COURT FILE NO.: 45/18
DATE: 2019/06/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Wopatshu Ukumu
BEFORE: Justice I.F. Leach
COUNSEL: Vanessa E. Decker, for the Crown
Cassandra DeMelo, for the Accused
HEARD: January 14, 15, 16, 17 and 18, 2019
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1)(a)(i) of the Criminal Code, information
that may identify the person described in this judgment as the complainant may
not be published, broadcasted or transmitted in any manner. This judgment
complies with this restriction so that it can be published.
ENDORSEMENT
JUSTICE I.F. Leach (orally)
Introduction
[1] The accused in this matter, Mr Wopatshu Ukumu, is charged with one count of sexual assault, contrary to section 271 of the Criminal Code, (“the Code”).
[2] This endorsement, effectively delivered “mid-trial”, is intended to address a formal application brought on notice by the accused.
[3] In particular, Mr Ukumu seeks a declaration that the rights guaranteed to him by sections 7, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms (“the Charter”) have been violated.
[4] Mr Ukumu’s formal notice of application, as worded, also seeks a corresponding order, pursuant to s.24(2) of the Charter, excluding “all evidence obtained thereafter”.
[5] However, the clear focus of the application was a desire to exclude evidence of statements made by Mr Ukumu to the police following his arrest, (including video-recorded statements made by him during a formal police interview conducted on November 4, 2016), and the application was heard and argued on that basis; i.e., without any overt request, evidence or argument directed to the question of whether any specified evidence other than the statements made by Mr Ukumu to the police should be excluded. I accordingly have approached the application on that basis as well.
[6] The various Charter breaches alleged by Mr Ukumu stem from the same fundamental underlying assertion; i.e., that Mr Ukumu, (whose first language is French), was not advised of his Charter rights in a meaningful and comprehensible manner, (insofar as all relevant communications were in English, which Mr Ukumu does not fully understand), in turn denying Mr Ukumu an opportunity to exercise those Charter rights in a meaningful way.
Background and context
[7] In the course of these reasons, I will be returning to specific factual findings I think relevant to determining the merits of Mr Ukumu’s Charter application.
[8] For now, by way of further introductory background and context:
The charge herein against Mr Ukumu stems from events said to have taken place in the early morning hours of November 1, 2016, here in the city of London.
In particular, the following events are alleged by the Crown:
At approximately 3:13am on November 1, 2016, the female complainant and her male friend were walking in downtown London, travelling eastbound on foot towards the complainant’s residence. As they were doing so, an unfamiliar male driver, (whom the complainant did not know and had not previously met), pulled up and asked the complainant and her friend if they needed a ride.
When the complainant indicated that she and her companion were travelling to her home at a specified address in east London, the male driver said he would drive the complainant and her friend there in exchange for $10.00.
The complainant and her friend agreed to the arrangement, and were transported by the male driver to the complainant’s residence in east London.
After the complainant and her friend had entered the complainant’s residence, and the friend had entered the washroom there, the male driver knocked on the door of the residence. When the complainant answered, the male driver indicated that she had left a number of identification cards in the back of his vehicle.
The complainant responded by exiting her residence, and approaching the male driver’s vehicle, where she observed the relevant cards, (a bank debit card and a student card), in the vehicle’s rear passenger seat. When she leaned into the vehicle to retrieve the relevant cards, the male driver pushed her into the vehicle, got into the vehicle’s back seat with the complainant, and closed the door behind him.
Once inside the vehicle, the male driver laid his body on top of the complainant, began kissing her neck, ground his hips into her groin, and was using his hand to touch her groin area over her clothing. He also attempted to undo his pants and belt.
The complainant managed to grab the cards and exit the vehicle, at which point the male driver asked “What, no sex?” The complainant yelled “No sex!” as she ran away from the vehicle. The complainant also managed to observe part of the vehicle’s licence plate information as it drove away at a high rate of speed.
The complainant then ran to her residence, where she reported the incident to her male friend and contacted the police.
In addition to providing the police with her account of what had happened, the complainant provided a detailed description of the male driver’s physical appearance, clothing and jewellery, possibly French accent, and the name the driver had provided; i.e., “Patrick”. The complainant also provided the police with a description of the relevant vehicle, including the partial licence plate information the complainant had noted, details of the vehicle’s interior and specified items therein, and the complainant’s memory of a strong odour of cologne inside the vehicle.
Using the information provided by the complainant, video obtained from a number of city surveillance cameras, information available from the Canadian Police Information Centre, (“CPIC”), and further investigation, the police felt able to identify the vehicle which had picked up the complainant and her friend; a vehicle which was registered to Mr Ukumu.
Through surveillance conducted in relation to that vehicle, the police were able to make observations of Mr Ukumu, and made a determination that his appearance, including certain items of clothing, matched the description of the male driver provided by the complainant. A decision was made by the officer in charge of the investigation, Detective Constable (or “DC”) Jaclyn Yovicic, that there were reasonable and probable grounds for Mr Ukumu to be arrested on a charge of sexual assault.
On the afternoon of November 4, 2016, Mr Ukumu was travelling in his vehicle when Constable Robert Kerr, (acting pursuant to a direction given by DC Yovicic), effected a traffic stop and, speaking in English, placed Mr Ukumu under arrest for sexual assault. Constable Kerr also provided Mr Ukumu, in English, with his rights to counsel and a primary caution.
At the scene of his arrest, Mr Ukumu also spoke, in English, with DC Yovicic.
Mr Ukumu then was transferred into the custody of Constable Katrina Aarts, another uniformed officer who, also speaking in English, provided Mr Ukumu with a secondary caution, rights to counsel and a primary caution, before transporting Mr Ukumu to the holding cells at the headquarters of the London Police.
Mr Ukumu was booked into the London Police holding cells by Sergeant Holland, who communicated with Mr Ukumu in English. When Mr Ukumu indicated that he wished to speak with duty counsel, he was provided with the opportunity to do so, (in English), by telephone.
Shortly thereafter, DC Yovicic embarked on an audio-video recorded interview of Mr Ukumu. During the interview, (which lasted approximately 1 hour and 42 minutes, and included steps taken by the detective to confirm that Mr Ukumu had spoken to counsel, and to provide Mr Ukumu with his rights, a primary caution and a secondary caution), DC Yovicic and Mr Ukumu communicated solely in English.
[9] This matter was committed to trial on January 31, 2018, and Mr Ukumu initially elected to proceed in this court by way of a trial by judge and jury.
[10] Following a judicial pretrial, Mr Ukumu made a re-election on March 6, 2018, (with Crown consent), to have the matter determined in this court by a judge alone trial.
[11] In accordance with an agreement indicated by the parties during the judicial pretrial and thereafter, scheduling of the matter proceeded on the basis that there would be a blended voir dire and trial. In particular, the parties contemplated a single hearing which simultaneously would address not only trial issues, but determination of:
a. an application contemplated by the Crown to confirm the voluntariness of statements made to the police by Mr Ukumu; and
b. an application contemplated by Mr Ukumu alleging breach of his Charter rights, (based on an alleged failure by the police to ensure that Mr Ukumu fully understood and was capable of meaningfully exercising those rights), and requesting exclusion of evidence.
[12] By the time the matter came before me on January 14, 2019, for commencement of that contemplated blended voir dire and trial, the voluntariness of Mr Ukumu’s statements to the police had been formally conceded, obviating the need for any hearing and determination of the voluntariness application filed by the Crown.
[13] As per the parties’ request, I then embarked on a blended voir dire and trial hearing, (with the assistance of French-English interpreters providing simultaneous translation for the benefit of Mr Ukumu), to address Mr Ukumu’s Charter application and remaining trial issues. In that regard:
a. Following arraignment of Mr Ukumu, I was presented with an agreed exhibit indicating a number of formal admissions made pursuant to s.655 of the Code. Those admissions included the offence date, the identity of the accused, (i.e., accompanied by an express verbal acknowledgment that Mr Ukumu was the relevant male driver who was the subject of the complainant’s allegations), the identity of the complainant, the location of the alleged offence, continuity of exhibits, photographs taken by members of the London Police Service, Mr Ukumu’s registered ownership of the relevant vehicle and, (as already noted), the voluntariness of statements made Mr Ukumu to persons in authority.
b. Crown counsel then began calling Crown witnesses; i.e., Constable Kerr, Constable Aarts and DC Yovicic.
[14] During the course of proceedings, it nevertheless became apparent that there had been a fundamental misapprehension as to the nature of a “blended” proceeding on the part of Mr Ukumu and/or his counsel.
[15] In particular, I was advised that Mr Ukumu wished to focus initially on the issues raised by his Charter application, (e.g., testifying and being cross-examined only in relation to that application, and receiving a decision in that regard restricted to determination of the Charter application issues), before proceeding with the remainder of his trial, (wherein Mr Ukumu then would make a further election as to whether he wished to testify and be cross-examined in relation to the trial proper).
[16] In other words, (and as I noted at the time), Mr Ukumu and his counsel actually had not intended a truly blended hearing at all, but hearing and determination of his Charter application before his trial proceeded thereafter, having regard to the outcome of that application.
[17] By way of explanation for that unusual state of affairs, counsel for Mr Ukumu candidly indicated that she had not dealt with a “blended” hearing procedure before the possibility of doing so was raised at the judicial pretrial held in this matter. Moreover, she had been under a misapprehension that determination of issues relating to the Charter, and possible resulting exclusion of evidence, could be heard and determined by an application brought, heard and determined in advance of trial only in cases where an accused had elected to be tried by a judge and jury.
[18] In the circumstances, I was concerned that Mr Ukumu had not given informed consent to use of a truly blended hearing process, and a correspondingly clear waiver of his section 13 Charter rights against possible self-incrimination; i.e., if testimony provided by Mr Ukumu, prompted by his desire to speak to the Charter application issues, nevertheless was capable of being considered in relation to all trial issues as well.
[19] After further discussion with counsel, it was agreed, (by way of a defence application not opposed by the Crown, which I then granted), that matters should proceed with my hearing and determination of Mr Ukumu’s Charter application by way of a voir dire conducted within the trial, as a preliminary matter, prior to continuation of the trial following delivery of my decision in relation to Mr Ukumu’s application.
[20] On a nunc pro tunc basis, (i.e., with such a separate and isolated voir dire being heard as a preliminary matter within the trial), I thereafter continued to hear evidence and receive submissions focused on the Charter application alone, reserving my decision in that regard on January 18, 2019.
[21] Further scheduling hearings resulted in the matter then coming back before me today, for delivery of my decision in relation to the Charter application.
Manner of decision delivery
[22] Before proceeding with delivery of that substantive decision, I pause to comment briefly on the manner of the decision’s release and delivery.
[23] In that regard:
When this matter was last spoken to, (to schedule further dates for contemplated oral delivery of my decision in relation to Mr Ukumu’s Charter application, and continuation of his trial thereafter, depending on the outcome of my decision), Crown and defence counsel requested release of my decision in writing, in advance of the trial continuation; e.g., to assist with their planning and preparations.
As I noted at the time of counsel’s request in that regard, the reality of the Charter application having been formally brought as a preliminary matter for voir dire determination during rather than before Mr Ukumu’s trial nevertheless had implications for the manner of the decision’s release; i.e., having regard to the provisions of section 650 of the Code, requiring an accused to be “present in court during the whole of his or her trial”. In my view, the circumstances accordingly required formal delivery of my decision on Mr Ukumu’s Charter application to take place orally, in Mr Ukumu’s presence, during the trial’s formal continuation.
After further discussion, the parties indicated they were agreeable to my providing the parties with an indication of my intended formal ruling in relation to Mr Ukumu’s Charter application in advance of the hearing’s continuation - preferably by receiving a copy of a finalized endorsement I contemplated reading out in Mr Ukumu’s presence as soon as the hearing formally was resumed.
When it became clear that I would be unable to finalize my contemplated endorsement in a form I thought appropriate for circulation to counsel on or before Friday, June 14, 2019, I did have them advised, by a short email sent on Thursday, June 13, 2019, to assist with their planning, of my intention to grant relief requested by Mr Ukumu’s application, (to the extent of excluding evidence of statements given by him to police), for reasons to be delivered the following Monday; i.e., today. A copy of that email communication has now been marked as an exhibit for identification.
Following oral delivery of my decision and reasons this morning, a copy of the typed endorsement I am reading aloud now, (in Mr Ukumu’s presence), also will be marked as an exhibit for identification, with additional copies thereafter being provided to counsel.
[24] Because a typed version of this endorsement will be entered into the record, for the sake of trial efficiency, I will not occupy court time by reading out all of the specific case names and citations set forth in the endorsement and its many footnotes.
[25] I will instead read out only case names contained in the body of the endorsement, (without including the numerical citation information), and indicate the presence of a relevant footnote and authorities cited therein by saying “See footnote number” whatever the footnote number happens to be.
[26] However, in the preparation of any transcript of these orally delivered reasons, the case names and numerical citation information contained in each footnote, should be incorporated by reference into the transcript, having regard to the typed copy of the endorsement.
Charter provisions and onus
[27] With those preliminaries addressed, I turn next to a recitation of the relevant Charter provisions relied upon by Mr Ukumu in his application. In that regard:
Pursuant to section 7 of the Charter, “Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” It is well-established that section 7 of the Charter accords a detained person a “right to remain silent”; a well-settled principle that has been part of the basic tenets of our law for generations.[^1]
Pursuant to s.10(a) of the Charter, “Everyone has the right on arrest or detention … to be informed promptly of the reasons therefor.”
Pursuant to s.10(b) of the Charter, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”
Pursuant to s.24(2) of the Charter, “Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by [the] Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
[28] It is well-established that an accused has the onus of proving, on a balance of probabilities, that there has been a breach of a right guaranteed by the Charter, and that evidence obtained by that infringement should be excluded.[^2]
Alleged breaches of Charter - General principles and considerations
[29] As I noted at the outset, the breaches of sections 7, 10(a) and 10(b) of the Charter alleged by Mr Ukumu in this case stem from the same underlying fundamental assertion; i.e., that he was not advised of the rights guaranteed by those Charter provisions in a meaningful and comprehensible manner, in turn denying him an opportunity to exercise those rights in a meaningful way.
[30] In particular, it is said that, having regard to evidence that English was not Mr Ukumu’s first language, and that there was a lack of understanding on his part when rights were provided and explained to him in English, the police officers dealing with him were required to take further steps to reasonably ascertain that Mr Ukumu understood his constitutional rights, and such steps were not taken.
[31] The law governing such issues is well-established and developed, at least insofar as alleged breaches of s.10(b) of the Charter based on linguistic difficulties are concerned.
