Court File and Parties

COURT FILE NO.: 12-400000021-00AP

DATE: 2012-11-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Bryan Fuglerud

BEFORE: M.A. Code J.

COUNSEL: Stephen Price, for the Appellant Rick Nathanson, for the Crown/Respondent

HEARD: November 14, 2012

Endorsement

[1] The Appellant Bryan Fuglerud (hereinafter, Fuglerud) was charged in a two count Information with impaired driving and refusal to provide a roadside breath sample into an “approved screening device”, contrary to s. 253(1)(a) and ss. 254(2)(b) and 254(5) of the Criminal Code. The Crown proceeded summarily. At the end of a lengthy trial before Casey J., the trial judge acquitted Fuglerud on the impaired driving count and convicted him on the roadside refusal count. Fuglerud now appeals his conviction.

[2] The offences were alleged to have taken place on December 3, 2008. The trial commenced on February 10, 2010 and continued on May 27, 2010, October 29, 2010, January 24, 2011, March 24, 2011, April 29, 2011, August 8, 2011, November 28, 2011, and January 24, 2012. The proceedings generated 1,195 pages of transcript over the course of these nine days. They were all relatively full court days except for the final day when the trial judge delivered his reasons for conviction and sentenced Fuglerud to a $1,200 fine and the mandatory minimum one year license suspension. I have set out this rather extraordinary procedural history, for what was a relatively simple case, because it is relevant to one of the grounds of appeal.

[3] Mr. Price relies on three grounds of appeal. They all relate to points that he argued at length at the end of the trial and that the very experienced trial judge addressed in his thorough and careful reasons. None of them have any merit.

[4] The first ground of appeal alleges that the trial judge erred in his assessment of the police officers’ credibility. Mr. Price was not clear as to whether this ground was based on misapprehensions of evidence or on unreasonable findings of fact or on both. I have treated it as being a combination of both bases for appellate review.

[5] It should be noted at the outset that assessments of police credibility had little or nothing to do with the merits of the roadside refusal count. The actus reus of this offence was captured on the police cruiser’s audio and video-taping system and this is what the trial judge relied on. The tape recording of the incident disclosed an outright refusal by Fuglerud to provide a breath sample as he stated, “I will refuse to do the test”. The only reasonable inference was that the refusal was knowing and deliberate. Accordingly, Fuglerud’s only possible defence on this count was “reasonable excuse”. The excuse that he advanced at trial is the subject of the second ground of appeal and it was properly rejected by the trial judge. As a result, the credibility of the police officers, at best, related to the ss. 8 and 9 Charter of Rights issues that are the subject of the third ground of appeal. Even these Charter issues were largely resolved by the video and audio-tape from the police cruiser and by a second video and audio-tape from the booking process at the police station.

[6] As a result of the above circumstances, police credibility played a relatively minor role in the case. Its main significance was in relation to the impaired driving charge and the trial judge acquitted on this count, in spite of the arresting officer’s testimony that, in his opinion, Fuglerud was impaired.

[7] The trial judge thoroughly and fairly set out the evidence of all the witnesses in the first sixteen pages of his reasons. He then reviewed Mr. Price’s submissions concerning the credibility and reliability of the police witnesses over the next three and a half pages of his reasons, touching on the points that Mr. Price has now re-argued on appeal. When he came to the part of his reasons where he set out his analysis and findings, the trial judge agreed with some of Mr. Price’s better arguments and acknowledged that they were “significant factors” when assessing the credibility and reliability of the officers. He also cautioned himself generally about the unreliability of human perception and memory, especially when evidence involves “interpretation” of events. Finally, he noted the extraordinary delays in the proceedings and the fact that the arresting officer had testified over four separate days that extended for a full year. He ended his evidence some two years after the date of the offence. It was not “surprising” that “some internal inconsistencies” would emerge, as the trial judge put it, when the case was conducted in this manner. In this regard, Mr. Price’s cross-examination of the arresting officer extended over three separate court days and covers two hundred pages of transcript. The officer repeatedly took the sensible position during his testimony that the two video and audio tapes tendered in evidence provided a far better record of what happened than his own recollection, long after the events. The trial judge found as a fact that the two audio and video tapes were generally “supportive” of the officers’ evidence.

