R. v. Ukumu, 2019 ONSC 3731
[32] General considerations and principles in that regard include the following:
a. The right to counsel guaranteed by s.10(b) of the Charter encompasses a right to be informed of the right and its components in a comprehensible and meaningful way, and the right to exercise that right in a meaningful and comprehensible fashion. In particular, it is not sufficient for a police officer, upon the detention or arrest of a person, to merely recite the rights guaranteed by section 10 of the Charter. As s.10(b) of the Charter stipulates, the detainee or accused must be “informed”. Individuals who are detained or arrested are in a vulnerable position, and the rights conferred by s.10(b) of the Charter are one of the central protections to allow such individuals the ability to understand their situation and make informed decisions in relation to that situation. A detainee or accused therefore must understand what is being said to him or her, and understand what the options are, in order that he or she may make a choice in the exercise or waiver of the rights guaranteed by the Charter. Similarly, meaningful exercise of the right to counsel requires an ability to fully understand the advice and instructions of counsel, in order to make a fully informed choice to follow or disregard such advice and instructions.[3]
b. The police are not required to go to extreme means in order to respect the rights of a detainee or accused under section 10 of the Charter. Generally, in relation to language comprehension, if there are no circumstances that subjectively or objectively suggest an issue regarding comprehension of English, it is fair to infer that an individual understands his or her legal rights as read to him or her in English, and will understand legal advice provided to him or her in English.[4]
c. However, “special circumstances” may exist in relation to linguistic comprehension of legal rights. In particular, there may be objective indicia that an individual’s knowledge of English may be limited for various reasons, such that he or she may not have sufficient comprehension of the matter. Where such “special circumstances” exist, police officers dealing with a detainee or accused are obliged to act reasonably in the circumstances; i.e., by taking further reasonable steps to ascertain and ensure that the individual actually understands his or her legal rights, and is able to exercise those rights in a meaningful way.[5]
d. The determination of whether such “special circumstances” exist is a question of fact and law. In particular, even where a court accepts that a detainee or accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise “special circumstances” which require the police to take additional steps to ensure that the accused understands the content of the right to counsel, and makes a meaningful exercise of that right.[6]
e. The test for special circumstances is an objective rather than subjective one. In particular, the subjective belief of police officers that an accused fully understood his or her legal rights, (even where a court accepts police testimony in that regard), or was “playing games” by pretending to understand less than he or she actually did, accordingly is not determinative of whether or not such “special circumstances” exist. Again, issues relating to linguistic comprehension of Charter rights involve a question of law, and accordingly are not decided by assessments of credibility alone. It is a reversible error of law to conclude that there are no special circumstances on the basis of a police officer’s subjective belief about the ability of a detainee or accused to understand his or her legal rights.[7]
f. Such “special circumstances” may exist where there is objective evidence that English is not the first language of a detainee or accused, and there is sufficient objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee or accused by police at the time of the detention or arrest.[8]
g. However, each case turns on its own facts, and there is no comprehensive list of situations in which such “special circumstances” may arise.[9] Determination of whether such circumstances exist may include consideration of factors such as the following:
i. The personal circumstances of the individual, including such matters as:
1. the person’s age, education, sophistication and mental condition;
2. the person’s place of birth, residential history, and length of time in Canada;
3. the person’s first language, and the extent to which the person has studied or otherwise received training in English as a second language;
4. the extent to which the person’s familial connections have required or involved an ability to speak and understand English;
5. the extent to which the person’s social circles have required or involved an ability to speak and understand English;
6. the nature of the person’s employment, and the extent to which that employment has required or involved an ability to speak and understand English;
7. the extent to which the person routinely purchases or receives goods, services and/or medical treatment using the English language;
8. the extent to which the person has required or used the services of a translator to understand English in relation to work, social, medical, legal or other matters; and
9. more generally, evidence relating to the person’s demonstrated ability to communicate in English, and the person’s level of sophistication and ability in that regard.[10]
ii. Whether the individual complied with police instructions and demands communicated in English.[11]
iii. Whether the individual consistently spoke to police in English or used another language at times.[12]
iv. Whether the individual spoke to police in English but with a noticeable accent – although an accent alone is not sufficient to warrant a finding of special circumstances.[13]
v. Whether the individual spoke to police slowly, using only simple grammatical terms, and/or in “broken” English; e.g., using incomplete sentences, employing improper syntax, omitting certain words, and/or making obvious grammatical errors.[14]
vi. Whether the individual responded to questions with silence, paused before giving answers to police, was slow or laboured in his or her responses, or otherwise struggled to find words.[15]
vii. Whether the individual demonstrated looks of confusion while communicating with the police.[16]
viii. Whether the individual repeated himself or herself.[17]
ix. Whether the individual appeared to simply repeat or “parrot” words being said to him or her in English.[18]
