R. v. Fogarty (W.L.E.), 2015 NSCA 6

Judge:Saunders, Fichaud and Beveridge, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:January 20, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 6;(2015), 355 N.S.R.(2d) 103 (CA)

R. v. Fogarty (W.L.E.) (2015), 355 N.S.R.(2d) 103 (CA);

    1123 A.P.R. 103

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.035

William Lionel Edmund (Byron) Fogarty (appellant) v. Her Majesty the Queen (respondent)

(CAC 420217; 2015 NSCA 6)

Indexed As: R. v. Fogarty (W.L.E.)

Nova Scotia Court of Appeal

Saunders, Fichaud and Beveridge, JJ.A.

January 20, 2015.


The accused, in a judgment reported [2013] N.S.R.(2d) Uned. 157, was convicted of two counts each of impaired driving causing death and dangerous driving causing death.

The Nova Scotia Supreme Court, in a judgment reported (2013), 334 N.S.R.(2d) 321; 1059 A.P.R. 321, sentenced the accused to six years' imprisonment (concurrent) on each impaired driving causing death count and three years' imprisonment (concurrent) on each dangerous driving causing death count. After giving the accused 1.5 to 1.0 credit for 231 days of pre-trial custody, the sentence left to be served was five years and 19 days. The court imposed a 10 year driving prohibition. The accused appealed against conviction and applied for interim release pending his appeal.

The Nova Scotia Court of Appeal, per Bourgeois, J.A., in a judgment reported (2014), 350 N.S.R.(2d) 208; 1105 A.P.R. 208, denied bail as being contrary to the public interest.

The Nova Scotia Court of Appeal dismissed the conviction appeal.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - The accused's vehicle struck another vehicle head on - Two persons died - The accused was a known drug addict in a methadone program - An hour before the accident, there were reports of erratic driving by the accused - The police, believing that the accused had drugs in his system, made a demand that he undergo a drug recognition evaluation (Criminal Code, s. 254(3.1)) - Before the evaluation, the accused was advised of his Charter rights and exercised his right to counsel - Based on the evaluation results, the police made a blood sample demand (Criminal Code, s. 254(3.4)) - He was not given an opportunity to consult with counsel again before complying with the demand - He was subsequently charged and permitted to contact counsel again - The trial judge convicted the accused of two counts of impaired driving causing death and two counts of dangerous driving causing death - The trial judge held that the failure to permit the accused to re-consult with counsel did not violate s. 10(b) of the Charter - The Nova Scotia Court of Appeal dismissed the accused's conviction appeal - There was no objectively ascertainable change in circumstances between the drug recognition evaluation demand and the blood sample demand - Absent evidence to the contrary, the trial judge did not err in finding that competent counsel would have advised the accused that if he failed the evaluation, a blood sample demand might be made and that he would be charged with a refusal if he did not comply - The evaluation and a subsequent blood sample demand were not disjunctive investigative techniques - The former led to the latter - The accused did not allege incomplete or incompetent legal advice - The trial judge neither erred in law nor made a palpable or overriding error of fact.

Cases Noticed:

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 35].

R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381; 1039 A.P.R. 381; 2013 NSCA 48, refd to. [para. 35].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6, refd to. [para. 35].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36, refd to. [para. 36].

R. v. Nichol, [1987] A.J. No. 556 (C.A.), refd to. [para. 49].

R. v. Purdon, [1989] A.J. No. 1030 (C.A.), refd to. [para. 49].

R. v. Ashmore (J.A.) (2011), 298 B.C.A.C. 240; 505 W.A.C. 240; 2011 BCCA 18, refd to. [para. 49].

R. v. Wilkinson, 2014 ONCJ 515, refd to. [para. 49].

R. v. D.S. (2012), 325 Nfld. & P.E.I.R. 284; 1009 A.P.R. 284 (N.L. Prov. Ct.), refd to. [para. 49].

R. v. Biagi, 2014 ONCJ 153, refd to. [para. 49].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 51].

R. v. Marriott (A.G.) (2013), 326 N.S.R.(2d) 232; 1033 A.P.R. 232; 2013 NSCA 12, refd to. [para. 51].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1, refd to. [para. 52].


Roger A. Burrill, for the appellant;

Timothy S. O'Leary, for the respondent.

This appeal was heard on December 3, 2014, at Halifax, N.S., before Saunders, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On January 20, 2015, Fichaud, J.A., delivered the following judgment for the Court of Appeal.

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