section 254(3) of the Code is silent about how the Charter right to counsel is to be accommodated when a breathalyzer demand is made at the roadside but access to counsel is facilitated at the police station. [ 25 ] In my view, this appeal will allow the court, if it sees fit to do so, to address the issue identified by the SCA judge, namely, “how the Charter right to counsel is to be accommodated” ( ibid .) where a breath demand has been made and an accused invokes his right to counsel.

Questions which a panel of the court may wish to consider and which would provide guidance to the police, counsel and the courts, include: 1. Can the police require the accused to respond to a breath demand before he has had a reasonable opportunity to consult with counsel? And if they cannot require him to respond, what are the consequences if they do? 2. Is the offence of refusal complete when an accused, having previously refused, does not withdraw the refusal after the right to counsel has been facilitated?

Are the police required to repeat the demand after the accused has been given an opportunity to consult with counsel? And if the police are required to repeat the demand, what are the consequences if they fail to do so? [ 26 ] I am, therefore, prepared to grant leave to appeal on the following questions of law: 1. Did the SCA judge err in law in finding a violation of the respondent’s right to counsel as contemplated by s. 10(

b) of the Charter ? 2. When the SCA judge excluded the evidence of the respondent’s refusal to provide a breath sample, did she err in law by not according proper deference to the trial judge’s decision and by considering inappropriate factors? J.A.