WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

Court File No.: Toronto Region - College Park

Date: 2014-02-20

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Varatharajah Thyagarajah

Before: Justice M. Wong

Heard on: October 30, December 13 and 17, 2013; February 11 and 19, 2014

Reasons for Judgment released on: February 20, 2014

Judgment on: Admissibility of a Statement by Accused to Police – Voluntariness and Section 10(a) and (b) of the Charter

Counsel:

J. Armstrong, for the Crown

R. Lockhart, for the accused Varatharajah Thyagarajah

Reasons for Judgment

Wong, J.:

Background and Issues

[1] Varatharajah Thyagarajah pleaded not guilty to sexual assault. The Crown proceeded summarily.

[2] This is a ruling on the admissibility of a videotaped statement Mr. Thyagarajah gave to police upon his arrest. The issues are voluntariness, where the Crown must establish beyond a reasonable doubt that the statement made was voluntary; as well whether Mr. Thyagarajah's section 10(a) and (b) rights under the Charter were violated, where the accused has the burden of establishing, on a balance of probabilities, the existence of the asserted breach of his Charter rights. The Defence seeks the exclusion of the statements pursuant to section 24(2). The main issue is that police did not provide nor offer a Tamil speaking interpreter to Mr. Thyagarajah, and whether he was able to exercise his right to counsel in a meaningful manner.

[3] The following background is not disputed for the purposes of this ruling:

Facts

[4] On April 7, 2010, the complainant reported to police that she had been sexually assaulted and the perpetrator was a stranger. Police obtained DNA swabs, which were sent for testing. On June 24, 2010, Detective Julie Zajac of the Toronto Police Sex Crimes Unit received the results and, as such, she and her partner Detective Constable Aaron Akeson began investigating Mr. Thyagarajah.

[5] By June 30th, Detective Akeson had eventually found Mr. Thyagarajah's cousin, James Thiruna. Based on conversations with Mr. Thiruna, Detective Akeson believed Mr. Thyagarajah did not have a phone or cell phone. As such, on June 30th at 9:00 am, Detective Akeson, Detective Julie Zajac and Mr. Thiruna went to Mr. Thyagarajah's apartment situated in a rooming house. Both officers were dressed in plainclothes. According to Akeson, Mr. Thiruna knocked on the door several times but there was no answer. Detective Akeson then knocked and announced, "Police" and that he wanted to speak to the defendant. Mr. Thyagarajah opened the door and Detective Akeson verbally identified himself and showed Mr. Thyagarajah his police badge and identification. Detective Akeson explained that the police were there in relation to a sexual assault investigation and that Mr. Thyagarajah was going to be arrested; and if he did not come with them then a warrant would be taken out. According to both officers, Mr. Thyagarajah was cooperative and agreed to come with them to 51 Division. Mr. Thyagarajah was wearing only pants so he was allowed to go back into his apartment to dress. Mr. Thyagarajah was then handcuffed and lead outside to an unmarked police car and placed in the back beside Detective Akeson.

[6] In cross examination, Detective Zajac agreed that Mr. Thyagarajah and his cousin were speaking to each other in Tamil. She agreed the cousin was doing some translation for her and Akeson.

[7] At 9:11 am, Mr. Thyagarajah was arrested. At 9:20 am, Detective Akeson read him the standard right to counsel in English. When asked if he understood, Mr. Thyagarajah replied "yes". When asked if he wanted to call a lawyer, Mr. Thyagarajah replied, "I don't have a lawyer". Detective Akeson then explained "duty counsel" and asked if he would like to speak to them, and Mr. Thyagarajah said "yes". En route to the police division, Detective Akeson said he pointed out to Mr. Thyagarajah the location of the alleged sexual assault, but he does not remember his exact words or Mr. Thyagarajah's response, if any.

[8] At 9:29 am, they arrived at 51 Division. They waited in the sally port until they were advised the booking sergeant was available. At 9:41 am, the booking process began. According to Detective Akeson, Mr. Thyagarajah appeared to understand the questions asked of him in English although occasionally the officers had to repeat a question. According to the officer, when they first spoke to Mr. Thyagarajah at his apartment, he appeared to have just awoken, but now at the station Detective Akeson described Mr. Thyagarajah as alert, cooperative, normal, no signs of intoxication by either alcohol or drugs. The officer testified Mr. Thyagarajah appeared calm, collected, and not displaying any extreme or adverse emotions – he was "just cooperative and willing to do what was necessary". Mr. Thyagarajah was searched and placed in an interview room. Exhibit A1 is the booking video.

