Between
Her Majesty the Queen, and
Abdirashid Ali Guled
[2005] O.J. No. 1652
Court File No. 7449/04
Ontario Superior Court of Justice
Criminal Division - Brampton, Ontario
F. Dawson J.
Oral judgment: March 9, 2005.
(25 paras.)
Charge: Section 334(a) Criminal Code of Canada - Section 354(1)(b) Criminal Code of Canada x2
Counsel:
Ms. A. Esson Counsel for the Crown
Mr. L. Sabsay Counsel for the Accused
1 F. DAWSON J. (orally):- We'll deal with this voir dire issue first. The accused was arrested on January 30, 2003 on two counts of theft over $5,000.00 and related counts of possession of stolen goods over $5,000.00. After he was to arrested the accused was booked into cells at the Airport Division of the Peel Regional Police Service. Soon thereafter he was interviewed on videotape over the course of several hours by Constable Ken Bettes.
2 The accused applies to exclude the videotaped statement pursuant to s. 24(2) of the Charter of Rights on the basis of a violation of the accused's s. 10(b) right to counsel.
3 The Crown agrees that if s. 10(b) has been violated the evidence should be excluded under s. 24(2), but submits that there has been no s. 10(b) violation.
4 The accused is from Somalia, and Somali is his first language. He came to Canada in 1986 after spending a number of years in Kenya. He worked in a factory, and then worked for 13 years at Budget Car and Truck Rental where he was a car jockey washing and delivering cars to the various airport terminals.
5 He testified that the workforce was from many different ethnic backgrounds. Communication at work was in English of a rudimentary nature and also involved hand signals. His supervisor was called by the Crown on the voir dire. He testified that the accused seemed to understand English much better than he spoke it or wrote it. However, when grievances were filed at work the accused usually, but not always, sought the assistance of a union steward who spoke Somali.
6 The evidence indicates that there are many Somalis, or Somalians, in the apartment complex where the accused resides, and many Somalians work in the car rental agencies at the airport. The accused testified that his only English instruction occurred when he attended at a public library for tutoring for a period of about one year.
7 The videotape of the interview shows a substantial degree of comprehension in the sense that there are answers responsive to questions, although the answers are often very short, quite rudimentary, in poor grammar and sentence structure, and it is difficult to be certain of the extent to which the accused's answers dealt with the question -- questions that were being asked.
8 The questions put were often long or contained various forms of what I would term persuasive content, as Constable Bettes tired without much success to get the accused to make admissions about the offences.
9 The accused submits that the police failed to fulfill the informational component of his s. 10(b) right to counsel because it was obvious that he did not speak English well, and in those circumstances Constable Bettes did not go far enough to ensure that the accused had a complete understanding of the extent of those rights, the right to counsel.
10 In a case such as this the crucial question is whether the accused has been advised of his s. 10(b) rights in a meaningful and comprehensive manner and whether the officer was alerted to special circumstances which required him to reasonably ascertain that the accused's constitutional rights were understood by him.
11 R. v. Vanstaceghem, [1987] 36 C.C.C. (3d) 142, (Ont. C.A.), R. v. Lukavecki [1992] O.J. No. 2123, (Ont. Ct. Gen. Div.), in each of these cases police officers testified at trial that they had some conversation with the accused in English and came to the conclusion that the accused understood English sufficiently to understand the matter at hand, whether it was a breathalyzer demand or right to counsel. Each of these decisions makes the common sense point that it is not the opinion of the police officer which is determinative. The obligation rests upon the police to ensure that the accused understands his or her right to counsel. And where there is an indication that the accused's facility in English is limited, special circumstances exist which require that sufficient additional steps be taken to ensure that the accused understands.
12 Some understanding and functionality in English does not mean that an accused will necessarily understand concepts like "counsel", "duty counsel" or "that legal advice may be obtained free of charge".
13 These and other cases also make the point that where an accused speaks some English, simply asking the accused if they want an interpreter and telling them that one will be provided if they want one may go a long way towards satisfying the obligation that falls upon the police once it is clear that special circumstances exist.
14 Constable Bettes testified that he and Constable Spence arrested the accused at 2:12 p.m., at Budget Car and Truck Rental. He identified himself and told the accused he was being arrested in relation to the theft of Lincoln Navigators. He asked the accused if he understood and the accused said "yes". He read the accused his rights to counsel. He asked the accused if he understood, to which the accused said "yes". He asked the accused if he wished to speak to a lawyer, and the accused said "no, you do to me what you want". The officer testified that he asked again if the accused wanted to speak to a lawyer and the accused responded "no, I don't want to speak to a lawyer".
15 Constable Bettes testified that when he gave the accused his rights to counsel he had advised the accused of the 1-800 number for free legal advice, and otherwise complied with the requirements of the Supreme Court of Canada decision in Brydges.
