COURT OF APPEAL FOR ONTARIO
M25535
RE: HER MAJESTY THE QUEEN (Appellant) v. SANDOR BRUNCZLIK (Respondent)
BEFORE: DOHERTY, ROSENBERG and SHARPE JJ.A.
COUNSEL: Jamie C. Klukach, for the appellant
Keith E. Wright and P. Andras Schreck, for the respondent
HEARD: April 5, 2000
On appeal from the verdict of acquittal rendered by Mr. Justice Hill, sitting with a jury, on December 8, 1995
E N D O R S E M E N T
[1] At the opening of the appeal, Ms. Klukach abandoned all of the proposed grounds of appeal but one, Hill J.’s decision that the statement was not admissible by virtue of s. 24(2) of the Charter of Rights and Freedoms. She further narrowed that argument to the single question of whether Hill J.’s finding of fact that the respondent would inevitably have spoken to the police notwithstanding the admitted breach of his right to counsel was unreasonable. She did not argue that the trial judge misapprehended the evidence or the applicable legal principles.
[2] Assuming that this involves a question of law alone within the meaning of s. 676(1)(a) of the Criminal Code, we have not been persuaded that the trial judge’s finding was unreasonable. The trial judge found, and the Crown does not contest, that the respondent’s rights under s. 10(b) of the Charter of Rights were infringed in two respects. The police failed to inform the respondent of his right to retain and instruct counsel “without delay” and, when he was finally informed of his rights in his own language, he was not told of the availability of immediate access to legal advice through the “1-800” number.
[3] The Crown attempts to bring this case within the holding of the Supreme Court of Canada in R. v. Harper (1994), 92 C.C.C. (3d) 423 at 430, where Lamer C.J.C. said the following:
What I am prepared to say, however, is that in all the circumstances of this case, I am satisfied on the balance of probabilities that the police's failure to comply fully with the informational requirements under s. 10(b) did not affect the appellant's behaviour. That is, the appellant appears to have had an almost irresistible desire to confess -- both when he first opened the door and subsequently, after he received his s. 10(b) caution (albeit a defective one) and was advised of his right to silence. After both warnings he stated clearly that he understood.
[4] The burden was on the Crown to establish that admission of the statement would not affect the fairness of the trial because the police officers’ failure to comply with s. 10(b) did not affect the respondent’s behaviour. The trial judge expressly adverted to the Harper case but found that he was not satisfied that the Crown had met this onus. Before reaching this conclusion, he referred to the evidence upon which the Crown relied. He was also well aware that the defence had adduced no contradictory evidence. He nevertheless concluded as follows: The Crown analogizes the facts here to the accused in the Harper case where the court characterized the accused as acting under “an almost irresistible desire to confess”. The posture of Mr. Brunczlik with the police, and his failure to testify, makes this a close case. However, despite the able submissions of Crown counsel, I am not satisfied, on balance, that had there been timely and full compliance with s. 10(b) of the Charter that Mr. Brunczlik would not have acted differently. Accordingly, admission of the evidence would affect the fairness of the trial.
[5] We cannot say that this finding of fact is unreasonable. By the time the respondent was finally informed of his right to counsel in a meaningful way, he had already been held in custody for upwards of five hours. For close to three of those hours, a police officer who spoke Hungarian was available and could have complied with s. 10(b). While by the time the respondent was finally informed of his rights he clearly wanted to tell his story to the police, it was open to the trial judge to find that he was not satisfied that had the respondent been fully informed of his right to counsel in a timely manner the respondent would not have availed himself of that opportunity.
[6] The respondent had been held in custody and, because of the language barrier, held essentially incommunicado for an extended period of time. Had he been informed of his right to counsel in a timely way, he would have had a long period of time to consider whether to exercise his rights since the investigators did not intend to interview him for several hours. In our view, it is speculation that during this period the respondent would not have attempted to exercise his right to counsel and it was open to the trial judge to resolve this uncertainty in the respondent’s favour. As Lamer C.J.C. said in R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.) at 316: Secondly, in light of the many warnings by this court about the dangers of speculating about what advice might have been given to a detainee by a lawyer had the right to counsel not been infringed (infra, pp. 38-9) [post, p. 319] it is only consistent that uncertainty about what an accused would have done had his or her s. 10(b) rights not been violated be resolved in the accused's favour and that, for the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation. The state bears the responsibility for the breach of the accused's constitutional rights. If the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion. [Emphasis added.]
[7] The evidence strongly suggests that if the respondent had spoken to a lawyer he would not have given a statement to the police. It is apparent from the interview with the police that the respondent was concerned about prejudicing his legal position and may not have understood the full legal implications of making a statement. When, having given a complete oral statement, the respondent was invited to give a videotaped statement, he demurred because he wanted to first speak to a lawyer. As he said, “I would rather speak to a lawyer before I do that. I don’t know how it will affect my future.”
[8] Since we have not been persuaded that the trial judge’s finding was unreasonable and since this was the sole basis for the Crown appeal, that appeal must be dismissed.
[9] The respondent had brought a motion to quash the appeal on the basis that s. 676(1)(a), as it stood at the time the appeal was launched, did not permit a Crown appeal against a finding of not criminally responsible on account of mental disorder. In view of our conclusion on the merit of the appeal, it is unnecessary to consider the respondent’s motion to quash this appeal for lack of jurisdiction.
Signed: "Doherty J.A." "M. Rosenberg J.A." "Robert J. Sharpe J.A."