WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shanmugalingam Paramasivam

Ruling on the Admissibility of a Statement

Before: Justice Borenstein

Submissions heard: September 26, 2014

Reasons for Judgment released: September 29, 2014

Counsel:

• S. Akhtar, counsel for the Crown
• U. Kancharla, counsel for the accused Shanmugalingam Paramasivam

BORENSTEIN J.:

Facts and Charges

[1] The accused Shanmugalingam Paramasivam is charged with sexual assault and touching a person under 16 for a sexual purpose.

[2] He allegedly made an utterance to the police when they initially detained him.

[3] The Crown seeks to adduce that utterance at this trial and submits that it is voluntary.

[4] The defence submits that voluntariness has not been proved by the Crown. The accused also denies making the utterance.

[5] Further, the defence submits that the statement was obtained in violation of section 10(b) of the Charter and ought to be excluded pursuant to section 24(2). The onus is on the defence in relation to the Charter application on a balance of probabilities. Sections 10(a) is not being raised.

[6] I find that the statement is voluntary and ought not be excluded pursuant to the Charter.

The Incident

[7] In essence, it is alleged that Paramasivam approached the 15-year-old complainant who was walking her dog. He grabbed her wrist and tried to pull her into a stairwell while rubbing her back at the time.

[8] The police immediately received a call reporting this at 1:01 p.m. They had a brief description of the suspect. They immediately went to the scene arriving at 1:08 p.m. P.C. Ford spotted the accused. At the same time, an unknown female began waving at the officer and pointed at that same accused.

Police Conduct at the Scene

[9] P.C. Ford approached the accused at 1:12 p.m. and told him to stop. P.C. Ford told the accused he was under investigative detention. He did not tell him the allegations. Ford's memo book was in the cruiser so he informally told him he had a right to call a lawyer and that, if he could not afford one, one would be contacted for him for free. He asked the accused if he understood him. The accused replied yes. Ford then cautioned the accused, informally, telling him not to speak and asked him if he understood. Again, the accused said yes. The officer did not ask the accused any questions.

[10] The accused then said: "I only touch the dog. I didn't do anything wrong".

[11] That is the utterance the Crown seeks to tender.

[12] Ford cautioned the accused again and told him anything he said would be admissible in court.

[13] Ford requested other police units to attend. Ford then spoke briefly with the witnesses and returned to the accused. He conducted a brief pat-down search upon the accused and told him that the allegations related to touching someone inappropriately. Ford thought the accused was about to speak so he cautioned him again. The accused repeated that he had only touched the dog and had done nothing wrong.

[14] By 1:20 p.m., other officers arrived. P.C. Ford then spoke to the complainant and, by 1:23 p.m., Ford arrested the accused for sexual assault.

Formal Rights at the Police Station

[15] He again advised the accused informally of his right to counsel and caution and took the accused to his cruiser where he retrieved his notebook and formally read the accused the right to counsel and caution. This exchange is captured on the cruiser's video.

[16] Ford asks the accused if he understands his rights. The accused nods and the officer then says words to the effect of: "you are nodding so I assume you understand".

[17] Ford asks the accused if he wants to call a lawyer now and the accused says yes. He asks if he wishes to say anything in answer to the charge but the accused did not reply. There is further discussion between the two. The accused asks that his handcuffs be loosened. He tells the officer he needs his diabetes medication. The accused's wife arrived on scene and wanted to speak with her husband. Ford told the accused he could not talk to his wife. Ford then drove to the accused's apartment to retrieve his medication.

[18] Ford took the accused to 41 Division where he was paraded and booked, all of which is captured on video including discussion about whether the accused got his rights. Eventually, a call was placed to duty counsel and the accused spoke in private to duty counsel without complaint.

P.C. Ford's Evidence Regarding Language

[19] Ford acknowledged that the accused has an accent but testified that he believed the accused understood him. Moreover, he asked the accused if he understood him and the accused said that he did.

[20] He was cross-examined regarding whether there was a TPS protocol dealing with people who, presumably, have accents and whose first language appears to be other than English. Ford testified that he was unaware of any protocol. He explained that he speaks to individuals and sees if they understand him. If they do not, he then handles things differently but the accused never told him that he did not understand him. He explicitly told Ford that that he did understand him.

[21] The accused was in Ford's presence the entire time from the initial detention. Neither Ford nor any other officer threatened the accused or made any inducements to him so that he would speak.

P.C. Gajewski's Evidence

[22] P.C. Ford's partner, P.C. Gajewski, had much less involvement at the scene than Ford. The accused told Gajewski that all he did was pet the dog and Gajewski told him to stop speaking to him as an officer would eventually speak to him. Gajewski had no difficulty understanding the accused although he had no notes of any conversation at all.

Statements at the Police Station

[23] The accused made further similar statements at the police station. The Crown is not seeking to adduce those statements; however, the defence submits the interaction at the station is relevant to this application.

