Court File and Parties

COURT FILE NO.: CR-16-40000250-0000 DATE: 20170526 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – YOUSSEF EL HARITI and ABDELMALEK HADDOUCHE Defendants

Counsel: Paul M. Alexander, for the Crown Domenic Basile and Michelle Occhiogrosso, for the Defendant El Hariti Peter Bawden, for the Defendant Haddouche

HEARD: April 3, 4, and 5, 2017

MOLLOY J.

REASONS FOR DECISION

(Voluntariness and Admissibility of Statements)

A. INTRODUCTION

1Youssef El Hariti and Abdelmalek Haddouche were each charged with one count of sexual assault and one count of gang sexual assault, arising from the same incident, each as a party with the other. They elected to be tried before a jury.

2Essentially, both accused engaged together in various forms of sexual activity with the complainant (K.M.) over the course of several hours during the early morning hours of August 23, 2014. On the afternoon of August 23, 2014, K.M. reported to the police that both men had sexually assaulted her. She maintained that all of the sexual contact was forced upon her by both accused.

3After this sexual activity with the complainant, both men left her home by taxi at about 6:30 a.m. Police were able to identify the taxi and, through that, learned the address at which the men had been dropped off. Police also obtained photographs of both men from the in-car camera inside the taxi. When officers attended that address on August 25, 2014, they observed Mr. Haddouche walking his dog. Mr. Haddouche was arrested and taken to the police station. Through Mr. Haddouche, the police were able to identify Mr. El Hariti and contacted him by phone. Mr. El Hariti voluntarily turned himself over to the police on August 26, 2014 and was arrested.

4The Crown sought a determination that formal videotaped statements made by both men were voluntary. Both accused maintained that the statements were not voluntary. In addition, Mr. El Hariti sought to have his statement excluded on the grounds that it was obtained in violation of his rights under the Canadian Charter of Rights and Freedoms.

5At the conclusion of the voir dire, I ruled that the statements were not admissible and indicated that I would deliver written reasons later. The trial then proceeded before a jury and both accused were found not guilty on all counts.

6With respect to Mr. Haddouche, I found that his statement was not voluntary. He received legal advice prior to being interviewed by the police and, in accordance with that advice, told the police he had nothing to say. Although he made that statement repeatedly throughout his interview, the police persisted to the point where his free will was overborne and he uttered one sentence, actually a question to police, which the Crown sought to introduce into evidence.

7Mr. El Hariti told the police on the telephone that his English was not good and that he spoke Arabic and French. Notwithstanding that, no efforts were made to obtain an interpreter for him, and when he sought to exercise his option to speak to a lawyer, he was connected with English-speaking duty counsel. Thereafter, in a videotaped interview conducted entirely in English, Mr. El Hariti made a number of statements to the police, which he no doubt considered to be exculpatory, but which were manifestly untrue. I find that those statements were obtained in breach of Mr. El Hariti’s right to counsel under s. 10(b) of the Charter. Further, I am satisfied that the statements should be excluded from evidence pursuant to s. 24(2) of the Charter.

8My detailed reasons are set out below.

B. HADDOUCHE STATEMENT

Circumstances of the Statement

9Abdelmalek Haddouche was born in Morocco. He is fluent in Arabic and French, and he also speaks excellent English. As he was walking his dog on the afternoon of August 25, 2014, he was approached by Det. Taylor and P.C. Mierzwinska. They showed him a photograph of one of the two men picked up by the taxi at the complainant’s home at 6:30 a.m. on August 23, 2014. Mr. Haddouche acknowledged that he was the man in the photograph. The officers allowed him to return his dog to his apartment. He was then arrested, the charge was explained to him, and he was advised of his rights. He said that he wanted to speak to a lawyer. He also said that he would tell the officers everything, but Det. Taylor cautioned him not to say anything until after he had spoken with counsel.

10Mr. Haddouche was taken to the police station and booked. He then spoke, in private, with duty counsel. After Mr. Haddouche had received legal advice, Det. Taylor asked Mr. Haddouche if he still wanted to tell him everything, to which Mr. Haddouche responded that the lawyer had told him not to talk to the police.

11At 7:55 p.m., Det. Taylor took Mr. Haddouche to an interview room. Over the course of the next 54 minutes, all recorded on videotape, Detectives Taylor and McKay tried to persuade Mr. Haddouche to give a statement. With only a few exceptions, Mr. Haddouche’s standard response to every question was, “The lawyer told me not to talk.” The officers were trying to get him to tell his side of the story and also to identify the other man who was with him in the taxi (now known to be Mr. El Hariti). As they persisted in their questioning, and after Mr. Haddouche had already said approximately 20 times that he did not want to talk to them, Mr. Haddouche stated his position more specifically (at p. 15 of the 28-page transcript) as follows:

It’s because I don’t have any experience with this. And I only spoke to the lawyer, and he said, “Don’t talk. If they tell you ‘What colour is your shirt,’ say ‘I don’t talk.’ If they tell you, ‘Do you like bacon,’ say, ‘I don’t talk.’”