[32] General considerations and principles in that regard include the following:
a. The right to counsel guaranteed by s.10(b) of the Charter encompasses a right to be informed of the right and its components in a comprehensible and meaningful way, and the right to exercise that right in a meaningful and comprehensible fashion. In particular, it is not sufficient for a police officer, upon the detention or arrest of a person, to merely recite the rights guaranteed by section 10 of the Charter. As s.10(b) of the Charter stipulates, the detainee or accused must be “informed”. Individuals who are detained or arrested are in a vulnerable position, and the rights conferred by s.10(b) of the Charter are one of the central protections to allow such individuals the ability to understand their situation and make informed decisions in relation to that situation. A detainee or accused therefore must understand what is being said to him or her, and understand what the options are, in order that he or she may make a choice in the exercise or waiver of the rights guaranteed by the Charter. Similarly, meaningful exercise of the right to counsel requires an ability to fully understand the advice and instructions of counsel, in order to make a fully informed choice to follow or disregard such advice and instructions.[^3]
b. The police are not required to go to extreme means in order to respect the rights of a detainee or accused under section 10 of the Charter. Generally, in relation to language comprehension, if there are no circumstances that subjectively or objectively suggest an issue regarding comprehension of English, it is fair to infer that an individual understands his or her legal rights as read to him or her in English, and will understand legal advice provided to him or her in English.[^4]
c. However, “special circumstances” may exist in relation to linguistic comprehension of legal rights. In particular, there may be objective indicia that an individual’s knowledge of English may be limited for various reasons, such that he or she may not have sufficient comprehension of the matter. Where such “special circumstances” exist, police officers dealing with a detainee or accused are obliged to act reasonably in the circumstances; i.e., by taking further reasonable steps to ascertain and ensure that the individual actually understands his or her legal rights, and is able to exercise those rights in a meaningful way.[^5]
d. The determination of whether such “special circumstances” exist is a question of fact and law. In particular, even where a court accepts that a detainee or accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise “special circumstances” which require the police to take additional steps to ensure that the accused understands the content of the right to counsel, and makes a meaningful exercise of that right.[^6]
e. The test for special circumstances is an objective rather than subjective one. In particular, the subjective belief of police officers that an accused fully understood his or her legal rights, (even where a court accepts police testimony in that regard), or was “playing games” by pretending to understand less than he or she actually did, accordingly is not determinative of whether or not such “special circumstances” exist. Again, issues relating to linguistic comprehension of Charter rights involve a question of law, and accordingly are not decided by assessments of credibility alone. It is a reversible error of law to conclude that there are no special circumstances on the basis of a police officer’s subjective belief about the ability of a detainee or accused to understand his or her legal rights.[^7]
f. Such “special circumstances” may exist where there is objective evidence that English is not the first language of a detainee or accused, and there is sufficient objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee or accused by police at the time of the detention or arrest.[^8]
g. However, each case turns on its own facts, and there is no comprehensive list of situations in which such “special circumstances” may arise.[^9] Determination of whether such circumstances exist may include consideration of factors such as the following:
i. The personal circumstances of the individual, including such matters as:
1. the person’s age, education, sophistication and mental condition;
2. the person’s place of birth, residential history, and length of time in Canada;
3. the person’s first language, and the extent to which the person has studied or otherwise received training in English as a second language;
4. the extent to which the person’s familial connections have required or involved an ability to speak and understand English;
5. the extent to which the person’s social circles have required or involved an ability to speak and understand English;
6. the nature of the person’s employment, and the extent to which that employment has required or involved an ability to speak and understand English;
7. the extent to which the person routinely purchases or receives goods, services and/or medical treatment using the English language;
8. the extent to which the person has required or used the services of a translator to understand English in relation to work, social, medical, legal or other matters; and
9. more generally, evidence relating to the person’s demonstrated ability to communicate in English, and the person’s level of sophistication and ability in that regard.[^10]
ii. Whether the individual complied with police instructions and demands communicated in English.[^11]
iii. Whether the individual consistently spoke to police in English or used another language at times.[^12]
iv. Whether the individual spoke to police in English but with a noticeable accent – although an accent alone is not sufficient to warrant a finding of special circumstances.[^13]
v. Whether the individual spoke to police slowly, using only simple grammatical terms, and/or in “broken” English; e.g., using incomplete sentences, employing improper syntax, omitting certain words, and/or making obvious grammatical errors.[^14]
vi. Whether the individual responded to questions with silence, paused before giving answers to police, was slow or laboured in his or her responses, or otherwise struggled to find words.[^15]
vii. Whether the individual demonstrated looks of confusion while communicating with the police.[^16]
viii. Whether the individual repeated himself or herself.[^17]
ix. Whether the individual appeared to simply repeat or “parrot” words being said to him or her in English.[^18]
x. Whether the individual asked for things to be repeated, or exhibited difficulty understanding certain words or concepts.[^19]
xi. Whether the individual frequently answered questions with answers that were mono-syllabic, consisted of one or two words, or were otherwise simple.[^20]
xii. Whether the individual answered a succession of questions in the same way; e.g., by responding “yes” to all questions, or “no” to all questions.[^21]
xiii. Whether the individual provided answers to questions that were non-responsive, unclear, unintelligible, non-sensical, (e.g., indicating that he or she had not spoken with a lawyer, or asking to speak with a lawyer, after a telephone call with duty counsel has already taken place), inconsistent, or otherwise inappropriate.[^22]
xiv. Whether the individual expressly indicated he or she was born, raised and/or had resided in another country or countries where English is not commonly spoken, or otherwise indicated that his or her first language was not English – although a finding of special circumstances is not warranted merely on the basis that the individual’s first language was not English.[^23]
xv. Whether the police were in possession of other information or documentation, (e.g., the individual’s birth certificate or driver’s licence from another jurisdiction), indicating that the individual was from another country or other area of Canada where English is not commonly spoken, had recently immigrated to Canada from such a country, or information otherwise indicating that English was not the individual’s first language.[^24]
xvi. Whether the individual made any express statements to the police indicating an ability or inability to understand English, or a limited comprehension of English, (e.g., by stating that he or she understands or speaks English “a little” or “a little bit”, does “not speak the best English”, does “not speak English very well”, speaks “not much” English, speaks English that is “okay”, “sometimes does not pick up things in English”, was not understanding “many few words” spoken in English, “sometimes understood” words spoken in English, understood “almost everything” or “probably 90 percent” of what was said in English, or otherwise was not at ease communicating in English), and later testimony of the individual about such ability or inability.[^25]
xvii. Whether police officers speaking to the individual in English felt the need to speak slowly, repeat questions or statements they were making, explain things in more simple or plain terms, and/or use hand gestures to make their meaning clear.[^26]
xviii. Whether police officers speaking to the individual in English felt the need to repeat or paraphrase statements made by the individual, to confirm understanding of what the individual had said.[^27]
xix. Whether police officers speaking to the individual in English felt it advisable to refer the individual to a written document translating a desired communication from English into another language.[^28]
xx. Whether the individual expressly indicated a lack of understanding of things said in English, either proactively or by providing a negative response to questions asking whether things said in English had been understood – although an individual’s failure to do so is not determinative, as he or she has no duty in that regard, and may have lacked the ability to comprehend the need for such an indication or to make such an indication.[^29]
xxi. Whether there were difficulties encountered when the individual was put in touch with duty counsel, (e.g., requiring the placing of multiple calls in that regard), and/or other indications that the individual was dissatisfied with advice given by duty counsel.[^30]
xxii. Whether the individual asked to speak in his or her own language and/or for an interpreter, officer and/or lawyer who spoke his or her first language – although an individual’s failure to do so is not determinative, as he or she may not be aware that such accommodations exist, and there is no duty or onus on such an individual to make such a request.[^31]
xxiii. Whether the individual was offered but declined the services of an interpreter, officer and/or lawyer who spoke his or her first language.[^32]
h. When determining whether such “special circumstances” exist, courts recognize that mastery of a language is not an “all or nothing” proposition, and that the situation of an individual detained or arrested by police, and attempting to understand his or her legal rights, is not an everyday situation. To the contrary, it frequently will be an unfamiliar situation. It also is a stressful situation in which the individual is inherently vulnerable, and may feel compelled to seem agreeable to authority figures. An individual who may be able to manage day to day in English, (e.g., after living and/or working in English-speaking areas of Canada for years), may nonetheless not be comfortable communicating in English, or sufficiently comprehend English, when dealing with the complexities of understanding or exercising his or her legal rights in a situation where he or she is detained and/or arrested, and the legal jeopardy he or she may be facing. Understanding of language in certain contexts is not the same thing as understanding rights.[^33]
i. Where such “special circumstances” exist, a determination of whether or not police took further adequate and reasonable steps to address the special circumstances sufficiently, (i.e., to ascertain and ensure that the accused or detainee actually understood his or her legal rights, and was able to exercise those rights in a meaningful way), also depends on the facts of any given case. Depending on the circumstances, such further steps may include one or more of the following measures:
i. in some cases, depending on the individual’s level of English, by a police officer providing a more careful explanation of the right to counsel;
ii. by advising the individual that he or she may consult legal counsel in another language;
iii. by ensuring that the individual is informed of his or constitutional rights in his or her own language; e.g., by means of an appropriate written translation card, use of an interpreter, and/or by requesting the assistance of an appropriately bilingual officer and/or lawyer; and/or
iv. by ensuring that the individual exercises his or her constitutional rights in his or her own language; e.g., by use of an interpreter and/or appropriately bilingual lawyer.[^34]
[33] If there is a discernible trend in the many reported cases I have had the opportunity to review, it would seem to be that courts are inclined to lean heavily on the side of ensuring that the Charter rights of a detainee and/or accused are fully understood and protected accordingly.
[34] In particular, while it seems clear that no one factor or consideration is determinative, most of the reported decisions addressing such linguistic comprehension issues have found that just two or three such indicators of possible comprehension difficulties, without further steps being taken by the police to ensure that Charter rights are fully understood and capable of being meaningfully exercised by a detainee and/or accused, will suffice to warrant a finding that the Charter rights of the individual have been breached.
[35] As I noted earlier, the general principles and considerations I have just outlined, to address linguistic comprehension issues relating to an individual’s meaningful understanding and exercise of rights conferred by the Charter, were established and developed primarily with a focus on the right to counsel conferred by s.10(b) of the Charter.
[36] However, I see no reason in principle why they should not extend to the rights conferred by sections 7 and 10(a) of the Charter as well. Without limiting the generality of the foregoing:
The Supreme Court of Canada expressly and repeatedly has recognized that the right to silence, guaranteed by section 7 of the Charter, includes the right to make an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination.[^35]
As for s.10(a) of the Charter, I note that its wording, like that of s.10(b), expressly includes the right of an individual to be “informed” of the right conferred therein; i.e., “the right on arrest or detention … to be informed promptly of the reasons therefor”. Moreover, the Supreme Court of Canada has emphasized that the right conferred by s.10(a) of the Charter inherently includes the right of an individual to receive, in a sufficient manner, information permitting that individual to make a reasonable decision as to whether or not he or she will submit to an arrest.[^36]
Furthermore, insofar as the most important function of legal advice upon an individual’s detention and/or arrest is to ensure that the individual is fully informed of his or her rights,[^37] it seems self-evident that a breach of the rights guaranteed by s.10(b) of the Charter may cause or compound breaches of the rights guaranteed by section 7 and s.10(a) of the Charter. In that regard, the Supreme Court of Canada has expressly noted that, unless detained and/or arrested individuals “are clearly and fully informed of their rights at the outset, [they] cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence.”[^38]
In my view, if “special circumstances” in the nature of those outlined above exist in relation to an individual’s linguistic comprehension of legal rights guaranteed by s.10(b) of the Charter, it therefore likely if not invariably will mean that similar concerns exist in relation to the individual’s linguistic comprehension of legal rights guaranteed by sections 7 and 10(a) of the Charter. In such circumstances, I think the same principled concerns and considerations, outlined above, should oblige police officers dealing with a detainee or accused to act reasonably, by the taking of additional steps, to ascertain and ensure that the individual actually understands and is able to meaningfully exercise those additional legal rights as well.
[37] With the above general principles and considerations in mind, I turn next to a consideration of the particular circumstances of this case, in order to determine whether Mr Ukumu has established a breach of his Charter rights on a balance of probabilities.
Relevant findings of fact
[38] The evidence and submissions presented in relation to the “mid-trial” voir dire to address Mr Ukumu’s Charter application effectively extended over the course of 5 days.
[39] During that time, I was presented with an affidavit sworn by Mr Ukumu, (which includes an indication that the affidavit was prepared and sworn with the assistance of an interpreter), and oral testimony from the following witnesses:
a. Constable Kerr;
b. Constable Aarts;
c. DC Yovicic; and
d. Mr Ukumu, who testified through the alternating assistance of two French-English interpreters.
[40] By way of general comments on the witness testimony I received:
a. In my view, each of the police witnesses who testified was honest, candid, forthright and fair in his or her testimony. Each candidly acknowledged limitations in memory and inability to recall certain matters one way or the other when that was the case, and each readily made reasonable requested concessions during cross-examination; e.g., acknowledging that certain conditions existed, that certain things had not been done, and that certain additional steps described by defence counsel were possible but had not been taken. None of the police witnesses was defensive or argumentative, and in my view their testimony concerning the events they did remember and recount was not meaningfully shaken or disturbed during cross-examination.
b. In contrast, I frankly did and do have a number of reservations about the testimony of Mr Ukumu. In that regard:
i. As reflected in the intended substantive outcome I already have indicated to counsel, (i.e., to grant the relief sought by Mr Ukumu’s Charter application), and for the reasons outlined in more detail below, I accept that, at all material times, he had a limited capacity to speak and comprehend English; a limitation which created effective impediments to his understanding and meaningful exercise of Charter rights which could and would have been avoided had he been permitted to speak in French with a bilingual police officer or lawyer, or communicate with police and/or legal counsel using French, with the assistance of a French-English interpreter.
ii. Having said that, I found that Mr Ukumu made a poor witness, insofar as I formed the distinct impression that he was intent on “gilding the lily” in numerous ways. To cite but a few but significant examples in that regard:
1. At times, Mr Ukumu was argumentative in his answers, failing to make reasonable concessions, while apparently intent on convincing me as to the merits of his position on the application.
2. In my view, having regard to his obvious intelligence, acknowledged ESL courses and accomplishments, and the level of proficiency in English demonstrated at length in the recorded police interview, Mr Ukumu had a greater ability to comprehend English than he frequently was prepared to admit. In particular, his consistent assertions that he understood “absolutely nothing” of what was being said to him in English, at various times, seemed an obvious exaggeration. In my view, that inference was reinforced by Mr Ukumu professing a similar “absolute” lack of linguistic comprehension in relation to certain conversations in English, (e.g., with Constable Aarts), in respect of which Mr Ukumu also professed to have no memory whatsoever, because of debilitating emotional trauma.
3. A number of answers given during the course of Mr Ukumu’s testimony were internally inconsistent. For example:
a. He emphasized at one point during his examination in chief that he went out of his way to speak with people in order to practice English, and perhaps did so “too much”, while claiming in cross-examination that he was a private and not very talkative person.
b. He indicated in his sworn affidavit that he spoke no English when he came to Canada, but then indicated in his testimony that he knew basic words and greetings, such as “Hello” and “How are you?” when he arrived in this country. Mr Ukumu attempted to explain the inconsistency by saying that he had meant to say he had learned such basic words before coming to London, (as opposed to before coming to Canada), but that simply was not what he had said in his earlier testimony.
c. He indicated in his sworn affidavit that he only was capable of basic verbal communication in English at the time of his arrest, but during his testimony, characterized his ability to speak English at the time as “intermediate”. When the contradiction was high-lighted in cross-examination, he claimed that he personally used the term “intermediate” to mean “minimum”; an explanation I did not find realistic or convincing.
