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

• Jurisdiction: Manitoba
• Judge: Monnin, MacInnes and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Citation: 2014 MBCA 105,(2014), 315 Man.R.(2d) 1 (CA)
• Date: 16 September 2014

R. v. Bagherli (A.) (2014), 315 Man.R.(2d) 1 (CA);

      630 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.035

Her Majesty The Queen (respondent/appellant) v. Alireza Bagherli (accused/appellant/respondent)

(AR 13-30-08042; 2014 MBCA 105)

Indexed As: R. v. Bagherli (A.)

Manitoba Court of Appeal

Monnin, MacInnes and Mainella, JJ.A.

November 24, 2014.

Summary:

The accused was charged with impaired driving, refusing to provide a breath sample, and failing to remain at the scene of an accident. He sought to exclude certain evidence on the basis that his s. 10(b) Charter right to counsel was violated. That evidence, if excluded, would negate the refusal charge.

The Manitoba Provincial Court, in a decision reported at (2011), 264 Man.R.(2d) 16, found that the accused's right to counsel was violated. Nevertheless, on an analysis under s. 24(2) of the Charter, the court concluded that the evidence was admissible. The trial proceeded. The accused was acquitted of impaired driving, and convicted of refusing to provide a breath sample and failing to remain at the scene of an accident. The accused appealed the convictions.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 295 Man.R.(2d) 294, allowed the appeal respecting the refusal charge and entered an acquittal. The court dismissed the appeal respecting the offence of leaving the scene of an accident. The Crown appealed.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See second Civil Rights - Topic 8368].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - At the roadside, Bagherli was arrested for impaired driving and informed of his right to counsel - Bagherli asked to speak to a lawyer - The police then made a breath demand - Bagherli said "no" and was charged with refusing to provide a breath sample - At the police station, Bagherli was asked if he wanted to speak to his lawyer - Bagherli responded "No, I'll talk to him later" - A summary conviction appeal judge held that Bagherli's s. 10(b) Charter rights were breached when the officer required him to answer the breath demand and acted on that answer before Bagherli had the opportunity to consult a lawyer - The Manitoba Court of Appeal dismissed the Crown's appeal - Police officers could make a breath demand after a detainee had invoked his right to counsel, but could not ask a detainee to answer the demand until after he was given a reasonable opportunity to contact counsel - Requiring an answer to the demand constituted an attempt to elicit evidence - See paragraphs 31 to 43.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - An accused was charged with refusing to comply with a breathalyzer demand - A summary conviction appeal judge held that, as part of the accused's waiver of his right to contact counsel at the police station, the police were obligated to tell him, in addition to providing a "Prosper warning", that he was not bound by his verbal refusal at the roadside and that he could change his mind after speaking to a lawyer - The Manitoba Court of Appeal disagreed with this conclusion - Such an obligation placed the police in the position of providing legal advice to a detainee - The informational component of s. 10(b) of the Charter required the police to advise a detainee of his right to retain and instruct counsel without delay and to the existence and availability of legal aid and duty counsel - It did not require the police to advise a detainee how to exercise those rights or to provide legal advice - See paragraphs 45 to 48.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4604 and Civil Rights - Topic 4609].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 and Civil Rights - Topic 4609].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4609].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An accused charged with refusing to comply with a breathalyzer demand applied for the exclusion of evidence under s. 24(2) of the Charter on the basis that his s. 10(b) Charter right to counsel was violated - The Manitoba Court of Appeal stated that "in considering the second line of inquiry in Grant [2009 SCC], it is important to remember that in an impaired driving investigation, a suspect subject to a valid breath demand has legal duties that suspects in other types of criminal investigations do not have. Police powers are also greater than in other types of criminal investigations to lawfully compel cooperation with the impaired driving investigation. Put another way, in considering the impact of the Charter breach, a judge must correctly identify the scope of an accused's 'protected interests'. Here, the accused's right to remain silent and not cooperate with the police was not protected in the same way as it usually is in other types of criminal investigations." - See paragraphs 63 to 72.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Bagherli was charged with refusing to provide a breath sample - The trial judge found that Bagherli's s. 10(b) Charter right to counsel had been violated because his refusal was elicited after he asked to speak to a lawyer but before he had the opportunity to do so - However, after conducting a s. 24(2) analysis, the trial judge ruled that the statement was admissible - The summary conviction appeal (SCA) judge allowed Bagherli's appeal, finding that the statement should have been excluded - The Manitoba Court of Appeal dismissed the Crown's appeal - The SCA judge erred in law by not according proper deference to the trial judge's s. 24(2) decision and by considering inappropriate factors - However, the trial judge also erred by failing to consider the reasonableness of the officer's oversight in the circumstances - The officer should have known that his conduct was not Charter compliant - The public was entitled to expect that impaired driving investigations were not conducted at the expense of well-established Charter rights - The statement should have been excluded from evidence - See paragraphs 56 to 84.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - At the roadside, Bagherli was arrested for impaired driving and informed of his right to counsel - Bagherli asked to speak to a lawyer - The police then made a breath demand - Bagherli said "no" and was charged with refusal - At the police station, Bagherli was asked if he wanted to speak to his lawyer - Bagherli responded "No, I'll talk to him later" - A summary conviction appeal judge, in finding that Bagherli's s. 10(b) Charter rights were violated, stated that the officer should have made it clear to Bagherli that he was not bound by his earlier refusal, that he could change his mind after speaking with a lawyer, and the officer should have re-read the breath demand at the police station - The Manitoba Court of Appeal agreed that there had been a s. 10(b) violation, but disagreed with the judge's statement - Absent the withdrawal of an initial breath demand, there was no legal obligation on the police to make multiple demands for breath samples in an impaired driving investigation - Only one properly made breath demand was required and it continued in effect throughout the investigation - See paragraphs 49 to 53.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See Civil Rights - Topic 4604].

