R. v. Merheje, 2020 ONSC 6413

COURT FILE NO.: CR-19-4701-AP

DATE: 20201021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jean Christopher Merheje

Appellant

Megan Cleland, for the Crown

Kenneth W. Golish, for the Appellant

HEARD: August 26, 2020

On appeal from the conviction entered by Justice C. Malott of the Ontario Court of Justice on September 9, 2019, in Information Number 18-56.

REASONS ON SUMMARY CONVICTION APPEAL

munroe J.:

1Jean Christopher Merheje, the Appellant, was convicted of operating a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)¹ of the Criminal Code, R.S.C. 1985, c. C-46. He appeals his conviction to this court on two grounds: 1) the trial judge erred in finding the evidence of breath test readings was proof of the offence; and 2) the trial judge erred in finding no Charter violation for the failure of the police to give Mr. Merheje a reasonable opportunity to consult with counsel of his choice contrary to s. 10(b) of the Charter of Rights and Freedoms.

2This unlawful blood alcohol prosecution proceeded as a blended trial and Charter voir dire. It was two days in length. Five witnesses were called by the Crown and one, Mr. Merheje, for the defence (on the Charter voir dire only). Seven exhibits were entered. Written submissions were made. The trial court dismissed the Charter challenge and convicted Mr. Merheje as charged.

Summary of the Evidence

3Much is uncontested. Mr. Merheje was driving a motor vehicle in the City of Windsor when he was stopped by the police. He registered a fail on the road side screening device and was arrested for driving with unlawful blood alcohol. At the station he called a lawyer, Mr. Brian Ducharme. Mr. Merheje submitted to the breath test and provided two samples of his breath. Those samples were tested and the results were given at trial.

Breath Test Readings

4With regard to the sufficiency of the evidence of the breath test results, the evidence is found in the testimony of the breath test technician, Cst. Scott Sprague, and in Exhibits 4 and 6, the Breath Test Results and the Certificate of a Qualified Technician, respectively.

5Exhibit 4, the Breath Test Results, consists of four printed tapes, the longest of which is unsigned and contains a chronological reading of tests with three columns: test, mg%, and time. It begins on 03:56:15 and ends on 04:35:35. Three are identified as “subject test” with the following notations:

mg% time

171 04:00:44

NSG* 04:27:26 [*No Sample Given]

152 04:34:48

6Exhibit 6, the Certificate of Qualified Technician, is a form, the blanks of which contain the handwriting of Cst. Sprague. The form concerns the two samples from Mr. Merheje taken at 4:00 a.m. and at 4:34 a.m. The results portion reads as follows:

THAT I found the result of the analysis of the first of the said breath samples to be .170 milligrams of alcohol in 100 millilitres of blood.

THAT I found the result of the analysis of the second of the said breath samples to be .150 milligrams of alcohol in 100 millilitres of blood.

7This form also shows service of it on Mr. Merheje by Cst. Sprague on the same date.

8With regard to the breath test readings, Cst. Sprague gave the following evidence:

Q: And what was the result of the analysis of that first sample of breath?

A: The initial was truncated down to 170, which is .170 milligrams of alcohol in 100 millilitres of blood.

Q: Okay. And what was the result of the analysis of the second breath sample?

A: The second breath sample truncated down with a .150 milligrams of alcohol in 100 millilitres of blood.

Q: And can you just confirm, Officer, you made reference to the first sample also being truncated. And what does that mean?

A: We truncate both – both samples down to the nearest zero, and if both tests are within – they don’t differ by 20 milligrams of alcohol, then they’re said to be in good agreement.

THE COURT: Sorry, they don’t differ by what?

A: Twenty milligrams of alcohol.

THE COURT: Twenty milligrams, thank you.

A: So for – so for example, the 70 and 50 would be in good agreement.

Q: Okay. What, if any, conclusions did you come to after receiving both of those breath samples?