4. In my view, Mr Ukumu unfortunately also was willing to fabricate evidence in support of his application. In that regard:
a. The most glaring example was Mr Ukumu’s assertion that he was traumatized by the circumstances of his arrest, insofar as Constable Kerr was said to have approached Mr Ukumu’s stopped vehicle with his firearm clearly drawn and pointed at Mr Ukumu, while screaming “Don’t move!” loudly and repeatedly.
b. In his testimony, Mr Ukumu claimed that the alleged conduct of Constable Kerr had caused a “flash” in his head that transported him mentally back to the Democratic Republic of Congo (or “DRC”, the African nation where he was born and raised, and which Mr Ukumu described as a place where “there are no laws”, people “have no rights”, and people are naturally intimidated by police who presume them to be guilty, in circumstances where the people can do nothing about it), and to a particular traumatic moment when he and his sister had been forced into a corner at gunpoint and threatened with death, at a young age, (i.e., when Mr Ukumu was 11), while their mother was being raped nearby. In the result, Mr Ukumu said he was so emotionally “lost” and “crushed” thereafter during his subsequent dealings with the police, (i.e., throughout his interactions with Constables Kerr and Aarts, and into his interview with Detective Yovicic), that people were speaking to him but he was not really listening to or comprehending what was being said to him, and not really thinking about his answers. Throughout his testimony, Mr Ukumu made repeated reference to his alleged condition, resulting from Constable Kerr’s actions, in various ways. For example, according to Mr Ukumu, he was “lost emotionally”, “lost in his mind”, “lost mentally”, “terrible in [his] head”, “mentally not well”, “defeated mentally”, and in such an “emotional state” that everything being spoken was simply “passing through [his] head” without his even “bothering to understand” what the officers were saying to him.
c. Of course, one can have nothing but sympathy for people of the DRC who may have undergone such experiences, and it may very well be that Mr Ukumu sadly is one of them. In that regard, I bear in mind, and accept, that Mr Ukumu, because of his national and cultural background, may have been more deferential to police officers, and accordingly more reluctant to interrupt, disagree with, or express lack of understanding in relation to what the officers may have been saying or suggesting.
d. However, for numerous reasons, I frankly do not believe the alleged “triggering” incident with Constable Kerr at the time of Mr Ukumu’s arrest ever occurred, or that Mr Ukumu experienced resulting debilitating trauma that effectively rendered him incapable of listening to or comprehending words that were being spoken to him in English, or his responses. Without limiting the generality of the foregoing:
i. Mr Ukumu took care, in an affidavit prepared with the assistance of counsel and an interpreter, to outline the fundamental factual assertions underlying his [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) application. There is no mention or suggestion whatsoever of any traumatizing arrest at gunpoint by a screaming Constable Kerr.
ii. The suggestion of any such conduct was not put to Constable Kerr during original cross-examination, and when the officer was recalled to the witness box in reply, (to address an understandable Browne v. Dunn objection raised by Crown counsel), Constable Kerr firmly and categorically denied the suggestion that he had drawn or pointed his firearm or any other weapon from his duty belt, yelled at Mr Ukumu, used the words “Don’t move”, or even raised his voice during the entire course of the relevant arrest. Nor did he see or hear any other officer draw a weapon, or raise his or her voice to Mr Ukumu, at any point during Mr Ukumu’s arrest. In response to questions, Constable Kerr indicated that he is trained to deal with, and does deal with, situations of elevated danger and high risk, (e.g., situations involving weapons), requiring a forceful armed response. However, there was nothing in the circumstances of this case to suggest the need for such a response. According to the officer, (and as described in more detail below), he had remained calm throughout the arrest, and Mr Ukumu similarly had remained calm and co-operative.
iii. I find it extraordinarily difficult to believe and accept that a highly experienced ERU officer such as Constable Kerr, (with extensive training in danger assessment and the appropriate use of firearms), supported by another ERU officer, with neither having any information whatsoever to suggest that Mr Ukumu was dangerous or armed with a weapon so as to elevate the situation to a “high risk” detention, and without having seen any suspicious object in Mr Ukumu’s hands, would have drawn his weapon on a downtown city street, just a few yards away from a high school in active session on a weekday afternoon, to carry out an arrest of this nature.
iv. Moreover, the suggestion that Mr Ukumu suffered debilitating traumatization that rendered him mentally “lost”, incapable of hearing and understanding what was being said to him in English, and put in a position where he “didn’t even know what [he] was saying”, is belied by his interactions with police following his arrest. In particular, I note that Constable Kerr, based on his interactions with Mr Ukumu following the arrest, recorded in his duty book shortly after the arrest and prior to Mr Ukumu’s interview with DC Yovicic, independently was able to recall and recount extensive and wide-ranging information, imparted during casual conversation with Mr Ukumu after the arrest, that could only have come from Mr Ukumu at that point; e.g., information about Mr Ukumu’s refugee status, living arrangements, place of employment and mechanical problems with his vehicle. In my view, none of that obvious and largely admitted interaction between Mr Ukumu and Constable Kerr, immediately after the arrest, with the very officer who supposedly pulled and pointed a gun at Mr Ukumu and thoroughly intimidated him just minutes before, suggests any debilitating trauma preventing Mr Ukumu from meaningful and engaged interaction with the police in English.
v. In my view, that inference – i.e., that there was no such incident, and no such debilitating trauma, supposedly preventing Mr Ukumu from realizing what was being said to him and what he was saying - is supported not only by the other interactive responses Mr Ukumu gave to Constables Kerr and Aarts, but also by Mr Ukumu’s own acknowledged ability to recall most details of his post-arrest conversation with Constable Kerr.
vi. I also think the inference that there was no such incident involving Constable Kerr, or resulting debilitating trauma, is supported by Mr Ukumu’s entirely relaxed demeanor during the recorded interview with DC Yovicic, by which time Mr Ukumu nevertheless alleged he had calmed down and improved his emotional state only “a little bit”, and was still traumatized to the point of not being able to listen or think clearly.
vii. I accordingly reject the suggestions that Constable Kerr drew and pointed his firearm, that Constable Kerr screamed at Mr Ukumu, and that Mr Ukumu experienced some form of debilitating trauma, as a result of such conduct, that interfered with his ability to speak or understand English.
e. Furthermore, Mr Ukumu’s claims in that regard essentially involve an allegation of threatened police violence that intimidated Mr Ukumu to the point where the verbal responses he provided were not what he genuinely wished to say; i.e., a thinly veiled suggestion that his statements were involuntary, in circumstances where Mr Ukumu nevertheless formally has admitted, (after careful consideration and consultation with counsel), that all of his statements were indeed voluntary. In my view, that too supports an inference that the supposed threatening conduct by Constable Kerr and its supposed debilitating impact on Mr Ukumu, alleged by Mr Ukumu during his voir dire testimony, in fact never occurred.
f. In the result, I think Mr Ukumu regrettably fabricated evidence in an effort to elicit sympathy, and unwarranted support for his [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) application.
iii. For such reasons, I felt and feel unable to accept various assertions made by Mr Ukumu during the course of his voir dire testimony. Aspects of Mr Ukumu’s testimony that I nevertheless did think credible and reliable, (e.g., because they seemed spontaneous, and/or similar to indications provided in his various statements to police prior to crystallization of the present linguistic comprehension issues), and/or because such testimony was largely unchallenged or not meaningfully undermined in cross-examination, are included, at least in part, in my factual findings set out below.
iv. Wherever the testimony of the Mr Ukumu conflicted with the testimony of the three police officer witnesses, in terms of factual events, (as opposed to subjective impressions formed by the various witnesses during those events), I preferred that of the police officers.
[41] I certainly have regard to all of the evidence presented during the lengthy voir dire, and my reference to specific portions herein should not suggest otherwise.
[42] However, given the volume of evidence presented during the hearing before me, (not all of which was relevant to issues raised by Mr Ukumu’s Charter application, as opposed to the trial more generally), I will not attempt to review it exhaustively here. For present purposes, I consider the following to be the most relevant findings of fact:
While I will have more to say about the background and personal circumstances of Mr Ukumu, in the course of these reasons, I begin by noting the following:
He was born in December of 1989 in the Democratic Republic of Congo, (again, “the DRC”), where French is the official language and the predominant European language used by the country’s residents.
French accordingly is Mr Ukumu’s first language – although, during the first 18 years of his life, living in the DRC, he also developed the ability to speak a number of African languages; i.e., Lingajala, Tetala and Swahili. While schools in the DRC offered courses in English up to a certain level, they were optional and Mr Ukumu did not chose to take any such courses.
At the age of 17 or 18, Mr Ukumu decided to leave the DRC in search of life in a place that offered more safety. Mr Ukumu therefore left his parents and fled the DRC, embarking on a somewhat nomadic journey as a refugee. In particular:
He initially travelled to South Africa, where he spent three days living with his aunt, with whom he was able to communicate in French.
However, his school grades were such that he was able to travel shortly thereafter to Brazil, having been accepted into a school scholarship program there. After arriving in Brazil, he remained there for the next 2½ years, completing a one year course in introductory Portuguese, while also learning to speak a “little bit” of Spanish. In both languages, however, his comprehension ability was poor, and lagged behind his speaking ability. Moreover, emotional and financial problems prevented his contemplated start into computer engineering courses, and he instead began working illegally in Brazil to support himself.
Mr Ukumu then proceeded north to the United States of America, after a friend advised him of an opportunity to move there, as a scholarship student, to study computer and IT engineering in the city of Dallas, Texas. In the result, Mr Ukumu initially spent a month living in a house, located in the nearby city of Fort Worth, Texas, inhabited solely by other Congolese refugees. While there, Mr Ukumu used Lingajala to communicate with his housemates, who acted as interpreters, if and as necessary, when Mr Ukumu was required to communicate with English speaking Americans. During that time, he also learned that he might qualify for formal refugee status in Canada, and that there were facilities available, in American cities bordering Canada, that would provide him with support and assistance in that regard.
Having made a decision to relocate to Canada, Mr Ukumu thereafter travelled to the border city of Buffalo, New York, where he spent two weeks, in another house of Congolese refugees, waiting to meet with Canadian immigration authorities. While there, Mr Ukumu spoke in Lingajala with the other Congolese refugees, some of whom provided information about the process of claiming refugee status in Canada, and assisted Mr Ukumu with translation when he needed to communicate with English speaking Americans.
In September of 2012, after having met with French speaking Canadian immigration officers, Mr Ukumu was permitted to enter Canada. At the time of his entry into this country as a refugee, at the age of 22, Mr Ukumu spoke no English apart from a few basic phrases such as “Hello, how are you?”
Following his entry into Canada, Mr Ukumu initially travelled to Montreal, where he understood that he would be able to communicate in French. He continued to reside there for the next 8-9 months. However, he found that the French spoken in Quebec was quite different from the “Belgian style” of French he had learned in the DRC, and he found it more difficult to communicate than he had expected. Wanting to learn English instead, Mr Ukumu made a decision to relocate to Ontario. On the recommendation of an African friend he had met after leaving the DRC, he decided to move directly to London, Ontario.
Mr Ukumu arrived in London in the spring of 2013, (i.e., between April and June of that year), and has lived here since then. Immediately after arriving in London, Mr Ukumu lived for several months in “St Joseph House”, a facility that housed only refugees. He then relocated to a rented room at another London address, where he essentially lived alone, (albeit with other individuals living in the building), up to the time of his arrest in early November of 2016.
At the time of the hearing before me, Mr Ukumu was still pursuing but waiting for a judicial hearing in relation to his request for formal confirmation of his refugee status. In the meantime, he was working intermittently as a self-employed French language tutor, helping Francophone children of Francophone parents with the completion of homework in French. He has never taught French to Anglophones.
Mr Ukumu received no formal instruction regarding the English language until he began taking “English as a Second Language” (or “ESL”) courses, in London, in August or September of 2014; i.e., approximately 26 months before being arrested on the charge that brings him before the court. In that regard:
Mr Ukumu initially progressed through a series of 12 “levels” of instruction in English, which are not the equivalent of public school grades, but which are designed to give non-English speaking persons the basic “tools needed to fend for themselves” in English speaking Canada. For example: “Level 1” teaches such students basic greetings in English, and the English words for simple things like colours and animals. By Level 8, (which Mr Ukumu completed sometime in the fall of 2014), such students are learning to engage in simple conversations in English, focused in large measure on communicating information about the student and his or her goals. Completion of Level 12, (approximately two years after Mr Ukumu’s arrival in London, and therefore in or about the Spring of 2015), involved the reading of handouts along with the instructor, the reading of one simple English book, and the writing of one or two essays in English that were “not too complicated” or researched; e.g., involving creative autobiographical writing.
Having demonstrated intelligence and scholastic ability in the DRC, Mr Ukumu undertook further efforts through the Canadian Learning Centre to obtain an Ontario high school equivalence diploma, in the hopes of eventually progressing to college or university studies, and the study of dentistry or construction engineering in particular. He managed to obtain that high school equivalence diploma by the end of 2015, primarily by concentrating on the completion of necessary credits with a science and math focus, (e.g., chemistry, biology and mathematics), where an ability to speak and understand English was relatively less important than it would be in other courses. (In courses where relatively little English was needed, Mr Ukumu obtained marks in the eighties. In courses requiring more English and more complex English terminology, such as biology, he received marks in the sixties.) He nevertheless did also take and complete further English classes, where his instructor emphasized the importance of trying to improve his English by speaking with English speaking Canadians.
At the time of completing his studies in Ontario, Mr Ukumu considered his ability to speak English “intermediate”, and his ability to comprehend English “mediocre”. In that regard, his ability to speak English as needed exceeded his ability to comprehend English, as his ESL courses essentially had focused on imparting ways to speak about himself; i.e., a familiar subject. He had more difficulty understanding unfamiliar things being said to him in English.
Moreover, Mr Ukumu found that his ability to practice English and improve his English comprehension skills was somewhat limited, as he had very few friends, engaged in few social activities, and the employment he was able to secure through a series of short term jobs, (e.g., as a field labourer paid “under the table”, a seasonal production and packaging worker for a local clothier, and as a part time dishwasher working alone in the back kitchen of a restaurant – where he would receive instructions and other messages primarily through a French speaking chef from Morocco), did not involve much social interaction, speaking or communication beyond basic English, and while working, he tried not to “bother” others in any way that might jeopardize his employment. He also has remained single and has no children, such that he has no partner or other familial ties that might have facilitated or required more ongoing interaction with English speaking people. While Mr Ukumu attempted to speak with strangers in public locations as much as possible, (e.g., on buses and at libraries), he quickly learned that, in contrast with customary practices in the DRC, approaching and speaking with strangers is not something commonly done in Ontario. He nevertheless continued to encounter and interact with English speaking Canadians in daily life; e.g., while shopping for groceries, while giving people rides in his vehicle, and while dealing with one of the three transmission repair facilities he visited shortly before his arrest. (Mr Ukumu had purchased his two successive vehicles through brief transactions with other immigrants to Canada, during which he was able to speak a mixture of Spanish and English.)
When Mr Ukumu did manage to engage in English conversations, he developed a habit of continuing to listen to people speaking to him in English, without interrupting even if he lacked understanding, in an attempt to “speak with the flow” of conversation and thereby improve his comprehension.
When engaging in formal applications or processes, (e.g., an incomplete effort to obtain a police records check and completion of his written application and test for a G1 driver’s licence), Mr Ukumu nevertheless made use of forms that were available in French versions. When taking his practical driving examination, he was dealt with by a bilingual French-English examiner, although much of the relevant conversation took place in English.
At no time did Mr Ukumu take any courses in English relating to Canadian law, or which mentioned legal terms or concepts.
Moreover, prior to his arrest in November of 2016, Mr Ukumu had never had any legal discussions or encounters with the law in any jurisdiction. (When speaking with Canadian immigration officers, he had, in accordance with the guidance given to him by others from the DRC, limited his conversation to a discussion of the facts which, he believed, entitled him to refugee status.)
Without limiting the generality of the foregoing, Mr Ukumu testified, and I accept, that he had never heard the term “sexual assault” before he was arrested for that offence on November 4, 2016.
On the whole, I think it fair to say that, by the time of his arrest in November of 2016, Mr Ukumu was capable of day-to-day verbal communication, in English, at a level that was below average but more advanced than basic, (especially when it came to practiced recitation of his personal information), that he had little understanding of complex terminology, and that he had no understanding of advanced legal concepts.
By November 4, 2016, police investigation overseen by DC Yovicic, (including surveillance operations wherein police were making observations of Mr Ukumu and his vehicle and taking photographs), had led to a point where the detective contemplated the possibility of arresting Mr Ukumu that day on a charge of sexual assault, in relation to the incident alleged by the complainant.
Wanting to ensure the availability of uniformed officers to effect such an arrest, DC Yovicic met, at approximately 1pm on November 4, 2016, with Constable Kerr and Constable Meinen, who had been partnered for their uniform day shift, on that date, as members of the Emergency Response Unit, or “ERU”. (DC Yovicic had called on the service of ERU officers not because of any heightened security concerns in relation to Mr Ukumu, or any anticipation of violence in that regard, but because such officers frequently were more readily available than regular uniformed officers to provide assistance on short notice. In particular, they were more likely to be in a position to assist a surveillance team with an arrest by uniformed officers in a police vehicle “at the drop of a hat”, if not otherwise engaged in an emergency situation.)
At the time, Constable Kerr had been a police officer for approximately 12 years, the first five and a half years of which had been devoted to uniform patrol, with responsibilities thereafter including assignment to the ERU. Over that time, Constable Kerr had effected hundreds of arrests. In that regard:
During the course of making arrests, Constable Kerr occasionally had dealt with persons who seemed to lack the capacity, (e.g., owing to youth, or apparently diminished mental capacity attributable to a brain injury or other cause), to understand the language used in relation to rights to counsel and cautions delivered via the standard form wording printed in police duty books. In such cases, Constable Kerr would employ other language and terms to convey the meaning of the written words.
During the course of making arrests, and administering rights to counsel and cautions, Constable Kerr also had dealt with persons who were not challenged by youth or diminished mental capacity, but who did not speak perfect English. In such cases:
So long as conversation and interactions with such an individual seemed appropriate in relation to what was said and asked, Constable Kerr felt no reason to employ such alternative language or terms.
If Constable Kerr formed a belief that such an individual initially did not understand what was being said, Constable Kerr once again would employ other language and “plain English” to convey the necessary meanings, before asking again if the person understood what was being said.
