Superior Court of Justice - Ontario

Court File No.: CR-14-50000652

Date: 20151126

RE: Regina v. Rajinderpal Singh

Before: E.M. Morgan J.

Counsel:
A. Del Rizzo, for the Crown

B. Hundal, for the Defendant

Heard: November 23-25, 2015

APPLICATION RE VOLUNTARINESS AND SECTION 10(b) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

[1] In this application, which proceeded by way of blended voir dire, the defense seeks to exclude from the evidence certain brief utterances that the Defendant expressed immediately upon his arrest, together with a lengthier formal statement that the Defendant gave to the police that was video recorded at the police station on November 16, 2013.

[2] The Defendant is charged with sexual assault and unlawful confinement in relation to events that transpired between approximately midnight and 5:00 a.m. on that date. The brief utterances and formal statement in issue are exculpatory in substance. The Crown seeks to adduce them as evidence at trial.

[3] Counsel for the defense submits that the utterances and statement must be excluded because were not voluntary, and the Defendant was not properly advised of his right to counsel under s. 10(b) of the Charter. The Defendant contends that he was pressured into making a statement, and that his command of the English language was insufficient to understand his rights or to have comprehended the caution that he was given by the police.

[4] Generally speaking, an accused person may not be compelled to be a witness against himself, and so only voluntary statements made to police are admissible as evidence: Charter, ss. 7, 11(c). Accordingly, once detained and prior to an accused being informed of his or her right to legal counsel any statements made to the police are considered involuntarily compelled and are generally excluded as evidence under s. 24(2) of the Charter: R v Grant, 2009 SCC 32, [2009] 2 SCR 353, at paras 58, 98. After being cautioned about the right to remain silent and the right to consult counsel, an accused may choose to voluntarily answer questions and those statements would be admissible.

[5] In R v Bartle, 1994 64 (SCC), [1994] 3 SCR 173, Chief Justice Lamer stated that “absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution”. Counsel for the defense submits that special circumstances do exist here, in that Defendant was not able to adequately understand or communicate in English.

[6] Having viewed and listened to the full videotape of Defendant’s police statement, and having reviewed the transcript of that statement produced by a court reporter, I am compelled to agree. Much of what the Defendant said was incomprehensible. To be clear, the Defendant is not entirely without knowledge of the English language, and, as one of the officers conducting the interview with him pointed out in his testimony, some of the Defendant’s ostensible confusion may be a result of his being evasive in his responses to questions to which he had no good answer. However, as the Court of Appeal noted in R v Lapointe, 1983 3558 (ON CA), [1983] OJ No 183, mastery of a language is not an all-or-nothing proposition.

[7] The Defendant has lived in Canada for nearly two decades, and has been a taxi driver and a truck driver. Counsel for the Crown submits that these occupations require some knowledge of the language. I concur that a rudimentary command of English is probably required for obtaining a license and driving safely in Ontario. Moreover, the Defendant swore an affidavit in support of this application to exclude evidence, and that affidavit was in English and was not accompanied by a translation or by an affidavit of an interpreter indicating that it was explained to the Defendant in his mother tongue, Punjabi.

[8] That said, the ability to function at work or among friends may be quite different than the ability to function in a stressful legal setting such as face to face dealings with the police upon arrest. The Northwest Territories Supreme Court put it succinctly in R v Blackduck, 2014 NWTSC 58, where they indicated that, “Understanding of language in certain contexts is not the same thing as understanding rights…” Just because the Defendant has managed to function in Canadian society when he is not in trouble with the law does not mean that he was able to comprehend what was happening to him in his dealings with the police.

[9] The transcript of the Defendant’s police statement is riddled with notations of “UI” by the reporter, indicating spots where the Defendant’s words were unintelligible. Having listened to the entire interview, I share the reporter’s inability to discern a large number of the Defendant’s words and sentences. There is barely a page of the transcript that lacks a “UI” notation, and most pages have multiple spots where the statement was unintelligible. Without more, that would raise serious questions about the comprehensibility, and thus the voluntariness, of the entire statement: R v Farooq, 1998 CarswellOnt 1563 (Gen Div).

[10] Counsel for the Crown points out that the Defendant never requested a Punjabi interpreter or a Punjabi speaking police officer, both of which were apparently available to the police had the effort been made to find them. That, however, is not relevant to the analysis here. The Defendant is not under an affirmative obligation to request language assistance where it is apparent through his strong accent and laboured responses that he is not proficient in English: R v Shmoel (1998), 38 WCB (2d) 363 (Ont Prov Ct). Rather, where special circumstances exist, like they do here, it is incumbent on the police to either arrange for suitable language interpretation or explain the Defendant’s rights to him slowly and ensure that he comprehends each and every line of the caution: see R v Gayah, 2004 ONCJ 33.

