R. v. Bagherli (A.), (2013) 295 Man.R.(2d) 294 (QB)

• Judge: Spivak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 29, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 295 Man.R.(2d) 294 (QB);2013 MBQB 189

R. v. Bagherli (A.) (2013), 295 Man.R.(2d) 294 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. SE.011

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

(CR 11-01-31578; 2013 MBQB 189)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Spivak, J.

August 29, 2013.

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 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.

Civil Rights - Topic 4602

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

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Bagherli was arrested for impaired driving following a motor vehicle accident - Police informed Bagherli of his right to counsel - Bagherli asked to speak to a lawyer - The officer 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" - At a voir dire, 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, the trial judge declined to exclude the statement under s. 24(2) - Bagherli was convicted of refusing to provide a breath sample - He appealed, arguing that the trial judge erred in failing to exclude the statement - The Crown argued that there was no s. 10(b) breach because Bagherli's initial refusal was only conditional, and having given him the opportunity to consult a lawyer at the station, the police complied with the Charter - The Manitoba Court of Queen's Bench allowed the appeal - Bagherli's s. 10(b) 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 officer should have made it clear to Bagherli that he was not bound by his earlier response, 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 - See paragraphs 23 to 47.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

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

Civil Rights - Topic 4610

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

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Bagherli was arrested for impaired driving following a motor vehicle accident - Police informed Bagherli of his right to counsel - Bagherli asked to speak to a lawyer - The officer 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" - At a voir dire, 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 - In assessing the seriousness of the breach, the trial judge took into account that Bagherli had been given an opportunity to speak to a lawyer at the police station, and therefore the officer did not intentionally and deliberately refuse Bagherli the right to counsel - In assessing the impact of the breach on Bagherli, the trial judge stated that a verbal refusal was "not intrusive or is the least and most minimal intrusion upon the accused's privacy interest and bodily integrity ..." - Bagherli was convicted of refusing to provide a breath sample - He appealed, arguing that the trial judge erred in failing to exclude the statement - The Manitoba Court of Queen's Bench allowed the appeal - The trial judge erred in failing to consider that the opportunity to talk to a lawyer at the police station only occurred after the police had already elicited incriminating evidence from Bagherli and arrested him on that basis - The breach was serious as not only was Bagherli required to indicate whether he would provide a breath sample after he asked to speak to a lawyer, but he was then arrested for refusal before that request was accommodated - The trial judge did not properly identify the interest engaged by the infringed right - The breach was intrusive as it provided evidence of the crime and prevented Bagherli from making an informed choice of whether to provide a sample - The balancing of factors favoured exclusion of the statement - See paragraphs 48 to 55.

Criminal Law - Topic 1354

Offences against person and reputation - Motor vehicles - Failing to stop or remain at accident scene - Bagherli rear-ended Nuttall's van - Nuttall asked for Bagherli's licence and registration - Bagherli suggested that they could resolve the matter between themselves - Nuttall smelled alcohol on Bagherli's breath and thought that he might have been slurring his words - Nuttall called the police - He removed the keys from Bagherli's ignition and would not return them - Bagherli threatened to sue and then began walking away - Police located him about three-quarters of a mile from the accident scene - Bagherli was charged with, inter alia, impaired driving and leaving the scene of an accident - Bagherli testified that Nuttall was angry, and he had walked away in order to avoid a confrontation until the police arrived - The trial judge acquitted Bagherli of impaired driving and convicted him of leaving the scene of an accident - Bagherli appealed, arguing that the verdict was unreasonable - He submitted that the trial judge stated in his reasons that he accepted Bagherli's testimony, which established the defence of due diligence - The Manitoba Court of Queen's Bench dismissed the appeal - The fact that the trial judge accepted Bagherli's evidence in acquitting him of impaired driving did not necessarily mean that he accepted his testimony about what happened at the accident scene - There was sufficient evidence from which the trial judge could find that Bagherli had left the scene of an accident without exchanging particulars and that the defence of due diligence was not available - See paragraphs 68 to 76.

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - Bagherli was arrested for impaired driving following a motor vehicle accident - Police informed Bagherli of his right to counsel - Bagherli asked to speak to a lawyer - The officer 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" - Police made no further breath demands - At a voir dire, the trial judge found that although Bagherli's s. 10(b) Charter right to counsel had been violated, his refusal statement was admissible under s. 24(2) - Bagherli was convicted of refusing to provide a breath sample - He appealed - The Crown submitted that even without Bagherli's statement of refusal at the roadside, the offence was proven by Bagherli's conduct at the police station and his failure to offer to provide a breath sample at that time - The Manitoba Court of Queen's Bench allowed the appeal and entered an acquittal - The trial judge erred in failing to exclude the statement - The court rejected the Crown's argument - Bagherli was arrested for refusal at the roadside and not for any lack of compliance at the police station - Given that the police did not re-read the breath demand or take any further steps to obtain a breath sample, the demand was exhausted by the arrest - Even if the demand had continued in force, Bagherli's conduct at the station did not prove an unequivocal refusal beyond a reasonable doubt - His decision not to call a lawyer was not an informed decision or a valid waiver because he would not have known that he could still provide a sample after he spoke to a lawyer - See paragraphs 56 to 67.