12In the course of trying to persuade Mr. Haddouche to talk, the officers told him that if he did not talk, they would be releasing the pictures they had to the media in order to determine the identity of the other man. They also told him that if he did not give them his side of the story, they would only have the complainant’s version and therefore would have no choice but to lay charges against him. To this, Mr. Haddouche asked, “Then why the lawyer told me not to talk.” The officers told him that lawyers tell everybody not to talk and that they did not understand why because they were not lawyers. Det. Taylor then said, “They get their pay cheque, I guess. That’s it. I don’t know of anything else.”

13The officers then continued to press Mr. Haddouche to give a statement, and Mr. Haddouche continued to refuse and to ask why his lawyer would tell him not to talk if that was not in his interests. Then, at about 43 minutes into the interview, Det. McKay explained to Mr. Haddouche that gang sexual assault meant that he “had sex with a girl who did not want to have sex and [he] did it with a buddy.”

14Mr. Haddouche then asked,

How can I have sex with a girl without her wanting to have sex if she’s the one who invite me to her place?

15This is the “statement” that the Crown sought to introduce at trial.

16Prior to asking this one question, Mr. Haddouche had stated 24 times that he did not want to give a statement on the advice of his counsel.

17Following this question, the officers continued to ask Mr. Haddouche questions and he responded 18 more times that his lawyer told him not to talk, until ultimately, after 55 minutes, the officers terminated the session.

The Voluntariness Test

18The burden is upon the Crown to prove that a statement made by an accused person to police is voluntary. The traditional basis for this rule was to ensure that confessions made by an accused were reliable and not induced by some sort of promise or threat that might be seen to undermine that reliability. However, in modern times, the rule has been given a much broader application, requiring a contextual approach. [1]

19The Supreme Court of Canada summarized the relevant considerations in Oickle as follows (at paras. 69 and 71):

The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada, [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz). [2]

20Typically, the main focus on a voluntariness voir dire is on the following: (a) whether the police made any threats or promises to the accused person; (b) whether it can be said that the police treatment of the accused was oppressive in some manner; and (3) whether it can be said that the operating mind of the accused was overborne. The court must also consider whether the method used to obtain the statement and the circumstances would “shock the conscience of the community”, a consideration that frequently, but not always, relates to incidents of police trickery. [3]

21The concern is not merely about the reliability of the statement made, but on the fair trial rights of the accused, including whether his rights to counsel and to remain silent have been respected. In this regard, there can be some overlap between s. 7 Charter rights and the voluntariness inquiry. [4]

22The Supreme Court noted in Oickle and in Singh that the concept of voluntariness is a broad one and that a contextual approach must be taken and all relevant factors considered. [5] In Singh, the Supreme Court made the following comments regarding the breadth of the concept (at para. 30):

Of course, not every involuntary confession is false. While the confession rule’s primary concern is with reliability, it is well established that voluntariness is a broader concept. As this Court stated in Oickle (at para. 70): “Wigmore perhaps summed up the point best when he said that voluntariness is ‘shorthand for a complex of values’: Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351.” These values include respect for the individual’s freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system: see Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207. [6]

23Once a suspect in custody has had an opportunity to get legal advice, the mere fact that he then states that he does not wish to speak to the police does not require the police to cease any further questioning. [7] However, as the Court held in Singh (at para. 53), persistence in questioning over the accused’s repeated objections is a relevant factor to take into account in the contextual analysis of voluntariness:

It must again be emphasized that such situations are highly fact‑specific and trial judges must take into account all the relevant factors in determining whether or not the Crown has established that the accused’s confession is voluntary. In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent: see Otis. The number of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question is whether the accused exercised free will by choosing to make a statement: Otis, at paras. 50 and 54. [8]

24The Supreme Court of Canada in Singh, and also in Sinclair, referred with favour to the decision of the Quebec Court of Appeal in R. v. Otis (2000), 151 C.C.C. (3d) 416 (Q.C.A.). [9] In that case, the Quebec Court of Appeal upheld the decision of the trial judge that the statement made by the accused was not voluntary. The Court of Appeal held there was no basis for a conclusion that the accused no longer had an operating mind, due in part to his low cognitive abilities. On the contrary, he appeared to understand his right to remain silent and clearly expressed his wish to remain silent four times. However, after that, when the police persisted in their interrogation, the accused had a “complete emotional disintegration” and gave an extended statement to the police. This was found, in the circumstances, to have been a breach of his right to remain silent, and the statement therefore was involuntary. After reviewing the general principles with respect to voluntariness, the Quebec Court of Appeal held as follows (at paras. 51-52):

Applying these principles to the present matter, it is difficult to imagine a clearer case of breach of the right to remain silent. To paraphrase the trial judge, during the course of questioning the investigator who carried out the interrogation of the respondent, one wonders how many times a person such as the respondent must raise his right in order for it to be respected. On four occasions that I have indicated by notes (1), (2), (3) and (4) in the margins of paragraph [23], the respondent clearly stated his wish to put an end to the interrogation and at such time to consult his lawyer.

