



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tahmasebi, 2020 ONCA 47

DATE: 20200129

DOCKET: C65029

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ramin Tahmasebi

Appellant

Adam Little, for the appellant

Davin Garg, for the respondent

Heard: November 14, 2019

On appeal from the conviction entered by Justice Peter N.
    Bourque of the Ontario Court of Justice on November 28, 2017, and from the
    sentence imposed on February 20, 2018, with reasons reported at 2017 ONCJ 816
    and 2018 ONCJ 112.

Zarnett J.A.:

I.

INTRODUCTION

[1]

The appellant was convicted of impaired driving causing bodily harm and refusal
    to comply with a demand for a urine sample. He was sentenced to 90 days in
    custody and a two year driving prohibition. A victim surcharge was also imposed.
    The appellant appeals both his conviction and sentence.

[2]

On his conviction appeal, the appellant raises two grounds. First, he
    argues that his rights under s. 10(b) of the
Canadian Charter of Rights and
    Freedom
were violated when, subsequent to his arrest on charges of dangerous
    driving and impaired driving causing bodily harm and his initial consultation
    with duty counsel, he was denied the opportunity to re-consult with a lawyer when
    demands for a drug evaluation and then a urine sample were made. Second, he
    argues that the trial judge erred in his treatment of the causation requirement
    for the offence of impaired driving causing bodily harm.

[3]

On his sentence appeal, the appellant argues that a 90 day custodial sentence
    constituted an unfit sentence. The Crown concedes that the victim surcharge that
    was imposed must be vacated.

[4]

For the reasons which follow, I would dismiss the conviction appeal,
    grant leave to appeal sentence, vacate the victim surcharge, but otherwise
    dismiss the sentence appeal.

II.

FACTUAL BACKGROUND

[5]

On April 19, 2016, the appellant drove his car onto a strangers
    driveway, stopped there, and remained in the car. The homeowner called the
    police. Two officers attended the scene, one shortly after the other  P.C.
    Finley and P.C. Paolucci.

[6]

After P.C. Finley knocked on the driver side window of the appellants
    car several times, the appellant rolled it down. He appeared to be confused and
    drowsy. P.C. Finley asked the appellant where he was going; he answered that he
    lived close by and was just taking a nap. P.C. Finley returned to his cruiser,
    which was stopped behind the appellants car, intending to turn on its video
    camera to do an impaired driving investigation. The appellants car rolled
    backwards while P.C. Finley was behind it, pinning him against his cruiser and
    injuring him.

[7]

The appellant was arrested on the scene and charged with dangerous
    driving causing bodily harm. He was placed in the back of a police cruiser and read
    his rights, including his right to counsel under s. 10(b) of the
Charter
.
    At the time, as recorded on the cruisers in-car camera, the appellant said he
    understood his rights, asked to speak to a lawyer, and explained in his own
    words the meaning of the caution he had received.

[8]

At the police station, the appellant told the Staff Sergeant that he was
    taking an opioid analgesic. The appellant was charged with impaired driving causing
    bodily harm and re-read his rights to counsel. P.C. Paolucci then called duty
    counsel and told him the appellant faced dangerous driving and impaired driving
    charges. The appellant spoke to duty counsel for approximately 8 minutes.

[9]

A police drug recognition expert (DRE Officer) spoke to the appellant,
    made a drug evaluation demand (the DRE demand), and asked the appellant if he
    understood it. The appellant responded [y]es, totally.

[10]

The DRE Officer asked the appellant if he had spoken to counsel; when
    the appellant said no, the DRE Officer said he had observed the appellant on
    the phone speaking to duty counsel. The appellant responded [o]h, that was a
    lawyer? and then confirmed speaking to him. The DRE Officer then proceeded to
    conduct the drug evaluation.

[11]

After the DRE Officer determined that the appellants ability to drive
    was impaired by drugs, he demanded that the appellant provide a urine sample.
    The DRE Officer explained the demand to the appellant and warned him that
    failure to provide a urine sample would result in another charge. The appellant
    asked to speak to a lawyer again, but the DRE Officer responded that the
    appellant had already spoken to a lawyer, who had been advised that the
    appellant was being charged with impaired driving, and he was not required to
    provide him with another consultation. The appellant ultimately refused to
    comply with the urine sample demand. He was charged with refusal to provide a
    urine sample when he knew or ought to have known that his operation of a motor vehicle
    caused an accident that resulted in bodily harm to another person.

III.

