Section 10(b) of the Canadian Charter of Rights and Freedoms provides that;
Everyone has the right on arrest or detention to be informed of;
(b) the right to retain and instruct counsel and to be informed of that right.
In R v. Soares 2013 O.J. No. 72 (Trotter J.) I had the opportunity to argue what I long observed to be a flagarent pattern and practice of police services in this province failing to discharge the constitutional duty placed on them to ensure that defendants whose language is not english are informed of their right to retain and instruct counsel. In fairness to the individual officers I must indicate that the problem is one rooted in the inadequacy of the training they are provided rather than any mala fides on their part as individuals. The genesis of the problem appears to stem from a mis-conception of precisely what is required to successfully discharge the state duty in preserving or giving meaning to this fundamental right.
It is not enough to simply "parot off" a statement written on the back of one's memobook and provide a defendant with a phone to call duty counsel. This is especially so when it is evident that the defendant speaks a language other than english and is not fluent in english. The right to counsel has two components. The first is the right to retain and instruct counsel. This right is often popularly referred to as "right to a phone call". The second and perhaps more significant right is the right to "to be informed of that right." The first right can never be said to be granted unless the second right, namely, the right to be informed is properly discharged. Accordingly, where a defendant has a clear deficiency in the english language it may be necessary for the officer to take affirmative steps by providing a translator to ensure that the defendant understands the right to counsel and can communicate and express himself properly.
In R v. Soares supra the defendant - whose mother tongue was Portuguese and spoke with an obvious accent and inability to express himself effectively in english was charged with a series of historical sex-related charges(roughly ten years old). The defendant was arrested at his home by two officers. The arresting officer took a video-taped statement from him touching directly on the allegations which were the subject of his arrest and charge without any effort to ascertain his competence in the english language and whether a translator may be necessary for the purpose of her interrogation.
I argued for the exclusion of the statement on the basis that the defendant's command of the language was deficient to the point where without an interpreter he could not exercise his right to counsel and decide whether or not to give the statement. In addition to the defendant's obvious lack of comprehension when the officer used colloquial language or methaphors the trial judge referenced the following passage in concluding that the defendant's rights under s.10(b) were violated by the manner in which the officer conducted the interview:
[21] Officer: Okay. But it is fair to say you're - you don't wanna - you don't wanna go into the details about it ?
Soares: Please
Officer: Why ? Because it's too harto to talk about ?
Soares: Is hard is like talking to you kow, is hard for me. Plus my English not right - is no - no good - good - good enough
Officer: Well I think we're - we're talking okay, here. You - you've understood everything this morning that's happened. But I understand if you don't wanna uh, discuss it any further too. So are are we done, are we - ?
Soares: Yeah.
The Ruling:
[23] In all of the circumstances, I found that Mr. Soares's rights under s. 10(b) of the Charter were infringed by the manner in which Ms. Peters conducted the interview. It should have been clear from the outset, when the police first encountered Mr. Soares, that there was a language issue. This should have prompted the arresting officers to inquire into Mr. Soare's facility with the English language: R v. Vanstceghem (1987) , 36 C.C.C. (3d) 142 (Ont.C.A.), at pp. 147-149. If it was not apparent at the outset, it became crystal clear during the interview. There were a number of times that language presented itself as an issue. When Mr. Soares finally raised the issue himself, saying that his English was not good enough, instead of asking him if he would like an interpreter, Ms. Peters simply asserted that there was no problem, and then brought the interview to a speedy conclusion.
[26] ....More fundamentally, in the context of a police interrogation, there is more to communication than just comprehension; an accused person must be able to participate in a meaningful way, expressing himself or herself effectively. This was lacking in this case.
[32] On the facts of this case, each of the Grant factors points in the direction of exclusion. Accordingly, I find that the admission of the statement would bring the administration of justice into disrepute within the meaning of s.24(2) of the Charter.