Constable Kerr’s “expectation”, in circumstances wherein he might realize or “get the sense” that an individual still was not understanding what was being said owing to language difficulties, (even after the provision of rights and cautions had been supplemented by such “plain English” paraphrasing), was that he would “call that in” to cells in advance of the individual being taken there, so that steps could be taken as soon as possible, by the Staff Sergeant or other officers in charge of the cells, to make arrangements for an appropriate interpreter to be made available either in person or on the telephone. (It was Constable Kerr’s understanding that the process of locating a suitable interpreter sometimes “takes quite a while”, depending on the type of interpreter required, and he therefore had a corresponding understanding of the advisability of making such arrangements as soon as possible.) However, Constable Kerr also could not recall an instance, during all the arrests he had carried out, where such further steps and arrangements had been necessary. In that regard, he indicated that it had never been his practice to suggest or request an interpreter simply because an individual being placed under arrest had a noticeable accent.
Constable Kerr had no knowledge about the precise logistics or arrangements involved in arranging interpreters, as he understood that to be the responsibility of the Staff Sergeant and other officers in charge of the cells.
Constable Kerr acknowledged that he personally does not speak much French.
When meeting with Constable Kerr and Constable Meinen, DC Yovicic provided both officers with certain details of her investigation, including information relating to Mr Ukumu, his vehicle and its registration number, and the underlying sexual assault offence alleged by the complainant. As for the latter, the information provided by DC Yovicic included indications that the nature of the alleged sexual assault had included kissing and groping, but not sexual intercourse.
After meeting with DC Yovicic, Constable Kerr and Constable Meinen waited to hear if action would be taken in relation to the matter. However, while doing so, the two officers continued to receive reports from DC Yovicic and her surveillance team concerning the movements of Mr Ukumu and his vehicle being observed that afternoon; i.e., on the afternoon of November 4, 2016. Those reports included an indication that Mr Ukumu had been seen driving his vehicle into the underground parking garage of a large business and shopping plaza located in downtown London.
During that time, DC Yovicic had occasion to approach and make additional close observations of Mr Ukumu’s vehicle as it was parked, unattended, in the relevant underground parking garage.
At approximately 2:09pm on November 4, 2016, DC Yovicic indicated that she had formed reasonable and probable grounds to have Mr Ukumu arrested on a charge of sexual assault, and Constables Kerr and Meinen were asked to effect an arrest of Mr Ukumu so that he could be taken back to the headquarters of the London Police Service, where DC Yovicic intended to speak with Mr Ukumu about her investigation. However, it also was decided that it would be best if the arrest was carried out by way of a traffic stop, after Mr Ukumu had returned to his vehicle and driven away from the downtown plaza.
Constables Kerr and Meinen subsequently were advised, by radio communications from the officers carrying out surveillance, that Mr Ukumu had re-entered his vehicle, driven away from the relevant plaza, and was proceeding eastbound on King Street, (a one way street), away from downtown London. The two officers proceeded in their black unmarked SUV police vehicle, (which nevertheless was equipped with emergency lights and a siren), to catch up to Mr Ukumu and his vehicle, which they were able to identify using the information provided by DC Yovicic. At approximately 2:29pm, the officers employed their emergency lights and siren to effect a traffic stop of Mr Ukumu’s vehicle and its lone occupant near the intersection of King Street and Maitland Street. In particular, the vehicle was brought to a stop alongside the northbound curb of King Street, immediately beside H.B. Beal Secondary School.
As Constable Kerr exited his police vehicle, and approached Mr Ukumu’s vehicle and its driver’s window on foot, he was dressed in a long-sleeved grey police uniform, which also included a black vest with “POLICE” markings on the front and back, and his duty belt; a belt that was equipped with a police issued pistol, Taser, baton, pepper spray and handcuffs. Speaking calmly in English, Constable Kerr asked the driver if he was Wopatshu Ukumu, and received an affirmative response from the driver. Constable Kerr then advised Mr Ukumu that he was “under arrest for sexual assault”, at which point Mr Ukumu voluntarily exited his vehicle without being asked to do so. Mr Ukumu appeared to remain calm and composed, and did not appear to be in any type of distress. Taking hold of Mr Ukumu’s right arm, Constable Kerr directed Mr Ukumu in English to place his other hand behind his back so that he could be handcuffed, and Mr Ukumu complied with that direction. After applying his handcuffs to Mr Ukumu, Constable Kerr performed a search of Mr Ukumu’s person incident to arrest. Inside a wallet found in Mr Ukumu’s rear trouser pocket, Constable Kerr located an Ontario driver’s licence bearing Mr Ukumu’s name and photograph.
While Constable Kerr was arresting Mr Ukumu, handcuffing him, and carrying out a search of Mr Ukumu’s person incident to arrest, Mr Ukumu was responding, in English, to the indication that he was “under arrest for sexual assault”. In particular, Mr Ukumu started asking Constable Kerr questions about the sexual assault allegation. (In that regard, Mr Ukumu testified, and I accept, that he very much wanted to obtain more information about what he supposedly had done, and why he had been stopped and arrested.) Constable Kerr responded by indicating he did not know the full details of the investigation, and by saying “The detective will want to speak to you about that.”
After being handcuffed and searched, Mr Ukumu was walked by Constable Kerr to the back of Mr Ukumu’s vehicle, where the two men had further conversation exclusively in English. In that regard:
At approximately 2:32pm, Constable Kerr provided Mr Ukumu with his rights to counsel by reading out the standard form English wording of those rights, as printed in the front of the officer’s duty book. In particular, Constable Kerr said the following: “I am arresting you for sexual assault. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance: 1-800-265-0451 is the number that will put you in contact with a Legal Aid Lawyer for free legal advice right now. Do you understand?” Mr Ukumu responded to that question by saying “Yeah”. Constable Kerr then asked Mr Ukumu: “Do you wish to call a lawyer now?” Mr Ukumu responded to that question by saying “I’d prefer to talk to the detectives first.”
At approximately 2:34pm, Constable Kerr then provided Mr Ukumu with a “primary caution” by reading out the standard form English wording of that caution, as printed in the front of the officer’s duty book. In particular, Constable Kerr said the following: “You are charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?” Mr Ukumu responded to that question by saying “Yeah, I understand that.” Constable Kerr then asked Mr Ukumu: “Do you wish to say anything in answer to the charge?” Mr Ukumu responded to that question by saying “I just want to speak to the detective.”
After administering rights to counsel and the primary caution, Constable Kerr remained standing with Mr Ukumu at the rear of Mr Ukumu’s vehicle, waiting for the arrival of another uniformed officer with a police vehicle suitable for transporting Mr Ukumu back to the cells located at the headquarters of the London Police Service. (The police vehicle in which Constable Kerr and Constable Menzies had been travelling was not fully equipped for the secure transportation of those in custody.) During that wait, Constable Kerr and Mr Ukumu engaged in some further casual conversation, in English. In that regard:
Constable Kerr testified, and I accept, that after the above exchanges regarding the caution, and given that his knowledge of the investigation was limited, he did not want to ask Mr Ukumu any questions relating to the charged offence, and attempted to “pre-empt” any discussions in that regard emphasizing he knew little about the investigation, and that all questions would be answered by the detective.
However, as Constable Kerr put it, Mr Ukumu remained “chatty” and in Constable Kerr’s experience was much more talkative than most arrested persons in his situation, talking about a wide range of subjects in a relatively shortly period of time.
For example, Mr Ukumu was indicating and emphasizing to Constable Kerr that he had “never had sex with anyone”, and that he had never had sex at all, for that matter. In cross-examination, Constable Kerr acknowledged that Mr Ukumu seemed to be under the impression that “sexual assault” involved having full sexual intercourse with a person. However, Constable Kerr admittedly did not attempt to explain that commission of a sexual assault offence did not require sexual intercourse.
While Constable Kerr could not remember everything said while he was waiting with Mr Ukumu for the transport vehicle to arrive, he noted and recalled that the conversation also included discussion about topics such as where Mr Ukumu was living and working, where he had been heading, and the condition of Mr Ukumu’s vehicle. In that regard, Constable Kerr recalled Mr Ukumu saying that he was “still considered a refugee”, that he was living with three other people, that he worked at a specified London restaurant, and that he had been taking his vehicle to various dealerships and mechanics as he was considering selling or fixing it because it had serious transmission issues.
Constable Kerr confirmed that, throughout his exchanges with Mr Ukumu, (which were conducted entirely in English), he had noticed that Mr Ukumu spoke with an accent, although he could not recall what type of accent it was, and had no awareness then or thereafter that it was a French accent. (In cross-examination, Constable Kerr agreed that it was a “strong” accent, and later seemed to agree that it was a “thick” accent as well. In re-examination, the officer clarified that he did not agree with Mr Ukumu’s accent being characterized as “thick”. Such descriptions obviously are a matter of degree and personal preference. However, I find that the accent certainly was pronounced enough for Constable Kerr to notice and remember its pervasive quality and strength.)
Moreover, while Constable Kerr honestly could not remember one way or the other if Mr Ukumu struggled to find certain words, he did recall and acknowledge that, throughout his interaction with Mr Ukumu, Mr Ukumu was not speaking with “perfect English”, was making errors in sentence structure, and was not always using verbs correctly.
To Constable Kerr, it was clear that English was not Mr Ukumu’s first language.
However, Constable Kerr could not recall making any inquiries about Mr Ukumu’s country of origin, (notwithstanding Mr Ukumu’s reference to his refugee status), and admittedly made no inquiries about the extent of Mr Ukumu’s ability to speak or understand English, about Mr Ukumu’s first language, or Mr Ukumu’s ability to speak languages other than English. Nor did Constable Kerr consider offering or making of arrangements for any interpreter.
Because Mr Ukumu had given what Constable Kerr considered to be appropriately responsive answers to comments and questions, (including questions asking for confirmation that the rights to counsel and primary caution read to Mr Ukumu by Constable Kerr had been understood), and Constable Kerr was able to understand what Mr Ukumu was saying, Constable Kerr felt that there was no need for an interpreter and he made no offer or suggestion in that regard. As Constable Kerr put it, Mr Ukumu’s English was “good enough so that [he] could understand what [Mr Ukumu] he was saying”, and he “wholeheartedly” believed that Mr Ukumu was understanding him as well.
At approximately 2:35pm on November 4, 2016, (i.e., shortly after Mr Ukumu had been stopped and arrested, but while Constable Kerr was still interacting with Mr Ukumu at the rear of his vehicle), DC Yovicic arrived on scene at the location of Mr Ukumu’s arrest. In that regard:
At the time, DC Yovicic had been with the London Police Service for approximately 14 years, and by the time of testifying, had effected more than 1000 arrests. The detective testified, and I accept, that in the course of carrying out those arrests:
She has dealt with persons who speak perfect English, with no diminished capacity, that nevertheless have required explanations, in more simple terms, as to the meaning of “sexual assault”, rights to counsel, the primary caution and the secondary caution. Almost one in three such people require an explanation of “sexual assault” using more simple English, which the detective provides by focusing on the requirements of unwanted touching of a sexual nature, (sometimes using examples), while sometimes but not always making explicit reference to “consent”. Fewer such people require a more simple explanation of rights to counsel and the primary caution, but a plain language explanation of the secondary caution is “often” required.
DC Yovicic also has dealt often with incidents involving people who speak with accents, and in such circumstances she will consider, at the outset, the need for an interpreter. She does so because if an interpreter is needed, arrangements for that sometimes can take a long time, (e.g., 1-2 hours or longer), and sometimes interpreters simply are not available – although that admittedly has never been a difficulty in relation to securing a French interpreter. She therefore finds it useful, as a general practice, to direct her mind to the possible need for an interpreter as soon as a person is arrested.
In situations where she has not been satisfied a person was understanding what was being said in English, (e.g., because the person was not speaking well during interactions, giving a blank stare or silence in response to comments or questions, shaking his or her head, or otherwise indicating that he or she was having difficulty understanding what was being said), DC Yovicic has made further inquiries to determine if the person needs an interpreter; e.g., by asking the person directly if an interpreter is needed or wanted and, if so, the preferred language of that interpreter. In cases where a person speaks no English, cards printed in different languages are available to make similar inquiries, and determine what type of interpreter is desired – but DC Yovicic has never had to use them. In the result, there have been a number of occasions where DC Yovicic has been involved in the making of arrangements to secure a translator or interpreter, (whether a professional or family member), for individuals who do not understand English. There also have been instances where DC Yovicic has made arrangements for an interpreter which the accused person then declined to use.
Generally, so long as DC Yovicic can understand what the person is saying to her, and believes the person can understand her, she will not ask if an interpreter is required or make such arrangements. However, if the person does not seem to understand English, (regardless of whether she is understanding the person), or requests an interpreter, she will arrange for an interpreter fluent in the person’s preferred language.
DC Yovicic added that, simply because someone has an accent, she does not want to insult anyone’s intelligence by automatically assuming that everyone who has an accent while speaking English needs an interpreter. However, she agreed that it is relatively easy, and not insulting, to simply ask if a person is comfortable speaking to her in English, and that she “absolutely” will do so moving forward, having regard to the court complications that have developed in this case.
Detective Yovicic testified, and I accept, that prior to encountering Mr Ukumu at the scene of his arrest, her investigation had not disclosed any information that Mr Ukumu was from the DRC, a refugee, or someone whose first language was not English. Nor did she recall Constable Kerr indicating anything to her about Mr Ukumu wanting to obtain more information from her about the charge against him.
At approximately 2:38pm, (i.e., during the period while Constable Kerr was still interacting with Mr Ukumu at the rear of his vehicle), DC Yovicic introduced herself to Mr Ukumu, indicating that she was the investigating officer in relation to the case. DC Yovicic also told Mr Ukumu that she would be speaking with him again later, after he attended the London Police headquarters detention unit.
At approximately 2:41pm, DC Yovicic initiated a visual search of Mr Ukumu’s vehicle, incident to arrest; i.e., remaining outside the vehicle while making observations of the vehicle’s interior through its open driver door. While doing so, she nevertheless remained in close proximity to Mr Ukumu, and was able to observe and continue listening to Mr Ukumu’s further interactions and conversations with other officers at the rear of Mr Ukumu’s vehicle.
Shortly thereafter, DC Yovicic again spoke to Mr Ukumu directly, asking him if he needed or wanted any items removed from his vehicle, as a precaution against any such items possibly being stolen while the vehicle was left secured but parked nearby while Mr Ukumu remained in custody. Mr Ukumu responded by asking DC Yovicic to retrieve some papers from his vehicle, and she did so; i.e., to hand them over to the officers who would be transporting Mr Ukumu back to police headquarters.
While speaking directly with Mr Ukumu, (over the course of a minute or two), and while overhearing Mr Ukumu’s more extended interactions and conversations with other officers, (although DC Yovicic admittedly was not in close proximity to Mr Ukumu throughout her entire time at the scene of his arrest), DC Yovicic noticed that Mr Ukumu spoke with an accent. However, she also observed, (and documented in her duty book notes and “will say” statement, prepared shortly thereafter), that Mr Ukumu appeared to speak English very well, making statements that were appropriately responsive to what DC Yovicic and other officers were saying to him. In that regard, DC Yovicic testified, and I accept, that she documented her impression of Mr Ukumu speaking English very well at the scene of his arrest because she had turned her mind to the possible need for an interpreter, (having regard to Mr Ukumu’s accent), but did not believe one was required in the circumstances based on all of her observations of Mr Ukumu’s interactions and communications at the scene.
DC Yovicic would remain at the scene of Mr Ukumu’s arrest until 2:51pm; i.e., a time after Mr Ukumu had been removed from the scene.
Just before 2:46pm on November 4, 2016, Constable Aarts arrived on scene, in a uniform and marked police vehicle capable of prisoner transport. In that regard:
At the time, Constable Aarts had been a police officer for less than three months, and was still training and working with a “coach officer”; i.e., Constable Todd Rowsom. She and Constable Rowsom had been dispatched to the scene at approximately 2:34pm, having been told only that their presence was required to transport a male, who had been arrested on a charge of sexual assault, to the cells at the London Police Service headquarters.
By the time of the hearing before me, Constable Aarts had been a police constable for approximately 3 years, (always in the “uniform” division), and had made “over 100” arrests. At the time of dealing with Mr Ukumu, she had made “less than 50” arrests – and I think it likely that the number was significantly less than 50 at the time, having regard to the total number of arrests she had made three years into her time as a constable.
During the course of her testimony, Constable Aarts described her experience and practice in relation to providing arrested individuals with their rights to counsel and cautions, noting the following, which I accept:
In dealing with those who speak “perfect English”, Constable Aarts “sometimes”, but “not that often”, is required to paraphrase or otherwise explain the meaning of the standard form wording of “rights to counsel” or “primary caution”. However, she “quite frequently” and “very frequently” has to provide such persons with a further explanation as to the meaning of the “secondary caution”, using “lay terms”, as many if not most people find the wording to be convoluted.