THE TRIAL JUDGES DECISION

[12]

The trial judge found that the appellants ability to operate his car
    was impaired by drug, namely a combination of cannabis and a central nervous
    system depressant. And he found that that impairment caused bodily harm, expressing
    that conclusion as follows at para. 54:

I find that the defendant was in control of the motor vehicle
    when it backed up and crushed Brian Finley. I find that some action on his part
    while he was impaired led to the vehicle moving backwards and pinning Brian
    Finley in between the defendants car and the police cruiser. To be so
    convinced, I do not need to know whether it was caused by a removal of his foot
    from the gas, or a placing of the vehicle in reverse, or any combination of his
    actions. I find he was in control of the vehicle when it moved.

[13]

The trial judge accordingly found the appellant guilty of the offence of
    impaired driving causing bodily harm under what was then s. 255(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as it existed on 28 November 2017.
[1]

[14]

The trial judge dismissed the appellants argument that his s. 10(b)
    rights had been violated. He rejected the appellants evidence that he had not
    understood his rights when they were read to him. He found that the appellants
    expressed words of comprehension at the roadside were true...[and] he did
    understand his rights to counsel at all times and indeed his right to remain
    silent: at para. 60. The appellant consulted duty counsel pursuant to his
    rights. The trial judge also rejected the appellants argument that the demand
    for a urine sample gave rise to a right to a further consultation with a lawyer.

[15]

The trial judge was not convinced that the appellant knew or ought to
    have known P.C. Finley had suffered bodily harm at the time he refused to provide
    the urine sample, but convicted him of the included offence of refusal to
    comply with a demand for a urine sample under what was then s. 254(5) of the
Code
.

[16]

The trial judge imposed a 90 day global sentence: 60 days for impaired driving
    causing bodily harm and 30 days for refusal to comply with a demand for a urine
    sample. He also prohibited the appellant from driving for two years. In
    deciding that this was an appropriate sentence, the trial judge considered the
    level of the appellants impairment, which he felt had been significant, its
    role in causing bodily harm to P.C. Finley, even though it had not resulted in
    permanent injury, the fact that the appellant had a prior (albeit dated)
    conviction for refusing to provide a sample, as well as the fact that the
    appellant had otherwise led an exemplary life.

IV.

ANALYSIS

A.

THE S.
    10(B) GROUND OF APPEAL

(1)

Introduction

[17]

The appellant argues that his s. 10(b) rights were breached because he
    was denied the opportunity to re-consult counsel. While at trial the
    appellants argument was that the right to re-consult arose when the demand for
    the urine sample was made, on appeal the appellants position is that the right
    to re-consult arose when the DRE demand was made.

[18]

Although the appellants argument in this court is broader than it was
    at trial, nothing turns on the variation in his position. The conceptual
    framework underlying the appellants argument and the Crowns response
    concerning whether there was a right to re-consult counsel is essentially the
    same, regardless of whether the triggering event is viewed as the DRE demand or
    the urine sample demand.

(2)

When a s. 10(b) Right to a Second Consultation with Counsel Arises

[19]

Section 10(b) of the
Charter
states that upon arrest or
    detention, everyone has the right to retain and instruct counsel without delay
    and to be informed of that right. Its purpose is to support the detainees
    right to choose whether to cooperate with the police investigation or not, by
    giving him access to legal advice on the situation he is facing. This is
    achieved by requiring that he be informed of the right to consult counsel and,
    if he so requests, be given an opportunity to consult counsel:
R. v.
    Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 32.

[20]

While normally, s. 10(b) affords the detainee a single consultation
    with a lawyerin some circumstances, a further opportunity to consult a lawyer
    may be constitutionally required: at para. 43. A request to re-consult with
    counsel is not in itself sufficient. 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: at para. 65.

[21]

In
Sinclair
, the majority described three situations in which a
    second consultation with counsel would be constitutionally required. The first
    is where, after the initial consultation, non-routine procedures are proposed
    by the police (such as participating in a line-up or submitting to a polygraph)
    that do not generally fall within the expectation of the advising lawyer at the
    time of the initial consultation: at para. 50. The second is where, after an
    initial consultation tailored to the situation as the detainee and his lawyer
    then understand it based on what they were told as to the reasons for the
    detention, the investigation takes a new and more serious turn making the
    advice inadequate in light of the actual situation, or jeopardy, the detainee
    faces: at para. 51. The third is where the circumstances indicate that the
    detainee did not understand his right to counsel, or if police undermined the
    legal advice received by the detainee distorting or nullifying it: at para.
    52. In each such situation a further opportunity to consult with counsel is
    necessary to fulfill the purpose of s. 10(b): at para. 49.

