2021 QCCQ 57, 2021 QCCQ 57

Bruno c. R. 2021 QCCQ 57 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-73-003792-120 500-73-004616-187 DATE: January 14, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. ______________________________________________________________________ FRANCESCO BRUNO and ADRIANO FURGIUELE and ANTONIO GIRARDI Applicants-Accused v.

THE QUEEN Respondent-Prosecutor ______________________________________________________________________ JUDGMENT ON THE ADMISSIBILITY OF STATEMENTS OF THE ACCUSED ______________________________________________________________________ [ 1 ] The Applicants are charged with tax fraud, bribery and breach of trust. This pre-trial application was heard by the undersigned sitting as a 551.1 judge.

At issue is the admissibility of statements provided in Switzerland by the three Applicants, obtained by the RCMP through a Mutual Legal Assistance Treaty . [ 2 ] As will be more fully canvassed below, it should be noted that the Applicants admit that these statements were given freely and voluntarily, and they do not contest the ability of the Crown to use them in cross-examination of the accused, should they choose to testify at trial. The present application concerns the admissibility of the three statements as part of the Crown’s evidence in chief.

CONTEXT [ 3 ] In June 2009, the Swiss authorities launched an investigation related to suspected money laundering concerning Mr. Furgiuele and Mr. Girardi. In the course of this procedure, each Applicant was questioned by a Swiss federal prosecutor in Bern, Switzerland. [ 4 ] At the hearing on the admissibility of the statements, Professor Jeanneret-Grosjean testified as an expert witness, [1] providing the Court with a basic overview of the nature of this proceeding in the context of Swiss penal law.

He explained that in Switzerland, when a bank suspects that one of its clients is holding criminally-obtained funds, they report it to the “Bureau de communication en matière de blanchiment d’argent”, (translated as the “Money Laundering Reporting Office”) (the MROS). If the MROS considers that the report raises suspicions, it is forwarded to the federal prosecutor for investigation. [ 5 ] In the present case, both Mr. Furgiuele and Mr. Girardi held bank accounts at the Julius Bär Bank in Geneva (the Bank) and Mr. Bruno had a power of attorney and signing authority for both accounts.

Following the Bank’s disclosure to the MROS, the Ministère public de la Confédération (MPC) launched an investigation [2] and froze the two bank accounts, on June 24, 2009. [3] [ 6 ] Each Applicant received a summons to appear (“citation écrite”) from the MPC and appeared in Bern, Switzerland to be questioned by the Swiss federal prosecutor. This proceeding was explained by the expert witness. He confirmed that the Supreme Court of Canada’s

summary of the three stages of Swiss criminal procedure in Zingre v. The Queen et al ., [4] accurately describes the procedure as it existed in 2009: [5] […] [T]here are three distinct stages to criminal procedure. The first is a preliminary investigation conducted by police officials and prosecution. This is followed by a judicial phase in which there is investigation by career judges known as "examining magistrates" or "juges d'in​struction". Witnesses are required to testify and documents are examined. If, following this judicial inquiry, the case is deemed by the prosecuting attorneys to be an appropriate one for trial a formal trial is held. [6] [References omitted]

[ 7 ] Based on the documents that were provided to the expert, [7] including the Applicants’ statements, the expert testified that the proceedings at issue took place at the first stage, that is, a preliminary investigation conducted by police officials and the prosecution. [ 8 ] At this first stage, as the expert testified, the interrogation is conducted either by the prosecution or by the police at the direction of the prosecution. It occurs in the prosecution’s offices. The answers are not taken down verbatim but rather, a written “procès-verbal” by the clerk provides a

summary of the questions and answers dictated by the prosecutor. [ 9 ] As well, at this stage, there is a difference between a person providing information (“personne entendue à

titre de renseignement”) and a person who is a suspect (“prévenu”). A “prévenu” has broader rights than a person providing information. For example, they have the right to be accompanied by a lawyer. In the terminology of the Swiss Code, a person is “prévenu” [8] at the first stage and “inculpé” at the second stage. [ 10 ] A person who is not present on Swiss territory cannot be forced to appear. However, the expert noted that an international warrant could be obtained for a “prévenu” and a request for a rogatory commission could be used to interview a person providing information.

