R. v. Fogarty

R. v. Fogarty Court Court of Appeal Date 2015-01-20 Citation 2015 NSCA 6 Docket CAC 420217 Judge/Registrar/Adjudicator Saunders, Jamie W. S. (Honourable Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA); Beveridge, Duncan R. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. Fogarty - 2015 NSCA 6 - 2015-01-20 - Library Sheet Decision Content Nova Scotia Court of Appeal Citation: R. v. Fogarty, 2015 NSCA 6 Date: 20150120 Docket: CAC 420217 Registry: Halifax Between: William Lionel Edmund (Byron) Fogarty Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Fichaud and Beveridge, JJ.A. Appeal Heard: December 3, 2014 Held: Appeal dismissed, per reasons for judgment of Fichaud, J.A.; Saunders and Beveridge, JJ.A. concurring Counsel: Roger A. Burrill for the appellant Timothy S. O’Leary for the respondent Reasons for Judgment: [1] Mr. Fogarty’s Crown Victoria collided with an oncoming Mustang on a highway outside Antigonish. Two occupants of the Mustang died. The police suspected that Mr. Fogarty had drugs in his system. The officer demanded that he undergo a drug recognition evaluation under s. 254(3.1) of the Criminal Code. Before the evaluation, the officer notified Mr. Fogarty of his right to consult counsel, and Mr. Fogarty spoke to counsel. After the evaluation, the police demanded that Mr. Fogarty give a blood sample under s. 254(3.4) of the Code. The police did not give Mr. Fogarty an opportunity to consult counsel again before his blood was taken. Mr. Fogarty was charged with impaired driving causing death and dangerous driving causing death, contrary to ss. 255(3) and 249(4) of the Code. After a voir dire, the trial judge held that Mr. Fogarty’s blood sample evidence was admissible. The blood evidence was important in the finding of impairment. Mr. Fogarty was convicted on all counts. [2] Mr. Fogarty appeals his convictions. He says that the failure to give him an opportunity to re-consult counsel before his blood was taken violated his rights under s. 10(b) of the Charter, and the blood evidence was inadmissible under s. 24(2) of the Charter. Background [3] I will track the trial judge’s findings in the voir dire decision. This is supplemented by the testimony of witnesses, particularly RCMP Corporal Shane Meisner and RCMP Constable Chad Morrison, at the preliminary inquiry, whose transcripts were entered by agreement at the voir dire. Mr. Fogarty did not testify. [4] On November 24, 2011, at about 3:00 p.m., Mr. Fogarty was driving his white Crown Victoria on Highway # 4, headed west toward Antigonish. At Tracadie, his vehicle collided with an eastbound Ford Mustang. The Mustang’s two occupants died from the crash. [5] Corporal Meisner and Constable MacPherson of the Antigonish RCMP Detachment were on duty. In the hour or so before the crash, while responding to another call, Cpl. Meisner had overheard the RCMP dispatcher report erratic driving by a white Crown Victoria on the highway outside Antigonish. Over the radio, Cpl. Meisner had heard Constable Jessome say that he knew the Crown Victoria’s driver, and the driver was a methadone patient. [6] Corporal Meisner and Cst. MacPherson were dispatched to the accident on Highway # 4. They arrived at 3:30 p.m.. [7] At the scene, Mr. Fogarty told Cpl. Meisner that he had driven the Crown Victoria. Cpl. Meisner noticed some “concerning” things about Mr. Fogarty’s demeanour, such as glassy eyes, but didn’t smell alcohol. Mr. Fogarty volunteered to Cpl. Meisner that he was a recovering drug addict and that his driver’s license was scheduled for suspension in the next few days. Mr. Fogarty told Cpl. Meisner that he had taken methadone at 8:00 a.m. that day. [8] Corporal Meisner briefed his superior, Sergeant Rehill, who informed Cpl. Meisner that Mr. Fogarty was a methadone patient with two previous complaints of erratic driving. By telephone, Cpl. Meisner consulted RCMP Cst. Chad Morrison, an expert in drug recognition evaluations. [9] At 4:20 p.m., Cpl. Meisner accompanied Mr. Fogarty in the ambulance. Mr. Fogarty was strapped to a spine board. Before the ambulance left, Cst. MacPherson opened the side door of the ambulance and said that one of the passengers of the Mustang was dead. Cpl. Meisner said: Mr. Fogarty’s eye teared up at that point. He said, oh, oh one is dead. And I told him not to worry about that right now. He shed a tear, but then immediately reverted back to the way he had been before. Like, it was, I described it to somebody as if somebody flipped a switched [sic]. He went from showing a little bit of remorse or a little bit of sadness for the victims right back to talking about his previous drug use. [10] In the ambulance, Cpl. Meisner observed Mr. Fogarty for signs