A: Well, after receiving both the samples, the first – the first sample being a .170 and the second is a .150, I concluded that he – he was definitely operating a motor vehicle with his blood alcohol over .80, which is the legal limit.

Q: [C]an you just confirm what information is contained in that read out [Exhibit 4 – Breath Test Results]?

A: Sure. So, what – what I typically point out to people is basically what they blew. That’s what people want to know, “what did I blow?” So, on the first test, the subject tested at 4:00 o’clock in the morning was a 171. That was it blew out to. The other subject test was at 04:27 was NSG, which is “no sample given”. And then the second subject test was at 04:34. So there’s a 34-minute time difference between the two, but the subject test was a 152, which we truncate down to 150. Which means both tests are in good agreement.

Q: Okay. And can you just confirm again the results that are indicated on that form that you’re looking at [Exhibit 6 – Certificate of Qualified Technician]?

A: The first - sample was a .170, and the second sample was a .150. That’s milligrams of alcohol in 100 millilitres of blood.

Counsel of Choice

9With regard to the counsel of choice issue, Mr. Merheje testified that when he was at the booking desk, he was told to choose from a list of lawyers to call. He chose Mr. Ammar. While still at the booking desk, two calls were made to Mr. Ammar but the lawyer did not answer. Mr. Merheje did not remember whether he left a voicemail message. Mr. Merheje was told to pick another lawyer, which he did after some time. Mr. Merheje spoke with this other lawyer, Mr. Brian Ducharme, in a private room, not at the booking desk. Mr. Merheje advised Cst. Sprague that he was satisfied with that call.

10Evidence was elicited from Special Constable Mark Michaelis about the telephone call to Mr. Ducharme. The section of the police lawyer log book noting the Ducharme call was entered in evidence as Exhibit 3. According to SPC Michaelis, all calls to counsel are recorded in this log book.

11The lawyer log book shows no calls made to Mr. Ammar.

Reasons for Judgment

Counsel of Choice

12With regard to the counsel of choice issue, the trial court rejected the evidence of Mr. Merheje that he first placed a call to the lawyer of his choice, Mr. Ammar, while at the desk:

I do not accept the evidence of [Mr. Merheje] in relation to the telephone calls to Mr. Ammar, it does not have the ring of truth. There is no record of the telephone calls to Mr. Ammar. The Lawyers Call Log contains only the notation of the call to Mr. Ducharme. It does not make sense that there would be no record of two telephone calls to Mr. Ammar. It also does not make sense the calls to Mr. Ammar would be done in full view of everyone at the desk in Windsor Police Cells and that the call to Mr. Ducharme would be conducted in a private room. I find that the call to Mr. Ducharme, which was noted on the log and completed in private was the implementation of [Mr. Merheje’s] Right to Counsel based on the choice of [Mr. Merheje].

13The trial court also noted that Mr. Merheje confirmed advising the officer that he was satisfied with his call to counsel and rejected Mr. Merheje’s courtroom assertion that he was “only sort of satisfied” as having no bearing on how the officers should conduct themselves.

14The trial court concluded that Mr. Merheje had not satisfied his onus to show a breach of s. 10(b) of the Charter.

Breath Test Readings

15With regard to the sufficiency of the evidence issue, the trial court first noted that the central issue was the sufficiency of the evidence of blood alcohol in excess of the legal limit. Then the court reviewed both the evidence of Cst. Perreault and Cst. Sprague. In pertinent part, the trial court summarized the evidence of Cst. Perreault as follows:

We heard from Constable Perreault that he utilized an approved roadside screening device …. He testified that he obtained a breath sample from Mr. Merheje and the machine indicated a “fail” which means that the machine detected a blood alcohol level in Mr. Merheje’s body over the legal limit of .08. He advised Mr. Merheje that he was under arrest because his blood alcohol content was over 80 milligrams per 100 millilitres.