[8] In all the above circumstances, the trial judge concluded that there were “some factual errors” in the arresting officer’s evidence but that they did not cause “concern regarding the overall credibility or reliability of his evidence”. He concluded on this point by stating, “notwithstanding the submissions of Mr. Price and the areas which he has stressed, the officers are generally credible and reliable witnesses.” It is noteworthy that, in spite of this conclusion, the trial judge proceeded to make some findings that were favourable to Fuglerud, including that impairment had not been proved. In other words, the trial judge did not conflate a finding of “general” credibility in relation to the police witnesses with proof of Fuglerud’s guilt.

[9] I am not satisfied that the trial judge misapprehended any of the evidence relating to credibility. Furthermore, his conclusions on this point were entirely reasonable. See: R. v. W.(R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 at para. 20 (S.C.C.); R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. 1 at para. 2 (S.C.C.); R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 37 (S.C.C.).

[10] The second ground of the appeal concerns the “reasonable excuse” defence advanced by Fuglerud. The arresting officer stopped Fuglerud’s car for speeding on the Don Valley Parkway in Toronto at 12:43 a.m. The officer was parked on a ramp of the expressway in a police cruiser with a radar gun. It clocked Fuglerud as travelling 141 km. per. hour in a 90 km. per. hour zone. Fuglerud gave some evasive and inconsistent testimony about whether he was speeding but he pleaded guilty, prior to the criminal trial, to driving at 29 km. over the speed limit. As a result, there was no serious issue about the fact that he was, in fact, speeding. The excuse he advanced in his testimony at trial, for refusing to provide a roadside breath sample, was that he had asked the officer if he could see the radar reading and the officer refused to show it to him. This caused Fuglerud to mistrust the officer. He asked to hold the screening device himself, during the roadside breath test, because of his mistrust of the officer. The officer would not let him hold the screening device and so he refused to provide a breath sample. He also raised a subsidiary concern as to whether the mouthpiece was sanitary because the officer had opened the new sealed package himself rather than asking Fuglerud to open it.

[11] The trial judge found, in Fuglerud’s favour, that he likely did ask to see the radar reading when he was first stopped and when he was still seated in his own car. However, once he was taken back to the police cruiser (where the radar device was affixed to the dashboard), he never repeated this request during the entire thirty-five minute interaction with the arresting officer that is recorded on the video and audio-tape.

[12] The “reasonable excuse” defence, which Mr Price characterized as “fear of prejudice”, is based on R. v. Miller (1972), 1972 CanLII 1350 (ON SC), 10 C.C.C. (2d) 467 (Ont. H.C.J.). In that case, the accused had refused to provide a breath sample “because he did not trust [the breathalyzer technician] to be fair with him as the result of a previous matter between them”. Wright J. stated the following in allowing a Crown appeal from acquittal:

In the present case, the distrust which the accused had of the officer demanding the breath sample and the sincerity of his belief in the reason for such distrust alone could not discharge the onus upon him. The learned Provincial Judge finds that the reason was not a frivolous one, but that is not the same as finding that it was a reasonable excuse for not complying with the demand.

In the criminal process in Canada, those accused (except in the matter of choosing jurors) and suspects have not the right to choose their accusers, the police assigned to their cases, their jailers, their prosecutors or their Judges. If the selection of these is a matter of real injustice, then their rights to fair treatment will be protected. But their fancied apprehensions and preferences in these matters go for nothing.

In the case before me, if there were credible evidence that the police officer had shown malice to the person whose breath was to be tested or if he had threatened some unfairness or illegality, that would clearly support a reasonable excuse for failing or refusing to comply with the demand. But it is the Court’s judgment that passes on the reasonable quality of the excuse and not that of the person who fails or refuses. He does that at his peril unprotected by the sincerity of his belief. [Emphasis added].