It is significant that these requests were made within a short period of time and at frequent intervals, which leaves no ambiguity concerning the intent expressed by the respondent to end the interrogation. [10]

25The Court made the following further comments at para. 54:

Although the police may interrogate a suspect and attempt to persuade him to break his silence, they cannot abuse that right by ignoring the will of the suspect and denying his right to make a choice. I will grant that a person persuaded to confess for personal reasons or due to the talent of the investigator may well have done so freely despite his previous silence. It is this choice and the respect of free will which are the principal underpinnings of the rules relating to confessions. The analysis of the dynamics existing between the investigator and the subject must always be reviewed on a case-by-case basis. What is abusive in the present matter might not be with respect to another individual. The power of resistance to police persuasion will vary according to circumstances and individuals. Certainly it is always prudent to keep in mind that any tension or pressure observed with a subject faced with his interrogator, either due to discomfort, embarrassment or shame, which he may feel following arrest, detention or confrontation with an investigator who brings him back to a reality he would prefer to forget at any price, must be deemed to be in the normal course of events. [11]

Analysis

26I agree with the Crown’s submission that there were no overt threats made to Mr. Haddouche, nor was he offered any form of quid pro quo in exchange for his statement. The officers were courteous in tone and manner. Mr. Haddouche was not deprived of sleep, food or drink. In that sense, there were no circumstances of oppression.

27Nevertheless, I am persuaded by the argument made by Mr. Bawden, for the defence, that the statement relied upon by the Crown was not made by Mr. Haddouche as an exercise of free will. In his argument Mr. Bawden relied upon three factors to be taken into account in determining whether Mr. Haddouche’s free will and right to remain silent were overborne: (1) a mild threat; (2) an inducement; and (3) a mild undermining of the advice of counsel. He fairly conceded that none of these factors, standing alone, would be sufficient to defeat the Crown’s case. However, I agree with his argument that when these factors are considered together, and within the context of the whole interview, the Crown has failed to establish voluntariness.

28The threat was a veiled one. The officers suggested to Mr. Haddouche that if his friend could not be found, he would personally be bearing the brunt of everything that was done. The officers then said that they had Mr. Haddouche’s photograph with the second man from the back of the cab and they would release the photograph of both of them to the media if Mr. Haddouche did not give up the name of his friend. Mention was made about how Mr. Haddouche’s girlfriend would feel about all of this. These are not threats of a serious nature, but they would nevertheless be perceived as threats.

29The inducement was also mild. The officers told Mr. Haddouche that if he did not give them his side of the story, they would only have the complainant’s version and would have no choice but to lay the charge. After that, he would be going through the court process. They said that if his version of the event showed that nothing illegal happened, things would be different. This was a clear implication that if Mr. Haddouche provided an innocent explanation, he would not be charged.

30Mr. Haddouche’s response to this inducement was to query the officers as to why his lawyer would tell him not to talk if that was the case. He asked this several times. The officers said they could not give legal advice, but they also said all lawyers gave that same advice to everybody and stated the only reason they could think of for that was monetary.

31In R. v. Burlingham, [1995] 2 S.C.R. 206, the accused told police that he would not speak to them until he had first consulted his lawyer. [12] The police continued to interrogate him, in the course of which they “constantly denigrated the integrity of defence counsel” and made “disparaging comments” about defence counsel’s “loyalty, commitment, availability, as well as the amount of his legal fees.” [13] The Supreme Court held at para. 14 that the police had violated the accused’s s. 10(b) Charter right to counsel, one of the reasons being that they had undermined his confidence in his lawyer:

Second, s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel. It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship. [14]

32The conduct of the police in Burlingham was far more egregious than was the situation in the case before me. Indeed, the conduct in that case was sufficient, standing alone, to warrant exclusion of any statements obtained in breach of the accused’s Charter rights. However, the principle is still an important one. Mr. Haddouche stated 24 times that his lawyer told him not to talk. After implying to Mr. Haddouche that no charges would be laid if he provided an innocent explanation, the officers then proceeded, ever so subtly, to claim no understanding whatsoever as to why lawyers would give that advice and to suggest that they must be doing so to make money. It was only at that point that Mr. Haddouche started asking questions rather than giving his standard response of “My lawyer told me not to talk.” Det. McKay then told Mr. Haddouche, “I’m sure your lawyer explained to you [what sexual assault means]”. Mr. Haddouche told the officers that his lawyer only told him not to talk. Det. McKay then explained sexual assault and gang sexual assault, the two charges Mr. Haddouche would be facing. It was within this context that the following exchange occurred:

P.C. McKay: That’s what you’re facing. That’s what, you know the layman’s terms of it is. You had sex with a girl who didn’t want to have sex, and you did it with a buddy.

Mr. Haddouche: How can I have sex with a girl without her wanting to have sex when she’s the one who invite me to her place?

33When the officers proceeded to press this point further, Mr. Haddouche returned to answering every question with the statement, “The lawyer told me not to talk.”

34Apart from a general statement at the beginning that the charges were false, this was the only thing Mr. Haddouche said that can possibly be construed as a “statement,” and it is even expressed in the form of a question. Mr. Haddouche clearly went into the interview relying on his right to remain silent. He said that to the officers over and over again – 24 times before the alleged voluntary statement. After hearing suggestions that his lawyer gave him advice that was not in his best interests and an implication that the lawyer was just trying to make money, Mr. Haddouche blurted out one question. He then continued for the rest of the interview relying on his right to remain silent, asserting it over and over again – another 19 times until the officers finally terminated the interview.