16Next the trial court reviewed the evidence of Cst. Sprague as follows:

[Cst. Sprague] testified that he administered two tests obtaining two appropriate samples from Mr. Merheje. The results of the tests were printed out and that print out was made Exhibit Four on this case. The readings according to the print out and the testimony of Constable Sprague were 171 and 152 which he testified were truncated down to 170 and 150. He testified that the readings were in good agreement and that the accused was operating a motor vehicle over the legal limit.

… Constable Sprague testified on one occasion that “The initial was truncated down to 170 which is .170 milligrams of alcohol in 100 millilitres of blood.” Later, he testified that “The second breath sample truncated down with a .150 milligrams of alcohol in 100 millilitres of blood.” Finally, the certified [sic] of Qualified Technician completed by Constable Sprague and entered as Exhibit Six indicates .170 milligrams of alcohol in 100 millilitres of blood and .150 milligrams of alcohol in 100 millilitres of blood.

17The trial court concluded as follows:

The Accused submits that in fact .170 and .150 milligrams of alcohol in 100 millilitres of blood are less that 80 milligrams of alcohol in 100 millilitres of blood. On the face of it this is true, however, I find that Constable Sprague misspoke and made an error putting a decimal place in his numbers both in some of his testimony and on the certificate. He should have said 170 and 150 milligrams of alcohol in 100 millilitres of blood or that .17 and .15 were over a blood alcohol content of .08. Moving forward, he should be more careful in how he makes reference to the numbers.

However, I am satisfied that he testified clearly on enough occasions that the results of the breath analysis were over the legal limit. That together with the evidence of Constable Perreault and the print out from the Intoxilyzer 8000C and I am satisfied beyond a reasonable doubt that the accused was operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Stand up Mr. Merheje. For all the foregoing reasons I find you guilty as charged on the information. [Emphasis added.]

Grounds of Appeal

18The Appellant raises two grounds of appeal. As paraphrased, the Appellant contends that the trial judge erred:

1. by determining there was no s. 10(b) Charter violation for the failure of the police to provide Mr. Merheje with a reasonable opportunity to consult with the counsel of his choice; and

2. in finding the evidence of breath readings was proof of the exceed allegation.

Ground #1: Erroneous Charter Findings

Factual Context

19The first ground of appeal asserts that the trial judge erroneously found no Charter violation in the demand for breath samples and in the implementation component of s. 10(b) of the Charter.

20A number of police officers gave evidence on the execution of their informational and implementational duties under s. 10(b) of the Charter. The police Lawyers Call Log Book was entered into evidence as an exhibit. The log shows a pre-test call by Mr. Merheje to counsel B. Ducharme. The breath technician testified that he asked Mr. Merheje if he was satisfied with his counsel call and if he wanted to talk to someone else. According to the officer, Mr. Merheje did not express dissatisfaction nor did he ask to speak to another lawyer.

21Mr. Merheje testified that while he was at the desk at police headquarters he chose Mr. Ammar from a list of lawyers. An officer called Mr. Ammar and handed him the phone but the call went to voicemail. A second call was made to Mr. Ammar but there was no answer. He later picked Mr. Ducharme but that was not at the desk. Mr. Merheje agreed that he was never told he had to choose another lawyer. He did have a private conversation with Mr. Ducharme. Mr. Merheje conceded he told the breath technician he was satisfied following his call with Mr. Ducharme.

Arguments on Appeal

22The Appellant asserts the evidence established that the police did not give Mr. Merheje a reasonable opportunity to consult with the lawyer of his choice in violation of s. 10(b).

23Crown counsel asserts that the trial court reviewed all of the evidence and rejected the evidence of Mr. Merheje that he sought to speak with Mr. Ammar. Thus, the Crown argues, there was no violation of s. 10(b) of the Charter.

Governing Principles

Section 10(b)

24Section 10(b) of the Charter provides, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right ….”

