Her Majesty the Queen v. Rui Branco

Court File No. 12-2163

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

RUI BRANCO

REASONS FOR DECISION

ON APPLICATION TO ADMIT

AGREED STATEMENT OF FACTS

FROM GUILTY PLEA LATER STRUCK

BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS

on December 7, 2018, at BRAMPTON, Ontario.

APPEARANCES:

M. Thomaidis Counsel for the Crown

E. Brown Counsel for Rui Branco

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

ENTERED ON PAGE

REASONS FOR DECISION 1

Transcript Ordered: January 22, 2019

Transcript Completed: March 5, 2019

Ordering Party Notified: March 5, 2019

REASONS FOR DECISION

FRIDAY, DECEMBER 7, 2018

STRIBOPOULOS, J. (Orally):

These are my very brief oral reasons with respect to the Crown’s application to adduce into evidence an Agreed Statement of Facts filed in support of guilty pleas that were later struck.

On March 14, 2012, before Justice Atwood, in the Ontario Court of Justice, Mr. Branco entered guilty pleas to two of the very same charges for which he is currently being tried.

In support of those guilty pleas, an Agreed Statement of Facts was read into the record and filed as an exhibit. Mr. Branco had initialled each page of this document and also signed it on the last page.

A Pre-Sentence Report was ordered, and the matter was adjourned for that report to be prepared, and for the purpose of hearing submissions on sentence.

On August 23, 2012, Mr. Branco was again before Justice Atwood. Given certain statements that were apparently made by Mr. Branco to the author of the Pre-Sentence Report, in which he essentially denied being guilty of the offences for which he pled guilty, the parties agreed that his guilty pleas should be struck. Justice Atwood acquiesced to that request. Mr. Branco’s guilty pleas were therefore struck.

The Crown now seeks to have admitted into evidence the Agreed Statement of Facts that was filed as an exhibit during the guilty plea proceedings before Justice Atwood.

On behalf of the Crown, Mr. Thomaidis submits that there is no reason to doubt the voluntariness of the Agreed Statement of Facts, which was signed by Mr. Branco with the assistance of counsel. He argues that it is therefore admissible evidence.

Having carefully considered the Crown’s argument, in light of the relevant authorities, I have concluded that the Agreed Statement of Facts is not admissible.

In short, I am of the view that the circumstances are virtually indistinguishable from those that were present in R. v. B.(D.M.) (2005), 2005 CanLII 1487 (ON CA), 74 O.R. (3d) 603 (C.A.).

Although the issue in B.(D.M.) related to the admission of statements made to the author of a Pre-Sentence Report following a guilty plea that was later struck, I see no principled basis upon which to distinguish the Court of Appeal’s decision in that case from the circumstances on this application.

I think the comments of the Court of Appeal in that decision, regarding the potential for trial unfairness, are apposite to the circumstances of admitting the Agreed Statement of Facts in this case.

To borrow from the Court of Appeal’s reasoning in B.(D.M.), the assertions contained in the Agreed Statement of Facts were inextricably linked to Mr. Branco’s guilty pleas. The Agreed Statement of Facts would not have been prepared and filed but for the guilty pleas. Once the pleas were struck, it was as if they had never happened. In the circumstances, fairness requires that the Agreed Statement of Facts in support of the pleas be brought under the same protective umbrella. See B.(D.M.) at para. 8.

As a result, the Crown’s application is dismissed.

... WHEREUPON THESE REASONS CONCLUDED

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Margaret Graham, certify that this document is a true and accurate transcription of the recording of R. v. Branco in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording No. 3199_402_20181207_081002__30_STRIBOJ.dcr which has been certified in Form 1.

March 5, 2019 ________________________________

(Date) (Signature of authorized person)

*This certification does not apply to the Reasons for Decision which was judicially edited.