35In all of these circumstances, taken together and looked at in context, that one question was not an indication that Mr. Haddouche intended, as an expression of free will, to make a statement to the police.

36In my view, the Crown failed to satisfy its onus of proving this statement to be voluntary.

C. EL HARITI STATEMENT

Circumstances of the Statement

37Youssef El Hariti was born in 1985 in Morocco, where he spoke Arabic and Berber (a language native to Morocco). In 2006, he lived for a year in Spain, where he spoke Arabic, Berber and French. In March 2007, he moved to France, where he lived for five years, speaking primarily French, but also Arabic and Berber. He then returned to Morocco for eight months and moved to Canada in February 2013, sponsored by his Canadian wife. His wife’s native language is English, but they communicate primarily in French. Upon arrival in Canada, Mr. El Hariti spoke and understood very little English, but he did take classes in English as a second language.

38The police obtained Mr. El Hariti’s phone number from Mr. Haddouche. At 3:24 p.m. on August 26, 2014, Det. Taylor called that number. Mr. El Hariti answered the phone. Det. Taylor told him that they were investigating an allegation of sexual assault and that they would like him to come to 32 Division to speak to them. It is clear that Mr. El Hariti was having trouble understanding what was being said to him. He passed the phone to his wife who spoke with Det. Taylor and provided him with Mr. El Hariti’s name and address. Det. Taylor explained where the police station was. She said they could be there within an hour or so. Mr. El Hariti came back on the line and apologized for his bad English. Det. Taylor asked what languages he spoke and Mr. El Hariti said he spoke French and Arabic. Det. Taylor said that he would try to have someone at the station to assist him.

39Mr. El Hariti reported to 32 Division as requested. From the time he arrived to the time he left, he was spoken to only in English. At 6:17 p.m., P.C. Bellec met Mr. El Hariti at the front desk in the waiting area and advised him he was under arrest, cautioned him and advised him of his rights to counsel. Mr. El Hariti answered “Yes” to all the questions about whether he understood those rights. P.C. Bellec then paraded Mr. El Hariti before the desk sergeant and Mr. El Hariti was booked into the station. All of this was done in English. Although P.C. Bellec’s mother tongue is French, he was not aware that Mr. El Hariti spoke French. After booking, Mr. El Hariti was put in touch with duty counsel, who gave him some advice. Again, this was entirely in English. No attempt was made to find a lawyer who could provide advice to Mr. El Hariti in Arabic or French. Det. Taylor and D.C. Mierzwinska then interviewed Mr. El Hariti from 7:05 p.m. until 7:32 p.m., entirely in English.

40P.C. Bellec had no further dealings with Mr. El Hariti after 6:38 p.m., when the booking process was completed and he had placed him in an interview room. His shift did not end until 1:00 a.m., and he would have been available to assist with translation if required. However, he was not called upon to do so.

41At the beginning of the interview, Mr. El Hariti was asked if he had spoken to duty counsel, a free lawyer. He answered, “Yes” and stated, “I spoke to a lawyer.” Det. Taylor then advised him of the charges and of his right to remain silent and asked him if he wanted to say anything, to which Mr. El Hariti responded, “Unfortunately not. My lawyer, we talk. He say, he say you don’t have to. He was saying no talking in there.” Det. Taylor showed Mr. El Hariti the photograph taken in the back of the cab at 6:30 a.m. on August 23, 2014 and Mr. El Hariti acknowledged it was him and that he had been with Malek (Mr. Haddouche). Det. Taylor then asked him some background questions about where he worked and where he learned English, to which Mr. El Hariti responded.

42Next, Det. Taylor asked him whether he was at the Rose and Crown with Malek on Friday night and again Mr. El Hariti responded. However, he denied getting into a cab after that with Malek and a girl or girls. When asked where he went after the Rose and Crown, he first stated, “You know actually, that’s – I can’t answer just these because my lawyer say don’t answer.” However, when asked again, he said he went home after getting a hot dog. Following that, he answered, “I don’t know” to a series of questions and said, “I have to talk to lawyer.” He denied going to McDonald’s. When asked if he had gone to a girl’s house, he said, “I don’t talk justice so my lawyer now to talk, so you know what I mean?” He then denied having sex with any girl that night and said he was not there.

43It is apparent that Mr. El Hariti was lying about much of this. There is video of him at the McDonald’s with Mr. Haddouche, the complainant, and the complainant’s friend. It is also clear that he went to the complainant’s home. Used condoms were found there with his DNA and semen on them. There is also video of him and Mr. Haddouche leaving the complainant’s home in a taxi at 6:30 a.m. on Saturday morning.

44The defence seeks to exclude these statements on the grounds that they were obtained in breach of his rights under sections 10(a) and 10(b) of the Charter. More specifically, the defence alleges that the failure to provide a French or Arabic interpreter for Mr. El Hariti is fatal to the Crown’s position, as without such translation any advice or information given to him was not in meaningful compliance with the obligations on the police to respect the Charter rights of an accused in custody.

