COURT OF APPEAL FOR ONTARIO

DATE: 20000411

DOCKET: C23580

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."