[9] Detective Zajac testified she placed a call to duty counsel and while she waited for a return call, she started the show cause hearing material. Zajac testified she asked Mr. Thyagarajah questions relating to, for example, his employment and marital status which the defendant answered. At 10:12 am, duty counsel called back and Mr. Thyagarajah was allowed to speak in private. Detective Zajac did not recall the time the call with duty counsel ended because another officer hung up the phone, but by 10:50 am, she and Detective Akeson began the videotaped interview with Mr. Thyagarajah. Detective Zajac testified Mr. Thyagarajah did not say anything to her after he had completed his phone call with duty counsel, and there was no conversation on the way to the interview room. Both officers testified they did not make any promises or inducements, nor threaten Mr. Thyagarajah to speak to them.

[10] The interview was conducted in a standard interview room with a round table in the middle and chairs around it. The plan was for Akeson to ask the questions and Zajac would take notes. According to Detective Zajac, up to this point, she had asked Mr. Thyagarajah questions and he responded in English; he had not said anything to her about having any difficulties understanding her; nor did he say anything about his call with duty counsel. Detective Zajac testified she did not even consider that Mr. Thyagarajah might require an interpreter because he seemed to understand the process and answered questions appropriately.

[11] According to Detective Akeson, it was obvious to him that Mr. Thyagarajah's first language was not English, but he believed Mr. Thyagarajah was able to understand. Occasionally Detective Akeson said he needed to repeat himself, but he was able to talk back and forth with Mr. Thyagarajah and they seemed to understand one another. According to Akeson and Zajac, neither considered an interpreter necessary.

[12] Exhibit B1 is the videotaped statement of Mr. Thyagarajah and Exhibit B2 is the transcript of the interview. The interview began on June 30, 2010 at 10:50 am and finished at 11:36 am. The audio and video quality of the tape is good. Mr. Thyagarajah is again read his right to counsel in English. Detective Akeson reviewed with Mr. Thyagarajah that he had spoken to duty counsel. I am not going to review in detail the contents of the video at this point, but it is clear that Mr. Thyagarajah was often confused about the meaning of certain words, which are outlined in the Applicant's factum at pages 2 to 5. In particular, Mr. Thyagarajah appeared to not understand the secondary caution and Detective Akeson had to re-explain it; Mr. Thyagarajah did not understand the difference between "lick" and "spit"; he was confused when asked about the "victim" ordering beers and eating food, Mr. Thyagarajah thought the officers were referring to him, and that had to be re-explained; when asked if he understood the word "vagina", Mr. Thyagarajah said (and I am paraphrasing) that he did not know the meaning of the word, but he never did anything; and lastly, when asked if he had any "piercings", Mr. Thyagarajah thought the officer was referring to "medication". Throughout the videotaped interview, Mr. Thyagarajah was pleasant, cooperative, and he was very agreeable but it was obvious by some of his answers, Mr. Thyagarajah did not fully understand the question.

Accused's Testimony

[13] Mr. Thyagarajah testified on the voir dire. Mr. Thyagarajah is 43 years old and he came to Canada in 1998. He has worked for the past 10 years in various jobs including working in a moulding company, as a fork lift driver, and as a building superintendant. Mr. Thyagarajah was cross examined vigorously, but fairly, and I find that he exaggerated the limited exposure and use of English for the past 15 years in Canada. According to Mr. Thyagarajah, even though he took and passed his forklift driver's examination in English, while working as a shipper-receiver, his boss spoke to him only in Tamil and he never understood any directions given to him by others in English. For the four years, he worked as a building superintendant, no one including any of the tenants spoke to him in English. If he had to paint someone's apartment, for example, Mr. Thyagarajah said he would knock on the person's door and hand them the work order, but have no conversation. His wife would translate for him if there was any question; as well his wife would speak to management on his behalf. For the past 6 years since he has been separated from his wife, Mr. Thyagarajah says he has not gone to any restaurants except for Tamil restaurants; for the last 3 years, he has only bought groceries in Tamil speaking stores; he's never been to a shopping mall, Wal-Mart or a fast food place such as McDonald's. Mr. Thyagarajah agrees he has been to Tim Horton's and his English is limited to ordering coffee.

