SURREY — The BC Court of Appeal is ordering a new trial after finding a Surrey provincial court judge had wrongly convicted a man of four crimes in connection with a break-in at a bottle depot in Aldergrove.
Judge Gary Cohen convicted Andreas Bronk in April 2015 of breaking and entering, possession of a loaded pistol, possession of a revolver, and possession of break-in instruments. He also ordered conditional stays on three other charges.
Bronk filed an appeal of his convictions in Vancouver and Justice David Frankel set them aside, as well as the conditional stays, and ordered a new trial Monday with Justices Peter Willcock and John Savage concurring.
The case centered on a break-in at a bottle depot in Aldergrove that happened just after midnight on July 14, 2014. A security guard was monitoring the place through a remote camera, observed a break-in and called police. The suspect was described as a white man, 25 to 30 years old, wearing a black T-shirt with white sleeves and jeans.
The first Mountie to arrive was walking along a perimeter fence when she saw Bronk emerge from the tree line along the fence. He had a dog with him.
Bronk is white, appeared to her in his mid-20s to mid-30s and was wearing black tank top, black pants and boots. The Mountie asked him what he was doing and he replied that he’d just been sitting around.
Two more Mounties arrived, Bronk was told he was being detained in relation to a break-in investigation, that he had the right to call a lawyer and that he didn’t need to say anything as it could be used in evidence.
Bronk didn’t respond, was handcuffed and put into the back of a police car, along with the dog.
The police checked the bottle depot but didn’t find anyone, the court heard. It also heard the security guard confirmed the police had their man. After he was arrested, Bronk said he wanted to call a lawyer. Bronk was told a police dog found a black backpack along the fence but Bronk said nothing, the court heard.
They searched the backpack and found a loaded semiautomatic pistol with a dog leash attached to its trigger guard, pistol ammo, a bag of dried dog food, a drug pipe, pliers, a pry bar, bolt cutters, a cell phone, SIM card and black long sleeved shirt or jacket, the court heard.
The police asked Bronk about the guns but he didn’t respond. He was taken to the detachment where he was booked in for “firearm BNE.”
“Mr. Bronk once again said he wished to call a lawyer,” Frankel noted. “Personal information place on the booking sheet such as Mr. Bronk’s name, date of birth, address, etc. did not come from anything said by Mr. Bronk but from information the police already had.”
The next shift, one of the three arresting officers examined the backpack and its contents but did not find a name or ID. Three officers discussed whether to access the cell phone in the backpack, the court heard, and “a decision was taken to do so without a warrant.”
A constable accessed the gallery of photos stored in the phone, Frankel noted in his reasons for decision. “The first picture appeared to be of Mr. Bronk and a child. Because that picture appeared to have been taken by someone other than Mr. Bronk, the officers concluded it did not establish the telephone belonged to him.”
As a result, they decide to examine the cell phone further and opened the Facebook application which led the police to a profile page containing Bronk’s name, date of birth, email address, telephone number and profile picture. “Other data in the telephone also pointed to the telephone belonging to Mr. Bronk.”
During the trial a voir dire hearing, or trial within a trial, was heard to determine the admissibility of the backpack and its contents as evidence. Bronk’s lawyer argued that police violated his Charter rights through unreasonable search or seizure related to the cell phone.
The trial judge decided the backpack and its contents should not be excluded.
“I am of the opinion in this particular case that the police need to be warned that they have breached this person’s rights,” Judge Cohen reasoned. “They need to be trained better so as not to do this in the future. It seems likely that they even knew they were doing wrong at the time when it took three of them to get together to make that wrong decision. If you have to ask each other, “Is this the wrong decision?” chances are it is the wrong decision. But again, the impact was less than it could have been, not at the most serious end of the scale, not a significant impact on the protected interests and, therefore, the evidence will not be excluded.”
The appeal court ultimately based its decision to overturn the convictions, however, on the trial judge’s decision to re-open the voir dire, which the Crown acknowledged was “based on a misapprehension of what had taken place earlier in the trial.”
Frankel found the judge’s decision to re-open, “based on a misunderstanding of what occurred earlier in the trial,” was “both prejudicial and unfair” to Bronk.
The appeal court decided Cohen was “mistakenly of the view” that Bronk’s lawyer had consented to a ruling admitting Bronk’s statements to a constable into evidence in the trial proper “and was seeking to ‘renege’ on that consent.
“As a result, the judge wrongly treated the application before him as one by the defence to withdraw that consent,” Frankel observed.
In granting what he perceived to be a defence application to revisit the admissibility of statements that were made to the officer, Frankel found, the judge permitted the Crown “to revisit its decision not to seek the admission of the statements” made to another officer. The trial judge did so, the appeal court determined, because he was “mistakenly of the view” that the Crown had made its decision on the basis that the statements made to the first officer “were already in evidence.
“Mpre importantly, because the trial judge limited the reopening to further submissions, Mr. Bronk was denied an opportunity to challenge the admissibility of his statements through cross-examination or by calling evidence. That, in and of itself, constitutes an error in law,” Frankel found. “I would allow this appeal, set aside the convictions and conditional stays, and order a new trial.”