of impairment, and overheard Mr. Fogarty inform the paramedic of his history of extensive drug use. Over his cell phone, Cpl. Meisner learned from Sgt. Rehill the details of earlier complaints of erratic driving by the Crown Victoria. [11] By 4:26 p.m., while in the ambulance, Cpl. Meisner had formed the opinion that Mr. Fogarty’s ability to operate a motor vehicle had been impaired by a drug. He concluded that he had reasonable grounds to demand that Mr. Fogarty submit to drug recognition evaluation (DRE), under s. 254(3.1) of the Criminal Code. Section 254(3.1) is quoted below (para. 39). Cpl. Meisner read the demand to Mr. Fogarty: I demand that you submit to an evaluation, conducted by an evaluating officer, to determine whether your ability to operate a motor vehicle is impaired by a drug or a combination of a drug and alcohol, and that you accompany me for this purpose. Do you understand? Mr. Fogarty, still in the ambulance, answered – yes. [12] They arrived at St. Martha’s Hospital. Mr. Fogarty was taken to an emergency room. Medical staff assessed Mr. Fogarty, and cleared him at 4:58 p.m.. [13] At 5:00 p.m., in the Hospital, Cpl. Meisner arrested Mr. Fogarty for impaired driving. He read from the card: … I am arresting you for impaired driving by a drug. You have the right to obtain and instruct a lawyer without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to 1-866-638-4889, or 902-420-8825 during business hours, and 1-800-300-7772, or 902-420-6581 during non-business hours. Do you understand? Do you wish to call a lawyer? … You also have the right to apply for free legal assistance, through the Provincial Legal Aid program. Do you understand? Mr. Fogarty replied that he understood, that he wished to consult a lawyer and that he wished further information about Legal Aid. [14] There was a short interval before Mr. Fogarty could occupy a room at the Hospital to consult counsel in privacy. Cpl. Meisner asked Mr. Fogarty if he had a particular lawyer to be contacted. Mr. Fogarty couldn’t recall the name of a lawyer, and asked that Cpl. Meisner call any Legal Aid lawyer. Cpl. Meisner telephoned and left a message for Mr. Rob Sutherland, a lawyer with Legal Aid. At 5:45 p.m., Mr. Fogarty was given the cell phone to consult Mr. Sutherland in privacy behind the closed doors of the Hospital’s examination room. At 5:54 p.m., Mr. Fogarty shouted that the cell phone battery had died. So at 5:55 p.m., Cpl. Meisner used another cell phone to re-contact Mr. Sutherland at Legal Aid, and Mr. Fogarty’s consultation with counsel continued in the privacy of the examination room. [15] At 6:00 p.m., Mr. Fogarty was off the phone. [16] At about 6:20 p.m., Cst. Morrison conducted the DRE assessment of Mr. Fogarty. The assessment included questioning about medications. Cst. Morrison observed that Mr. Fogarty’s coordination was poor and unsteady, his speech was fast, slightly slurred and he was stuttering often, his face flushed, his nose runny and his eyelids droopy. Cst. Morrison performed vision, divided attention, balance, hand-eye and psycho-physical coordination tests. He checked clinical indicators such as blood pressure, pulse, body temperature, pupil dilation and muscle tone. [17] Constable Morrison finished the DRE at 7:06 p.m. and took several minutes to consider the results. By 7:15 p.m., he had arrived at the opinion, based on the DRE, that Mr. Fogarty’s ability to operate a motor vehicle was impaired by a drug that functioned as a central nervous system depressant. [18] At 7:15 p.m., Cst. Morrison then demanded that Mr. Fogarty provide a blood sample, as provided by s. 254(3.4) of the Criminal Code. Section 254(3.4) is quoted below (para. 39). Under the provision, he had an option to demand urine, saliva or blood. Cst. Morrison chose blood because “blood is more accurate. It’s more current”, and also because the personnel and facilities for a blood sample were readily available on the scene at St. Martha’s Hospital. Cst. Morrison read the demand to Mr. Fogarty: … I demand that you now provide such samples of your blood that will enable a proper analysis to be made to determine whether you have a drug in your body. Blood samples will only be taken by or under the direction of a qualified medical practitioner, and if the qualified medical practitioner is satisfied that the taking of samples will not endanger your life or health. Do you understand? Mr. Fogarty replied “oh yeah, I understand that”. [19] Mr. Fogarty’s attending physician was Dr. Jurga. After he arrived and was briefed by the police, Dr. Jurga asked Mr. Fogarty if Mr. Fogarty consented to blood being drawn. This was at 7:16 p.m.. Cpl. Meisner testified on cross-examination: Q. … So, he, Dr. Jurga