R. v. Hammoud (A.Y.), [2014] A.R. TBEd. MR.035

• Judge: Bast, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 13, 2013
• Citations: [2014] A.R. TBEd. MR.035;2014 ABQB 108

R. v. Hammoud (A.Y.), [2014] A.R. TBEd. MR.035

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2014] A.R. TBEd. MR.035

Ahmed Youssef Hammoud (appellant) v. Her Majesty the Queen (respondent)

(120696976S1; 2014 ABQB 108)

Indexed As: R. v. Hammoud (A.Y.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Bast, J.

February 20, 2014.

Summary:

The accused was found guilty of refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code. He appealed, arguing that the trial judge (1) misapprehended critical portions of evidence and made findings that were clearly wrong, unreasonable or unsupported by evidence in relation to the waiver of the accused's right to counsel; (2) erred in law as to the lawfulness of the breath demand; and (3) failed to consider the inconsistencies in the evidence of the investigating officer, and thereby erred in his assessment as to the reliability of the evidence.

The Alberta Court of Queen's Bench allowed the appeal on the basis that the trial judge failed to consider and misapprehended key evidence relevant to the waiver of the accused's right to counsel. A new trial was ordered.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Criminal Law - Topic 7655 ].

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Hammoud was charged with refusing to provide breath samples - The arresting officer testified that he read the demand for breath samples from a card, and that Hammoud understood that he would be charged if he refused - The trial judge accepted the officer's evidence without the precise wording of the demand being in evidence - Hammoud was found guilty - He appealed, arguing that the trial judge made unreasonable findings and findings unsupported by the evidence on the issue of the lawfulness of the breath demand - The Alberta Court of Queen's Bench dismissed this ground of appeal - Accepting the officer's evidence without the precise wording of the demand being in evidence was different from accepting the assertion of the officer that he had met a legal requirement - The trial judge drew a reasonable inference that Hammoud understood the demand based on his statements and his request to contact a lawyer - The trial judge's findings were reasonable and supported by the evidence - See paragraphs 25 to 33.

Criminal Law - Topic 7655

Summary conviction proceedings - Appeals - Grounds - Misapprehension of evidence - Hammound was arrested for impaired driving and placed in a phone booth - He did not contact a lawyer - He was subsequently charged with refusing to provide breath samples - In examination-in-chief, the arresting officer testified that upon leaving the phone booth, Hammoud had refused to provide breath samples and said "Just release me" - On cross-examination, the officer testified that upon leaving the phone booth, Hammoud answered "almost" to the question of whether he had contacted a lawyer - The officer asked "Are you going to?" and Hammoud replied "I just want to be released" - Hammoud was convicted of refusal - The trial judge found that Hammoud had made a choice not to speak with a lawyer and he communicated that choice to the officer - The Alberta Court of Queen's Bench allowed Hammoud's appeal - The trial judge misapprehended or failed to consider two key pieces of evidence from the officer's testimony on the issue of whether Hammoud had waived his right to counsel - First, he made no reference to the fact that Hammoud said "almost", and recorded this response as a "no" in his reasons for decision - Second, he erroneously stated that Hammoud had communicated his choice not to contact counsel when Hammoud actually did not answer the officer's question and instead just demanded to be released - These errors went to the requirement that the Crown prove an unequivocal waiver based on all of the circumstances - See paragraphs 13 to 24.

Criminal Law - Topic 7662

Summary conviction proceedings - Appeals - Grounds - Failure to consider evidence - [See Criminal Law - Topic 7655 ].

Cases Noticed:

R. v. Reid (A.E.) et al. (2013), 556 A.R. 272; 584 W.A.C. 272; 109 W.C.B.(2d) 82; 2013 ABCA 289, refd to. [para. 11].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 12].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, 2002 SCC 27, refd to. [para. 19].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 19].

R. v. McDonald (K.), [2010] A.R. Uned. 877; 7 M.V.R.(6th) 98; 2010 ABPC 251, refd to. [para. 22].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 23].

R. v. Hnetka (M.E.G.) (2010), 473 A.R. 327; 2010 ABQB 56, refd to. [para. 23].

R. v. Jackson (S.J.) (2005), 381 A.R. 294; 2005 ABQB 268, dist. [para. 25].

R. v. Fox (K.C.), [2006] A.R. Uned. 256; 2006 ABQB 173, refd to. [para. 27].

R. v. Bundschuh (1988), 87 A.R. 52; 15 M.V.R.(2d) 189 (Q.B.), affd. (1988), 95 A.R. 200 (C.A.), refd to. [para. 28].

R. v. Mandeville (1985), 60 A.R. 340; 31 M.V.R. 63 (Q.B.), refd to. [para. 29].

R. v. Gleeson (T.D.) (2012), 554 A.R. 23; 2012 ABQB 675, refd to. [para. 30].

R. v. Rhyason (B.P.) (2006), 397 A.R. 163; 384 W.A.C. 163; 2006 ABCA 367, refd to. [para. 35].

R. v. Kruper (M.), [2007] A.R. Uned. 315; 216 C.C.C.(3d) 13; 2007 ABCA 17, refd to. [para. 37].

Counsel:

Ryan Claxton, for Ahmed Hammoud, appellant;

Ryan Jenkins, for Her Majesty the Queen, respondent.

This appeal was heard on December 13, 2013, before Bast, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on February 20, 2014.