[14] However, when testifying, Mr. Thyagarajah had to be reminded to wait for the interpreter to translate the questions before answering them and, in spite of that, he would sometimes answer the questions in English. I am mindful that Mr. Thyagarajah testified in 2014 and the alleged offence occurred in 2010; however, on the videotape recorded in 2010, Mr. Thyagarajah spoke and understood much more English than he would have this court believe.

[15] When the police came to his door with his cousin, Mr. Thyagarajah said he was "terrified" because he had had prior dealings with police wherein they warned him that any further trouble might result in his deportation back to Sri Lanka, where he says police will arrest and beat him. As a result, Mr. Thyagarajah wanted to cooperate with the officers. Mr. Thyagarajah testified the only word he understood regarding his "right to counsel" was "lawyer". Mr. Thyagarajah who has had prior court cases in 2001, 2006 and 2007 and was represented at times by duty counsel and at other times by his own lawyer, claims to have been always been assisted by a Tamil interpreter except to say niceties, such as "How are you?". According to Mr. Thyagarajah, when speaking to duty counsel relating to the charge before this court, i.e. the sexual assault, he does not say he did not understand duty counsel's advice or that the advice was inadequate; rather Mr. Thyagarajah says he cannot remember the conversation because was "fully drunk". Mr. Thyagarajah goes on and says he was too drunk to even remember what Detectives Zajac and Akeson asked him, but that he may have uttered some words out of fear. That fear stems from Mr. Thyagarajah's subjective fear of being deported as opposed to anything either officer did or said to him: according to the Mr. Thyagarajah, neither officer physically or verbally threatened him nor made him any promises or inducements. Neither officer threatened him with immigration consequences. He was not ill or in any discomfort during the interview. Mr. Thyagarajah agreed that he knew at the beginning of the interview the police were accusing him of touching a woman sexually. Mr. Thyagarajah agrees he never asked to speak to a lawyer and he knew that he did not have to speak to police.

Court's Assessment of Credibility

[16] I found Mr. Thyagarajah's evidence to be extremely exaggerated and self-serving. As for his claim that he was drunk when he gave the statement, the videotape clearly shows Mr. Thyagarajah answering questions coherently and not displaying any physical signs of intoxication such as weaving, falling asleep, or slurring his speech, to name a few classic indicia of impairment. As the Crown submits, there is a marked distinction between indicia of consumption of alcohol and indicia of impairment. Detective Akeson testified he smelled alcohol on Mr. Thyagarajah's breath, which was consistent with Mr. Thyagarajah having consumed alcohol, and therefore, Akeson asked the defendant from pages 48 to 54 of the transcript, questions about his drinking and whether Mr. Thyagarajah thought he was "drunk". Mr. Thyagarajah said "no no" and explained that he drank the night before, but not that morning. Based on those answers and his observations, which the Court can also see on the videotape, Detective Akeson testified he was satisfied, Mr. Thyagarajah was not impaired by alcohol. Having observed Mr. Thyagarajah on the videotape, I find his claim that he was "drunk" or so intoxicated as not to have an "operating mind" as exaggerated.

[17] I have already commented on Mr. Thyagarajah's attempt to underplay his understanding English. Having been in Canada for 14 years, Mr. Thyagarajah's claim that he has only nominal English skills is inconsistent with his trying to answer the police officer's questions as well as his testimony in court, which was sometimes in English. According to Mr. Thyagarajah his ability to speak and understand English has not improved over the passage of time, which is another example of Mr. Thyagarajah's lack of honesty.

[18] As for his ability to understand duty counsel's advice, Mr. Thyagarajah is unhelpful because he claims he was too drunk to remember which, for reasons already given, I reject. Mr. Thyagarajah does, however, admit under cross examination that he understood he did not have to speak to police, but claims he was so afraid that he spoke anyway. There is no objective evidence to support Mr. Thyagarajah's stated fear; and on the videotape, Mr. Thyagarajah appears comfortable, relaxed and cooperative.

Charter Breach Analysis

[19] Overall, I reject Mr. Thyagarajah testimony to the extent that he has established a violation of his section 10(a) and/or (b) Charter rights. But that does not end the analysis.