Regardless of the authorities’ ability to compel their appearance, neither a “person providing information” nor a “prévenu” can be compelled to speak or answer questions at the first stage. [ 11 ] The questions answered at the first stage of an investigation are not provided under oath or solemn affirmation; an oath is only required at the second stage of proceedings by a witness appearing before a magistrate. [ 12 ] The written record of the interrogation of Mr. Bruno indicates that he was heard as a person providing information on November 5, 2009, and that he was accompanied by an attorney.

A written notice precedes the first question asked, stipulating the right to refuse to provide information and warning against providing false information. The procès-verbal indicates that the interrogation began at 10:45 and was completed, after having been read, at 16:50. [9] The typewritten questions and answers go from page 2 to page 11. The signatures of Mr. Bruno, the federal prosecutor and the clerk, appear at the final page of the document, and their initials appear at the bottom of each page. [ 13 ] The procès-verbaux of the interrogations of Mr. Furgiuele and Mr.

Girardi indicate that they were questioned as “prévenus” on January 21, 2010, and that each was accompanied by an attorney. A written notice preceding the first question specifies that they are the object of an investigation into money laundering. A notice sets out their right to have an attorney, to provide exculpatory information and to propose investigative steps. It specifies that they have no obligation to be deposed. The written notice concludes with the question “do you understand this notification”, to which they both answered “yes”. [ 14 ] Mr.

Furgiuele’s interrogation began at 9:30 and was completed after he read the procès-verbal, at 12:10. The typewritten questions and answers go from page 2 to page 7. His signature appears on page 7 of the document after the words “read and approved”. Every page of the document includes his initials as well as those of the federal prosecutor and the clerk. [ 15 ] Mr. Girardi’s interrogation began at 13:55 and was completed after rereading the procès-verbal at 14:55. The typewritten questions and answers go from page 2 to page 6. His signature appears on page 6 of the document after the words “read and approved”.

Every page of the document bears his signature as well as the initials of the federal prosecutor and the clerk. [ 16 ] As the expert testified, after the hearing, a “prévenu” receives a “Notice destinée aux personnes mises en cause dans le cadre d’une enquête de la police judiciaire” [10] explaining their rights and the possible next stages in the proceedings. One possible outcome is the suspension of the proceedings for lack of sufficient evidence. In this case, as set out in a letter signed by the federal prosecutor on March 4, 2010, [11] the investigation into money laundering concerning Mr. Furgiuele and Mr.

Girardi was in fact suspended following the information gathered at the hearings of November 5, 2009 and January 21, 2010, and the order freezing their assets was revoked. THE ISSUES [ 17 ] Before addressing the specific issues raised, it should be noted that because the statements at issue were given by the accused to a person in authority, the burden is on the Crown to prove beyond a reasonable doubt that they are free and voluntary. [12] As mentioned above, the Applicants do not contest that this burden has been met. [ 18 ] The Applicants contest the admissibility of this evidence on two grounds.

First, as set out in their written application, [13] they submit that admitting the statements into evidence in chief breaches their constitutional right against self-incrimination, as protected by

section 13 of the Canadian Charter of Rights and Freedoms . [14] Second, as submitted during oral arguments at the hearing, they argue that because the transcripts of the statements are incomplete, they are unreliable to the point of rendering them inadmissible. ANALYSIS 1.

SECTION 13 OF THE CHARTER [ 19 ]

Section 13 of the Charter states: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. [ 20 ] Two questions arise [15] in determining whether

section 13 prohibits the Crown from tendering these statements in evidence: first, were they given by “a witness testifying in a proceeding” and if so, does the protection extend to testimony that is not compelled? i. A “proceeding”

[ 21 ] Although the Supreme Court has not specifically defined the term “proceeding” for the purposes of

section 13 , it is generally understood that the

section contemplates testimony in “court proceedings” [16] and “judicial proceedings”. [17] [ 22 ] To the extent that the Swiss procedure at issue can be explained in terms familiar to the Canadian criminal law context, certain elements provide insight into its characterization. Essentially, the interview or interrogation was conducted by a prosecutor in the course of a preliminary criminal investigation. As explained by the expert witness, this was part of the first of three stages of Swiss procedure, preceding the judicial phase.