[24] P.C. George Lee dealt with the accused in the interview room at 41 Division after the accused had spoken with duty counsel. Lee wanted the accused to sign a particular form. The accused would not. Lee had limited dealings with the accused but testified that his dealings were all in English and that, while English was not the accused's first language, he had no difficulty understanding the accused. Lee had a vague recollection and offered few facts in support of his opinion that the accused understood him. I have watched the video however.

The Accused's Evidence on the Voir Dire

[25] The accused testified on the voir dire.

[26] He was born in Sri Lanka. His mother tongue is Tamil. He attended school in Sri Lanka where his courses were taught in Tamil. He came to Canada in 1991 when he was 20 years old. That was over twenty years ago. He took a month long ESL class upon his arrival. He has worked as a cook at a Golden Griddle restaurant. He also worked for a transportation company for 15 years loading and unloading trucks. He testified that he speaks to his co-workers mostly in Tamil. He had been assaulted and shot by the police in Sri Lanka and did not know he had a choice whether to speak to the police.

[27] The essence of his evidence is that he did not understand P.C. Ford when he spoke to him initially at the side of the road, he did not make the utterance to P.C. Ford as alleged and that he was feeling tired and unwell at the police station.

[28] He testified both that he did not understand Ford and then gave details of what Ford told him including the fact Ford told him to lie.

[29] He testified that Ford initially approached him and told him that he was going to be arrested for touching a woman. He also testified that Ford told him that if he told the police that all he did was touch the dog, he would be released from the station. He said the officer was telling him to lie but he did not want to. That, of course, suggests that he did understand the officer, assuming any of that was said.

[30] He testified that he did not know the meaning of "allege" or "counsel" or the phrase "anything I say can be used against me".

[31] He testified initially that he was not given food or water or medication at the police station and that, when taken to Court the next day, he told the judge, through an interpreter, that he did not receive his medication. He was then taken to the hospital.

[32] In cross-examination, he testified that he asked for food, water and medication as he was about to speak to duty counsel and that the officer told him that he would give him those items later. After the call to duty counsel, the accused was taken for fingerprints and was then placed in the cells where he fell asleep. The officer brought him bread and water in the cells.

[33] In cross-examination, he was asked whether he knows how to say, in English, that he does not understand.

[34] He replied he knows how to say "no English".

[35] He was asked whether he told the officers that he did not understand English. He replied that he told P.C. Ford that he speaks Tamil, and only a little English. The exchange between he and Lee shows a reasonable understanding of English, albeit in broken English.

[36] He testified that he does not know what sexual assault means.

[37] He was then asked why he told the police that he only touched a dog. He explained that the officer told him that "touching here and there" is sexual and then repeated that he would be released if he told them a lie.

[38] The Crown then asked the accused whether that entire exchange was in English. He then replied he only understood a little.

[39] He was asked about the exchange by the cruiser when the officer told him he could not talk to his wife. He said he understood "no talk".

[40] He did not suffer a seizure but was taken to the hospital. He conceded that he spoke to the ambulance personnel and doctors in English but testified that it just a little bit of English.

[41] He was asked about being told to wait initially by P.C. Ford.

[42] He testified that he asked the officer why you detaining me – why are you here.

[43] The Crown asked if he asked the officer those questions in English. He answered that the officer spoke and gestured.

[44] There were other examples of the accused speaking English including an incident seen on video where he said I am not a criminal, you cannot charge me for touching animals. The accused testified that he never said you can't charge me for touching animals as he could not even say that in English. The video was played where he said exactly that. When asked if he heard himself say that on the video, he replied there was no video at that point, just audio. It was obvious that it is the accused speaking in the cruiser.

[45] He was cross-examined about an exchange he had with a court officer and was asked if he told the officer that he could not afford a lawyer to fight his case. He replied the court officer told him that, because he was poor, he can't get a lawyer and the government was rich and would win.

[46] He was asked if that conversation took place in English. He replied, yes, because the officer spoke very slowly and with hand gestures.

Summary of Evidence

[47] That was the evidence called on this application.

Crown's Position

[48] As indicated, the Crown is seeking to adduce only the alleged utterance made at the side of the road. They are not seeking to adduce any other statements. The Crown submits that the utterance at the side of the road was voluntarily made. It was not even elicited.

Defence Position

[49] The defence submits that the Crown has not proved that the utterance was made voluntarily. The accused also denies making that statement. A denial by an accused that the statement was made does not relate to voluntariness. There is nothing in the evidence whatsoever that raises a doubt about the voluntariness of that statement. There is nothing that causes me to have a doubt that the accused's will was overborne by inducements, oppressive circumstances, a lack of an operating mind or any trickery.

Charter Application

[50] Turning to the Charter application, the accused alleges that he was not informed of his right to retain and instruct counsel. The Charter motion was not raised prior to trial. On the first day of trial, Ms. Kancharla submitted that she had just learned that the accused did not have an interpreter when he spoke to duty counsel at the station and wanted to file a Charter application. She was permitted to file a late Charter application and raised 10(b) in that context. Section 10(a) was not raised. As indicated, the Crown does not seek to adduce any statements made after that initial utterance. The defence submits that the initial utterance was obtained in violation of 10(b) and ought to be excluded pursuant to 24(2).