[11] I do not mean to impugn the good faith or integrity of the police officers that interviewed the Defendant. Officers Colin Stewart and Richard Petrie posed questions to the Defendant and were genuinely convinced that he understood them. In the spur of the moment, it may well have seemed that way; indeed, the Defendant did appear to understand and give coherent answers to some of the questions posed to him.

[12] However, a review of the videotape and the transcript reveals a crucial gap in his comprehension. It is obvious in watching and listening to the Defendant that he began speaking without having absorbed the meaning of the s. 10(b) caution, and that he never did comprehend this during the entire duration of his statement.

[13] A review of the first page of the transcript of the Defendant’s statement dated November 16, 2013 bears this out. At the very beginning of the interview, the officers attempted to have him confirm that he understood his Charter rights to remain silent and to consult counsel:

Q: Okay, and do you wish to say anything in answer to the charge, to being arrested.

A: I, excuse me Sir.

Q: Okay, do you want to speak to us about this matter, you can speak to us about the matter but whatever you say can be used in evidence as well so we’re in here right now to tell you about the allegations, okay.

A: Okay.

Q: If you want to speak to us about them, we’ll listen and investigate them but you don’t have to, cause [sic] whatever you say, there’s a certain jeopardy on you that can be used against you if you’re charged so what I know right now, what I’m interested in knowing from you is there’s two sides to every story, right.

A: [UI:01]

Q: So, this girl you met last night.

A: Yeah.

[14] It is apparent from this exchange that the Defendant was oblivious of the s. 10(b) caution, and did not even understand that he was being asked about it. Although the officer made an attempt to ensure that the Defendant understood his rights, the Defendant was obviously lost.

[15] I would imagine that had the interviewer asked the Defendant slowly, using non-legal vocabulary, whether he understood that he had a right to speak with counsel and that he need not give any statement at all, the Defendant would have been able to understand him in the same way as he doubtless understood his own short affidavit filed in this application. However, the videotape and transcript make it clear that the questioning and the statement proceeded too quickly for that kind of comprehension to take hold. Before the Defendant could recover from his confusion and form an understanding of the initial question, the officer launched into the substantive interrogation about the circumstances of the offence charged.

[16] In the result, the Defendant never confirmed that he been given the appropriate s. 10(b) caution and, one can tell from his level of incomprehension, never understood the caution at all. The right words may have been stated by the police officers, but they landed on uncomprehending ears. The Defendant’s videotaped police statement was therefore involuntary and is inadmissible.

[17] The same holds true for the statements made by the Defendant upon his arrest and prior to being taken to the police station. At that stage, he had either not yet been cautioned, or had not had the s. 10(b) caution explained to him in full. Officer Andrew Pak testified that he had given the Defendant a paraphrased version of the standard caution, having left the formal version in his notebook in his scout car; Officer Gregory Manuel testified that he gave the Defendant an informal caution but did not provide him with the entire formal version. Either way, there is no indication that the officers took the time to slowly and carefully explain the meaning of the caution to the Defendant.

[18] It is hard to blame Officers Pak and Manuel for this, as they both encountered the Defendant for a very brief time and had to act quickly in an unfolding and potentially violent situation. They attended at the Defendant’s apartment pursuant to a 911 call made by the Complainant in this case, whom they found in a fearful and cowering state. Inside the apartment they were greeted by the Defendant wearing nothing but what appeared to be blood-stained underwear.

[19] Indeed, Officer Pak, together with another colleague who appeared on the scene pursuant to the 911 call, Officer Joseph Beaulac, were forced at one point to physically restrain the Defendant as he pulled away from them while being escorted down the elevator of his apartment building. The Defendant complains that this physical exchange intimidated him and was another factor leading to his making an involuntary statement; however, I do not think that is the case.

[20] It appears to me that Officers Pak and Beaulac treated the Defendant firmly but fairly. When they realized that the Defendant had sustained a minor injury during the few moments in which they secured him in the elevator, the officers immediately took him to a nearby hospital for first aid. The brief utterance made upon his initial detention that is in issue here was prior to the incident in the elevator, and the more lengthy statement given at the police station was hours after he was released from the hospital. By that time, the Defendant had calmed down enough to see that his injury was a small cut on the forehead, and that it had been incurred accidentally and without any intention to intimidate or coerce a statement. It did not stop him from speaking to Officers Stewart and Petrie in a confident manner and with a self-assured demeanor.

[21] Nevertheless, given the Defendant’s linguistic difficulties, it is apparent that he did not get the kind of warning that enabled him to understand his rights. As the Supreme Court of Canada pointed out in R v Hebert, 1990 118 (SCC), [1990] 2 SCR 151, “the fact that the accused may not have realized he had a right to remain silent (e.g. where he has not been given the standard warning)…[is] relevant to the question of whether the statement is voluntary.”

[22] Under the circumstances, the Defendant’s utterances upon arrest, like his more lengthy statement given at the police station several hours later, lacked the requisite voluntariness. These statements are therefore inadmissible.

Morgan J.

Date: November 26, 2015