The Testimony of Mr. El Hariti

45Mr. El Hariti testified on the voir dire. He said that he did not understand much of what duty counsel said to him because he spoke in English and he spoke very quickly. He also said that he did not appreciate that this was an independent lawyer. In his examination-in-chief he said he believed the person he spoke to was a lawyer working with the police and that an actual lawyer would be coming to the station to assist him. In cross-examination he denied knowing that the person he talked to was a lawyer.

46Mr. El Hariti testified that what he understood duty counsel to have told him was, “If they ask you to talk, you tell them the lawyer will talk.” Mr. El Hariti was asked in examination-in-chief whether duty counsel told him anything about DNA and he answered that he was told to give his fingerprints but not to give his DNA. He told duty counsel that he wanted to be released and he was told, “Don’t talk and everything will be fine.”

47On cross-examination, Mr. El Hariti denied knowing at the time what sexual assault meant. He said that while he was on the phone with Det. Taylor he asked his wife what the term meant, and that she told him rape, and also that it meant having sex, but that he did not understand that it meant having sex with someone without her consent.

48Mr. El Hariti acknowledged that he replied “Yes” when asked if he understood his rights as they had been read to him. He explained that he only said that to get it over with.

Analysis: Mr. El Hariti’s Understanding of English

49I have serious reservations about the credibility of several aspects of Mr. El Hariti’s evidence.

50Although he testified in chief that he understood duty counsel to be a lawyer employed by the police, in cross-examination he maintained that he did not know the person he spoke to was a lawyer. However, throughout his interview with the police, he made repeated reference to the person he spoke to as “the lawyer” and also “my lawyer.” I do not accept his evidence that he did not know that duty counsel was a lawyer.

51I also do not believe Mr. El Hariti’s testimony that he had no understanding of the words “sexual assault” or “rape.” As a result of being advised by Det. Taylor that they were investigating an allegation of sexual assault, Mr. El Hariti had a discussion with his English-speaking wife as to what that meant. She came with him to the police station. I find it difficult to believe that she would not have explained to him what he was accused of doing. While at the station, he referred on several occasions to the charge being rape, and used the term interchangeably with sexual assault, and said that his wife had explained the term to him. I accept that he would not have understood the term “gang rape” but that was explained to him by the desk sergeant on booking in terms he appeared to comprehend. I also accept that he likely would not have understood the term “party to an offence.” However, based on the prior explanation by his wife and the manner in which he was answering questions during the interview, I reject his evidence that he thought sexual assault and rape meant merely having sex.

52Having found Mr. El Hariti not to be credible on these key points, I have considered the rest of his evidence with a skeptical eye. Notwithstanding that skepticism, I find considerable corroboration in the transcript for Mr. El Hariti’s testimony about his rudimentary level of understanding in the English language and about his confusion regarding many of the things said to him by the officers.

53First of all, his spoken English is heavily accented, ungrammatical, and can fairly be described as “broken English”, which is what he himself said it was.

54Secondly, there were a number of times during his interactions with police where it is apparent that Mr. El Hariti misunderstood a question or comment and where his English response shows his lack of facility in the language. Here are some examples:

Re: his employment at Loblaws (transcript p. 11)

Q. How long have you worked there for?

A. Oh, last month – last – October, last year

Q. Okay, what do you do in the store?

A. I work in department grocery, grocery department.

Q. Okay, decent job?

A. Huh?

Q. Is it a decent job?

A. No, actually I – I used to go for English, ESL school, and part-time job

Re: university (transcript p. 13)

Q. Did you attend university at all?

A. I’m just – you know actually my situation, you cannot believe it what – why I’m going there, I’m going just to take English classes

Re: What he did after Rose and Crown (transcript p. 16)

Q. Okay, where did you go to get something to eat?

A. Near to the Rose Crown. The guy was sitting – like, you know, the one we [inaudible]

Q. Burger?

A. No.

Q. Hot dog?

A. Hot – yeah.

Re: tee shirt (transcript p. 18)

Q. Okay, do you own a shirt that says “Lucky” on it?

A. Bad luck.

Q. Sorry?

A. Bad luck.

Q. Bad luck?

A. I don’t know

Re: Gap in time between having a hot dog and the 6:30 a.m. taxi ride (transcript p. 26)

Q. You mentioned that you had your hot dog. I got you in a cab at 6:30. There’s a gap in between that. That’s what I’m trying to understand. Because I have the girl’s side of the story that says otherwise, and I’m trying to get your side.

A. This could be any taxi. I wasn’t there at all. I wasn’t in McDonald. If I was in McDonald, so what? If I – I wasn’t in the house. I was on the street, if I was not on the street. Sorry for my English.

Re: Allegation of the complainant and the parties involved (transcript p. 27-28)

Q. Okay, so just so you understand here, I have her side of the story, which puts an allegation against you, and that’s what I have to base my investigation on the because….