said, do you consent to the drug, the blood being drawn? Mr. Fogarty looked at you. A. He looked at me quizzically, and I said, well if you don’t, you can be charged with refusal. Corporal Meisner said “I didn’t note a verbal response, but he did consent, comply and cooperate with the doctors drawing blood”. [20] Dr. Jurga had no concern that drawing blood would impair Mr. Fogarty’s safety. At 8:41 p.m., Dr. Jurga drew two vials of blood from Mr. Fogarty, using an RCMP kit provided for the purpose. [21] Mr. Fogarty did not request, and was not given further access to counsel after the DRE and before his blood was drawn. [22] At 9:21 p.m., after the blood samples had been taken, Mr. Fogarty was told he was being charged with impaired driving causing death and was given access to counsel a second time. [23] At 10:05 p.m., while Mr. Fogarty was still in police custody, Cpl. Meisner re-arrested him for impaired driving causing bodily harm and impaired driving causing death, “re-Chartered” Mr. Fogarty, and permitted him to contact counsel again. [24] Sometime later, the police learned that the second occupant of the Mustang had died. At 00:43 a.m. on November 25, 2011, Mr. Fogarty was advised of this, re-arrested for the more serious offence, and again offered the opportunity to contact counsel. [25] At 12:19 p.m. on November 25, 2011, Mr. Fogarty was re-arrested for dangerous driving causing death of both deceased, again informed of his rights and given an opportunity to consult counsel. After a call on the duty counsel line, a lawyer came to the Detachment at 1:20 p.m. to see Mr. Fogarty. [26] After that consultation, Mr. Fogarty gave a videotaped interview between 2:37 p.m. and 4:37 p.m. on November 25. After the interview, Mr. Fogarty again was given access to the same lawyer over the telephone. [27] On the next day, November 26, 2011, Mr. Fogarty asked for an opportunity to clarify comments in his earlier interview. The police gave Mr. Fogarty a further opportunity to contact counsel, which he did from 11:23 a.m. to 11:27 a.m., before providing a second videotaped statement to the police. [28] Eventually Mr. Fogarty was indicted on two counts of impaired driving causing death, contrary to s. 255(3) of the Criminal Code, and two counts of dangerous driving causing death, contrary to s. 249(4) of the Code. Justice Nicholas Scaravelli of the Supreme Court of Nova Scotia heard the trial without a jury. [29] On March 7, 2013, Justice Scaravelli held a voir dire on Mr. Fogarty’s motion that the evidence of his blood samples and analysis should be excluded because of alleged breaches of his rights under the Charter. Mr. Fogarty submitted, among other arguments, that the failure to provide him with an additional opportunity to consult counsel, after the demand for his blood sample, violated his right to counsel under s. 10(b). On March 26, 2013, the judge dismissed the motion and ruled that there was no Charter breach (2013 NSSC 108). Later (para. 38) I will quote the judge’s reasons. [30] Over eight days in June, 2013, Justice Scaravelli heard the trial in Antigonish. On July 10, 2013, the judge issued a decision that convicted Mr. Fogarty on all four counts (2013 NSSC 222). Featured in the judge’s findings was evidence, including expert testimony, that Mr. Fogarty’s blood contained impairing drugs. RCMP forensics had analyzed the blood samples and reported that Mr. Fogarty’s blood contained Valium (Diazepam), several active metabolites of Valium and Mirtazapine. These drugs are central nervous system depressants. Side effects include unsteadiness, blurred vision, sedation, dizziness, mental confusion, slurred speech and poor co-ordination. They can impair the ability to operate a motor vehicle. Also found in Mr. Fogarty’s blood was methadone. Methadone combined with central nervous system depressants can exacerbate impairment. (Trial Decision, paras. 40-41, 55) [31] This incriminating evidence derived from Mr. Fogarty’s blood samples taken under s. 254(3.4) at 8:41 p.m. on November 24, 2011. [32] The judge sentenced Mr. Fogarty to a term of incarceration totalling five years and nineteen days. [33] Mr. Fogarty appeals his convictions to the Court of Appeal under s. 675 of the Code. Issue [34] Mr. Fogarty’s Notice of Appeal cited several grounds. His factum reduced these to one – that the trial judge “erred in law at the voir dire by allowing Mr. Fogarty’s blood sample and subsequent toxicological analysis to be admitted”. Mr. Fogarty submits that the failure to provide him with an opportunity to re-consult counsel, after the demand for his blood sample, violated s. 10(b) of the Charter. He says that the blood sample evidence and the analysis derived from it should be excluded under s. 24(2) of the Charter. Standard of Review [35] On a Charter challenge, as in other matters, whether the judge erred in legal principle is reviewed for correctness, and whether the judge erred in fact, or on a question of mixed fact and law without an extractable legal error, is reviewed for palpable and overriding error. R. v. R.E.W., 2011 NSCA 18, paras. 