[13] The trial judge placed the onus on the Crown to negative “reasonable excuse” beyond reasonable doubt. This approach to the burden of proof was very favourable to the defence, given that a line of authority in this province, some of it binding, places the onus on the defence in relation to this issue. See: R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 at paras. 38-42 (S.C.J.) where the numerous, and somewhat conflicting, authorities on this point are set out.

[14] The trial judge then proceeded to reject Fuglerud’s evidence concerning his excuse and to find, in any event, that it was not an objectively reasonable excuse. His careful reasons on this point were as follows:

I specifically do not accept the evidence of the accused that the reason he refused to provide a breath sample when the demand was made was because he did not trust the officer or because he was concerned about the sanitation of the mouthpiece, nor does his evidence on these issues raise a reasonable doubt in my mind, or any of the other evidence raise a reasonable doubt in my mind.

In my opinion, there is nothing in the recorded conversations, including the manner and tone of voice of Constable Thompson which could reasonably give rise to a perception that the officer was being unfair, showing malice or indicative that he could not be trusted. As indicated, I believe it likely that the accused, when the officer first spoke with him, requested to see the radar device. I also, however, accept the evidence of Constable Thompson, that the radar device was affixed to the dash of the police vehicle. The read out would have been blinking for some 15 minutes and which the accused, from his position in the rear of the police car, would have been in a position to observe.

An allegation of animosity on the part of Constable Thompson would also appear to be at odds with the officer’s actions, including after the accused had refused to provide a sample of his breath, giving him a second opportunity and again warning him of the consequences. And later at the station, after the accused had spoken to his father and again refused to promise to attend court, in allowing the accused to again speak with his father and continuing to address the issue of whether the accused would sign the promise to appear and then taking that information to Sergeant Moxley, so that the accused could be released from the station.

I also note with respect to the issue of sanitation of the mouthpiece, that on the in-car DVD, one can hear the officer indicating to Mr. Fuglerud that the mouthpiece which was going to be inserted into the device was contained in a sealed package, which the officer was opening in front of him.

I am further satisfied that even if one or both of these circumstances had been the reason for Mr. Fuglerud’s refusal to provide a breath sample, which I am satisfied beyond reasonable doubt was not the reason, that on the facts at bar, such belief or beliefs on his part would not have been objectively reasonable and would not therefore have afforded him the defence to the charge.

There is no question that the accused refused to provide a sample of his breath when a valid demand was made. I am satisfied beyond a reasonable doubt that there was no reasonable excuse for so doing and that the Crown has proven the guilt of Mr. Fuglerud on the charge of refuse breath sample beyond a reasonable doubt.

[15] I can see no error in the above analysis. The trial judge set out six factual bases for rejecting Fuglerud’s evidence concerning his excuse. They were all rational reasons for not accepting his account. Their cumulative impact on the credibility of his excuse was overwhelming. Furthermore, I agree with the trial judge’s alternative conclusion. Even if Fuglerud’s subjective reason for refusing to provide a roadside breath sample was as stated in his testimony, it was not an objectively reasonable excuse. He was admittedly speeding and his frustrated desire to see the actual radar gun reading, assuming it was not visible to him on the dashboard, did not provide a rational basis for taking personal control of the breath testing process. He was not trained in the use of the roadside screening devices, he had been drinking to some degree, and his entire course of conduct throughout the events in question showed poor judgment. It would have been a grave error if the arresting officer had given up control of the screening device, in these circumstances, and would likely have invalidated any test results. The “reasonable excuse” defence bordered on the frivolous and the trial judge rightly rejected it.