[51] He also submits that, had he been informed of his right to counsel at the side of the road in a manner in which he understood, he might not have made the utterance which he denies making. I point out that there is no evidence from him to that effect, credible or otherwise.

[52] The Crown submits that there was no violation of section 10(b). Further, the statement was not elicited and should not be excluded.

Court's Findings on Credibility

[53] Turning to my findings on this motion.

[54] I prefer the evidence of P.C. Ford over the accused as it relates to the exchange at the side of the road.

[55] I make that finding for the following reasons:

[56] First, as the accused's evidence progressed, it became apparent that he understands more English than he admitted. He was downplaying the extent to which he understands English, which significantly impacts on his credibility on an application of this sort.

[57] Second, at a bare minimum, he certainly understands how to say if he does or does not understand.

[58] Third, he did tell the police that he understood.

[59] Fourth, as noted above, the accused's evidence changed in relation to the questions being asked. He at times seemed as though he were making it up on the fly.

[60] Fifth, I found P.C. Ford credible. He was for the most part clear and consistent in his evidence. It is also clear that he was doing everything he could to ensure that the suspect was detained and did not speak. He was acting to ensure and protect the accused's rights in the circumstances that presented themselves to him.

[61] Sixth, despite the accused's denial that he made that utterance at the side of the road, I accept that he in fact made that utterance in an attempt to exculpate himself. He was repeating that utterance when on video and I do not accept that he was told to say those things as a lie.

[62] Accordingly, I do not accept the accused's evidence that he did not understand what was said in the brief encounter at the side of the road when he made that initial utterance to try to exculpate himself.

Analysis of Charter Issues

[63] That said, based on the videos at the cruiser and at the station, as matters later developed, police ought to have been aware that the accused's English was broken and, at the station, they should have done more to ensure that he understood his right to counsel. An accused has a right to be informed of his right to retain and instruct counsel and where special circumstances exist indicating a detainee may not understand his right to counsel, the police ought to take reasonable steps to ensure that he or she understands his right to counsel: R. v. Baig (1987), 61 CR (3d) 92 (S.C.C.).

[64] However, that is irrelevant because he did speak to counsel at the station. He did not complain about his understanding and the Crown is now not seeking to adduce those statements.

[65] With respect to events at the side of the road, there was no violation. It was as brief an exchange as possible. The officer did everything he could to simply detain the accused until he was able to get a sense of the situation. He informally advised him of his right to counsel and caution and did not question him at all. He tried to stop him from speaking. The defence submission that they should have called for an interpreter to the side of the road and not questioned him until one arrived is answered by the fact that the accused said he understood, and, more importantly, Ford did not question him and tried to stop him from speaking. There was absolutely nothing more he could do.

[66] There was no violation of the right to counsel at the time he made the initial utterance.

Section 24(2) Analysis

[67] Even if there had been a Charter violation at that juncture I would not exclude that initial utterance for the following reasons.

[68] First, I disagree with the Crown submission that, had a violation preceded the utterance, we would still not get to 24(2) since the utterance was not elicited. That is contrary to the wording of section 24(2), its structure and the case law.

[69] Once a violation is found, and evidence is sought to be excluded, the vehicle to determine whether the evidence would be admitted or excluded is section 24(2) and the first question in that analysis is whether the evidence was "obtained in a manner". The fact that the utterance was not elicited is extremely important in the 24(2) analysis but it is still looked within that framework. In this case, the violation, had there been one, and the utterance, are temporally connected and are part of the same transaction and that is sufficient to conclude that the evidence was "obtained in a manner" within the meaning of section 24(2).

[70] Moving, then, to a consideration of the Grant factors: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[71] First, assuming a violation of the right to counsel, the conduct of the police at the side of the road was exemplary. Faced with an urgent situation, they stopped the accused and informally and colloquially gave him his right to counsel and caution. They also told him not to speak. They did not question him. They told him to stop talking when he began to speak. There is absolutely nothing more that they could have done at that juncture other than somehow not listen to what the accused kept repeating.

[72] The Charter infringing conduct was negligible at best.

[73] As for the impact on his Charter protected interests, it must be borne in mind that we are speaking of his right to retain and instruct counsel and no other rights. Section 10(a) has not been raised. When the right to counsel is given, the police must refrain from seeking to elicit any evidence until the detainee has either waived his right in an informed manner or exhausted a reasonable opportunity to exercise his rights. In this case, the police did hold off. They did not elicit any information. The fact that he spontaneously uttered those comments did not impact his right or ability to retain and instruct counsel. In fact, he did exercise that right later at the station. The impact on the right to counsel was not significant.

[74] Finally, some consideration must be given to society's interest in a trial on the merits. The utterance in question is important to the Crown's case. It provides a link between the assailant and the accused. The truth seeking function of the trial would be enhanced by the admission of that evidence.

[75] On balance, had there been a Charter violation, it would be my view that the evidence ought not be excluded as its admission would not bring the administration of justice into disrepute.

Released: September 29, 2014

Signed: "Justice Borenstein"