In dealing with those for whom English is not their first language, the mere presence of a noticeable accent does “not necessarily” prompt Constable Aarts to offer or make arrangements for the involvement of a translator. In relation to such individuals, and the administration of rights and cautions:
Constable Aarts tries harder to “break them down into simple language”. If the person then “responds back to the questions asked”, Constable Aarts feels she knows that the person is understanding her, based on the answers received.
However, if she fails to receive appropriate responses, cannot understand a person’s responses, has a person continue to look at her as if she “had two heads”, (i.e., giving a “blank stare” and “not responding back” to questions), or encounters a person who specifically indicates “I speak no English”, Constable Aarts says she knows she will not be successful in communicating with the person without a translator.
In her time as a police constable, Constable Aarts has asked the Staff Sergeant in charge of cells, (who is tasked with the logistics of arranging translators and interpretation when required), to make such arrangements for arrested persons with whom Constable Aarts was dealing. Although she was not personally involved in making such arrangements, Constable Aarts was aware of a displayed telephone number posted in the London Police cells area that is used to arrange translation services, and understood such services were available by telephone. While she “assumed” it was not difficult to obtain the services of an English-French translator, she had no direct experience in that regard.
At approximately 2:46pm, Mr Ukumu was formally transferred from the custody of Constable Kerr into the custody of Constable Aarts, who then dealt with Mr Ukumu for approximately the next 20 minutes. In relation to that time period:
All communications between Constable Aarts and Mr Ukumu took place in English.
Constable Aarts took custody of Mr Ukumu by using her handcuffs to replace those of Constable Kerr, after which she walked Mr Ukumu to her police vehicle; i.e., the vehicle in which she and Constable Rowsom were travelling.
Once Mr Ukumu was inside her police vehicle, Constable Aarts proceeded to read him, in succession, the “secondary caution”, “rights to counsel” and “primary caution” set forth in her duty book, asking Mr Ukumu the questions contained therein. In particular:
At approximately 2:50pm, Constable Aarts provided Mr Ukumu with a “secondary caution” by reading out the standard form English wording of that caution, as printed in the front of the officer’s duty book. In particular, Constable Aarts said the following: “If you have spoken to any other officer, or anyone else in a position of authority has spoken to you in connection with this matter, I want it to be clearly understood that I do not want it to influence you in making a statement. Do you understand?” Mr Ukumu responded to that question by saying he did not understand. Constable Aarts then “had to break it [i.e., the secondary caution] down into layman’s terms for him”. While Constable Aarts could not recall specifically what words she used in that regard, she emphasized to Mr Ukumu that nothing said to him by any other officer was to influence what Mr Ukumu might say to her. While she had no note or specific memory of what Mr Ukumu said in response to that further explanation of the secondary caution, Constable Aarts testified, and I accept, that she asked again whether Mr Ukumu understood the secondary caution, and received some form of response she believed to be positive, or she otherwise would not have “moved forward” as she did.
At approximately 2:51pm, Constable Aarts again provided Mr Ukumu with his “rights to counsel” in the same standard form noted above, (in relation to Constable Kerr), ending with the question “Do you understand?” Mr Ukumu responded by saying “Yeah, yeah, yeah.” When then asked “Would you like to call a lawyer now?”, Mr Ukumu responded by saying “I have zero lawyer.”
At approximately 2:52pm, Constable Aarts again provided Mr Ukumu with a “primary caution”, in the same standard form noted above, (in relation to Constable Kerr), ending with the question “Do you understand?” Mr Ukumu responded by saying “Yes”. When then asked “Do you wish to say anything in answer to the charge?”, Mr Ukumu responded by saying “No”.
By way of an aside, I note that Constable Aarts explained that it was standard practice to administer the secondary caution after having assumed custody of a person from another officer, and to independently administer the “rights to caution” and “primary caution” even when told by another officer that already had been done, (although she received no such indication from Constable Kerr in this case), as the Staff Sergeant would ask for personal confirmation of that having been done before booking a person into cells.
In speaking with Mr Ukumu, Constable Aarts noticed that he had an accent. However, she did not consider it to be a strong accent, and did not discern or become aware that it was a French accent. While she acknowledged that that Mr Ukumu was making errors in his sentence structure, (e.g., by saying “I have zero lawyer”), in her view he did not seem to be struggling for words. She had no difficulty understanding what Mr Ukumu was saying to her, and his comments and answers to her questions seemed responsive and appropriate. She therefore believed that he understood what was being said. (In that regard, Constable Aarts acknowledged that Mr Ukumu had indicated a lack of understanding when the “secondary caution” was administered. However, as noted above, Constable Aarts did not think that was unusual, or an indication of inability to understand English, as she regularly was required to “break that down into plain language” for many individuals who spoke perfect English.) Constable Aarts confirmed that there was no discussion about Mr Ukumu’s ability to speak English or other languages, where he was from, or his refugee status. As she put it: “He spoke to me in English, so I didn’t ask.”
During the short drive from the scene of Mr Ukumu’s arrest to the cells of the London Police headquarters, (located just one city block away), Constable Aarts had no further conversation with Mr Ukumu.
At approximately 3:30pm, Constable Aarts arrived at the cells with Mr Ukumu, who was searched again before being paraded before the Staff Sergeant in charge of cells, (Sergeant Holland), at 3:13pm. Constable Aarts thereafter had no further involvement with Mr Ukumu. Nor did she speak with DC Yovicic about her interactions with Mr Ukumu, including the need to provide him with additional explanations.
While waiting to speak to DC Yovicic, Mr Ukumu repeatedly was asked in English, by one or more officers staffing the cells, if he wanted to speak with duty counsel or a named lawyer. In that regard:
Mr Ukumu testified, and I accept that, prior to being arrested, he had not previously heard, and did not “understand exactly” the term “duty counsel”. However, he did understand the word “lawyer”, that he was being asked if he wanted to speak with a lawyer, and that he was presented, after his arrival at the cells, with a list of lawyer names in that regard.
Mr Ukumu initially declined the offer to speak with a lawyer, as he did not know the reason why he would need a lawyer, and was still intent on speaking with the detective in that regard as soon as possible.
However, as he continued to be processed, (e.g., by having his fingerprints taken), and continued to wait to speak with DC Yovicic, another officer urged him again to speak with a lawyer by telephone; e.g., asking “Are you sure you don’t need a lawyer?” Mr Ukumu initially declined again, for the same reasons already noted. However, after Mr Ukumu thought for 2-3 minutes about the officer’s question and the way it had been said, he asked the officer if he really thought Mr Ukumu needed to speak to a lawyer. When the officer responded that he did, Mr Ukumu indicated that he would do as the officer was suggesting. Even then, however, Mr Ukumu remained focused on obtaining an explanation for being stopped and arrested, rather than the provision of legal advice. In his (translated) words: “I understood it was someone, on the other side of a telephone probably, who could maybe help me understand something about what was happening to me”.
Mr Ukumu then was put in touch, by telephone, with a lawyer who spoke to him entirely in English.
After giving an informed waiver of solicitor-lawyer privilege during the voir dire, Mr Ukumu recounted the nature of his brief exchanges with the unidentified male lawyer with whom he spoke by telephone. In particular:
The lawyer initially asked Mr Ukumu if he was in jail, and Mr Ukumu responded that he was.
When the lawyer said “Okay”, and then asked if Mr Ukumu knew the charges against him, Mr Ukumu had difficulty answering. In particular, after initially remembering and indicating only that it was a kind of “assault”, the lawyer asked him what type of assault it was, and while Mr Ukumu was groping for words, proactively then asked Mr Ukumu if it was a “sexual assault”. Mr Ukumu responded by saying “Yes, yes, yes, I think that’s what I’m charged with”.
The lawyer responded by saying “Ooh -- That is a bad charge”; a comment which greatly upset Mr Ukumu, making him much more anxious, emotional and “crushed”, in turn making it much more difficult for Mr Ukumu to focus on, understand and remember what the lawyer said next. In particular, while he recalls the lawyer then saying words to the effect of “Your right is…”, Mr Ukumu was unable to understand or remember precisely what was said after that. In particular, Mr Ukumu said he knows the lawyer then spoke quickly, and seemed to be saying a lot, but that he remained focused on the fact that he still did not understand why he had been stopped and arrested. Mr Ukumu simply remembered the call ending with the lawyer saying “Okay?”, and Mr Ukumu saying “okay” in return.
At no point during the telephone exchange did Mr Ukumu ever indicate to the lawyer that he was unable to understand what was being said, or request an interpreter.
At no point during the telephone exchange did the lawyer indicate that he could not understand Mr Ukumu, ask Mr Ukumu if he needed an interpreter, or suggest in any way that an interpreter was a possibility. Mr Ukumu testified, and I accept, that he readily would have made use of an English-French interpreter then and thereafter, (e.g., in speaking with DC Yovicic), if he had known that was an option.
To the best of Mr Ukumu’s recollection, although no one was “rushing” him to complete the telephone call, and no police officer told him to make the call “quick”, he nevertheless believed, (based on his cultural attitude towards authorities in the Congo), that he “had to do everything right away”, and his entire telephone exchange with the lawyer lasted no more than one or two minutes. I was presented with no direct evidence to contradict that assertion, which I therefore accept. (In her testimony, DC Yovicic referred to reading a report suggesting that the total time Mr Ukumu spent out of cells, to speak with duty counsel, was longer than that. However, DC Yovicic candidly and fairly acknowledged that she had no direct knowledge in that regard, nor any direct knowledge of how long the actual conversation between Mr Ukumu and the lawyer may have lasted. She also acknowledged that the report she had seen focused only on the times Mr Ukumu had been taken out of his cell to speak with duty counsel, which admittedly would have been longer than the duration of the telephone call that took place within that indicated time period.)
In the wake of that telephone call, Mr Ukumu admittedly did not tell anyone at the police station that he was dissatisfied with the advice he had received from the lawyer.
At approximately 4:24pm, DC Yovicic received a telephone call from Sergeant Holland, advising her that Mr Ukumu had finished speaking with duty counsel by telephone, which prompted the detective to make her way to Mr Ukumu to conduct a recorded interview with him.
At approximately 4:34pm, DC Yovicic attended at the Detention Unit. A minute later, she took custody of Mr Ukumu, and led him to a nearby interview room equipped with audio-video recording facilities. The detective thereafter spoke alone with Mr Ukumu for an hour and 42 minutes. In that regard:
The entire recording was played, in two segments, during the voir dire, with corresponding presentation of a transcript, (marked as an exhibit for identification), prepared as an aide memoire to assist in following along with the recording.
Having reviewed both the recording and the transcript, in my view the transcript generally is an accurate reflection of the words that were spoken during the interview, including its indication of occasions when the precise words spoken were inaudible. There nevertheless were areas where the actual words I was able to hear supplemented or deviated from the prepared transcript. In particular, using the transcript’s page and line references:
At page 22, line 18, Mr Ukumu says “…always work hard and pray…”
At page 22, line 19, Mr Ukumu says “heading to the Toyota, ah, the dealership”.
At page 50, line 7, Mr Ukumu says:“…if just say like a flash or something, I can…”
At page 53, lines 24-25, Mr Ukumu says: “Because I’m just – like sometime’s I’m just there…”
At page 69, lines 21-22, Mr Ukumu says” “…so that means their version is in error”.
At page 85, lines 13-14, Mr Ukumu says: “…so I just, see, forget about I’m in Canada, I don’t have paper.”
At page 89, line 15, Mr Ukumu says: “I’ve been suffering since I was 17.”
At page 91, line 19, Mr Ukumu says: “Say very I know how forgive me.”
I do not intend to review the lengthy interview and corresponding transcript in exhaustive detail here. However, the overall progress of the interview in terms of topics addressed, (some of which I will address in more detail below), generally may be summarized as follows:
There are introductions, including DC Yovicic indicating that the room is being monitored, with everything being recorded on audio and video.
There is a discussion about the nature of the charge against Mr Ukumu, with DC Yovicic providing an explanation of the meaning of “sexual assault”.
DC Yovicic provides Mr Ukumu with his rights to counsel in the standard form noted above and asks for confirmation that Mr Ukumu has had an opportunity to speak to a lawyer, following which there is a brief discussion about what happened in that regard.
DC Yovicic provides Mr Ukumu with the primary caution in the standard form noted above, following which Mr Ukumu responds with answers and questions.
DC Yovicic provides Mr Ukumu with the secondary caution in the standard form noted above, following which Mr Ukumu indicates confusion, and DC Yovicic attempts to provide paraphrasing and examples of what the secondary caution is intended to address.
There is an extended discussion of Mr Ukumu’s background, migration from country to country, education, intelligence, spoken languages and efforts to learn English, efforts to obtain permanent resident and citizenship status in Canada, residential history, friends, employment, vehicle and work schedule.
DC Yovicic questions Mr Ukumu about his activities and movements on particular recent evenings, (e.g., the previous Saturday and Monday), the answers to which include Mr Ukumu’s account of providing rides to strangers who offer him money in return, including an account apparently related to driving the complainant and her male companion from downtown London to a residence in the east end of London, being offered payment for the service, which he accepted, and about certain cards being left in his vehicle, which he noted so they could be taken back. DC Yovicic asks further questions in that regard to elicit Mr Ukumu’s account of the incident.
DC Yovicic confronts Mr Ukumu with the complainant’s allegations and account of the same incident, and Mr Ukumu initially responds with denials.
DC Yovicic raises the subject of DNA, providing related explanations of terms when Mr Ukumu expresses confusion, and indicates that the police will find Mr Ukumu’s saliva on the complainant’s neck, and possibly his skin cells on her clothing. She also emphasizes that the complainant provided a detailed description of Mr Ukumu and the interior of his vehicle, the accuracy of which the police have confirmed.
Mr Ukumu progressively admits to pushing, touching and kissing the complainant, (which ended with the complainant indicating that her “boyfriend” was there and saying “We cannot do this”), but repeatedly emphasizes that he did not do “sex with her”.
After some follow up questions from DC Yovicic, and confirmation of Mr Ukumu’s physical measurements and description, DC Yovicic leaves the room temporarily, and returns to ask further questions to confirm that Mr Ukumu touched the complainant in her “crotch”, explaining to Mr Ukumu that she is referring to the complainant’s vaginal area.
The interview ends with an extended conversation concerning Mr Ukumu’s loneliness, suffering, frustration with the delays of pursuing Canadian citizenship, regret, shame, emphasis that the incident was out of character, his intention not to do any such thing again, concern about his future, and a desire to apologize to the complainant. In the course of that discussion, Mr Ukumu also distinguishes his conduct from “rape”, and draws a comparative and minimizing analogy between someone who tries to take a dollar and a bank robber who tries to destroy a bank for $10,000, or ten million dollars.
The recording ends after a further discussion about contemplated court procedures, with Mr Ukumu continuing to speak to DC Yovicic as the two exit the room.
In my view, the manner and tone displayed by DC Yovicic throughout the interview was polite and respectful. She did not yell at Mr Ukumu, or raise her voice. To outward appearances at least, Mr Ukumu generally appeared to be calm, and not intimidated by the detective.
Throughout the interview, Mr Ukumu never asks for the assistance of an interpreter, or to speak in a language other than English. Nor does DC Yovicic ever ask Mr Ukumu if he would like the assistance of an interpreter, or would prefer to communicate in another language. In that regard, DC Yovicic candidly acknowledged that, throughout her dealings with Mr Ukumu, she never asked him if he was comfortable speaking to her in English, or comprehending what was being said to him in the English language.
DC Yovicic testified, and I accept, that to her knowledge there was nothing to indicate to Mr Ukumu, from the time of his arrest to the conclusion of her interview with him, that the services of an interpreter could be made available, either in person or by telephone.
DC Yovicic also testified, and I accept, that she never formed a subjective impression, from the time of her first encountering Mr Ukumu at the scene of his arrest to the time at which the interview ended, that Mr Ukumu did not understand English or required an interpreter. In that regard, she relied on her experience with other people who spoke with accents; Mr Ukumu’s interactions with her and officers at the scene of his arrest, which seemed appropriate and responsive, and which in her view involved normal “English to English” conversations; and her conversations with Mr Ukumu, which she considered to be “free flowing”, wherein Mr Ukumu mentioned having studied English and being able to speak English, and during which he appeared to be understanding what was being said, while the detective was able to understand him “for the most part”, apart from “some words here and there”. DC Yovicic also acknowledged that there were aspects of Mr Ukumu’s remarks that she did not understand, but says she asked for no further clarification in that regard because she did not consider them relevant to her investigation. In her view, she sought necessary and appropriate clarifications in relation to comments relating to the alleged sexual assault.