29-35. R. v. Hiscoe, 2013 NSCA 48, para. 21. In R. v. Clark, [2005] 1 S.C.R. 6, Justice Fish for the Court characterized the standard for factual error: 9 … Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm [citations omitted]. Analysis [36] In R. v. Sinclair, [2010] 2 S.C.R. 310, the Chief Justice and Justice Charron for the majority set out the principles that govern whether a detainee, who has consulted counsel, has a constitutional right to re-consult counsel: [26] The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice. … [43] The authorities suggest that normally, s. 10(b) affords the detainee a single consultation with a lawyer. However, they also recognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, as discussed more fully below, generally involve a material change in the detainee’s situation after the initial consultation. … [47] Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. … [48] The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate. [49] … The question here is when a further consultation is required [Supreme Court’s italics] under s. 10(b) of the Charter. For the purpose of providing guidance to investigating police officers, it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required. The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose. 1. New Procedures Involving the Detainee [50] The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R. v. Ross, [1989] 1 S.C.R. 3. 2. Change in Jeopardy [51] The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. See Evans (R. v. Evans, [1991] 1 S.C.R. 869) and Black (R. v. Black, [1989] 2 S.C.R. 138). 3. Reason to Question the Detainee’s Understanding of his Section 10(b) Right [52] If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(b) is fulfilled: Prosper (R. v. Prosper, [1994] 3 S.C.R. 236). … Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel. See Burlingham (R. v. Burlingham, [1995] 2 S.C.R. 206). [37] Under the heading “The General Principle Emerging From the Cases”, the Chief Justice and Justice Charron summarized: [53] The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so. … [55] The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. … [57] … It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. … … [64] … as explained earlier, we take the settled view to the effect that the right to counsel is essentially a one-time matter with few recognized exceptions, and expand upon this existing jurisprudence by recognizing the right to a further consultation with counsel in any case where a change in circumstances makes this necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation. … [65] … What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. … [38] Justice Scaravelli’s Decision after the voir dire (para. 40) quoted Sinclair’s test, then followed with these findings: [41] In this case I have determined Mr. Fogarty was aware of the extent of his jeopardy when he consulted legal counsel. He was aware and understood the demand for a drug evaluation test. He was aware the police wanted to test him to determine whether there was the presence of drugs in his body in relation to his arrest for impairment by a drug in the operation of his vehicle at the time of the collision. It was in this context that Mr. Fogarty consulted legal advice. [42] Mr. Fogarty spoke to legal counsel for approximately 15 minutes following the demand for a drug evaluation test. It is reasonable to infer that competent counsel would have advised Mr. Fogarty of the procedure set out in s. 254 of the Code. That is, a demand would be made that he provide bodily samples in the event he failed the drug evaluation test. Also, the possibility that he could be charged with refusal should he not consent. [43] Following consultation with legal counsel Mr. Fogarty, without prompting, told the evaluating officer he would be unable to balance himself on one foot and inquired whether there was another physical test he could perform. [44] There was no evidence produced on voir dire hearing that Mr. Fogarty did not receive competent legal advice or that he did not understand the legal advice given. Further evidence of a “quizzical” look on the face of Mr. Fogarty, by itself, is insufficient to draw an inference of confusion or lack of awareness. Mr. Fogarty had previously confirmed he understood the demand for