16 A primary and secondary police caution were also given. The accused indicated that he understood when asked if he did after each caution was administered. Constable Bettes advised that there was other conversation. After the accused was handcuffed he asked the officer, that is the accused did, to have his toque and neck warmer removed, and the officer assisted him. At one point the accused advised the officer that he wanted a coat from inside. The officer also discussed some of the evidence with the accused. The accused said that he wanted proof of certain statements attributed to a man named Kwame.
17 With respect to the conversation in the cruiser following his arrest, the accused testified that he was scared and just remembered a little bit of it. He testified he was not understanding all the officer said.
18 The videotaped interview with the accused was played in Court and a transcript filed as an exhibit. At the outset of the interview Constable Bettes refers back to the rights previously given. He asked the accused if he had changed his mind about speaking to a lawyer. The accused answered, at page 3 of the exhibit, that he did not have a lawyer. On its face, this demonstrated a lack of understanding of the right to free legal advice and of the availability of legal aid duty counsel. The officer asked again, "Okay, you don't want to speak to a lawyer?" The accused responded, according to my notes, "no, I don't ..." according to the transcript, pardon me, "no, I don't have it." And that was followed by something that was inaudible. The accused testified that he was not understanding well. He thought the officer was asking him if he had a lawyer.
19 It is the next passage in the interview that is critically important. This appears at page 3 of the transcript, which is filed as Exhibit D. The officer responded to the accused's indication that he did not have a lawyer by explaining that there was a 1-800 number the accused could call for a free duty counsel lawyer that would speak to him on the phone. The officer then advised the accused that he had a book, a thick book, with many lawyer's names in it, and that the accused could call every lawyer in the book if he wanted to, and that there was a telephone just outside the interview room. This explanation was relatively long without a break, contained extraneous information, and was not spoken slowly. At no time did Constable Bettes ask the accused if he wanted the assistance of an interpreter.
20 In his testimony the accused maintained that he did not understand he could obtain free legal advice. This is what the charter motion comes down to. There is no suggestion the accused did not understand he could call a lawyer. The submission is that the officer, in the circumstances, should have gone further than he did to ensure the accused understood that free legal advice was immediately available to him.
21 I do not doubt the sincerity of Constable Bettes' evidence that he thought the accused could understand English. Constable Bettes based this, at least in part, on the fact that he was communicating with the accused, in Constable Bettes' words, he was "learning things" from the accused.
22 However, as the cases referred to make clear, the ability to communicate to a degree in English is not the issue. The issue is whether the police have taken the steps necessary to ensure understanding where special circumstances exist. It is the police who bear the responsibility of ensuring that the informational component of s. 10(b) has been satisfied. It is the Court's responsibility to determine if it has been, and I recognize fully that the burden is on the accused on a balance of probabilities to show that it has not been satisfied in order to succeed on this motion.
23 Based on the evidence that I have heard I would make the following findings:
One, the accused has some familiarity -- pardon me, the accused has some facility in English and can get by on a day-to-day basis. I think that he understands English to a better degree than he says he can. However, it is clear to me that there is a substantial language problem. Despite my concerns that he exaggerated his lack of comprehension, given the objective indicators of a problem, I am not prepared to reject his evidence outright on the crucial point that he did not understand he could get free legal advice at the time of the interview.
Two, the accused was not asked if he would like to have the assistance of an interpreter. Constable Bettes said that if the accused asked for one he would have obtained one without much difficulty. It would have been a very simple thing to ask the accused if he wanted one. This was not done when there was an obvious potential for misunderstanding. If the accused had declined the offer of an interpreter I suspect my conclusion on this motion would be different.
Three, the explanation of the right to free legal advice, which appears at page 3 of the transcript was long, to a degree rambling and contained extraneous information. Given the objective indicators of the level of the accused's lack of proficiency in English, it is not simple enough and not clear enough to solve the potential for a problem in understanding a concept that is foreign to many people, and may be particularly foreign for immigrants from parts of the World that do not enjoy the rights and freedoms we have in Canada. The accused testified that it did not make sense to him that the person arresting him was asking him if he wanted to speak to a lawyer.
24 Overall I find this to be a close case. Nonetheless, having regard to the importance of ensuring that such a fundamental right as the right to counsel is understood by an accused who has a language difficulty, I am satisfied that the accused has demonstrated that it is more probable than not that Constable Bettes did not go as far as he should have in the special circumstances which I find to have existed here. Constable Bettes thought the accused understood well enough and he meant no harm. However, that is not the test.
25 I conclude that there was a violation of s. 10(b). The contents of the interview are conscriptive evidence and the use of the evidence would adversely affect the fairness of the trial. The evidence will accordingly be excluded.