I also accept the testimony of DC Yovicic that, had she formed an impression that Mr Ukumu did not understand English, she would have asked Mr Ukumu if he wanted an interpreter, and his preferred language in that regard, and then would have initiated such arrangements.
In my view, there nevertheless were many objective indications, throughout the recorded interview, that Mr Ukumu lacked proficiency in English. They include the following:
Throughout the interview, Mr Ukumu clearly speaks with a pronounced accent – although I agree with the police officers that the accent does not readily indicate that Mr Ukumu is a francophone. At one point, (i.e., after Mr Ukumu has had trouble pronouncing the word “Pathway” in a manner initially capable of being understood by DC Yovicic, causing him to repeat the word several times and describe the organization’s location), Mr Ukumu expressly apologizes saying “Sorry… Accent is just…”, and DC Yovicic says “No, it’s okay. … Figure it out.”
Mr Ukumu struggles to remember and pronounce certain words correctly; e.g., “east”, “Halloween” and “Pathways”.
Mr Ukumu frequently uses words unusually or incorrectly, such as the following: “zero” for “no”; “residence permanence” instead of “permanent resident”; “school register” instead of “school registrar”; “stressful” instead of “stressed”; “refresherize” instead of “remember”; “necessary” instead of “necessarily”; “Detector” instead of “Detective”; and “conscience” instead of “conscious”.
On numerous occasions, Mr Ukumu struggles to correct his own English, and/or resorts to using more simple or descriptive wording for English terms he does not know or cannot remember. For example:
He talks about “a train thing” instead of railway tracks, and about “the judge place” instead of a court or courthouse.
When he has trouble recalling or completing the word “dishwasher” to describe the nature of his employment, (although the word was used earlier in the conversation), he reverts to naming the restaurant at which he works.
When he fails at repeated attempts to say the words “social services”, he says “I mean, all of you, like Ontario Works” instead.
Many of Mr Ukumu’s comments or answers consist of a single word, are mono-syllabic, or employ inarticulate sounds, (such as his frequently repeated use of “Mm-hmm”), that do not really make it clear whether Mr Ukumu understands and/or agrees with what is being said. As noted below, at times when Ukumu nods his head slightly while verbalizing an “Mm-hmm”, that was not a reliable indicator of understanding and agreement with what was being said, as opposed to an indication of attempts to acknowledge and follow what was being said.
Mr Ukumu’s conversation is riddled with pauses, repetition of words, (e.g., in one case saying the word “Saturday no less than nine times), and the repeated use of numerous verbal placeholders, (such as “ah”, “like”, “yeah”, “I mean”, “you know”, “okay”, “man”, “oh man”, “phff”, “whatever” and “blah, blah, blah”), which he frequently and obviously uses to keep speaking, and/or keep speaking quickly, without saying anything substantively, while apparently struggling to find appropriate English words.
Mr Ukumu frequently fails to conjugate verbs correctly, speak of things in a consistent or proper tense, make appropriate use of singular and plural pronouns, and/or employ the singular or plural form of nouns correctly. It is also obvious that he frequently omits simple articles, (e.g., “the”, “a” and “an”), prepositions, (e.g., “to” or “by”), and other words that normal English usage would require.
Mr Ukumu clearly and repeatedly speaks with poor syntax, inappropriate words and generally “broken” English that is frequently confused and/or confusing. To cite but a few of the many, many illustrative examples of this, replicating the precise words used by Mr Ukumu, he expresses himself in ways such as the following:
“Back home my papers didn’t have like, ah, Patrick name… So, they changed to – I mean, when they change but, ah, like when they wanted to give me the paper from Canada, let’s say paper saying okay this is like a landed immigrant and blah-blah-blah…”.
“I won’t … like this for sure right now. I have zero paper.”
“I mets people, that came here before me. … They told me, hey in this country make sure you are not in – in criminal record or messed up with credits.”
“So, I’m – I don’t have zero idea about even if you call some people that’s, you know, know that’s I’m – I’m a good guy, they – they will even be shocked that they hear this kind of thing so…”
“During the week, ah, I mean, before I used to go to St Patrick because I was supposed, you know to – to – to gets the - the – the all the thing that the government re – require for me to – to give the equivalence of high school cause I brought my high school from – from back home…”
“So, I supposed to be right now at school, but since my paper didn’t came, and you know.”
“I mean, okay. I’m not going to answer about me. I prefer if something happen.”
“So, I went to meets one guy told me he can give me a nice car and … but I told him okay, it’s fine, I few like option, but I’m trying to see another option too.”
“They was entering on the street, almost, like I – it’s like I even know the Dundas very well, cause you know in the T.D. in front of – on the T.D. Dundas, there like a where the bus park, so there’s like more space. So I saw them coming the space… where the bus parks, and then I – I – pushed the cars and like I push my thing there, down like, hey hey are you guys okay.”
“And like – the guy, the guy, the guy, the guy, the guy. Yeah, and then that’s all – I mean, the – the basical thing that I remember about them it’s just they were like they were – they weren’t there, like it just was – I mean, the guy still was okay a little bit.”
“One was, ah, like when know, when you ask, the flash is coming on mind is only remember very well…”
“My gas was almost low, I was like, okay, since I help them and they just want to give me this, I’m like okay. Let me just go waste with gas, so at least I will you know… I will have something. It’s not that I help them free, at least it’s like okay. I benefit with something… so, yeah. Like after that, definitely sure I went to the Esso station. I put my gas 10 bucks.”
“Oh, like you mean, if I came up with, ah, I mean, if – you mean if I – I sent to – to ask them a ride?”, and “I didn’t ask them the ride.”
“Yeah, cause that’s – that’s all I do, cause you know, you know what, when I was – I mean, when I was boring and I didn’t know Evedy, I didn’t know anybody … just me, you can think I’m – I’m just fool because I just go the whole London, driving, driving cause even my car’s, it’s not even I care about my car’s because my car’s … at the job they give us tips and every single day I – I never took my money out of my parking space cause … so I always have gas.”
“I can – let’s say, I can – I can come out and just – just look at people, just look at the natural, just – just look at how people … are stressful that day, and blah-blah-blah.”
“Cause all I – all I know is I was – I was, um, not – not – not the – um, know the Jack – know the Jack? Yeah, I was like between Jack and that – that bar that you say.”
“That’s actually what’s going on in my mind right now, so I’m … I don’t know. I’m guessing to happen okay, this the – the - the – the girl that I took on Mill or the – the – I mean, the girl I took on Mill Street … I don’t know, is maybe her told you guys I was – I raped her. Cause I don’t think those guys that I – that I say all the way, I don’t think those guys would say anything cause they were a couple together and you know.”
There are numerous instances, throughout the interview, where Mr Ukumu expressly indicates that he is struggling to find an appropriate English word or name, apologizes for his poor English, and/or asks DC Yovicic for assistance in that regard. By way of example, Mr Ukumu says the following at various points:
“Cause I was going do – I wanted to do a – what they call - light industrial - to be – to work like, as a fork lift?”
“Ah, I think it’s Richmond. Richmond and – and – how they call? Dundas. Richmond and Dundas.”
“They just came take it cause they – like they were – I don’t know how you call it. Mumbling? Whatever. You know how people when they’re drunk…”, after which DC Yovicic says “Stumbling?”, and Mr Ukumu says “Stumbling, yeah.”
“Yes, I turn to think it was down to Queens, yeah. Not Queens. Anyways, you – you know where is the super there market thing here? The markets?”, after which DC Yovicic asks Mr Ukumu if he is talking about The Western Fair, and he confirms that he is.
“And then he was like, you know, stumbling there… how you guys say? Stumbling like?”
“Mmm, well like honestly since it’s not something that I really told me be you know, like I have zero idea. All - all I remember about them is, ah, ah, wait, the guy – the guy. I know the guy has like – okay. Excuse me my language maybe you know it’s – you know how some whites guys they – they have like they do like rock and stuff…”
“Like honestly I –yeah, like I – I – I don’t know if I can even explain how – yeah, I just had a – definitely it was Monday.”
“Like my close good friend which is Evedy, she’s at the shelter and she lived, ah, what they call? She lived, ah, woman abuse something house.”
“Both of them, cause the mean was on the – on the – on the – ah, what they call, the door.”
“And then it’s like you see it’s the – how they say, the stairs”.
“Because look they – they were – they were – they were – how do you say, mumbling whatever. They were just going like this and they, you know, they - they just –they sits just right there.”
There are other instances where Mr Ukumu indicates that he does not recognize and/or understand the meaning of English terms and words in relatively common usage, such as “DNA”, “semen” and “major”.
Many of Mr Ukumu’s remarks end with apparently incomplete thoughts and sentences; e.g., with the words “like that”, “you know” and/or “then yeah”, or in a manner that simply trails off into silence.
Although Mr Ukumu does not gesticulate constantly while speaking with DC Yovicic, at various points during the interview he resorts to the use of gestures to help him explain what he is attempting to describe in words; e.g., directions he took, where things or people were located in relation to each other, how someone’s hair was styled, how the complainant and her male friend were interacting physically, and where he touched the complainant.
At certain points, DC Yovicic resorted to gestures, along with her spoken words, to help Mr Ukumu understand certain English words like “semen” and “crotch”.
At numerous times during the interview, Mr Ukumu expressly indicates – albeit in further broken English, sometimes in relation to substantive memories - that he has become confused and/or does not understand. By way of example, Mr Ukumu says the following at various points:
“Ah, like I’m just – I know honestly I’m having trouble right now cause I’m trying – just trying to understand okay where is my issue cause you know Like I’m – I completely messed up with thing that I did…”
“Ah, okay. Mmm. Oh, my gosh. Just have to think, um, like to tell you the true right now… my head’s like I’m just confused…”
“Okay. So, I’m just trying to understand what’s – I mean, what exactly that I dids and I’m just – I’m not just saying…”
“What’s – I don’t understand.”
“I don’t understand.”
“I just confused”.
When DC Yovicic makes efforts at the outset of the interview to confirm that Mr Ukumu knows and understands the reason why he has been arrested, he demonstrates linguistic difficulties and expresses a lack of understanding; a contemporary lack of understanding that was echoed in Mr Ukumu’s testimony during the voir dire. In particular:
When DC Yovicic opens that discussion by saying “So you know why we’re here today?” Mr Ukumu responds by saying “Not right now.”
When DC Yovicic indicates that she thinks the officers on the street told Mr Ukumu that he had been arrested for sexual assault, she asks “Do you know what that means?” Mr Ukumu responds by saying “Yeah, that’s actual my question too, like can you just explain to me cause…”
When DC Yovicic then interrupts and proceeds to make a number of statements providing examples of what would constitute sexual assault, (e.g., “touching someone in their private areas” such as the vagina, breasts or “bum”, “having sex with them when they don’t want to”, and generally touching someone “in a sexual way”, even by kissing, “and they don’t want it”), Mr Ukumu responds with nothing but periodic indications of “mm-hmm”, “yeah” and “okay”.
DC Yovicic testified, and I accept, that she successfully has used such “simple language”, to explain the nature of “sexual assault” to accused persons, many times in the past.
Although DC Yovicic moved on without seeking any further confirmation of understanding in that regard, on the part of Mr Ukumu, and Mr Ukumu shortly thereafter made a passing reference to touching, kissing and sex, (i.e., when asking for clarification of who was saying what about him), whether and when Mr Ukumu truly came to understand and appreciate that the Canadian concept of “sexual assault”, (the stated reason for his arrest), encompassed more than forced sexual intercourse is not, in my view, entirely clear from the remainder of the interview. In that regard:
Early in the interview, Mr Ukumu proactively emphasizes that he is a Christian and “never did sex in [his] life before, never”, and later proactively returns to the same topic, saying: “I’m a Christian and since I was young and I’m 26 years old, I never did sex before.”
When later confronted with the complainant’s allegations, Mr Ukumu’s responses, denials and questions repeatedly make reference to “rape”; e.g., “How did I rape them? I mean, rape her?”, and “Like I – I just want to say, why I would rape someone…” When DC Yovicic responds by noting that she did not say Mr Ukumu “raped” the complainant, Mr Ukumu says that he means “rape in the sense where touching or whatever doing sex”. A short time later, he adds “Why would I rape someone that is with – I mean, rape, I even I don’t have to use that word.”
When responding to questions about DNA a short time later, Mr Ukumu makes statements suggesting he is still focused on an idea that sexual assault involves sexual intercourse. In particular, Mr Ukumu says “I’m pretty sure there’s nothing in me you’re going to find in her… Definitely. If she does, I can – how even blood, everything, yeah.”
Mr Ukumu thereafter repeatedly says words to the effect of “I didn’t do sex with her”, “I didn’t do something that has blood”, and “It’s not like I did sex with her or something”.
Later in the interview, (after DC Yovicic indicates that DNA testing will locate Mr Ukumu’s saliva or skin cells on the complainant and her clothing, and Mr Ukumu has admitted to certain pushing, kissing and touching conduct vis-à-vis the complainant), DC Yovicic asks if it felt good to get that “off his chest”, and Mr Ukumu says this: “Yeah. Cause I just you know, since again just cause the thing is, I just don’t call it’s – okay. Since you explain to me what you guys can do, I’m like okay, I don’t want you to go to all those thing and blah-blah-blah, cause I know okay, I didn’t do sex with her. I didn’t go like doing anything bad…” Shortly thereafter, he resumes his efforts to emphasize repeatedly, in similar ways, what he apparently believes to be the same fundamental point: e.g., “It’s not like I did sex with her or something”; “So, not like I did sex or something or you know, no”; and “Just like you say like, it’s not – I didn’t do sex and… you know, that’s just what I did”.
Moreover, it is only towards the conclusion of the interview, when DC Yovicic again asks Mr Ukumu how he feels about his situation, that Mr Ukumu suggests, in somewhat confused wording, that he may have come to understand that his conduct may have been illegal. In particular, he says the following: “I just – I just feel like you know, even if didn’t do it nothing will – cause it’s not – okay, let’s say if I did even sex, I was okay, at least I did sex with this girl, I love her, blah-blah-blah, I touch her. Buts you know, I just – I didn’t even do nothing special but since it’s just the law, it’s the law, you know…” Mr Ukumu then draws a minimizing analogy between someone who tries to steal a dollar, and someone who robs or destroys a “whole bank” to have ten thousand or ten million dollars.
In my view, all such indications are consistent with Mr Ukumu’s testimony, which I accept, that throughout much of the interview, he remained uncertain and confused as to the nature of “sexual assault”, and continued to remain focused on trying to understand the nature of the charge, and why he had been stopped and arrested.
In my view, the efforts made by DC Yovicic at the outset of the interview to reiterate Mr Ukumu’s rights to counsel, (which DC Yovicic assumed had been given already but wanted to repeat), and confirm that Mr Ukumu had meaningfully exercised those rights, (which DC Yovicic assumed had happened, given her information that Mr Ukumu had spoken to duty counsel), give rise to similar concerns about linguistic comprehension. In particular:
When DC Yovicic reads the rights to counsel again, and asks Mr Ukumu if he understood what she had said, Mr Ukumu does not expressly confirm his understanding, but again responds with an inarticulate “Mm-hmm”. He nods his head slightly, but whether that is an indication of positive understanding or simply an effort to indicate he is listening is not clear.
When DC Yovicic asks for confirmation that Mr Ukumu had an opportunity to speak with a lawyer, Mr Ukumu responds with comments suggesting he may not have been satisfied in that regard: i.e., “Yeah, just speak with this guy and just, ah, just like told…”; “I’m just saying like two or one minutes. One…”; “Yeah, it wasn’t like a conversation”; and “He just told me my right, and that’s it…”
Part way through Mr Ukumu making such comments, (i.e., after Mr Ukumu said the words “just like told”, DC Yovicic interrupted by saying “You don’t – You don’t need to tell me what about your conversation.” In that regard, the detective testified, and I accept, that she did so in an honest effort to prevent Mr Ukumu from disclosing a privileged conversation, which she regarded as “confidential”. However, I also accept Mr Ukumu’s testimony that the detective’s interruption and comment also made him confused about whether he could or should say anything further to the detective about the difficulties he had encountered in understanding or remembering what the lawyer had said to him.
