By choice, Canada is one of the most multi-cultural countries in the world. The Canadian Multiculturalism Act of 1988 is a statute that seeks to give everyone equal treatment and protection under the law, regardless of ethnicity, customs and other cultural differences. A fundamental way of protecting everyone’s right to equal and fair treatment under the law is to prevent anyone from being disadvantaged by language difficulties or other cultural issues. This includes having access to translators or other strategies that allow a person to understand their rights if they are detained or arrested by the police.
When someone is placed under arrest for any type of criminal charge, under the Canadian Charter section 10(b), they have the right to legal counsel and must immediately be informed of that right when an arrest is made. The arresting officer must ensure: 1) that the accused person understands their right to a lawyer; and 2) that they are given a reasonable opportunity to exercise this right. The onus then falls on the accused person to follow through on their right to consult with a lawyer. If all of these conditions have been met, then the police cannot try to obtain information from an accused person until they have spoken to counsel.
A ‘special circumstance’ that can interfere with a person’s understanding of their right to counsel is when the accused has language difficulties. When there are signs that someone has difficulty understanding recitation of their rights in English, an officer is under the obligation to take further steps to ensure that the detained person fully understands their rights. Some of the steps that an officer may take are: rephrasing their rights in simple language, asking the person if they require an interpreter, asking the person whether they have difficulty understanding English, getting the person to repeat the warning, reading their rights in the language the accused understands, or speaking with duty counsel or a lawyer before the accused is put on the phone, to inform such counsel of the language difficulties. The proper and best approach for police to avoid ‘special circumstances’ is to ask the accused if he/she has language issues, and then advise duty counsel of the potential for language difficulty or offer to find a lawyer that can advise the accused in their own language. If ‘special circumstances’ exist (i.e. there was objective evidence that alerted the police to the fact that there may be a language difficulty) the police are absolutely required to provide the accused with an interpreter.
In R. v. Silva (2005), the presiding judge defined “special circumstances” as those that “arise when there are objective indicia that an accused person does not wholly comprehend the English language. An example of an indicator would be the accused’s recent immigration to Canada from a non-English speaking country.” Under such circumstances, the onus is on police to take significant steps to ensure that the accused person fully understands their constitutional rights.
In circumstances where there was no reasonable attempt made to ensure that the detained person truly understood their right to a lawyer, there have been many instances in the course of making arrests in Canada when the detainee did not attempt to contact a lawyer at all. In such a case, when someone does not understand their right to counsel, then defence has grounds to assert that their right to a lawyer has essentially been breached. For example, it is not uncommon to have DUI charges dismissed when the accused person was later shown to have not understood their right to a lawyer under section 10(b) of the Charter. Kruse Law Firm has won this type of argument in court many times over the years.
Example cases where a DUI charge was dismissed because language difficulties interfered with the accused person’s Charter rights.
In a 2015 trial, R. v Maudhub, a recent immigrant from Mauritius was tried on charges of driving while “over 80” and driving while impaired. The accused man was pulled over by officers when he was observed driving particularly slowly, and officers observed signs that he had consumed alcohol, such as alcohol on his breath and bloodshot eyes. It took officers six attempts to get a proper breath sample, which finally read as a ‘fail’. After police took a few minutes to attempt to explain his right to contact counsel, the man replied, “I will try.” At the police station, the man was given a phone book for a minute or two to try to find a lawyer, but this was insufficient time for him to do so (and later determined to be poorly understood by him) and in the end, the man testified that police chose a Legal Aid duty counsel for him. The judge in this case concluded that the man was bewildered by his situation and by his first time in police custody and also, had a limited understanding of who he could call for advice and what advice he should follow. The judge ruled that there was a serious breach in the man’s Charter rights and thus, inclusion of the Intoxilyzer tests would “bring the administration of justice into disrepute”. Without evidence to prove the prosecution’s case, the man was found ‘not guilty’.
In R v Peralta-Brito, 2008, a man was tried on DUI charges but the breathalyzer results were similarly excluded when the judge concluded there was a breach of his section 10(b) right to counsel under the Charter. In this case, an accused man who spoke with a strong Spanish accent was given his right to counsel several times in English and seemed to understand them. He then declined to speak with duty counsel until much later after he already provided two breathalyzer samples and heard another detainee talk about calling a lawyer. The Court decided that although the police officers acted in good faith, they did not take sufficient steps to ensure that the man understood his rights enough to make a meaningful decision with regards to speaking with counsel.
R. v. Oliva Baca, 2009 is another case of a Spanish speaking person who appeared to understand what the officers said to him and subsequently spoke with duty counsel before the breathalyzer was administered. However, again the Court decided that police took insufficient steps to ensure that the man completely understood his rights. The breath samples were therefore deemed inadmissible and the charge was dismissed. In this case, the accused man did not request a Spanish speaking lawyer or an interpreter, but he was not offered these options as he should have been.
In R. v. Silva cited above, the accused emigrated from Portugal almost 25 years before his arrest on DUI charges. The trial judge commented on the particular importance of ethnic sensitivity for policing in areas of Toronto, such as Peel, which boasts a diverse multicultural population. Law enforcement officers must be sensitive to, and mindful of the cultural and linguistic environment for the community where they perform their duties. Canada is officially bilingual, but in reality, large urban centers are endowed with a collection of discrete ethnic groups and it is quite possible for people to successfully function in these areas with only a rudimentary understanding of English. This circumstance is an issue that all law enforcement officials should be aware of, so that they ensure than anyone who is arrested fully understands their rights and the process to which they are being subjected.
It is generally agreed that the right to counsel and access to legal advice when a person is detained or arrested is one of the most fundamentally important rights in the Canadian criminal justice system. Clearly, an accused person who doesn’t fully understand his or her right to counsel and thus cannot properly avail themselves of legal counsel, is at a serious disadvantage during an arrest. Fortunately, Canada’s legal system protects us against a breach of this right which can be strong grounds for defence counsel to move to have DUI or other criminal charges dismissed.