The meeting took place in the office of the prosecutor and the statements were not preceded by an oath or solemn affirmation. The usual staples of a judicial proceeding as understood in the Canadian context were thus absent. Although the questions were asked by a prosecutor, and not the police, this initial phase is most akin to the investigative phase in our criminal procedure, and to a police interrogation of a suspect, before charges are laid. [ 23 ] The protection guaranteed by

section 13 of the Charter cannot be invoked to exclude a confession from being introduced into evidence. As the Supreme Court noted in R. v. B. (K.G. ), [18] a police interview may not be a “proceeding” for the purposes of

section 13 : […] s. 13 applies only to a witness who testifies in a "proceeding"; while this Court has yet to explore the outer boundaries of this term, cases decided to date have concentrated on judicial proceedings such as trials and preliminary inquiries: see Dubois . A police interview, even where the witness makes his or her statement under oath, may not be a "proceeding" for the purposes of s. 13 . As this precise issue does not arise in this appeal, I will make no further comments on this point. [19] [Emphasis added] [ 24 ] In R . v.

Noël , [20] the Supreme Court also distinguished between statements given in judicial proceedings and statements to a person in authority: [ 22 ] […] When a witness provides evidence in any proceeding, whether voluntarily or under legal compulsion, he or she cannot refuse to answer a question that may tend to incriminate the witness , but is offered protection against the subsequent use of that evidence. The question before us is the extent of that protection. To answer that question, it is important to remember its root in the quid pro quo .

The witness, now accused, gave something in exchange for the protection. This is what makes a statement given in a judicial proceeding different from a statement to a person in authority , which is governed by rules of admissibility that are relevant to the special concerns related to that type of statement, and also different from all other out-of-court declarations and admissions. [21] [Emphasis added] [ 25 ] Referring to that same concept of a bargain or quid pro quo , the Alberta Court of Appeal recently held that unsworn statements are not protected by

section 13 : [ 37 ] The essence of the bargain contemplated in s 13 of the Charter and s 5 of the Evidence Act is that a person who testifies may be compelled to answer incriminating questions, but she will be protected from having those answers used against her in another proceeding, except for a prosecution for perjury or giving contradictory evidence. The underlying bargain is that, so long as she tells the truth, such answers can’t be used against her in another proceeding.

However, if she fails to tell the truth, she can be prosecuted for perjury or for giving contradictory evidence. [ 38 ] This underlying bargain breaks down if the evidence in the first proceeding is not under oath and, therefore, not subject to a prosecution for perjury or for giving contradictory evidence. If s 13 were to apply to unsworn evidence, it would create an opportunity for a person to provide inconsistent evidence in two proceedings and avoid both prosecution and being held accountable in the second proceeding for the inconsistency.

This would defeat the purpose of the section, which is to encourage truth telling in the first proceeding by limiting the use of that evidence in a subsequent proceeding to a prosecution for failing to be truthful. In our view, in light of the purpose of s 13, this is not a correct

interpretation of the section. The protection of s 13 is limited to testimony given under oath in the first proceeding. [22] [ 26 ] Applying these principles to the present case, the Court concludes that when each Applicant was deposed by the Swiss federal prosecutor, he was not “a witness testifying in a proceeding”. This determination is sufficient to conclude that

section 13 of the Charter does not bar the Crown from introducing these statements into evidence. Nevertheless, the Court will examine the issue of compellability as it applies to this section. ii. The requirement of compellability [ 27 ] The statements at issue were not compelled: the Applicants travelled voluntarily to Switzerland to meet with the federal prosecutor and once there, they were advised of their right not to be deposed, as is confirmed in the written “notification des droits” at the start of each signed procès-verbal. The Crown argues that in the absence of compelled, or compellable testimony, the quid pro quo which is the foundation of