When DC Yovicic then asked for confirmation that Mr Ukumu had spoken with “duty counsel”, Mr Ukumu responded in broken English, struggling for words, and suggesting some uncertainty in that regard: “Yes. I think, yeah, because, ah, when they ask me there if, ah, like I want an – any particular lawyer … I just told them, okay, like – like I don’t know any of – of those lawyer that was there and I think they passed me the 100 number I think. It think it was, yeah.”
DC Yovicic nevertheless testified, and I accept, that she was satisfied that Mr Ukumu had understood and meaningfully exercised his rights to counsel. Without attempting any further clarification or confirmation in that regard, (without asking for information about the content of any conversation with counsel), DC Yovicic pressed on with the interview. In that regard, the detective admittedly was influenced by her experience of many accused persons indicating to her that their conversation with duty counsel had been brief.
In my view, there were similar linguistic comprehension concerns evident when DC Yovicic made efforts at the outset of the interview to once again provide Mr Ukumu with the primary caution, designed to emphasize his right to silence. In particular:
When the primary caution is read again to Mr Ukumu, the detective’s initial questions about Mr Ukumu’s understanding in that regard once again are met with inarticulate or simple responses of “Mm-hmm” and “yeah”. For the same reasons noted above, (and below), the “Mm-hmm” is ambiguous, and the entire conversation makes it clear that Mr Ukumu sometimes uses the word “yeah” to verbally engage without necessarily intending to indicate a positive answer to questions.
When then asked if he wished “to say anything in answer to the charge”, Mr Ukumu’s immediate answers strongly suggest that he was not focused at all on any right to silence, but on whether he was being given an opportunity to ask rather than answer questions, and the wording he uses once again suggests linguistic difficulties. In particular, Mr Ukumu says this: “Ah, I just – I mean, I can’t talk about it, like I can talk about – I mean, ask you question who did this? … Like I just want to know why they say, cause I have zero idea about … who I touched or kissed, or I did sex with. … Cause I never did those kind of thing before.” In my view, such comments are consistent with Mr Ukumu’s voir dire testimony that he had no contemporaneous understanding concerning his right to silence, or the fact that his interview statements could be used against him, and instead thought he was being presented with the opportunity, promised by Constable Kerr and DC Yovicic at the scene of Mr Ukumu’s arrest, to speak with the detective and obtain more information and clarification as to the reason for his arrest.
DC Yovicic testified, and I accept, that she nevertheless was satisfied Mr Ukumu had understood the primary caution. In response to Mr Ukumu’s statements, DC Yovicic accordingly made no further effort to clarify or confirm that Mr Ukumu understood his right to silence, but simply addressed Mr Ukumu’s requests for further information by saying “We’ll talk about that in a minute”, before moving on with the interview.
In my view, when DC Yovicic then reiterated the secondary caution, Mr Ukumu’s initial responses made it clear that his lack of understanding went far beyond uncertainty as to the possible impact on his right to silence of speaking with other police officers, and that he was truly lost at that point in the interview, while still focused on trying to understand the nature of “sexual assault”. In that regard:
Immediately after the reading of the secondary caution in its standard form, and Mr Ukumu being asked if he understood what had been said, Mr Ukumu again responded with an inarticulate “Mm-hmm”, which DC Yovicic construed, along with nodding of Mr Ukumu’s head, to be a positive response to her question.
However, when DC Yovicic then expressly asked Mr Ukumu if he had understood what she had just said, it was quite clear that his “Mm-hmm” had indicated nothing of the kind – in turn casting doubt on whether his similar uses of “Mm-hmm” when interacting with the detective had truly indicated any positive understanding of what was being said to him on those occasions, regardless of simultaneous head nodding. In particular, Mr Ukumu’s halting response, as he struggled for words in broken English, was a complete non-sequitur: “If I – if I had sex with, ah, ah, someone else other than you… or what’s we talk about right now or….?”
DC Yovicic attempted to address the situation by asking Mr Ukumu whether anyone had said that he had to talk with her or the police “or else”; i.e., failing which he would “get it” and be “beat up”.
DC Yovicic testified, and I accept, that she was satisfied, in the circumstances, that Mr Ukumu understood the substantive nature of the secondary caution. Without making any further effort to seek further clarification or confirmation in that regard, or to confirm whether Mr Ukumu understood and appreciated the right to silence the secondary caution was meant to reinforce, DC Yovicic said “So you understand that – okay”, and again pressed on with the interview.
However, Mr Ukumu testified, and I accept, that after this further delivery of the secondary caution, he still did not understand that he had no obligation to speak to DC Yovicic, or that what he was saying could or would be used against him.
During the course of the interview, Mr Ukumu provided indications that he lived in Africa until he decided to leave at the age of 17, that he was 26 at the time of the interview, and that he had spent the previous nine years “just trying to live”. In that regard, he indicated, among other things, the following to DC Yovicic:
that he “came from a country where we speak French and you know, it’s good French”;
that he is “from Congo”, (where he left his parents, “still in the village in Africa”), and that he then “went to South Africa”, “was to Brazil”, and “went to United States” before coming to Canada in September of 2012;
that after his arrival in Canada he initially lived in Montreal, (where he found the local French to be “terrible”), before moving to London around April of 2013 “to go learn English”;
that he “went to school to St Patrick” (an ESL teaching facility here in London) for a number of years, and that he “learn English there”, along with other subjects;
that he now speaks English, French, Portuguese and Spanish – without indicating a preference for, or the extent of his ability to speak, any of those particular languages;
that he has led a somewhat isolated and lonely life in London, working as a restaurant dishwasher on week-ends, with very few friends, little or nothing in the way of a social life, and little social contact with other residents of London apart from the individuals he meets briefly while providing rides in his car; and
that he has been waiting for a hearing and “residence permanence” status, after which he “will wait like three and a half to apply for the citizen to become a Canadian”.
For her part, DC Yovicic expressly acknowledged, during the course of the interview, that Mr Ukumu was “fairly new to Canada”.
Mr Ukumu testified, and I accept, that he was never asked, during his interactions with all of the police officers with whom he interacted, whether he was comfortable communicating in English, what his first language was, or whether he would like the assistance of an interpreter. I also accept his testimony that, had the possibility of an English-French interpreter been suggested or offered, Mr Ukumu readily would have accepted and used such services.
[43] With the totality of the evidence I received in mind, (including the above factual findings), I turn next to the reasons why I have determined that there has indeed been a breach of Mr Ukumu’s guaranteed Charter rights, having regard to the legal principles I outlined earlier.
Determination of whether there has been a breach of Charter rights
[44] In that regard, I have discussed the underlying evidence and my factual findings at some length to emphasize why, in my view, this is a case where “special circumstances” in relation to Mr Ukumu’s linguistic comprehension were clearly present, obliging the police officers dealing with him to take further reasonable steps to ensure that he actually understood his s.10(a), s.10(b) and section 7 Charter rights, and was able to exercise those rights in a meaningful way.
[45] It should be emphasized that, in arriving at that conclusion, I have no doubt whatsoever that the police officers who dealt with Mr Ukumu, (i.e., Constable Kerr, Constable Aarts and DC Yovicic in particular), formed an entirely honest subjective belief that Mr Ukumu fully understood the legal rights that were being communicated to him in English, and that his proficiency in English was such that he was capable of exercising those rights, in English, in a meaningful way.
[46] I accept, in particular, that DC Yovicic turned her mind to such issues at the outset of dealing with Mr Ukumu, and made an honest subjective assessment and conclusion in that regard.
[47] Certainly, as emphasized by Crown counsel, there were a number of considerations present on which the relevant police officers based their assessments, and formed their honest subjective beliefs as to Mr Ukumu’s proficiency in English. For example:
Mr Ukumu spoke to each of the officers in nothing but English, without attempting or asking to speak in any other language, and complied with police directions given in English.
While communicating in English, Mr Ukumu was talkative, spoke to a number of different subjects, and was responsive to questions, frequently giving ostensibly affirmative answers to requests for confirmation that he understood what was being said.
In conversation with DC Yovicic, Mr Ukumu repeatedly indicated that he was smart, that he had studied English at length, completed several other courses in English, (some of them involving unusual or complex words), and in fact spoke English along with a number of other languages. He also indicated that he had been living and working in the predominantly English speaking community of London for approximately three years prior to his arrest.
[48] However, as I noted much earlier in these reasons, the well-established law in this area makes it quite clear that the subjective belief of police officers in relation to such matters is simply not determinative, even where that belief is honest and reasoned.
[49] In particular, where the situation presents objective indicia of “special circumstances”, police officers are expected to err on the side of caution, and take additional steps to make sure that the relevant detained or accused person, from a linguistic perspective, fully understands the content of his or her Charter rights, and is capable of exercising those rights in a meaningful way.
[50] In terms of objective indicia of “special circumstances”, in my view a great many of the factors noted by the authorities and outlined above were present in this case. Without reiterating in detail all of the evidence and facts relating to those considerations:
The personal circumstances of Mr Ukumu were such that:
he had been born and raised in an African nation where English was not spoken, and lived there for the first 18 of his 26 years;
he thereafter had been a refugee, successively living in countries and areas of Canada that were not English-speaking, or in English speaking countries and areas of Canada where he had spent considerable time living in circumstances where he was not required to speak English;
although he was educated, for all intents and purposes his knowledge of English had been acquired over the previous three years, much of which had been spent developing very rudimentary and basic skills in English;
while living in London, he similarly had been living and working in circumstances where his day to day opportunities to practice and enhance his ability to speak and comprehend English were constrained, and his social circles were similarly limited;
he had no family connections to require or foster contact with English speaking people; and
although he had acquired an ability to manage in English on a day to day basis, he still made use of bilingual forms and services, as well as his other languages, where possible when obtaining goods and services.
Mr Ukumu spoke with a pronounced and very noticeable accent.
Mr Ukumu repeatedly used simple terms and frequently spoke in broken English, using incomplete sentences and improper syntax, omitting certain words, and making obvious grammatical errors. He was also using English words incorrectly.
Mr Ukumu repeatedly struggled to find words in English.
Mr Ukumu repeatedly demonstrated looks of confusion.
Mr Ukumu frequently repeated words and phrases over and over again.
Mr Ukumu asked for things to be repeated, and expressly indicated that he did not understand certain phrases, words and concepts expressed in English.
Many of Mr Ukumu’s answers to important questions, relating to his understanding of important matters that were being communicated in English, consisted of simple one word answers, or inarticulate “Mm-hmm” responses that clearly did not always indicate a true affirmative response, even when accompanied by nodding.
At least some of Mr Ukumu’s responses were non-sensical and/or displayed an obvious non-sequitur response.
Mr Ukumu expressly indicated to police officers that he was a refugee, that he had been born, raised and/or had resided for much of his life in countries and regions where English was not spoken, and that English was not his first language. The police expressly recognized that he was “fairly new to Canada”.
Mr Ukumu struggled with English pronunciation which, along with other deficiencies in English noted above, occasionally made it difficult for the police to understand his responses.
Mr Ukumu expressly indicated from time to time that he was confused, and/or that he did not understand certain concepts, words and sentences that had been expressed in English – and his contemporaneous indications in that regard were buttressed by later oral testimony.
Mr Ukumu resorted to using gestures, from time to time, in an effort to make it clear to police what he was trying to communicate in English.
The police repeatedly were required to explain concepts to Mr Ukumu using more simple wording and examples, and used hand gestures from time to time, along with the words they were speaking in English, in an effort to make their meaning clear.
Mr Ukumu made comments suggesting that he had not exercised his rights to counsel in a meaningful or satisfactory way.
[51] While it is quite true that Mr Ukumu never expressly indicated that he was not comfortable speaking in English, said that he would prefer to speak in French, or asked if he could have the assistance of an interpreter, (a point emphasized by DC Yovicic and Crown counsel), the law is quite clear, for the reasons already outlined above, that the onus is not on a detained or arrested person to do so.
[52] Indeed, this case, (insofar as it involves an arrested person who was born and raised in a culture where the showing of extreme deference to police authority may literally be a matter of life and death), provides a helpful illustration of why our law’s approach in that regard is justified and appropriate.
[53] In this area of the law, it is police officers who, regardless of their own subjective beliefs and conclusions regarding the linguistic comprehension of an arrested person, must be alert to the presence of objective indicia of “special circumstances”, (as defined by the authorities), and proactively take further adequate and reasonable steps to ascertain and ensure that the arrested person actually has a full understanding of his or her legal rights, and the ability to exercise those rights in a meaningful way.
[54] In this particular case, regardless of the subjective beliefs and conclusions formed by the police officers about Mr Ukumu’s ability to understand English, in my view the objective indicia of “special circumstances”, contemplated by the well-established authorities, were abundant and noticeable.
[55] Regardless of their subjective beliefs, it therefore was incumbent on the relevant police officers to be proactive rather than reactive, and take further reasonable steps to address the potential concerns raised by those objective indicia of “special circumstances” to ensure that Mr Ukumu actually had a full understanding of his legal rights and the ability to exercise those rights in a meaningful way.
[56] In this particular case, the only steps taken in that regard were the efforts of Constable Aarts and DC Yovicic to paraphrase the secondary caution in more simple terms, and the efforts by DC Yovicic to explain the concept of “sexual assault” and other English words in alternative ways, using wording that was more simple, along with examples and/or gestures.
[57] In my view, such steps were not sufficient or reasonable to address the “special circumstances” present in this case.
[58] Without limiting the generality of the foregoing, I think it unreasonable to assume without further inquiry that an accused in the position of Mr Ukumu, speaking a language in which he or she lacks proficiency and may not be comfortable, would be able to make informed and appropriate choices in relation to whether and how he or she should forego his or her right to silence and speak to police. In particular, if an accused, uncertain as to the nature and extent of his legal jeopardy, (that is nevertheless serious), faces the prospect of being convicted based in large measure on the wording of statements made to the police, it seems rather obvious to me that he or she should be given the opportunity to fully understand their rights in that regard, and have the ability to choose meaningfully whether and how to make/phrase such statements in a language which he or she is comfortable speaking.
[59] For such reasons, I think the reasonable and easily accomplished further steps required in this case involved the proactive making of further inquiries, (i.e., by appropriate questions posed by the police to Mr Ukumu), to determine whether or not Mr Ukumu was comfortable speaking in English, whether or not he would prefer to speak in another language, and whether or not he needed or wanted the services of an interpreter, bilingual officer and/or bilingual lawyer in that regard.
[60] I have no doubt that, had such simple questions been asked, Mr Ukumu readily would have welcomed and requested the ability to speak in French, and the services of an appropriate bilingual interpreter, officer and/or lawyer capable of speaking in French and English.
[61] I also have no doubt that, having regard to the fact that French is one of our country’s two official languages, and the fact that London is located in a designated region of Ontario where the provision of public services in French is mandated by legislation, such an interpreter, police officer and/or lawyer capable of speaking English and French would have been readily available either in person or by telephone.
[62] However, no such steps were taken in this case – in turn creating the definite spectre:
a. that Mr Ukumu did not fully understand the reason why he had been stopped and arrested, his rights to counsel and his right to remain silent; and
b. that Mr Ukumu was not in a position to meaningfully exercise those rights by making fully informed and appropriate choices – e.g., in relation to whether he should submit to his arrest, speak to counsel at all, speak to counsel to obtain certain information and advice, speak to police officers about certain matters but not others, and/or speak to police officers at all or in a certain way.
[63] In the result, Mr Ukumu has satisfied me on a balance of probabilities that there were resulting breaches of his s.10(a), s.10(b) and section 7 rights guaranteed by the Charter.
[64] The situation presented “special circumstances”, in the relevant sense outlined by the authorities, making it uncertain that Mr Ukumu had the linguistic comprehension to fully understand and meaningfully exercise those Charter rights, and the police did not take further steps reasonable in the circumstances to address those concerns.
Determination of whether evidence should be excluded
[65] Having determined that there were breaches of Mr Ukumu’s Charter rights, it is necessary for me to determine whether an order should be made excluding evidence, pursuant to s.24(2) of the Charter.
[66] As noted above, the specific focus of Mr Ukumu’s Charter application is a request to exclude, from evidence in his trial, the statements he made to police, including the statements made during the recorded police interview with DC Yovicic conducted on November 4, 2016.