blood sample. The police statement that he could be charged with refusal should he fail to comply with the blood demand served to further inform the accused. This information often accompanies a standard impaired driving demand. [45] In my view there is insufficient evidence to satisfy the court there was any change in Mr. Fogarty’s circumstances between the exercising of his right to legal counsel and the demand for the sample of his blood which, objectively viewed, would require further consultation with counsel. [46] As a result I am not satisfied that there was a breach of Mr. Fogarty’s charter rights and I dismiss the application. [39] The argument focusses on the drug recognition evaluation procedure in ss. 254(3.1) and (3.4) of the Criminal Code, that came into force on July 2, 2008 (S.C. 2008, c. 6, s. 19): 254. (1) Definitions – … “evaluating officer” means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1); … (3.1) Evaluation – If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the previous three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose. (3.2) Video recording – For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1). (3.3) Testing for presence of alcohol – If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument. (3.4) Samples of bodily substances – If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, (a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or (b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body. (4) Condition – Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health. [40] I will summarize Mr. Fogarty’s submission on the appeal. [41] Mr. Fogarty acknowledges that s. 10(b) prescribes the opportunity to re-consult counsel only where there is an objectively ascertainable change of circumstances, as explained in Sinclair. At the appeal hearing, Mr. Fogarty’s counsel identified the change of circumstances as the request for blood under s. 254(3.4). The request was at 7:15 p.m. on November 24, 2011. [42] Mr. Fogarty points out that ss. 254(3.1) and (3.4) establish a two-step process, and submits that legal advice should accompany each step. His factum says: 7 The Drug Recognition Evaluation scheme for detecting impaired drivers engages a unique two-step process. As a result, the appellant contends that this two-step process should import a two-step assurance that the detainee is aware of the choices he is to make while under the direction of the police. The Trial Judge disagreed. [43] Mr. Fogarty acknowledges that if, at the time of the DRE demand, police had told him of the potential for blood sampling later on, then both steps - the DRE and blood sampling - would be expected topics for his initial legal advice. But the police had not told him of this potential. His factum says: 58 … the appellant had never been advised, nor was there evidence of his awareness, that there was the potential for a blood sample demand. If this information had been provided to him from the outset, he could not say he (sic) that he experienced a “new procedure” when the blood demand was made. … 61 The appellant contacted counsel with the knowledge that he had been subjected to a drug evaluation demand. He took his legal advice within this context. 62 There was no way for the appellant to know that a blood sample demand could, or would, be made of him at some time in the future. … [44] There was no evidence of the content of the legal advice given to Mr. Fogarty, or that his counsel acted incompetently. There was no challenge to the competency of his counsel. The judge’s view was that, in those circumstances, Mr. Fogarty’s counsel is assumed to have acted competently. The judge concluded competent counsel would be aware, and advise that the DRE under s. 254(3.1) invokes a potential blood demand under s. 254(3.4). Consequently, despite that Mr. Fogarty initially had been unaware of a potential blood demand, his counsel would canvass that possibility in his pre-DRE advice to Mr. Fogarty. To this point, Mr. Fogarty’s factum responds: 64 … the D.R.E. procedure is a unique two-step process that the Trial Judge assumed, and concluded, counsel would naturally be aware of. The Trial Judge found that counsel would anticipate, and therefore advise of, the possibility of a bodily substance demand. 