Purposive Approach

25The Charter is to be interpreted purposively in light of the objects of the Charter of Rights and Freedoms generally and of the specific provision under review: Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at pp. 155-157.

26The purpose of s. 10(b) was articulated by Lamer C.J. in R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at para. 16:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: [citation omitted]. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: [citations omitted]. Under s. 10 (b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court suggested in Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasis in original.]

27Later, the Supreme Court stressed the chief purpose of s. 10(b) as providing the arrested accused with legal advice to enable the accused to make an informed choice on whether or not to cooperate with the police: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24. The emphasis is on assuring a free and informed decision, not on whether the decision is wise or free from subjective factors: Sinclair, at para. 26.

Onus

28An accused person must prove a violation of a Charter right on the civil standard of the balance of probabilities: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 277.

Counsel of Choice

29Section 10(b) of the Charter guarantees, as one facet, the right to choose counsel, but it does not guarantee a detainee an absolute right at the initial investigative stage: Willier, at para. 24. It does, however, entitle the detainee to a reasonable opportunity to contact chosen counsel: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17. If unsuccessful in contacting the lawyer of choice, and the detainee exercises his/her right to counsel by choosing to speak with other counsel, then there is no s. 10(b) violation: Willier, at para. 43; McCammon, at para. 19.

Principles Applied

30On the facts, as found by the trial judge, there was no s. 10(b) violation. She specifically rejected the evidence of Mr. Merheje that he sought to speak to another lawyer. By rejecting this evidence, the choice of counsel argument evaporates.

31The overarching principle of review by an appellate court in an appeal concerning the factual assessments of a trial court is as follows:

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].

R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. No. 6, at para. 9.

32Mr. Merheje has advanced no cogent position that the findings of fact by the trial court here are clearly wrong, are unsupported by the evidence, or otherwise are unreasonable. I see no reason to interfere with her findings of fact on this issue.

Ground #2: Misapprehension of the Evidence of the Breath Readings

Trial Court Findings

33The second ground of appeal asserts that the trial judge erred by mischaracterizing the breath test results evidence as proof of the exceed element of the crime.

34The trial court found satisfaction of the criminal standard in consideration of three pieces of evidence: 1) the evidence of Cst. Sprague “that he testified clearly on enough occasions that the results of the breath analysis were over the legal limit”; 2) the evidence of Cst. Perreault; and 3) the Exhibit 4, breath test results print out. Further, the trial court found that Cst. Sprague “misspoke” and was in error when he testified about the readings and when he completed Exhibit 6, the Certificate of Qualified Technician, using a decimal point.

35It is clear that Exhibit 4, the Breath Test Results, contains no decimal points. It also is clear that Exhibit 6, the Certificate of Qualified Technician, does contain decimal points.

36Cst. Sprague did testify one time that the first test reading was 171 and the second test reading was 152, when explaining how he advises arrestees of their results. But Cst. Sprague also explained the meaning of the reading: “The initial [test] was truncated down to 170, which is .170 milligrams of alcohol in 100 millilitres of blood.” [Emphasis added.]

37The evidence of Cst. Perreault considered by the trial court on this issue concerned the results of the roadside screening device.

Arguments on Appeal

38Relying on R. v. Nyman (1998), 1998 5983 (ON CA), 131 C.C.C. (3d) 124 (Ont. C.A.), the Appellant asserts that there was no evidence from which the trial court could conclude that Mr. Merheje’s blood alcohol exceeded the legal limit. In addition, the Appellant argues that it was error for the trial judge to consider the results of the roadside screening device on this issue.

39Crown counsel asserts that the trial judge was correct in finding sufficient evidence on this issue based on a totality of the circumstances. Although conceding distinguishing features, Crown counsel relies on the rationale of two cases: R. v. Freeman, [2007] O.J. No. 2856 (S.C.) and R. v. Charest, 2018 ONSC 1719.