A. Just me?

Q. And Malek

A. And who else?

Q. Malek

A. Yeah?

Q. Yeah.

A. And there is many people at the – the—there’s more people?

Q. More people? I don’t understand your question.

A. Is – is just two of us?

Q. Two of you, yes.

Re: DNA evidence at the scene (transcript p. 32)

Q. There was condoms found at the scene

A. At what?

Q. Condoms found at the house. Is your DNA going to be on that?

A. I’m sorry, my lawyer say give only fingerprints.

55After the formal interview, as Det. Taylor was walking Mr. El Hariti back to another area of the police station, Det. Taylor stated, “OK, we will go back to the other interview room and do some paper work and get you on your way.” To this, Mr. El Hariti responded, “My underwear?” Mr. El Hariti testified that he had no difficulty hearing Det. Taylor, but thought he wanted to take his underwear for testing. This is further evidence of Mr. El Hariti’s difficulty understanding what was happening and what was being asked of him because of his lack of facility in the English language.

56Based on this evidence, I conclude that Mr. El Hariti was able to converse to some extent in English, but that his facility in the English language was extremely limited.

Analysis: No Breach of s. 10(a) Rights

57Mr. El Hariti’s application is framed under both ss. 10(a) and (b) of the Charter. Under s. 10(a), Mr. El Hariti was entitled to know the reason for his arrest. Regardless of whether Mr. El Hariti fully understood what was said to him by P.C. Bellec at the time of his actual arrest, I am satisfied that he knew prior to even attending at the police station that the police were investigating a charge of sexual assault. He knew this from his telephone conversation with Det. Taylor and his wife’s explanation to him of what that involved. The aspect of gang rape was explained to him by the desk sergeant on booking. By the time Mr. El Hariti said anything of consequence to Det. Taylor in his formal interview after his arrest, he was fully aware of the nature of the charges he was facing. In particular, I am satisfied that he knew the charge was sexual assault, that he considered that to mean rape, and that he understood this to be non-consensual sexual intercourse. Although this was not a comprehensive understanding of the concept of sexual assault, it was in fact what he was accused of doing. Accordingly, on the facts, I find no breach of his s. 10(a) Charter rights.

Section 10(b) of the Charter: Applicable Principles of Law

58The accused bears the burden of establishing, on a balance of probabilities, that a Charter right has been breached.

59There are two components to the s. 10(b) rights guaranteed by the Charter: (1) an informational component; and (2) an implementation component. The informational component requires the police to advise a person being detained that he has a right to retain and instruct counsel and of the existence and availability of legal aid and duty counsel in that regard. The implementation component applies when the person being detained indicates a wish to speak to counsel. In those circumstances, the police must provide the detainee with a reasonable opportunity to exercise the right and must refrain from eliciting any information from the detainee until he has had that reasonable opportunity to obtain legal advice. [15]

60Generally, it is sufficient if police advise a person under arrest of these rights by stating the standard cautions and rights to counsel in simple language, without further elaboration. The wording contained in most officers’ memo books, or equivalent wording, will suffice. However, where “special circumstances” exist, a police officer has an obligation to “reasonably ascertain that the [detainee’s] constitutional rights were understood by him.” [16] Language difficulties of a person under arrest are one of the special circumstances that will trigger the duty to do more than read the standard cautions in English. [17] The Chief Justice of the Supreme Court of Canada made the following comments on this issue in Bartle:

As this Court held in Evans (at p. 892), state authorities have a duty under s. 10(b) “to make a reasonable effort to explain to the accused his right to counsel.” In most cases, reading the accused a caution that meets the criteria I have outlined above will satisfy this duty. If the circumstances reveal, however, that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10(b), and the means by which they can be exercised: Evans, at p. 892, and Baig, at p. 540. [18]

61It is important that an accused person know what his rights to counsel are, and also that he be able to understand the advice given to him by legal counsel. Unless the legal advice given to the accused is understood by him, then he has not been afforded a meaningful exercise of his right to counsel. One must also be mindful that a person’s ability to make himself understood in English does not mean that his actual comprehension of English spoken to him is at the same level. Where it is apparent that a detainee is a recent immigrant and that English is not his first language, the police should be alive to the possibility that his comprehension of English is limited and that an interpreter or a lawyer who speaks his language might be required. It is incumbent upon the police to at least make that inquiry where there is reason to believe language skills might be an issue. In R. v. Oliva Baca, 2009 ONCJ 194, Nelson J. provided the following useful summary of the relevant principles from the case law:

The following principles can be gleaned from the case law.

1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.

2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused’s language.

3. When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.

4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.

5. Whether or not the police believed the accused understood his rights is not determinative of the issues.

6. When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given. [19]

62The subjective belief of the officers involved that the accused understood his rights is not determinative of whether “special circumstances” exist. Likewise, there is no obligation on the accused to request an interpreter or a lawyer who speaks his language. If the accused has not been made aware that he has the right to such things, he cannot be faulted for failing to ask for them. [20] Particularly given the fact that Mr. El Hariti had already told Det. Taylor on the phone that his English was not good, it was not necessary for the accused to repeat this to the same officer at the station.

Analysis: Breach of s. 10(b) Rights

63In my view, the police in this case breached both the informational and implementation aspects of Mr. El Hariti’s s. 10(b) rights, but the most problematic is the latter.

