Mr. Bagherli was arrested for impaired driving and read a breath demand. At the end of the demand he was told "Should you refuse this demand, you will be charged with the offence of refusal. Will you provide samples of your breath?" His answer was "No". He was charged with refusal and convicted at trial. Mr. Bagherli appealed and his appeal was allowed and an acquittal was entered, in part due to the Court's finding that:
"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 and acted on that answer before he had the opportunity to consult a lawyer. Having done so, he should have made it clear to the appellant 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."
The Crown sought leave to appeal and argued that to comply with the above decision, the police will have to drastically alter their procedures when making breath demands in impaired driving investigations. The Manitoba Court of Appeal granted leave and the future decision is expected to answer questions such as:
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? 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?
The facts of the case are detailed in the Queen's Bench decision of R. v. Bagherli, 2013 MBQB 189 and the decision granting leave to appeal is cited at R. v. Bagherli, 2014 MBCA 14