[20] The videotape clearly shows Mr. Thyagarajah confused by very straightforward words like "lick" and "spit", and others that I have already mentioned. It ought to have been clear to Detectives Zajac and Akeson that Mr. Thyagarajah was struggling with understanding their questions in English. The police must inform a detainee of his or her right to counsel in a language they can understand. That is the obligation on the part of the police. Where special circumstances exist that ought to alert the police that a detainee is unable to understand his or her right to counsel due to language comprehension issue, they must take steps to ensure that the accused can understand his or her rights. (see R. v. Vanstaceghm, 36 CCC (3d) 142; R. v. Barros-DaSilva, 2011 O.J. No. 3794 (Ont. Superior Court) at para. 24 where Justice Tulloch cites R. v. Schmoel, 1988 O.J. No. 2233 at para. 8; R. v. Colak, 2006 O.J. No. 4953).

[21] Both officers testified that they believed Mr. Thyagarajah's facility in English allowed him to understand their questions, his right to remain silent, and his right to counsel and to make informed choices. However, the subjective belief of the officers that an accused fully understood their rights is not determinative of the issue of "special circumstances". It would be a reversible error for me to find that based on the officers' subjective belief about Mr. Thyagarajah's ability to understand his legal rights that, therefore, no special circumstances existed. I have to consider the entirety of the evidence including the videotape statement.

[22] I am not satisfied as Crown counsel submits, that police complied with their section 10 obligations because Mr. Thyagarajah spoke to duty counsel and did not complain to the officers about the quality of the advice. From the videotape itself, it is clear that Mr. Thyagarajah's first language was not English and moreover, he was clearly confused about some fairly straightforward everyday words. At minimum, the officers ought to have asked Mr. Thyagarajah if he wanted a Tamil interpreter; at best, they should have held off the interview until a Tamil speaking officer or interpreter was present. There were no exigent circumstances that would have made holding off their questions detrimental to their investigation.

[23] As such, I am satisfied that Mr. Thyagarajah's section 10(b) rights were violated on the basis of the videotaped interview alone when objectively viewed, and as such I will examine s. 24(2).

Grant s. 24(2) Analysis

[24] In 2009, the Supreme Court of Canada released two very important cases: R. v. Grant, 2009 SCC 32, which dealt with the admissibility of conscriptive evidence following investigative stop, and R. v. Harrison, 2009 SCC 34, which dealt with the admissibility of non-conscriptive evidence obtained through serious Charter violations. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regards to the following: the seriousness of the violation which is now broken into two sets of factors: the seriousness of the Charter-infringing conduct and impact of the Charter breach on the protected interests of the accused. As well as a third factor, which is the value of a trial on the merits. In assessing the evidence, I am mindful that the purpose of section 24(2) is to maintain the good repute of the administration of justice. That phrase must be understood in the long-term sense of maintaining the integrity of, and public confidence, in the justice system. The inquiry is objective: it asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute (see Grant: paragraph 67 and 68).

Inquiry One: Seriousness of State Conduct

[25] Inquiry One: Seriousness of State Conduct – this is fact specific and likely each case will be different. The key principle is the respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. There is little impact on repute of the court process, however, where evidence is gathered through a violation committed in good faith. It is recognized that most violations fall somewhere in the middle between "deliberate and egregious" and "inadvertent and minor". The further along the spectrum, the more likely the conduct will bring the administration of justice into disrepute because of the negative effect on the public confidence in the rule of law.

[26] In this case, I find that it ought to have been very apparent to Detectives Akeson and Zajac that Mr. Thyagarajah was struggling to fully comprehend what they were asking him because he answered so many questions incorrectly. On page 5 of 89, Detective Akeson read the standard secondary caution to Mr. Thyagarajah (and I am paraphrasing) that "if a police officer or a person in authority had spoken to him in connection with the case, he did not want it to influence him". When asked in more simpler terms what that meant, Mr. Thyagarajah replied, "You don't tell anybody. Yeah". This ought to have been the first clue that Mr. Thyagarajah did not understand English sufficiently to make an informed choice about giving up his right to remain silent. To Detective Akeson's credit, he re-explained the caution using less formal words. However, on page 18 of 69, Mr. Thyagarajah clearly did not understand the word "spit" when asked if he had ever spit on anyone and Mr. Thyagarajah said "his wife". Again, Detective Akeson clarified the word "spit" and "kiss". On page 19, when asked if he understood the word "lick", Mr. Thyagarajah said "no" to which Akeson again explained. At page 23 of 69, Detective Akeson told Mr. Thyagarajah to let him know if he did not understand something; and Mr. Thyagarajah agreed he would. But three pages later at page 25, again Mr. Thyagarajah was confused about the word "victim" because he answered the officer's question referring to himself as the victim. But Mr. Thyagarajah did not tell Detective Akeson that he did not understand the word "victim", he answered the question incorrectly so it became apparent that he did not understand. Later at page 29 of 69, the same confusion over the word "victim" arose and again Mr. Thyagarajah was confused and the officer needed to clarify.