64Special circumstances existed in this case, and the police were well aware of that. Most notably, Det. Taylor (who was the officer in charge of the investigation) was aware of the following from the time of his first conversation with Mr. El Hariti: that English was not his first language; that he had difficulty communicating in English (because he repeatedly turned to his wife to assist him during the phone call); that he considered his English to be not good or “broken English”; and that he spoke both Arabic and French. Indeed, Det. Taylor told Mr. El Hariti that he would make arrangements for someone to assist him with that when he got to the police station. Det. Taylor then arranged for a French speaking officer (P.C. Bellec) to meet with Mr. El Hariti at the front desk and to place him under arrest and advise him of his rights. Unfortunately, Det. Taylor neglected to tell P.C. Bellec that he should do this in the French language, and there was no way for P.C. Bellec to know that Mr. El Hariti spoke French; he spoke with an accent, but not a French accent. I do not fault P.C. Bellec for failing to make further inquiries, given the limited contact he had and the fact that Mr. El Hariti answered in English that he understood the rights that had been read to him. That does not mean, however, that Mr. El Hariti fully understood those rights. In particular, Mr. El Hariti was not aware that he could request an interpreter or a translation of those rights, nor did he know that he could request a lawyer who spoke one of the languages in which he was fluent.

65However, this oversight would have been rectified if Mr. El Hariti had been given the opportunity to speak to a lawyer in his own language. He was not given that opportunity, nor was he even asked if he needed that option. He was simply put in touch with an English lawyer. As I have already discussed above, Mr. El Hariti had obvious difficulties in English. The ability to communicate with and understand the advice of a lawyer is critical to the right to counsel guaranteed under s. 10(b) of the Charter. It is apparent from what Mr. El Hariti said during the interview that he understood some of what duty counsel said to him. He knew, for example, that duty counsel told him not to talk to the police. It is unclear whether he understood that exculpatory statements could be used against him later. It is unclear if he understood the potential implications of lying to the police. It is also unclear whether he knew that the person he spoke to was truly an independent lawyer with no connection to the police. He testified that he believed the person he spoke to was employed by the police and that another lawyer would be coming to the station to represent him. This may have been confusion, for example, about advice from duty counsel that he would not be his trial lawyer and that another lawyer would be retained to do that. Some of the statements Mr. El Hariti made during his interview are consistent with his testimony on the voir dire that he believed a lawyer would be coming to the police station to speak on his behalf. For example, he stated,

(at p. 20 of the transcript)

I don’t talk justice so my lawyer now to talk, so you know what I mean?

(at p. 26 of the transcript)

I can’t just talk, sir. I really – like I need my lawyer, talk with my lawyer. . .I need to talk with my lawyer

(at p. 27 of the transcript)

My lawyer will answer.

(at p. 36 of the transcript)

What will help on me is that I don’t know where this story’s coming, if my lawyer here will help.

(at p. 37 of the transcript)

I can’t talk, sir. My lawyer will talk.

66While this belief that a lawyer was coming to the police station is obviously a misunderstanding, it may well have been caused by Mr. Hariti’s failure to properly comprehend what was told to him by duty counsel. That was Mr. El Hariti’s evidence and it makes sense to me in light of what he was saying during the interview. While I did not believe the whole of his evidence, I accept his evidence on this point.

67Quite apart from what Det. Taylor already knew from his telephone conversation with Mr. El Hariti, it should have been apparent to him shortly after the interview commenced that Mr. El Hariti did not have a good command of the English language. At page 5 of the transcript, when Det. Taylor was advising Mr. El Hariti of his rights, Mr. El Hariti stated, “I don’t know it’s the law in Canada, but in France it’s the same situation, in Morocco, it’s the same, but …” Shortly after this, Det. Taylor asked for some very basic background information such as where Mr. El Hariti worked and got a non-responsive answer: “Q. Decent job? A. No actually, I used to go for ESL.” Notwithstanding that he had now been alerted for a second time that Mr. El Hariti was a recent immigrant and that his first language was not English, Det. Taylor did nothing to follow up.

68It is apparent from watching the video of the interview and reading the transcript that Mr. El Hariti’s English at that point in time was not good. Even without the previous telephone conversation, it would have been incumbent upon Det. Taylor to inquire as to the extent of Mr. El Hariti’s understanding of English in order to be sure he fully understood his rights as well as the advice given to him by duty counsel. When this is coupled with the information Det. Taylor got during the telephone call, when Mr. El Hariti specifically told him his English was not good, the case is overwhelming. Even though Mr. El Hariti was able, to some extent, to carry on some everyday conversation in English, that is fundamentally different from having a sufficient grasp of the English language to understand the full implications of legal advice given to him. There was an obligation on the police in those circumstances to ensure that Mr. El Hariti was able to speak to a lawyer in a language he fully understood (or at the very least, through an interpreter to translate what the lawyer was telling him) and that an interpreter (or French speaking police officer) be available when the police were interviewing Mr. El Hariti. Neither of these things were done, even though it would have been very easy to do so.

69I find that Mr. El Hariti has met his onus. His rights under s. 10(b) of the Charter were violated. He did not have a meaningful opportunity to get legal advice before being interviewed by the police.