[22]

As pointed out in
Sinclair
, these three situations do not
    exhaust the categories of circumstances in which a right to re-consult may
    arise. Additional categories may be developed where a change in circumstances
    makes a second consultation necessary to ensure that the purpose of s. 10(b) is
    achieved:

at paras. 49 and 53-54.

(3)

No Right to a Second Consultation with Counsel Arose In This Case

[23]

The appellant argues that this case falls within each of the three
    categories referred to in
Sinclair
, or that a new category should be
    recognized here. I disagree.


(i)

The First Category in
Sinclair
Does Not Apply

[24]

The first category in
Sinclair
does not apply because what occurred
    after the appellant was charged with impaired driving causing bodily harm and had
    his initial consultation with duty counsel  namely the DRE demand and, based
    on the result of the drug evaluation, the urine sample demand  were procedures
    that were within the expectation of the advising lawyer at the time of the
    initial consultation: at para. 50. The procedures of a DRE demand and urine
    sample demand and the offence of impaired driving are integrally related. The
    procedures would be within the expectation of a lawyer advising a person
    charged with impairing driving. As the trial judge stated, the advice given by
    counsel clearly should anticipate these probable outcomes: at para. 71.

[25]

At the relevant time, the
Code
specified procedures for the
    investigation of whether the offence of impaired driving under s. 253(1)(a) of
    the
Code
had occurred and specified consequences to those procedures.
[2]
The police were entitled to demand that a person submit to an evaluation by a
    DRE Officer, if there were reasonable and probable grounds to believe the
    offence of impaired driving had been committed: s. 254(3.1). If, on completion
    of the evaluation, the DRE Officer had reasonable grounds to believe that the
    persons ability to operate a motor vehicle was impaired by drug or alcohol,
    the DRE Officer could demand a sample of either oral fluid or urine: s.
    254(3.4)(a). Failure to comply with either demand was an offence: s. 254(5).

[26]

The statutory relationship between the procedures of a DRE demand and a
    urine sample demand on the one hand, and the offence of impaired driving on the
    other, does not permit the conclusion that the procedures fall outside the
    expectation of a lawyer advising a person who has been arrested or detained on
    a charge of impaired driving. That such demands might be made, and their
    consequences, would fall directly within the expected topics of advice counsel
    would give a person charged with impaired driving.

[27]

In
R. v. Fogarty,
2015 NSCA 6, 320 C.C.C. (3d) 348, the Nova
    Scotia Court of Appeal rejected an argument that a person who had spoken to
    counsel after receiving a DRE demand was entitled to re-consult counsel before
    deciding whether to comply with a fluids sample demand. The court stressed the
    relationship between the DRE demand and fluids sample demand procedures,
    inferring from that relationship that counsel would have been expected to
    advise about both in the consultation that did occur. At paras. 47-48, the court
    stated:

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 persons ability to
    operate a motor vehicle  is impaired by a drug  the evaluating officer may 
    demand a sample of saliva, urine or blood.

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.

[28]

In
R. v. Wilkinson
, 2014 ONCJ 515, 319 C.R.R. (2d) 327, the
    accused was arrested on a charge of impaired driving, read a breath demand, and
    advised of her right to counsel. After she declined to speak to counsel, a
    breath test was conducted. The police then made a DRE demand and conducted a drug
    evaluation resulting in a request for a urine sample. The accused was not
    re-advised of a right to counsel before the DRE demand or drug evaluation. The trial
    judge rejected the argument that the accused should have been re-advised of s.
    10(b) rights before the drug evaluation and that therefore her s. 10(b) rights
    were infringed, relying on the relationship between the offence of impaired
    driving and the procedures the
Code
enacted to investigate that
    offence. At para. 14, the court said:

I do not regard the progress from alcohol-related
    breath testing to the DRE process within the same investigation for impaired
    driving as being a transition to a non-routine procedure as described in
Sinclair
. The issue as contemplated by the Supreme Court of Canada requires
    that the accused face a significantly changed set of circumstances then that
    which existed at the time of the initial advice of her right to consult
    counsel.

[29]

There is no issue in this case of any variance
    between legal advice competent counsel would be expected to provide to a person
    detained on a charge of impaired driving, and the actual advice the appellant
    received. In
Sinclair
, at para. 57, the majority
    stated: 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. In this case,
there was no evidence as to the
    content of the actual advice the appellant received. The appellant must accept
    the assumption that the legal advice he received was, in its context,
    sufficient and correct.

