The Canadian Charter of Rights and Freedoms, s.10 states that Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; and (b) to retain and instruct counsel without delay and to be informed of that right.
As interpreted in R. v. Minhas (2015) and R. v. Bassi (2015), our rights to counsel under s. 10(b) has both an informational and implementational component: detained persons must be informed of their rights in a meaningful way, and police must take steps to ensure that detainees fully understand their right to counsel. If there are no language comprehension issues, officers of the law can generally infer that an individual has understood their right to counsel; however, there can be ‘special circumstances’ which require police to take actions to ensure that the detained person fully understands these rights.
Special circumstances relating to language comprehension may exist in cases where: 1) there are objective grounds to believe that English is not the detainee’s first language; and 2) there is objective evidence that the detainee lacks some understanding of their right to counsel or other information provided by the police. Where there is objective evidence that special circumstances exist, police officers must take steps to establish that the detainee properly understands their constitutional rights. Such steps may involve engaging a lawyer who speaks the same language as the detainee or using an interpreter along with an English-speaking lawyer. The onus is not on the detained person to show that they requested counsel in their first language because they may not be aware that they have the right to do so or that such services may be made available to them. Alternatively, the onus is on the defendant to prove on a balance of probabilities, that special circumstances exist and their right to counsel was violated.
A 2016 criminal proceeding arose after a man was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg (‘over 80’). In R. v. Khandal, the accused man brought a Charter application alleging that his Charter rights under sections 8, 9, 10(a) and 10(b) were violated, particularly the language issue pertaining to s. 10(b). Before the final argument in the trial, the Crown admitted that there was a violation of Mr. Khandal’s section 10(b) Charter rights, however, the Crown argued that the breath sample evidence should nevertheless not be excluded as evidence.
The facts of the case
Mr. Khandal’s vehicle was stopped in connection with a R.I.D.E. spot-check on October 2015, near Highway 401 and Mavis Drive. When the police officer, Constable Lupson, detected the smell of alcohol, and slowed speech and movement, he suspected that the driver was operating his vehicle with alcohol in his body and therefore made an Approved Screening Device (ASD) demand. The breath sample registered a fail and as a result, Mr. Khandal was placed under arrest for excess blood alcohol. Mr. Khandal was then informed of his rights to counsel in English, and answered “yup” and “yes” when the officer asked if he understood these rights. Mr. Khandal also indicated that he didn’t have a lawyer and wished to speak with duty counsel. Constable Lupson made an approved instrument demand under the Criminal Code, s. 254(3).
Upon arrival at the police station, Constable Lupson asked Mr. Khandal if he wished to speak to a lawyer in English or Punjabi, and Mr. Khandal replied that he would like to communicate in Punjabi. The Constable made a call to duty counsel and left a voicemail stating that the detained person spoke English but had asked for a Punjabi language interpreter. When duty counsel called back, the officer repeated the detained man’s request for a Punjabi language interpreter, but duty counsel allegedly responded “I speak English, he speaks English, we will do this in English”. Constable Lupson testified that he was surprised and “taken aback” by duty counsel’s response, but duty counsel nevertheless went ahead and consulted privately with Mr. Khandal. The detained man was then taken into custody by the breath technician, and responded to the latter that he understood what the lawyer had said to him. Soon after, Mr. Khandal was asked what his first language is and his response was Punjabi. He also stated that he speaks ‘not much” English. When Constable Lupson followed up by asking “did you understand the lawyer when he spoke to you?”, Mr. Khandal replied “yes, but he’s in English, right? I’m not much English.” The second arresting officer then asked the detained man if anyone who spoke Punjabi was made available to interpret for him, and Mr. Khandal answered “no”. At this point, two breath samples were provided, registering 140 mg and 130 mg respectively, of alcohol in 100 ml of blood.
Assessment and findings
Based on testimony and the breath room video, Justice Monahan concluded that Mr. Khandal was able to carry out a basic communication in English for such questions as his age and the type of car he was driving; however, he appeared to have difficulty comprehending the primary and secondary cautions. In fact, Justice Monahan did not believe he truly understood the cautions, nor did he likely understand that he was not compelled to answer the questions pertaining to the alcohol influence report (or that they were voluntary). The judge concluded that both arresting officers should have realized early on, when Mr. Khandal stated his concerns about the fact that he spoke with duty counsel only in English, that Mr. Khandal did not have the benefit of proper consultation with counsel. Justice Monahan advised that the officers should have then arranged another consultation with duty counsel and a Punjabi language interpreter.
In their final argument, the Crown conceded that Mr. Khandal’s s.10(b) rights were violated, based on recognition that there were special circumstances in this case which required the officers to ensure that the accused man fully understood his right to counsel, which included taking steps to address the language issue. Yet, these required steps were not taken. Specifically, in the breath room, when Mr. Khandal stated that he did not speak much English, and when asked if he understood his discussion with duty counsel, he answered “yes” but then added, “but he’s in English, right? I’m not much English.” Justice Monahan asserted that duty counsel’s unilateral decision to not make a Punjabi interpreter available to the detained man was “inappropriate and wrong” and “the obligation to provide the right to counsel was not met”.
Once it was established that there was a breach in the accused’s Charter rights, the key issue to be decided by the judge in this case, is whether the breath sample evidence should therefore be excluded. Under s. 24(2) of the Charter, once it has been proven that the rights of an individual were infringed or denied in the obtaining of evidence, the evidence must be excluded if it is determined that the admission of the evidence would bring the administration of justice into disrepute.
Justice Monahan concluded that the officer’s failure to properly inform Mr. Khandal of his rights to counsel and allow him the use of a Punjabi language interpreter while consulting with counsel, constituted a serious impact on his Charter rights. The judge also asserted that an accused person is in a vulnerable position when under arrest, and when someone is not properly advised of their rights, there can be a direct negative impact on their defense. For example, Mr. Khandal readily provided answers to such questions as ‘when did he consume his last drink’ and ‘did he drink fast or slow’, which he was not compelled to answer but once revealed, could have significant consequences for his case.
Both the seriousness of the breach in Mr. Khandal’s Charter rights and the impact on the accused, supported exclusion of the breath sample evidence. A third issue which is brought to bear on a decision to exclude evidence is whether society has an interest in having the case judged on its merits, which in this case would require including the breath sample evidence which is key to the Crown’s case. However, as decided in R. v. McGuffie (2016), when the first two factors point to exclusion of evidence, the interests of society rarely tip the balance in favour of admitting the evidence. Justice Monahan therefore concluded that the breath evidence must be excluded and as there was no other evidence to prove the Crown’s case, the charge of ‘over 80’ must be dismissed.
Justice Monahan stated that “the right to counsel is a bedrock right in our criminal justice system” and for a detained person, it is fundamental to their individual liberty. Although it is sometimes difficult for officers to recognize language comprehension issues for a detained person, it is nevertheless essential that they ensure that everyone’s language needs, particularly with respect to their right to counsel, are respected and accommodated. Respect for individual language needs is a fundamental principal in Canada’s multicultural society, which is built on a respect for diversity.
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