[27] By this point, half way through the interview, there were a sufficient number of red flags that the officers ought to have known Mr. Thyagarajah was having trouble understanding their questions. It has not been submitted by the Crown that Mr. Thyagarajah was faking his confusion. Quite the opposite: both officers testified Mr. Thyagarajah was trying to be cooperative.

[28] At page 31, Detective Akeson asked Mr. Thyagarajah if he understood the word "vagina" and he said he did not know the meaning, but the officer did not elaborate and Mr. Thyagarajah continued his blanket denial. And the last example of Mr. Thyagarajah not understanding the officer was at page 45 when asked about any "piercings" and the defendant said he did not use medication.

[29] Obviously, there were a lot of questions put to Mr. Thyagarajah between the remaining 69 pages of the transcribed videotape statement where it appeared Mr. Thyagarajah understood and answered appropriately. Throughout the statement, Mr. Thyagarajah basically denied any inappropriate sexual touching of the complainant. However, that does not in my view exonerate the officers, who ought to have known early in the process that Mr. Thyagarajah was not fully understand the questions he was being asked.

[30] The Crown counters that Mr. Thyagarajah even with a court appointed, fully accredited interpreter Mr. Thyagarajah was often confused by questions on this voir dire. I agree with Ms. Armstrong's observations. Mr. Thyagarajah seems like a very simple, unsophisticated, and probably under-educated man who although has been before the courts before charged with domestic assault and failing to comply does not come across like a veteran to the court process. All the more reason, I find that the detectives ought to have ensured that Mr. Thyagarajah, at least be offered the assistance of an interpreter or better yet, have a Tamil speaking officer conduct the interrogation.

[31] Ms. Armstrong also points out that Mr. Thyagarajah did, in fact, speak to duty counsel so police complied with their s. 10(b) obligations. Detective Zajac testified she placed the call to duty counsel, who returned her call at 10:12 am. However, Detective Zajac did not know how long the call lasted or which other officer hung up the phone, but it was not her. Her next notebook entry was at 10:50 am, when she and Akeson began taking the statement. Whether Mr. Thyagarajah spoke to duty counsel for two minutes, five minutes or 10 minutes might have been useful in determining whether he had a meaningful opportunity to speak to a lawyer.

[32] In this case, both detectives testified it never crossed their minds that Mr. Thyagarajah ought to been asked if he wanted language assistance let alone taken positive steps themselves to contact an interpreter. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: See Grant at para 75 citing R. v. Genest, 1989 1 SCR 59 at p. 87 per Dickson, CJ; R. v. Kokesh, 1990 3 SCR 3; and R. v. Buhay, 2003 SCC 30, 2003 1 SCR 631.

[33] As for extenuating circumstances, I find none.

[34] I find the police ought to have been aware that Mr. Thyagarajah needed language assistance at least by the first few minutes of their interview with him. As such, I find the breach of Mr. Thyagarajah's section 10(b) rights to be serious.

Inquiry Two – Impact on Charter Protected Interests

[35] Inquiry Two – Impact on Charter Protected Interests: The key concept here is measuring the impact on the particular accused by evaluating the extent of intrusion into protected interests. The more serious impact into those interests, the greater the risk that admitting the evidence would send a message that Courts do not take Charter rights seriously. Grant also makes it clear that the degree of intrusion is measured not only by the conduct of the officers but also by the nature of the evidence secured. According to Justice David Paciocco, former law professor and noted criminal law expert, where the violation of a protection against self-conscription produces statements, for example, the impact on the Charter protected interests is generally great, and they are prima facie inadmissible, although the prima facie position can be overcome in the circumstances of a case: See R. v. Casselman (Jan 29), 2014 ONCJ 48 citing Grant at para. 91-92. "This is because the violation will have compromised the right to silence of suspects, which is of fundamental importance in preserving liberty". The impact is examined from the perspective of the accused.