section 13 is not triggered. The Applicants, on the other hand, refer to the Supreme Court of Canada case of Dubois v. The Queen [23] and submit that, pursuant to

section 13 of the Charter , these incriminating statements [24] cannot be tendered in chief against them. [ 28 ] In Dubois , the Supreme Court held that, on a retrial, the Crown could not file the testimony of the accused from his first trial as evidence-in-chief. It stated that “the issue of whether the testimony was compulsory or voluntary at the moment it was given is largely irrelevant”. [25] However, as noted above, the evidence at issue here is out-of-court statements and not testimony, thus the Applicants incorrectly rely on Dubois as authority for their position. Moreover, a careful review of the Supreme Court’s treatment of

section 13 since Dubois , indicates that although the result in Dubois is still good law, it should not be interpreted as removing the requirement of compellability from the application of

section 13 .

[ 29 ] Indeed, since the 1985 decision in Dubois , the Supreme Court has reviewed and reinterpreted the scope of

section 13 as it applies where an accused testified at his first trial ( R. v. Mannion , [26] R. v. Kuldip , [27] R. v. Henry [28] ) , as well as in other circumstances, such as where an accused testified on voir dire ( R. v. Darrach [29] ), at an accomplice’s trial ( R. v. Noël [30] and R. v. Allen [31] ) and in examination on discovery in civil proceedings ( R. v. Nedelcu [32] ). [ 30 ] In Noël , the Supreme Court explained the rationale underlying

section 13 , as a quid pro quo. The requirement of compulsion is essential: [ 21 ]

Section 13 reflects a long-standing form of statutory protection against compulsory self-incrimination in Canadian law, and is best understood by reference to s. 5 of the Canada Evidence Act. Like the statutory protection, the constitutional one represents what Fish J.A. called a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self- incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony.

If the evidence proffered is less than full and frank, the witness is subject to prosecution for perjury or for the related offence of giving contradictory testimony. [33] [Emphasis added] [ 31 ] In Nedelcu , the Supreme Court reiterated that

section 13 grants protection where an accused’s prior testimony was “compelled” or “compellable”: [ 6 ] […] [T]he “ quid ” that forms the critical first branch of the historical rationale, refers to “incriminating evidence” the witness has given at a prior proceeding in which the witness could not refuse to answer. The

section does not refer to all manner of evidence the witness has given at the prior proceeding.

It refers to "incriminating evidence" the witness has given under compulsion . [34] [Emphasis added] [ 32 ] Also in Nedelcu, referring to the Court’s earlier decision in Henry , Justice LeBel [35] stated: [ 92 ] […] In Henry , the Court […] properly returned the focus to the quid pro quo : compelled testimony in exchange for s. 13 protection against subsequent use of that testimony against the accused […] By returning to the quid pro quo in Henry , the Court restored the balance: it strengthened a compellable witness’s s. 13 protection while taking s. 13 protection away from an accused who has volunteered evidence in his or her own defence (para. 60). […] [ 100 ] […] Under s. 13, the quid pro quo refers to a witness’s compelled evidence in exchange for a guarantee that the Crown will not use that evidence against that person in another proceeding. […] [ 104 ] […] [T]o determine whether the quid pro quo is engaged in a particular case, the court should consider whether the witness was statutorily compellable and not whether the witness felt subjectively compelled to testify.

The relevant question is this: Was the respondent statutorily compelled to give evidence in the proceeding? [36] [Emphasis added] [ 33 ] In addition, in R. v. Jones , [37] the Supreme Court made reference to the inapplicability of

section 13 in the absence of compelled testimony. In Jones , the issue was whether the accused could rely on the Crown’s theory of the case in order to avoid having to testify on voir dire and risk that his testimony could be used by the Crown for inculpatory or impeachment purposes. In a footnote, the Supreme Court made the following comment: In posing this question, I note that this Court has not ruled on whether a Charter claimant’s testimony in a s. 8 voir dire is subject to the protections against self-incrimination provided by s. 13 of the Charter . Nor is this the proper case to do so.