Governing Principles

Proof of Essential Element

40It is axiomatic that the Crown must prove each essential element of the crime charged beyond a reasonable doubt. It is also uncontested that an essential element of the crime of driving with unlawful blood alcohol, contrary to s. 253(1), is that the concentration in operator’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

41The Court of Appeal in Nyman struck an unlawful blood alcohol conviction when the only alcohol concentration evidence was from the breath technician who testified that the readings were .145 and .138 “grams percent.” The court found there was no evidence to satisfy the reasonable doubt standard: Nyman, at para. 11. Moreover, the court declined entreaties to view this evidence as a mistake or to correct same, rejecting the appropriateness of judicial notice and finding no basis in the evidence to otherwise simply infer what was meant: Nyman, at para. 13.

42Of course, when there is other evidence upon which this element can be satisfied beyond a reasonable doubt, a conviction can stand: R. v. Zotich, 2018 BCSC 1735, at paras. 43-50.

Roadside Screening Device Results

43Under certain circumstances, all motorists are compelled, by penal sanction, to perform physical coordination tests and to provide a roadside breath sample: s. 254(2) and (5) of the Criminal Code. Because of this compulsion and its conflict with the s. 10(b) right to counsel, the results of such tests can be used only as an investigative tool to confirm or reject the officer’s suspicion and cannot be used as evidence at trial: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 58; R. v. Milne (1996), 1996 508 (ON CA), 28 O.R. (3d) 577 (C.A.), leave to appeal refused, [1996] 3 S.C.R. xiii (note).

Principles Applied

44In this blended trial, it is unfortunate that the trial judge used evidence admissible only on the Charter issues as evidence on a trial issue. This was a clear error of law. Evidence of the results of a roadside screening device is not admissible at trial as proof of the alcohol consumption level. The trial judge reached her ultimate conclusion of proof beyond a reasonable doubt in consideration of three items of evidence, one of which was the inadmissible evidence of the screening test result. As a consequence, and because there is no indication that the same result would have been reached without consideration of the inadmissible evidence, the verdict cannot stand.

45Next, I must consider the appropriate relief. In this regard, if the evidence presented at trial concerning the concentration in Mr. Merheje’s blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood met the committal standard (whether there is any admissible evidence upon which a reasonable fact-finder properly instructed could return a verdict of guilty), then a new trial is appropriate. It is to that question I now turn.

46The only evidence without a preceding decimal point is Exhibit 4, the Breath Test Results, and the one part of Cst. Sprague’s evidence explaining how he advises arrestees of their test results. In addition to Exhibit 6, the Certificate of Qualified Technician, and Cst. Sprague’s repeated testimony, both including the preceding decimal point, I simply cannot ignore Cst. Sprague’s own explanation of the meaning of the raw test numbers: “The initial [test result] was truncated down to 170, which is .170 milligrams of alcohol in 100 millilitres of blood.” In other words, the only evidence before me are the results with the preceding decimal point and the breath technician’s evidence that the raw test number means an amount with a preceding decimal point. On this evidence, there simply was no evidence before the trial judge that the concentration of alcohol in Mr. Merheje’s blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood.²

Disposition

47For the foregoing reasons, the appeal is allowed and an acquittal entered.

Footnotes

1. 1The statutes cited herein are those in effect on the date of the crime charged.
2. 2The cases relied upon by Crown counsel are of no help. Both concern the evidence sufficiency of the results of a roadside screening device (statutorily known as an approved screening device often shortened to “ASD”). The ASD results may be considered by an officer in determining grounds to arrest and grounds to demand a breath sample. As reviewed earlier, however, these results cannot be used as trial evidence. In Freeman, the officer’s trial evidence was accepted but his notes were contradictory by relating the ASD results with a preceding decimal point. In Charest, the analysis concerned an ASD “fail” reading with the testing officer’s conflicting evidence. Neither concerned trial evidence of breath test results on a standard of beyond a reasonable doubt.