65 This is a pretty big assumption. The legislation is relatively new. The two-step process is unlike any, up to this time, outlined by the Criminal Code. And, indeed, while the appellant did not call any evidence as to the quality of the advice he received during his fifteen minute initial consultation, surely a requirement that the applicant must raise an issue with respect to the quality of duty-counsel advice in this informational right context is problematic. [45] The trial judge (para. 44, quoted above para. 38) assessed Cpl. Meisner’s testimony that Mr. Fogarty “looked at me quizzically” (quoted above, para. 19). The judge declined to draw an inference of unawareness or confusion on Mr. Fogarty’s part. On the appeal, Mr. Fogarty challenges the judge’s assessment of the evidence. His factum does not cite the appellate standard of review for factual errors. But essentially, this Court is asked to overturn the judge’s finding based on palpable and overriding error. [46] With respect, I am not persuaded by Mr. Fogarty’s submissions. [47] Sinclair, para. 50, says that “[n]on-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation”. In my view, a blood demand under s. 254(3.4) would occupy the expectation of the advising lawyer during the DRE consultation under s. 254(3.1). The point of the DRE is to determine whether to demand a fluids sample. That is clear from s. 254(3.4): “If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle … is impaired by a drug … the evaluating officer may … demand” a sample of saliva, urine or blood. [48] The DRE and blood demand are not disjunctive investigative techniques. Rather, the DRE culminates in the fluids demand. That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4), with which competent counsel would be familiar. During the DRE consultation with the client, competent counsel would expect that a failed DRE likely would trigger a demand for blood, urine or saliva, and would advise the client respecting that eventuality. [49] This view is consistent with the authorities: (a) Before Sinclair, a s. 10(b) caution within the roadside screening and A.L.E.R.T. process sufficed for a breathalyzer demand several minutes later: R. v. Nichol, [1987] A.J. No. 556 (C.A.). See also R. v. Purdon, [1989] A.J. No. 1030 (C.A.), and authorities cited. (b) Since Sinclair, it has been held there is no Charter right to re-consult counsel when interrogation shifts to a re-enactment: R. v. Ashmore, 2011 BCCA 18, para. 70. Similarly, the progression from a breath demand to the DRE and urine sample has not triggered a right to re-consult under Sinclair’s test: R. v. Wilkinson, 2014 ONCJ 515, paras. 9 and 14; R. v. S.(D.), 2012 N.J. No. 238 (Nfld. P.C.), para. 46. After a consultation with counsel before the DRE, the police were not required to offer a re-consultation before taking a urine sample: R. v. Biagi, 2014 ONCJ 153, paras. 151-54. [50] Sections 254(3.1) and (3.4) came into force in July 2008. I disagree with Mr. Fogarty’s factum that a competent counsel would not be expected to know these “relatively new” provisions over three years later, on November 24, 2011. [51] There is no evidence of the content of Mr. Fogarty’s legal advice that preceded the DRE. There is no ground of appeal, submission or evidence that Mr. Fogarty’s counsel acted incompetently. Sinclair, para. 57, says that the initial legal advice is presumed to be sufficient and correct unless it is shown otherwise. The trial judge’s decision, para. 44, noted that there was no evidence “that Mr. Fogarty did not receive competent legal advice”. Mr. Fogarty’s factum says a discussion of competence is “problematic”. That may be. But to overturn a conviction on the premise of insufficient or incorrect legal advice, an appellant should plead that ground of appeal. This gives the Crown an opportunity to address, with the court if necessary, whether privilege has been waived and, if waived, whether the Crown should offer evidence of counsel’s perspective on the point: R. v. Campbell, [1999] 1 S.C.R. 565, paras. 46-48, 67-73; R. v. Marriott, 2013 NSCA 12, paras. 31-42. Neither may the court overturn a conviction based merely on appeal counsel’s intimations of earlier counsel’s incompetence, without any supporting evidence. On this record, the trial judge was entitled to assume that Mr. Fogarty received sufficient and correct legal advice in his DRE consultation. [52] The judge found that the “quizzical” look did not support an inference that Mr. Fogarty was confused about the blood demand. There was evidence to support the judge’s view. Mr. Fogarty had confirmed to Cst. Morrison that he understood the blood demand (above, para. 18). In R. v. Willier, [2010] 2 S.C.R. 429, the Chief Justice and Justice Charron for the majority said: [42] … However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. … Mr. Fogarty said nothing to indicate that his initial legal advice was inadequate or to request a re-consultation with counsel. [53] The judge neither erred in law nor made a palpable and overriding error of fact. Conclusion [54] I would dismiss the appeal. Fichaud, J.A. Concurred: Saunders, J.A. Beveridge, J.A.