However, it may follow from this Court’s decisions in R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609 , and R. v. Nedelcu , 2012 SCC 59 , [2012] 3 S.C.R. 311 , that because the accused is not a compellable witness at his own s. 8 voir dire , his evidence could subsequently be used to cross-examine him for both incrimination and impeachment purposes . To that extent, Mr.

Jones would be reluctant to admit he authored the Text Messages because he was worried about potentially incriminating himself. [38] [Emphasis added] [ 34 ] Thus, despite the mention in Dubois that the compulsory or voluntary nature of the initial testimony is irrelevant to the

section 13 inquiry, a review of the Supreme Court

section 13 jurisprudence in the years post- Dubois indicates that the question of compulsion is in fact at the very center of the

section 13 inquiry. Twenty years after Dubois , the Supreme Court held in Henry , that the result in Dubois was correct, [39] but it also affirmed that compulsion is the source of the quid pro quo at the heart of

section 13. [40] It further clarified that “to the extent statements in the other cases are inconsistent with the rationale of compulsion (the “ quid pro quo ”), they should no longer be regarded as authoritative”. [41] [ 35 ] Finally, as the Court in Henry explained: [ 45 ] […] Although Dubois had said that no distinction should be drawn between testimony that had been compelled or voluntary at the

first trial, that comment was made in the context of an attempt to compel testimony at the second trial.[42] [Emphasis added] [36] Whereas in Dubois, tendering the accused’s earlier testimony in evidence amounted to compelled self-incrimination and pre-empted the right of the accused not to testify at his second trial, in the present case, the Prosecution wishes to tender uncompelled,out-of-court statements, as opposed to testimony. Because of the very nature of these statements, the reasoning set out in Dubois does notapply. [37] To conclude, the Applicants cannot claim the protection of

section 13 and their out-of-court statements provided in Switzerland,which were given freely and voluntarily, are admissible under the admissions exception to the hearsay rule. 2.

INCOMPLETE TRANSCRIPTS [38] The Applicants also argue that these statements should not be admissible as the procès-verbaux[43] are incomplete and are thusof little probative value. [39] A review of the length of the interviews and number of pages of each transcript, as well as the flow of the questions andanswers, indicates that these procès-verbaux are summaries and cannot be considered to be the complete, verbatim statements providedby the Applicants.

No evidence was adduced to indicate what the prosecutor and /or clerk chose to include as relevant to eachprocès-verbal. [40] In essence, the Applicants ask the Court to exercise its general exclusionary discretion to exclude evidence.[44] As affirmed by the Supreme Court in R. v.

Mohan,[45] a trial judge may exclude otherwise logically relevant evidence in the exercise of this discretionwhere: i. the probative value of the evidence is overborne by its prejudicial effect; ii. the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to thedetermination of the dispute; or iii. the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.[46] [41] The Applicants recognize that in general, the trial judge will determine the admissibility of a statement, leaving the question ofits probative value to be determined by the trier of fact.

Indeed, the Ontario Court of Appeal, addressing the exercise of this discretion in R. v. Spackman,[47] underscores the importance of respecting the division of responsibilities between the judge of law and the trier offact: [118] Where the basis on which the exclusionary discretion is invoked is a claim that the prejudicial effect of the evidence exceeds itsprobative value, the balancing exercise brushes up uncomfortably close to the jury’s function of weighing the evidence. A trial judge,invited to exercise his or her exclusionary discretion on this basis, must be careful not to invade the jury’s territory.

In a similar way, inassessing the potential prejudicial effect of evidence, a trial judge must take into account and not underestimate the jury’s ability to understand and follow limiting instructions R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, at pp. 692-693.[48] [42] The Applicants refer to examples in the jurisprudence where the value of the transcript itself was held to be so limited that itwas found to be unreliable, leading to its exclusion from evidence because its probative value did not outweigh its prejudicial effect. [43] Such an example is found in R. v.

Ferris,[49] where the Supreme Court dealt with the issue of admissibility of a partial statementof the accused which, when introduced without any context, could easily be misconstrued.