[16] The third ground of appeal concerns the ss. 8 and 9 Charter Motion brought by Fuglerud at trial. He alleged that s. 9 was violated, when he was held in custody for a bail hearing, and that s. 8 was violated when he was strip searched. The facts relevant to these Charter issues all took place after the roadside refusal offence was complete. Having arrested Fuglerud at the roadside, for refusing to provide a breath sample, the officer allowed Fuglerud to call his father on a cell phone, both to assist in retaining counsel and to have his father come and pick up Fuglerud’s car. The officer then proceeded to carry out his duties, pursuant to s. 497 of the Criminal Code, by asking Fuglerud whether he would attend court if he was released at the roadside on a promise to appear. Fuglerud replied “no”. The officer clarified this response by asking, “you won’t appear?” Fuglerud replied, “I won’t agree to that”. The officer then advised Fuglerud that he would have to take him to the police station. This entire exchange inside the police cruiser is recorded on the audio and video-tape that was tendered in evidence.

[17] Upon arrival at the station, the arresting officer advised the officer-in-charge, Sgt. Moxley, that he “went over … the issues of attending court and for fingerprints and photographs, for release purposes on a form 9, he [Fuglerud] indicated plainly that he would not attend for that purpose. So I brought him here … He’s indicated he won’t attend court or for fingerprints or photographs”. Fuglerud was standing immediately beside the arresting officer and in front of Sgt. Moxley during this exchange, which is all recorded on the booking video. He expressed no disagreement with the arresting officer’s account of his stated position. Indeed, it can reasonably be inferred that he agreed with it because, as the booking process continued, Fuglerud did speak up on a number of occasions, without being spoken to, in relation to a number of other issues. For example, he wanted to be sure that his father knew he was at the station, he noted that his father was the deputy fire chief, he asked to have his rights repeated to him, and he advised that there was nothing in his jacket other than “a lot of good memories”. The search of his jacket, in fact, revealed rolling papers located inside the lining of the jacket. There was no tobacco or drugs with the rolling papers. In other words, Fuglerud was not shy about speaking up in the presence of the police officers during the booking process.

[18] After completing the booking process, Sgt. Moxley directed his assistant to search Fuglerud in the adjacent room. He did not explicitly refer to the level of search, that is, he did not call it a “level three” or “strip search”. However, Cst. Stagg, the assistant booking officer, and Sgt. Moxley both testified that it was implicitly understood that this was the only kind of search that would apply in the circumstances. The instructions given to Fuglerud in the adjacent room, to remove various items of clothing, can be heard at the booking desk where Sgt. Moxley remained as they are audible on the video and audio-tape. The “strip search” lasted about two minutes.

[19] The rationale for the “strip search”, according to the testimony of the officers, was that Fuglerud was being held for a bail hearing, given his ongoing refusal to attend court and to attend for fingerprints and photographs. In addition, the rolling papers in the lining of his jacket gave rise to some concern that he might have drugs secreted on his person. He would be in contact with other prisoners, either while being detained or while being taken to court.

[20] After the “strip search” was completed, Fuglerud was allowed to speak to his father who had by now attended at the police station. After speaking to his son, the father assured the officers that his son would now cooperate. The arresting officer went back and spoke to Fuglerud again but he maintained his refusal to attend court pursuant to a promise to appear. Sgt. Moxley was advised of this further development. Later that night, Fuglerud spoke to duty counsel on the telephone. At this point, he finally changed his position and advised the arresting officer that he would attend court and that he would attend for photographs and fingerprints. The arresting officer advised Sgt. Moxley of this latest development and he decided to release Fuglerud, as long as his father took him home.

[21] The s. 9 and s. 8 Charter issues argued by Mr. Price are inter-related. It was submitted that Sgt. Moxley did not comply with s. 498 of the Criminal Code as he failed to conduct any independent inquiry into whether Fuglerud should be held for a bail hearing or should be released from the station. It was submitted that he simply relied on the arresting officer. This caused an unlawful detention, contrary to s. 9, which then led to an automatic “strip search”, contrary to s. 8. Mr. Price submitted that a stay of proceedings was the appropriate s. 24(1) remedy.

[22] The trial judge rejected all three of these submissions. He held that there was no s. 9 violation, finding as a fact that Sgt. Moxley made a reasonable decision to hold Fuglerud for a bail hearing, based on all the circumstances summarized above. He also held that there was no s. 8 violation, finding as a fact that Sgt. Moxley ordered a “strip search” on the basis of reasonable grounds. The trial judge carefully reviewed the s. 8 case law on this point, as follows:

The jurisprudence in this area of the law commences with the decision of the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R., 679. In their very helpful submissions, counsel have referred me to a number of cases interpreting that decision.