Analysis: Exclusion of Evidence

70The Crown argues, in the alternative, that even if there is a s. 10(b) breach, the evidence should still be admissible because the impairment was minimal, the police acted in good faith, and the consequences resulting from the breach were minimal given that Mr. El Hariti did not make a confession.

71In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada’s seminal case on the application of s. 24(2) of the Charter, the Court established three principles to consider: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) the societal interests in an adjudication of this case on its merits. [21]

72I do not agree with the Crown’s submission that the state conduct in this case was not serious. Det. Taylor knew about the language problem and, when attempting to persuade Mr. El Hariti to come to the station, told him he would look into having someone assist him with the language difficulty raised by Mr. El Hariti. Notwithstanding that, once Mr. El Hariti got to the station, no attempts were made to follow through with this. That was the case even though it would have been no inconvenience at all to do so. A French-speaking officer was ready and available, and he even arrested Mr. El Hariti and gave him his rights, but all in English. Even if this was something that simply slipped Det. Taylor’s mind, he certainly should have been reminded of it as soon as he started into the interview. In my view, the police paid no more than lip service to Mr. El Hariti’s entitlement to be fully informed of his rights and to have a meaningful discussion with a lawyer before he was interrogated by the police in a language essentially foreign to him. I stop short of saying the police deliberately failed to respect the full extent of Mr. El Hariti’s rights to counsel. However, they were at best reckless as to whether those rights were respected.

73In this regard, I find the following words of Tulloch J. (as he then was) in Barros-DaSilva, 2011 ONSC 4342 to be particularly apt (at paras. 44-45):

Firstly, with respect to the seriousness of the breach, I find that the police were clearly alerted or should have been to the patent risk that Mr. Barros-DaSilva had a language difficulty. This was either a wilful disregard to Mr. Barros-DaSilva's language issues or a reckless indifference on their part for the importance of Mr. Barros-DaSilva to exercise his rights in a meaningful and comprehensible manner. As such, I find the breach to be very serious. I find Justice Gage's comments in R. v. Silva, 2005 ONCJ 2, supra, at para. 30, applicable to the facts in this case where he commented on the importance of ethnic sensitivity for policing in the Peel Region:

By the same token, law enforcement officials must be mindful of, and sensitive to, the cultural and linguistic environment in which they perform their duties. Peel is situated within the Greater Toronto Metropolitan area which collectively constitutes the largest urban concentration in Canada. Canada is officially a bilingual state but the reality is that in its larger urban centres, it is a diverse multicultural collection of discrete ethnic communities. Cultural and linguistic enclaves such as the Portuguese community of which Silva is a member and within it is possible to survive quite satisfactorily with only a rudimentary grasp of English are a fact of life.

Also, the fact that Cst. Rodriguez was readily available as a translating officer, but was not utilized, further increases the seriousness of the state's conduct. [22]

74In my view, the state conduct in this case was a serious breach of the accused’s Charter right, a factor that tends to support exclusion of the evidence.

75The impact of the breach on the Charter-protected interests of the accused is also significant. Mr. El Hariti gave a statement to police when, if he fully understood his rights, he might not have. I recognize that the statement given was not a confession, but was intended to be exculpatory. However, it nevertheless interfered with the accused’s right to silence. The fact that Mr. El Hariti lied to the police about these matters would have been quite damaging to his defence. Further, it seriously compromised his ability to testify in his own defence, if he chose to do so, at trial. If he did testify, his lies to the police would have seriously undermined his credibility before the jury.

76It is a rare case in which an accused’s own words, obtained in breach of his Charter rights, are nevertheless found to be admissible against him. There is no automatic rule that such statements will be excluded, but the Supreme Court noted in Grant that the three lines of inquiry it identified as relevant “support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.” [23]

77I was not referred to, and am not aware of, any case in which an accused was deprived of his s. 10(b) rights because of his limited understanding in English where the evidence obtained was nevertheless admitted. In all of the cases I have seen, the evidence has been excluded. [24]

78In my view, this factor also supports exclusion of the statement.

79Finally, with respect to the third factor, obviously it is always in the interests of justice that cases be adjudicated on their merits. The real issue in this analysis is whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion. [25] In this case, the issue is not with respect to the reliability of the evidence – it is manifestly unreliable. The defence offered by the accused at trial was that there was sexual intercourse with the complainant, but it was all consensual. The Crown did not seek to introduce the statements of Mr. El Hariti for their truth, but rather to show that he lied to the police. In that sense, exclusion of the evidence has no impact on the Crown’s case itself. It merely removes from the Crown the opportunity to show Mr. El Hariti’s numerous prior inconsistent statements. This is not a situation in which including the statements would result in the Crown having no case. While I do not condone the fact that Mr. El Hariti obviously lied to the police under oath, I am still of the view that in balancing these various interests, the integrity of the administration of justice is better protected by the exclusion of this evidence than by its admission.

80The right against self-incrimination and the right to know one’s legal rights are of paramount importance under the Charter and in our criminal justice system. The serious nature of the breach here on these very important Charter rights cannot be condoned, particularly given the reckless conduct of the police. Accordingly, in my opinion, the evidence must be excluded.

MOLLOY J. Released: May 26, 2017