[67] Applicable general principles relating to s.24(2) of the Charter include the following:
a. Anyone whose guaranteed Charter rights or freedoms have been infringed may apply to the court to obtain such remedy as the court considers appropriate and just under the circumstances. Where the court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.[^39]
b. Accordingly, more than a violation of a Charter right is necessary before such evidence will be excluded. The evidence must not only have been obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter, but it also must be established that the admission of the evidence “would bring the administration of justice into disrepute”.[^40]
c. The person seeking to exclude the evidence bears the burden of persuading the court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, “dispassionate and fully appraised of the circumstances of the case”.[^41]
d. When faced with an application for exclusion of evidence under s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. The subsection is not aimed at punishing the police or providing compensation to the accused. Rather, its focus is on the “broad impact of admission of the evidence on the long-term repute of the justice system”.[^42]
e. Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s.24(2), viewed in a long-term, forward-looking and societal perspective. In particular, when faced with an application for exclusion pursuant to s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following:
i. First, the seriousness of the Charter-infringing state conduct that led to the discovery of evidence, (bearing in mind that admission of the evidence may send the message that the justice system condones serious state misconduct). The more severe or deliberate the violation, the more likely the evidence ought to be excluded. Extenuating circumstances and “good faith” on the part of the police must be weighed in the balance. However, ignorance of Charter standards must not be encouraged, (especially in the very persons who are charged with upholding the law), and courts must not equate wilful blindness with good faith.
ii. Second, the extent to which the Charter breach undermined the protected interests of the accused, (bearing in mind that admission of the evidence may send the message that individual rights count for little). The more serious the incursion on these interests, the greater the risk that admission of the tainted evidence would bring the administration of justice into disrepute.
iii. Third, society’s interest in the adjudication of the case on its merits. This aspect of the three-pronged inquiry requires the court to evaluate whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence, and reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Factors to be weighed into this balance include the reliability of the evidence, and its importance to the Crown’s case. Moreover, the court must consider not only any negative impact of the admission of the tainted evidence, but also the impact of failing to admit evidence.
f. The three-pronged inquiry is intended to flexible, and there is no precise rule as to how the balance of these factors is to be struck.[^43]
[68] In this case, there was no dispute that, if Mr Ukumu’s Charter rights had been breached in the manner alleged, the statements he had made to police were “obtained by” reason of those breaches. In any event, I independently find that they were. In that regard, I accept Mr Ukumu’s testimony that, had his Charter rights not been breached in the manner alleged, he would not have spoken to police in the manner he did.
[69] The remaining question is whether evidence of the statements made by Mr Ukumu to the police should be excluded pursuant to s.24(2) of the Charter.
[70] It repeatedly has been noted, (and defence counsel did so again in this case), that there are virtually no cases in which a breach of s.10(b) of the Charter, based on such language comprehension issues, has not led to an exclusion of evidence.[^44] That no doubt is a reflection of the “bedrock” importance of rights to counsel in our criminal justice system, as the breach of such a right jeopardizes the proper understanding and meaningful exercise of all other legal rights guaranteed by the Charter.
[71] However, that common outcome obviously does not mean that the mandated s.24(2) analysis should not be undertaken in this case.
[72] In relation to the seriousness of the Charter-infringing state conduct:
I will emphasize again that the police officers in this case acted honestly. This certainly was not a case where the officers deliberately intended to violate Mr Ukumu’s rights. To the contrary, I accept that DC Yovicic in particular deliberately turned her mind to such linguistic comprehension issues, and made an honest subjective decision that Mr Ukumu’s proficiency in English was such that there were no such concerns. At worst, the police officers in this case did not have a proper understanding of their obligations in relation to such matters, or were negligent in taking appropriate and reasonable steps to protect Mr Ukumu’s Charter rights; i.e., because they either did not know or were not mindful of the well-established legal principles governing such matters. In particular, they improperly relied on their honest but subjective assessments of Mr Ukumu’s linguistic comprehension, and failed to note and properly respond to the presence of objective indicia of “special circumstances” in that regard. However, as the authorities have emphasized, ignorance or negligence on the part of police officers are not to be equated with “good faith”. While a review of the reported authorities does not suggest the presence of any frequent or systemic failures of the London Police Service to ensure the protection of Charter rights in relation to such linguistic comprehension concerns, (e.g., in contrast to certain areas of the province which seem to have generated much of the relevant case law), London is Canada’s tenth largest city, with a corresponding multicultural composition typical of larger communities across Canada. In such a diverse community, police need to be particularly mindful of their obligations in relation such linguistic comprehension issues.[^45]
Courts regard such Charter right breaches, based on language comprehension issues, as inherently serious because the law governing such situations is well-established, and has been for many years now. In particular, courts repeatedly have emphasized that police are obliged to look beyond their own subjective assessments of whether an arrested person is linguistically capable of fully understanding and meaningfully exercising his or her Charter rights, and must err on the side of caution when there are objective indicia suggesting that there may be concerns in that regard.[^46]
In my view, the seriousness of the Charter breaches in this case is aggravated by the reality that the resources needed to provide Mr Ukumu with the ability to communicate in his preferred first language, through French-English interpreters and/or officers and lawyers capable of speaking both of this nation’s two official languages, undoubtedly were readily available either in person or by telephone. The problems that have emerged in this case did not stem from a lack of resources, but from a failure to make the timely and appropriate inquiries that the presence of “special circumstances” required.[^47]
For all these reasons, the Charter breaches in this case must be viewed as serious, which weighs heavily in favour of excluding the evidence of Mr Ukumu’s statements to the police.
[73] In relation to the impact on Mr Ukumu’s Charter-protected interests:
As mentioned above, our courts regard the right to counsel as a hallowed “bedrock” tenet of our criminal justice system, and the impact of any violation in that regard is viewed as inherently significant and serious.[^48]
Where breach of the s.10(b) Charter right to counsel demonstrably leads to the breach of other rights, (e.g., where an accused effectively is denied the ability to make informed choices in relation to exercising the right to silence), the impact on the accused is obviously that much greater.[^49]
For such reasons, the Charter breaches in this case must be viewed as having a serious and significant impact on the Charter-protected interests of Mr Ukumu, thereby also militating strongly in favour of excluding the evidence of Mr Ukumu’s statements to the police.
[74] In relation to society’s interest in adjudication of the case on its merits:
Sexual assault is obviously a serious charge, and a matter of great concern in our society.
However, in our country, there is also a strong societal interest in requiring state institutions, including police services, to respect cultural diversity in a meaningful way. Charter breaches stemming from such language comprehension issues suggest an attitudinal deficiency which has serious implications for the manner in which police adequately recognize and address the special needs of our diverse communities.[^50]
While society has an interest in ensuring that all reliable evidence is before the court in relation to such a charge, evidence of conscripted statements emanating from Charter breaches would not have existed independently of the Charter violations, and for that reason may not be reliable.[^51]
The admission of such evidence also renders a trial unfair, insofar as it strikes at one of the fundamental tenets of a fair trial; i.e., the right against self-incrimination. The use of such self-incriminating evidence, following a denial of the right to meaningfully exercise the right to counsel and right to silence, generally will go to the very fairness of the trial, and such evidence therefore generally should be excluded.[^52]
Where requested exclusion of evidence essentially will “gut” the Crown’s intended case against the accused and necessarily result in a charge being withdrawn or dismissed, (e.g., in cases where evidence of breath samples required to establish impaired driving have been excluded owing to such Charter breaches relating to linguistic comprehension), that will be a consideration favouring admission of the relevant evidence – albeit one usually outweighed by the first and second prongs of the required s.24(2) analysis in such cases.[^53] In this case, however, exclusion of evidence relating to Mr Ukumu’s statements to the police will not have that effect, as the Crown will still be able to proceed with its case, relying on the testimony of the complainant and her male companion.
In this particular case, the third prong of the required s.24(2) analysis accordingly provides only very weak support for admitting evidence of Mr Ukumu’s statements to the police.
[75] Balancing the three prongs of inquiry required by the mandated s.24(2) analysis, the first two militate strongly in favour of excluding the evidence of Mr Ukumu’s statements to the police, and heavily outweigh the weak support for admitting the evidence offered by the third.
[76] I am satisfied, on a balance of probabilities, that the evidence of Mr Ukumu’s statements to the police, obtained through breaches of the rights guaranteed to him by s.10(a), s.10(b) and section 7 of the Charter, accordingly must be excluded. The admission of such evidence would bring the administration of justice into disrepute.
Conclusion
[77] For the reasons I have outlined, an order will go excluding evidence, in this trial, of Mr Ukumu’s statements to the police.
“Justice I.F. Leach”
Justice I.F. Leach
Released: June 17, 2019 (Orally)
[^1]: See, for example, R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R.151, at p.161.
[^2]: See, for example, R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.).
[^3]: See R. v. Vanstaceghem, 1987 6795 (ON CA), [1987] O.J. No. 509 (C.A.); R. v. Shmoel, [1998] O.J. No. 2233 (O.C.J.); R. v. Quach, [2007] O.J. No. 5241 (O.C.J.); R. v. Baca, 2009 ONCJ 194, [2009] O.J. No. 1926 (O.C.J.); R. v. Bassi, 2015 ONCJ 340, [2015] O.J. No. 3293 (O.C.J.); and R. v. Khandal, 2016 ONCJ 446, [2016] O.J. No. 3893 (O.C.J.).
[^4]: See R. v. Baig, 1987 40 (SCC), [1987] 2 S.C.R. 537; R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173; R. v. Zeglen, [2006] O.J. No. 3517 (O.C.J.); R. v. Bassi, supra; R. v. Minhas, 2015 ONCJ 551, [2015] O.J. No. 5214 (O.C.J.); R. v. Singh, [2015] O.J. No. 6260 (S.C.J.); and R. v. Nadarajah, [2018] O.J. No. 2181 (S.C.J.).
[^5]: See R. v. Vanstaceghem, supra; R. v. Baca, supra; R. v. Barros-DaSilva, [2011] O.J. No. 3794 (S.C.J.); R. v. Bassi, supra; R. v. Khandal, supra; R. v. Arezes, [2018] O.J. No. 6808 (S.C.J.); and R. v. Jose, [2019] O.J. No. 1470 (O.C.J.).
[^6]: See R. v. Shmoel, supra; R. v. Barros-DaSilva, supra.
[^7]: See R. v. Vanstaceghem, supra; R. v. Shmoel, supra; R. v. Vidovic, [2006] O.J. No. 4093 (O.C.J.); R. v. Peralta-Brito, 2008 ONCJ 4, [2008] O.J. No. 81 (O.C.J.); R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. John, [2018] O.J. No. 253 (S.C.J.); and R. v. Jose, supra.
[^8]: See R. v. Vanstaceghem, supra; R. v. Silva, 2005 ONCJ 2, [2005] O.J. No. 65 (O.C.J.); R. v. Barros-DaSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Khandal, supra; R. v. Nadarajah, supra; and R. v. Jose, supra.
[^9]: See R. v. Vanstaceghem, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Nadarajah, supra.
[^10]: See R. v. Vanstaceghem, supra; R. v. Silva, supra; R. v. Peralta-Brito, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Singh, supra; R. v. John, supra; and R. v. Jose, supra.
[^11]: See R. v. Vanstaceghem, supra; R. v. Barros-DaSilva, supra; and R. v. Bassi, supra.
[^12]: See R. v. Vanstaceghem, supra.
[^13]: See R. v. Lukavecki, [1992] O.J. No. 2123 (Gen.Div.); R. v. Ly, [1993] O.J. No. 268 (O.C.J.); R. v. Silva, supra; R. v. Zeglen, supra; R. v. Peralta-Brito, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Minhas, supra; R. v. Singh, supra; R. v. John, supra; R. v. Nadarajah, supra; R. v. Arezes, supra; and R. v. Jose, supra.
[^14]: See R. v. Silva, supra; R. v. Quach, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; and R. v. Nadarajah, supra.
[^15]: See R .v. Lukavecki, supra; R. v. Barros-DaSilva, supra; R. v. Singh, supra; and R. v. John, supra.
[^16]: See R. v. Barros-DaSilva, supra; and R. v. Khandal, supra.
[^17]: See R. v. Barros-DaSilva, supra.
[^18]: See R. v. Khandal, supra.
[^19]: See R. v. Baca, supra; R. v. Barros-DaSilva, supra; and R. v. Bassi, supra.
[^20]: See R. v. Peralta-Brito, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Minhas, supra; and R. v. Khandal, supra.
[^21]: See R. v. Arezes, supra.
[^22]: See R. v. Shmoel, supra; R. v. Silva, supra; R. v. Barros-DaSilva, supra; R. v. Bassi, supra; R. v. Singh, supra; R. v. Khandal, supra; R. v. John, supra; and R. v. Jose, supra.
[^23]: See R. v. Silva, supra; R. v. Grichko, [2006] O.J. No. 2630; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Khandal, supra; and R. v. Jose, supra.
[^24]: See R. v. Vanstaceghem, supra; R. v. Shmoel, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. John, supra; R. v. Arezes, supra; and R. v. Jose, supra.
[^25]: See R. v. Vanstaceghem, supra; R. v. Lukavecki, supra; R. v. Ly, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Barros-DaSilva, supra; R. v. Bassi, supra; and R. v. Minhas, supra.
[^26]: See R. v. Ly, supra; R. v. Shmoel, supra; R. v. Khandal, supra; R. v. John, supra; R. v. Arezes, supra; and R. v. Jose, supra.
[^27]: See R. v. Barros-DaSilva, supra; and R. v. Minhas, supra.
[^28]: See R. v. Vanstaceghem, supra; R. v. Silva, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; and R. v. Minhas, supra.
[^29]: See R. v. Lim, [1993] O.J. No. 3241 (O.C.J.); R. v. Shmoel, supra; R. v. Silva, supra; R. v. Barros-DaSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Khandal, supra; R. v. John, supra; R. v. Nadarajah, supra; and R. v. Arezes, supra.
[^30]: See R. v. Silva, supra; R. v. Vidovic, supra; and R. v. John, supra.
[^31]: See R. v. Silva, supra; R. v. Baca, supra; R. v. Barros-DaSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Singh, supra; and R. v. Khandal, supra.
[^32]: See R. v. John, supra.
[^33]: See R. v. Vanstaceghem, supra; R. v. Lukavecki, supra; R. v. Shmoel, supra; R. v. Silva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Singh, supra; R. v. Nadarajah, supra; and R. v. Jose, supra.
[^34]: See R. v. Vanstaceghem, supra; R. v. Baca, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Singh, supra; R. v. Khandal, supra; and R. v. Nadarajah, supra.
[^35]: See R. v. Hebert, supra, at pp.176-177; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraph 22.
[^36]: See R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at page 888.
[^37]: See R. v. Hebert, supra, at page 176.
[^38]: See R. v. Bartle, supra, at paragraph 19.
[^39]: See the Charter, ss.24(1) and 24(2).
[^40]: See R. v. Genest (1989), 1989 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.), at p.401.
[^41]: See R v. Simmons (1988), 1988 12 (SCC), 45 C.C.C. (3d) 296 (S.C.C.), at p.323.
[^42]: See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[^43]: See R. v. Collins, supra, at paragraph 31; R v. Genest, supra, at p.87; R v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-1220; R v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp.32-33; R. v. Silveira, supra; and R. v. Grant, supra, at paragraph 71.
[^44]: See, for example: R. v. Khandal, supra, at paragraph 42; and R. v. John, supra, at paragraph 41.
[^45]: See R. v. Barros-DeSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Khandal, supra; and R. v. John, supra.
[^46]: See R. v. Barros-DeSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Khandal, supra; R. v. John, supra; R. v. Arezes, supra; and R. v. Jose, supra.
[^47]: See R. v. Barros-DeSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; and R. v. Jose, supra.
[^48]: See R. v. Baca, supra; R. v. Barros-DeSilva, supra; R. v. Bassi, supra; R. v. Minhas, supra; R. v. Khandal, supra; R. v. John, supra; R. v. Arezes, supra; and R. v. Jose, supra.
[^49]: See R. v. Baca, supra; R. v. Barros-DeSilva, supra; and R. v. John, supra.
[^50]: See R. v. Baca, supra; R. v. Barros-DeSilva, supra; and R. v. Khandal, supra.
[^51]: See R. v. Minhas, supra.
[^52]: See R. v. Vanstaceghem, supra; R. v. Baca, supra; and R v. Khandal, supra.
[^53]: See R. v. Baca, supra; and R. v. Bassi, supra.