I accept as a correct statement of the law the comments which are contained in the decision of Justice Ferrier of the Superior Court in the case of R. v. Clarke, Heroux and Pilipa, 2003 CanLII 64244 (ON SC), [2003] O.J. No. 3884 at paragraph 55 and following and adopt it for the purposes of these reasons. It is unnecessary to again set it out.

I am satisfied that the arrest of Mr. Fuglerud was lawful. The search was carried out for the purpose of safety, safety of the accused, the police and other persons in custody, as well as security, to check for drugs and to prevent deliberate or inadvertent transmission of weapons or articles capable of being used as weapons.

As Justice Ferrier notes in Clarke at paragraph 84 and following, Golden states that the common law authorizes the police to search for weapons as an incident to arrest for the purposes of “ensuring the safety of the police, the detainee and other persons”, that strip searches related to safety issues in a custodial setting may be appropriate. In cases of strip searches incidental to arrest, the police must establish that they have reasonable and probable grounds for concluding that the strip search is “necessary in the particular circumstances”, but the court did not give guidance as to the appropriate standard when the strip search is being conducted for safety and security purposes when an accused is going to be entering the general population.

At paragraph 89 of Clarke Justice Ferrier states:

“In my view, a realistic approach to this issue is required. In my view it would be a rare case when a strip search would not be justified on safety and security grounds when an accused is going to be entering the prison population. One could give numerous examples of very small, but nevertheless deadly weapons, which could easily be secreted on one’s person and not revealed by a thorough pat down search.”

At paragraph 93, Justice Ferrier continued:

“In my view, that is the appropriate standard to apply when an accused is going to be entering the prison population. Although each case must be considered on a case by case basis by the police, it would be a rare instance when a strip search could not be justified on safety and security grounds when an accused is going to be entering the prison population.”

Similar comments are to be found in the decision of Justice Duncan at paragraph 26 in R. v. Coulter, [2000] O.J. 3452, a paragraph which is specifically referred to at paragraph 97 in the decision of the Supreme Court of Canada in Golden.

I also note the comments of Justice Katarynych in R. v. S.F., [2003] O.J. 92, at paragraph 25, where she states:

“I accept as a matter of common sense that police cells and police paddy wagon transport are environments that need to be kept free of weapons or contraband for the safety of those in prison and those coming in contact with them and that the safety issues are no less for a person detained, waiting a bail hearing, than they are for any other person in custody.”

I find when I take into account all of the circumstances that the Crown has demonstrated that the search of the applicant was reasonable and that the applicant has not demonstrated a violation of his rights under Section 8 of the Charter.

[23] I can see no error in the above reasoning, indeed the trial judge fully set out the governing principles and correctly applied them to the facts of this case. There was nothing rare or exceptional about the facts that would exempt Fuglerud from the need for a reasonably conducted strip search, once the s. 498 decision had been lawfully made to hold him for a bail hearing. The fact that the police reasonably revisited that decision, much later in the night when circumstances changed, cannot be held against them. Indeed, the police should be encouraged to regard their s. 498 powers as enacting an ongoing duty that can be revisited and reconsidered, whenever circumstances have sufficiently changed.

[24] I should note that the trial judge went on to find, in the alternative, that any s. 9 or s. 8 Charter violation in this case would not justify a s. 24(1) stay. Any such breach would have taken place long after the roadside refusal offence was complete and after an entirely lawful s. 497 decision had been made by the arresting officer, to take Fuglerud to the station, due to his own refusal to agree to release at the roadside on a promise to appear. Any such breach would not meet the exigent test for a s. 24(1) stay. Once again, this reasoning seems to be impeccable.

[25] For all these reasons, I am satisfied that none of the grounds of appeal have any merit. The appeal from conviction is dismissed.

M.A. Code J.

Date: November 20, 2012.