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 1354 ].

Cases Noticed:

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. 9].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 17].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 18].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 18].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 18].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 21].

R. v. Linge (P.C.), [2012] B.C.T.C. Uned. 1044; 2012 BCSC 1044, refd to. [para. 24].

R. v. Cole (T.A.) (2011), 276 Man.R.(2d) 299; 2011 MBQB 221, refd to. [para. 24].

R. v. Dotremont (A.M.) (2011), 264 Man.R.(2d) 120; 2011 MBQB 88, dist. [para. 24].

R. v. Givens (D.B.), [2009] B.C.T.C. Uned. 824; 85 M.V.R.(5th) 218; 2009 BCSC 1439, dist. [para. 24].

R. v. Van Deelen (G.), [2009] O.A.C. Uned. 40; 2009 ONCA 53, refd to. [para. 24].

R. v. Gosse (M.), [2005] O.T.C. 100; 15 M.V.R.(5th) 271 (Sup. Ct.), refd to. [para. 24].

R. v. McKeen (T.I.) (2001), 190 N.S.R.(2d) 322; 594 A.P.R. 322; 151 C.C.C.(3d) 449; 2001 NSCA 14, refd to. [para. 24].

R. v. Nickerson (M.I.) (2001), 198 N.S.R.(2d) 251; 621 A.P.R. 251; 160 C.C.C.(3d) 300; 2001 NSCA 161, refd to. [para. 24].

R. v. Russell (B.E.) (2000), 232 N.B.R.(2d) 297; 598 A.P.R. 297; 150 C.C.C.(3d) 243; 2000 NBCA 53, refd to. [para. 24].

R. v. Cobham, [1994] 3 S.C.R. 360; 172 N.R. 123; 157 A.R. 81; 77 W.A.C. 81, refd to. [para. 24].

R. v. MacIsaac (1988), 72 Nfld. & P.E.I.R. 220; 223 A.P.R. 220; 9 M.V.R.(2d) 239 (P.E.I.T.D.), refd to. [para. 24].

R. v. McLennan (1988), 41 C.C.C.(3d) 379 (B.C.C.A.), refd to. [para. 24].

R. v. Williams (J.D.) (1992), 59 O.A.C. 141; 78 C.C.C.(3d) 72 (C.A.), refd to. [para. 24].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 26].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 28].

R. v. MacKinnon (1985), 54 Nfld. & P.E.I.R. 237; 160 A.P.R. 237; 21 C.C.C.(3d) 264 (P.E.I.C.A.), refd to. [para. 30].

R. v. Côté (A.) (1988), 87 N.B.R.(2d) 190; 221 A.P.R. 190; 8 M.V.R.(2d) 256 (C.A.), refd to. [para. 31].

R. v. Michell (P.N.) (2001), 18 M.V.R.(4th) 56 (Man. Prov. Ct.), refd to. [para. 31].

R. v. Shaw (1988), 82 N.S.R.(2d) 407; 207 A.P.R. 407; 4 M.V.R.(2d) 292 (C.A.), refd to. [para. 31].

R. v. Sullivan (1992), 1 B.C.A.C. 312; 1 W.A.C. 312; 65 C.C.C.(3d) 541 (C.A.), dist. [para. 36].

R. v. Jumaga, [1977] 1 S.C.R. 486; 9 N.R. 102, refd to. [para. 42].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 48].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 48].

R. v. Koczab (A.) (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 2013 MBCA 43, refd to. [para. 48].

R. v. Jones (R.) (2011), 285 O.A.C. 25; 278 C.C.C.(3d) 157; 2011 ONCA 632, refd to. [para. 48].

R. v. MacMillan (T.) (2013), 302 O.A.C. 161; 114 O.R.(3d) 506; 2013 ONCA 109, refd to. [para. 48].

R. v. Gratto (C.M.) (2006), 241 N.S.R.(2d) 288; 767 A.P.R. 288; 31 M.V.R.(5th) 104; 2006 NSSC 65, refd to. [para. 60].

Counsel:

Mitchell Lavitt, for the Crown/respondent;

Timothy Valgardson, for the accused/appellant.

This appeal was heard before Spivak, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 29, 2013.