[30]

Thus, there is no basis here to reach the conclusion that the
    initial advice the appellant received, after being charged with impaired
    driving, was not sufficient and correct to address the foreseeable consequences
    of that charge, namely a DRE demand and depending upon its result, an oral
    fluid or urine sample demand. There was, to use the words of
Fogarty
,
    a linear progression from one to the other, a progression expressly
    contemplated by the
Code
. What occurred here, after the initial
    advice of counsel, was neither the result of changed circumstances or new
    developments. The procedures undertaken by the police were not, viewed in the
    context of an impaired driving investigation, non-routine such as to fall
    outside of what would be expected to be covered by the initial advice the
    appellant received.


(ii)

The Second Category in
Sinclair
Does Not Apply

[31]

For similar reasons, I reject the argument that the
    second circumstance in
Sinclair
, a change in
    jeopardy, applies.

[32]

The appellant argues that, unlike other
    investigative techniques, the procedures of a DRE demand and urine sample
    demand carry not only a self-incrimination risk if the demands are complied
    with, but the additional risk that non-compliance can constitute an offence.
    Thus, the making of either demand changes the jeopardy an accused faces beyond
    that in place under the impaired driving charge itself.

[33]

The change in jeopardy that
Sinclair
posits as giving rise to a right to re-consult occurs where, after the
    initial consultation, an investigation has taken a new and more serious turn
    as events unfold: at para. 51. Since the initial advice is expected to have
    been tailored to the situation as the detainee and his lawyer then understand
    it, such a turn must be one that takes matters beyond that situation and the
    expectations it gave rise to: at para. 51.

[34]

Determining whether such a turn has occurred requires
    a comparison between, on the one hand, the situation and jeopardy that counsel
    and the detainee would understand at the time of their initial consultation,
    and on the other hand, the  situation and jeopardy that has arisen as a result
    of subsequent events. A change in jeopardy will require an accused to be
    provided an additional opportunity to consult counsel, where there is either a
    discrete change in the purpose of the investigation, one involving a different
    and unrelated offence or a significantly more serious offence that that
    contemplated at the time of the warning.:
R. v. Guthrie
, 2016 ONCA 466 at para. 11 (internal citations omitted).

[35]

The consequences of foreseeable investigative
    procedures in an impaired driving investigation  the prospect that compliance
    with either a DRE demand or oral fluid or urine sample demand may yield
    evidence that incriminates the accused and that non-compliance may be an
    offence  is not a new jeopardy arising from a new and more serious turn of
    events. It is not a discrete change in the purpose of the impaired driving investigation
    to an offence not contemplated at the time the appellant exercised his right to
    counsel. Just as the procedures themselves are foreseeable at the time of the
    initial consultation, the jeopardy arising from them is also foreseeable and within
    the expected subject matter of the initial consultation.


(iii)

The Third Category in
Sinclair
Does Not Apply

[36]

Nor do I agree that the third category in
Sinclair
applies. This category   arises where an accused may not have understood the
    initial s. 10(b) advice of his right to counsel, or where the police undermine
    the legal advice that the detainee has received: at para. 52.

[37]

Here, there is no suggestion of the police having undermined any
    advice. As to the appellants understanding, the trial judge expressly found
    that the appellant did understand his rights to counsel at all times and
    indeed his right to remain silent: at para. 60. As I have mentioned above,
    there was no evidence of the content of the actual advice the appellant
    received, and the appellant did not give evidence that there was any aspect of
    it he did not understand. The trial judge did not find the appellant a credible
    witness; he was not obliged to find that the appellants reaction to the DRE Officer
    reminding him he had spoken to counsel, or his request to speak to counsel
    again in response to the demand for a urine sample, indicated the appellants
    failure to understand advice he had received. As the majority stated in
Sinclair
:
    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:
at para. 55. No
    such objective factors are present here.


(iv)

No New Category Should Be Created Here

[38]


Although
Sinclair
makes it clear
    that the categories of cases in which there is a right to re-consult counsel
    are not closed, a new category should only be developed where there is a
    change of circumstances that makes a second consultation necessary to ensure
    that s. 10(b) has achieved its purpose: at para. 49. Where the circumstances
    do not fall within one of the three previously recognized situations, the
    question is whether a further opportunity to consult a lawyer is necessary to
    fulfill s. 10(b)s purpose of providing the detainee with advice
in the new or emergent situation

    (emphasis added): at para. 54.