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See second Civil Rights - Topic 8368].

Cases Noticed:

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R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 6].

R. v. Sullivan (1992), 1 B.C.A.C. 312; 1 W.A.C. 312 (C.A.), refd to. [para. 19].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 24].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 24].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 24].

R. v. Forsyth (1973), 15 C.C.C.(2d) 23 (Man. C.A.), refd to. [para. 24].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 26].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81, refd to. [para. 26].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347, refd to. [para. 26].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 26].

R. v. Taylor (J.K.) (2014), 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, refd to. [para. 27].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 28].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 29].

R. v. McKeen (T.I.) (2001), 190 N.S.R.(2d) 322; 594 A.P.R. 322; 2001 NSCA 14, leave to appeal refused (2001), 275 N.R. 196 (S.C.C.), refd to. [para. 30].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 31].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 31].

R. v. Lesuk (R.W.) (2000), 148 Man.R.(2d) 39; 224 W.A.C. 39; 2000 MBCA 24, refd to. [para. 33].

R. v. MacKinnon (1985), 54 Nfld. & P.E.I.R. 237; 160 A.P.R. 237 (P.E.I.C.A.), refd to. [para. 34].

R. v. Ackerman (1972), 6 C.C.C.(2d) 425 (Sask. C.A.), refd to. [para. 36].

R. v. Flegel (1972), 7 C.C.C.(2d) 55 (Sask. C.A.), refd to. [para. 36].

R. v. Burkart (1986), 37 Man.R.(2d) 239 (C.A.), refd to. [para. 36].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 39].

R. v. Mandryk (J.), [2012] O.T.C. Uned. 3964; 291 C.C.C.(3d) 182; 2012 ONSC 3964, refd to. [para. 41].

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 ABCA 126, affd. [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 46].

R. v. Townsend (H.), [2007] O.A.C. Uned. 198; 46 M.V.R.(5th) 159; 2007 ONCA 332, refd to. [para. 50].

R. v. Dotremont (A.M.) (2011), 264 Man.R.(2d) 120; 2011 MBQB 88, refd to. [para. 50].

R. v. Emery (J.R.), [2012] A.R. Uned. 519; 2012 ABPC 197, refd to. [para. 52].

R. v. Kitine (N.M.), [2014] A.R. Uned. 281; 2014 ABPC 96, refd to. [para. 52].

R. v. Singh (S.), [2012] A.R. Uned. 287; 2012 ABPC 91, refd to. [para. 52].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 58].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 58].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 59].

R. v. Banman (J.J.), [2007] Man.R.(2d) Uned. 85; 2007 MBCA 139, refd to. [para. 59].

R. v. R.R. (2008), 238 O.A.C. 242; 2008 ONCA 497, refd to. [para. 59].

R. v. Winfield (P.A.) (2009), 273 B.C.A.C. 152; 461 W.A.C. 152; 2009 YKCA 9, refd to. [para. 59].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 62].

R. v. Stapleton (1982), 134 D.L.R.(3d) 239 (Ont. C.A.), refd to. [para. 67].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 68].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 68].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 70].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 71].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 71].

R. v. Cole (T.A.) (2011), 276 Man.R.(2d) 299; 2011 MBQB 221, refd to. [para. 81].

R. v. Koczab (A.) (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 2013 MBCA 43, revd. [2014] 1 S.C.R. 138; 453 N.R. 113; 303 Man.R.(2d) 121; 600 W.A.C. 121; 2014 SCC 9, refd to. [para. 83].

Counsel:

N.P. Steen, for the appellant;

T.J. Valgardson, for the respondent.

This appeal was heard on September 16, 2014, before Monnin, MacInnes and Mainella, JJ.A., of the Manitoba Court of Appeal. Mainella, J.A., delivered the following judgment for the court on November 24, 2014.