The Court concluded that “its meaning was sospeculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value”.[50] The decision of the majority of the Alberta Court of Appeal, confirmed by the Supreme Court, states: [29] McClung, J.A. suggests that because there was no deliberate editing or bad faith, it should be admissible if it is voluntary. I disagree.It is not the good faith of the police that is in issue but the meaning of the words.

He further suggests that the accused could haveclarified the meaning of the words by testifying or by calling his father to testify. This is not the accused's onus. It is the onus of theCrown to adduce words capable of meaning before the defence has anything to meet. An inference cannot be used to make words anadmission when the evidence clearly indicates the words were an incomplete statement and therefore meaning could not be ascertained. The Crown must make a prima facie case for admission. An inference cannot be used to fill in holes in the evidence.[51] [44] In César​-Nelson c.

R.,[52] the Quebec Court of Appeal held that it was an error for the trial judge to admit the accused’sstatements where several gaps, namely a lack of a recording, partial notes and a lack of context, affected their probative value.

It stated: [68] The voluntary nature of the statement and the good faith of the police officers do not make the statement of an accused, as reportedhere, admissible, relevant and probative. [69] The fact that a statement is unrecorded, truncated and reported out of context can influence a court's decision as to whether thestatement was free and voluntary, but also as to whether it is reliable and probative. [70] A survey of the case law quickly reveals that, depending on their significance, such gaps in the evidence can lower the probative

value of the statement or lead to its exclusion if the probative value is outweighed by its prejudicial effect. [53] [ 45 ] The Applicants also refer to R. c. Huot , [54] where Vincent J.S.C. found that important omissions in the officer’s written

summary of the accused’s statement (a total of 16 pages after an 11-hour interview), as well as the ambiguous nature of the answers given, rendered the statement unreliable and thus inadmissible. [55] [ 46 ] However, these examples do not stand for the proposition that any incomplete or equivocal statement must be inadmissible. As the Quebec Court of Appeal recently held : Les principes énoncés dans Ferris ne doivent pas être compris comme une règle d'inadmissibilité stricte: les déclarations incomplètes ou équivoques ne sont pas toutes inadmissibles.

Il est également faux de prétendre qu'une déclaration incomplète est automatiquement dénuée de toute valeur probante. L'évaluation diffère selon chaque cas d'espèce. L'exercice de mise en balance entre la valeur probante et l'effet préjudiciable est un exercice particularisé qui, ultimement, dépend des faits de chaque dossier. [56] [ References omitted ] [ 47 ] In the present case, the procès-verbaux are comprehensible, detailed and provide extensive context to the questions and answers.

Each Applicant was accompanied by a lawyer and contemporaneously reviewed and initialled each page of the procès-verbal as prepared by the federal prosecutor. The transcript here can certainly not be compared to the truncated notes of the officer in César-Nelson , where the Court of Appeal held the following: [ 61 ] Without any context, recordings, or notes with any semblance of structure, the statement, [TRANSLATION] "As I see it, what'll be left is robbery and conspiracy" is open to multiple

interpretations. Was the appellant referring to the weight of the evidence that the police officers were describing? What was being said to him precisely?

It would be easy to get lost in speculation. [57] [ 48 ] In addition, while the absence of a recording may render a transcript of a statement suspect in circumstances where recording equipment was available but not used, [58] there is nothing in the record here to suggest that the absence of a recording is unusual, much less suspect, in the context of the Swiss system. [ 49 ] For these reasons, the Court considers that the procès-verbaux provided are sufficiently reliable to be admitted, despite the lack of a verbatim transcript.

The determination of their probative value must be left to the trier of fact, who will decide the weight to be afforded to these statements, in the context of all of the evidence. FOR THESE REASONS , the Court declares the procès-verbaux of the three statements to be admissible in the Crown’s evidence in chief. __________________________________ LORI RENÉE WEITZMAN, J.C.Q.

M e François Blanchette M e Marie-Claire Émond Attorneys for the Respondent-Prosecutor (PPSC) M e Julie Lepage Attorney for Francesco Bruno M e Gérard Soulière Attorney for Adriano Furgiuele M e Isabelle Lamarche Attorney for Antonio Girardi Dates of hearing: September 23, November 9 and December 17, 2020.