[39]

For the reasons above, neither a DRE demand under
    what was then s. 254(3.1), nor an oral fluid or urine sample demand under what
    was then s. 254(3.4), is a change of circumstances from those facing a person
    detained on a charge of impaired driving. A person who has received legal
    advice (assumed to be sufficient and correct) after such a charge does not face
    a new or emergent situation when either demand is made. Because the demands are
    foreseeable and the initial advice would be expected to address them and their
    consequences, it would not be appropriate to create a new category of cases in
    which there is an entitlement to a second consultation with counsel to cover
    the circumstances in the case at bar.


(v)

Conclusion on Right to Re-Consult

[40]

Accordingly, I conclude that no breach of the
    appellants s. 10(b) rights occurred and reject this ground of appeal.

[41]

In light of my conclusion that no infringement of
    the
Charter
took place, it is unnecessary for me
    to consider whether, if there had been a breach, evidence should have been
    excluded under s. 24(2) of the
Charter
, or whether
    a broader remedy of a new trial should be ordered under s. 24(1) of the
Charter
.

B.

THE CAUSATION GROUND OF APPEAL

[42]

The appellants complaint about the causation
    conclusion reached by the trial judge focuses on para. 54 of his reasons:

I find that the defendant was in control of the
    motor vehicle when it backed up and crushed Brian Finley. I find that some
    action on his part while he was impaired led to the vehicle moving backwards
    and pinning Brian Finley in between the defendants car and the police cruiser.
    To be so convinced, I do not need to know whether it was caused by a removal of
    his foot from the gas, or a placing of the vehicle in reverse, or any
    combination of his actions. I find he was in control of the vehicle when it
    moved.

[43]

The appellant submits that these reasons are
    insufficient, and reverse the onus of proof. He argues that the trial judge was
    faced with conflicting evidence about the circumstances of the accident, and he
    did not resolve the inconsistencies. For example, the trial judge did not deal
    with the appellants evidence that prior to the car moving backwards, one of
    the officers had said to him: Move the car forward. My colleague cant pass
    through. The appellant argues that it would have made a difference if the
    appellant was moving the car after a request by the police to do so, and the trial
    judges reasons simply do not deal with this.

[44]

I would not give effect to this argument. While it may have made
    a difference if the appellant had been asked to move the car backwards by the
    police and in doing so he had struck one of the officers, I fail to see how the
    appellant would have been assisted by a finding that he had been asked to move the
    car

forward
, given that he moved
    it
backwards
. In any event, the trial judge did not find
    the appellant to be a credible witness. He accepted the evidence of the police
    officers that the appellant was in control of the vehicle when it moved
    backwards and struck PC Finley. He found on the evidence that it was some action
    on the appellants part that caused the car to move backwards, a finding that
    was open to him on the record.

[45]

The causation issue in this case was not complex.
    The trial judges findings were sufficient in the circumstances, and do not
    involve any reversal of the onus of proof.

C.

THE SENTENCE APPEAL

[46]

The appellant argues that the trial judges
    imposition of a custodial sentence was unfit, and his reasons are insufficient
    to explain why he did so. I disagree.

[47]

The relatively short custodial sentence here does
    not fall outside the range for similar offences. The trial judge reviewed the
    need for the sentence to reflect denunciation and deterrence, and he adverted
    to and considered relevant aggravating and mitigating factors.

[48]

Sentencing decisions attract a high level of
    deference on appeal:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 39-41 and 43-44. In my view, no error of
    principle or law has been shown, nor is the sentence demonstrably unfit having
    regard to the seriousness of the offence and the blameworthiness of the
    offender. There is no basis for appellate intervention, except in respect to the
    victim surcharge, which must be set aside under
R. v. Boudreault
,
    2018 SCC 58, 429 D.L.R. (4th) 583.

V.

CONCLUSION

[49]

I would dismiss the conviction appeal, grant leave
    to appeal sentence, set aside the victim surcharge, but otherwise dismiss the
    sentence appeal.

Released: A.H January 29, 2020

B. Zarnett J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. Doherty J.A.





[1]

In 2018, ss. 253-255 of the
Code
were repealed and
    replaced with s. 320 of the
Code
.



[2]
The offence of impaired driving by drug causing bodily harm under what was then
    s. 255(2) of the
Code
included the commission of the offence of impairing
    driving under what was then s. 253(1)(a): Everyone who commits an offence
    under paragraph 253(1)(a) and causes bodily harm to another person as a result
    is guilty of an indictable offence and liable to imprisonment for a term of not
    more than 10 years.