x. Whether the individual asked for things to be repeated, or exhibited difficulty understanding certain words or concepts.[19]
xi. Whether the individual frequently answered questions with answers that were mono-syllabic, consisted of one or two words, or were otherwise simple.[20]
xii. Whether the individual answered a succession of questions in the same way; e.g., by responding “yes” to all questions, or “no” to all questions.[21]
xiii. Whether the individual provided answers to questions that were non-responsive, unclear, unintelligible, non-sensical, (e.g., indicating that he or she had not spoken with a lawyer, or asking to speak with a lawyer, after a telephone call with duty counsel has already taken place), inconsistent, or otherwise inappropriate.[22]
xiv. Whether the individual expressly indicated he or she was born, raised and/or had resided in another country or countries where English is not commonly spoken, or otherwise indicated that his or her first language was not English – although a finding of special circumstances is not warranted merely on the basis that the individual’s first language was not English.[23]
xv. Whether the police were in possession of other information or documentation, (e.g., the individual’s birth certificate or driver’s licence from another jurisdiction), indicating that the individual was from another country or other area of Canada where English is not commonly spoken, had recently immigrated to Canada from such a country, or information otherwise indicating that English was not the individual’s first language.[24]
xvi. Whether the individual made any express statements to the police indicating an ability or inability to understand English, or a limited comprehension of English, (e.g., by stating that he or she understands or speaks English “a little” or “a little bit”, does “not speak the best English”, does “not speak English very well”, speaks “not much” English, speaks English that is “okay”, “sometimes does not pick up things in English”, was not understanding “many few words” spoken in English, “sometimes
understood” words spoken in English, understood “almost everything” or “probably 90 percent” of what was said in English, or otherwise was not at ease communicating in English), and later testimony of the individual about such ability or inability.[25]
xvii. Whether police officers speaking to the individual in English felt the need to speak slowly, repeat questions or statements they were making, explain things in more simple or plain terms, and/or use hand gestures to make their meaning clear.[26]
xviii. Whether police officers speaking to the individual in English felt the need to repeat or paraphrase statements made by the individual, to confirm understanding of what the individual had said.[27]
xix. Whether police officers speaking to the individual in English felt it advisable to refer the individual to a written document translating a desired communication from English into another language.[28]
xx. Whether the individual expressly indicated a lack of understanding of things said in English, either proactively or by providing a negative response to questions asking whether things said in English had been understood – although an individual’s failure to do so is not determinative, as he or she has no duty in that regard, and may have lacked the ability to comprehend the need for such an indication or to make such an indication.[29]
xxi. Whether there were difficulties encountered when the individual was put in touch with duty counsel, (e.g., requiring the placing of multiple calls in that regard), and/or other indications that the individual was dissatisfied with advice given by duty counsel.[30]
xxii. Whether the individual asked to speak in his or her own language and/or for an interpreter, officer and/or lawyer who spoke his or her first language – although an individual’s failure to do so is not determinative, as he or she may not be aware that such accommodations exist, and there is no duty or onus on such an individual to make such a request.[31]
xxiii. Whether the individual was offered but declined the services of an interpreter, officer and/or lawyer who spoke his or her first language.[32]
h. When determining whether such “special circumstances” exist, courts recognize that mastery of a language is not an “all or nothing” proposition, and that the situation of an individual detained or arrested by police, and attempting to understand his or her legal rights, is not an everyday situation. To the contrary, it frequently will be an unfamiliar situation. It also is a stressful situation in which the individual is inherently vulnerable, and may feel compelled to seem agreeable to authority figures. An individual who may be able to manage day to day in English, (e.g., after living and/or working in English-speaking areas of Canada for years), may nonetheless not be comfortable communicating in English, or sufficiently comprehend English, when dealing with the complexities of understanding or exercising his or her legal rights in a situation where he or she is detained and/or arrested, and the legal jeopardy he or she may be facing. Understanding of language in certain contexts is not the same thing as understanding rights.[33]
i. Where such “special circumstances” exist, a determination of whether or not police took further adequate and reasonable steps to address the special circumstances sufficiently, (i.e., to ascertain and ensure that the accused or detainee actually understood his or her legal rights, and was able to exercise those rights in a meaningful way), also depends on the facts of any given case. Depending on the circumstances, such further steps may include one or more of the following measures:
i. in some cases, depending on the individual’s level of English, by a police officer providing a more careful explanation of the right to counsel;
ii. by advising the individual that he or she may consult legal counsel in another language;
iii. by ensuring that the individual is informed of his or constitutional rights in his or her own language; e.g., by means of an appropriate written translation card, use of an interpreter, and/or by requesting the assistance of an appropriately bilingual officer and/or lawyer; and/or
iv. by ensuring that the individual exercises his or her constitutional rights in his or her own language; e.g., by use of an interpreter and/or appropriately bilingual lawyer.[34]
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