R. v. Tahmasebi, 2020 ONCA 47

10(B) - RIGHT TO COUNSEL - SECOND CONSULTATION - IMPAIRED DRIVING

Background 

The appellant was convicted of impaired driving causing bodily harm and refusal to comply with  urine sample demand. The appellant pulled into a neighbour’s driveway and stayed there for some time. The neighbour called the police. Two officers arrived. The appellant’s car rolled backwards pinning one of the officers to his cruiser and injuring him. The appellant was arrested, read his rights, including his right to counsel. The cruiser’s in-car camera show the appellant saying he understood his rights, asking to speak to a lawyer and explaining in his own words the meaning of RTC. At the station, the appellant admitted he was on opioids. Officer re-read his rights to counsel. Appellant spoke to duty counsel. A drug recognition expert (“DRE officer”) made a drug evaluation demand and asked if the appellant had spoken to counsel. Appellant said no. DRE officer asked if he had spoken to duty counsel. Appellant asked “oh that was a lawyer?” and confirmed speaking to him. The DRE officer then conducted the drug evaluation. The appellant refused to provide the requested urine sample. The appellant asked to speak to a lawyer, DRE officer advised he had already spoken to a lawyer.

On appeal, he argues that being denied the opportunity to re-consult a lawyer prior to submitting to a drug evaluation and urine sample violated his s. 10(b) rights.

Section 10(b) 

Overview of the Right to Second Consultation

Upon arrest or detention, everyone has the right to “retain and instruct counsel without  delay and to be informed of that right” in order to “support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice.” (See R v Sinclair, 2010 SCC 35) This purpose is achieved by informing a detainee of the right to counsel, if requested, providing them with the opportunity to consult counsel. 

Generally, s. 10(b) only affords a detainee a single consultation with counsel. In some circumstances, however, a second consultation may be constitutionally required. A request to re-consult does not trigger this right. Rather, there must be a change in circumstances that suggests that the choice faced by the accused has been sufficiently altering requiring additional advice on the new situation. Sinclair highlights 3 possible circumstances where the right to second consultation arises:

  1. After initial consultation, non-routine procedures are proposed (i.e. polygraphy or line);

  2. After initial consultation, the investigation takes a “new or more serious turns” making the initial consult inadequate; and

  3. Where the detainee did not understand his right to counsel or where police undermined the legal advice received.

Application

The ONCA concluded that the appellant’s case did not fall into any of these categories:

  1.  A DRE and urine sample demand are common procedures in impaired driving cases. There was no reason to believe that the initial advice the appellant received would not address the foreseeable consequences of an impaired driving charge;

  2. The risk that non-compliance with the demand could amount to another charge does constitute a “serious” turn in the investigation. A failure to provide a urine sample does not amount to a “change in jeopardy” as it is related to the original charge, and does not constitute a more serious offence than what was contemplated at the time of the initial warning;

  3. The evidence clearly establishes that the appellant understood his right to counsel at all times. There was no evidence that any officer attempted to undermine duty counsel’s advice.

Zarnett JA, writing for the court, dismissed the conviction appeal concluding that neither a DRE demand or urine sample demand amount to a change in circumstances for a detainee facing a charge of impaired driving. A detainee who has received legal advice is not constitutionally entitled to a second consultation given the foreseeable nature of the demands. The initial consultation would be expected to address these demands and their potential consequences.

Sara Little