[36] In Grant, the Court noted three lines of inquiry which support the general, although not automatic, exclusion of statements obtained in breach of the Charter. The first inquiry focuses on whether admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. Police conduct in obtaining statements has long been strongly constrained. Police have been taking confessions from accused persons for a very long time so they should be able to get it right. The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused (see Grant at para. 94).

[37] The second inquiry considers the extent to which the breach actually undermined the interests protected by the Charter. There is a cascading impact of breaching an accused's right to counsel, which then undermines their right to make informed choices, impacts on their right to remain silent, and fundamentally undermines protection against self-incrimination and thus liberty and autonomy. Violation of these fundamental rights tend to militate in favour of excluding the statement (see Grant para. 95). According to the court in Grant, minor or inadvertent slips will favour admission as will violations that only marginally affect the right to make informed choices. For example, a spontaneous statement would likely be admitted even with a section 10 breach or, if the accused was clearly informed of his choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implemental stage, the impact on the liberty and autonomy interests of the accused making an informed choice maybe reduced (See Grant para 95).

[38] In this case, it was not a minor slip or a technical defect by the detectives, at minimum, not asking Mr. Thyagarajah if would like a Tamil interpreter or better still, taking proactive steps to find an interpreter. It is impossible to answer confidently that had Mr. Thyagarajah been given the opportunity to consult with a Tamil speaking lawyer and he fully understood the extent of his rights and jeopardy, he would have made a statement anyway. Unlike other forms of evidence, Mr. Thyagarajah's statement would not have been discoverable in any other way.

Inquiry Three – Society's Interest in an Adjudication on the Merits

[39] Which leads me to the final stage of analysis: Society's interest in an adjudication on the merits. The third line of inquiry asks whether the truth-seeking function of the criminal trial would be better served by the admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": See Grant para 79 citing R. v. Askov, 1990 2 SCR 1199. The Court should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[40] The reliability of the evidence is an important consideration at this level of the inquiry. So, too, is the importance of the evidence to the prosecution's case. As well, the seriousness of the case may also be a valid consideration. But the over-arching principle is the long-term repute of the justice system that is the s. 24(2) focus.

[41] In Mr. Thyagarajah's case, the Crown seeks to admit his statement not because what he said was reliable; rather it is reliable evidence that Mr. Thyagarajah lied to police when he denied any physical contact with the complainant because his DNA was later found on her. Should Mr. Thyagarajah choose to testify, which his counsel says he will be, the Crown seeks the admission of his statement for purposes of cross examination. Crown counsel argues that in this case, in particular, credibility is the main issue at the trial proper because the complainant is now deceased, and therefore Mr. Thyagarajah's statement is important so the Crown can challenge his credibility.

[42] Just as involuntary confessions are suspect, on grounds of reliability, so may, on occasion, are statements taken in contravention of the Charter. As per Grant at para. 97: "Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial on the merits".

[43] Grant concludes this part of the discussion at para. 98: "In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law's historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2)".

Conclusion

[44] In this case, having considered the circumstances of this case, I am satisfied the admission of Mr. Thyagarajah's statement having been taken without any consideration by police for his need for an interpreter, which if one had been offered and/or provided, may realistically have affected his decision to waive his right to silence, on balance, would bring the administration of justice into disrepute. In reaching this conclusion, I am very mindful that the allegations of sexual assault in this case are very serious (See earlier decisions of this court on R. v. Thyagarajah released on October 23 and 30, 2013).

[45] For those reasons, the statement will be excluded under section 24(2).

[46] Lastly in an effort to be thorough, I find the Crown has proven beyond a reasonable doubt that the statement was voluntary. Defence counsel did not challenge either officer on their treatment of Mr. Thyagarajah nor did the accused testify otherwise. And lastly, I am not satisfied that Mr. Thyagarajah's section 10(a) were violated. While Mr. Thyagarajah's English was limited, I accept the evidence of the detectives that he was advised forthwith the reasons for his arrest and that Mr. Thyagarajah had understood, as he himself admitted during cross examination.

Released: February 20, 2014

Justice M. Wong