COURT FILE NO.: CR-18-4296

DATE: 20210923

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Preet Kiran Singh Gill And Suresh Sharma

Counsel:

Jennifer Rooke, for the Federal Crown

Frank Miller, for Preet Kiran Singh Gill Stephen A. Whitzman, for Suresh Sharma

HEARD: June 9, 10, and 11, 2021

RULING ON APPLICATION

HEBNER J.

[1] On Monday, September 18, 2017, the accused, Mr. Gill and Mr. Sharma, left Ontario in a commercial tractor-trailer and drove to California. They picked up a load of product from Diamond Wipes and a second load of product from The Stash Tea Company. They then drove back to Ontario. The accused crossed the Ambassador Bridge at Detroit, Michigan into Windsor, Ontario on September 22, 2017. At the primary Canadian Border Services Agency (“CBSA”) station, Mr. Gill and Mr. Sharma were directed to the secondary location where a search of the trailer was conducted. Inside the trailer, there were two cardboard boxes containing approximately 25 kilograms of suspected cocaine.

[2] Mr. Gill and Mr. Sharma were arrested and taken to the Royal Canadian Mounted Police (“RCMP”) station where both accused provided a video statement. The Crown seeks to use the video statements in cross-examination should either of the accused elect to testify. Mr. Sharma brought an application to exclude his statement under s. 24(2) of the Charter. This is my ruling on the application.

The Witnesses

[3] At the beginning of the trial, certain witnesses were identified as providing evidence relevant on voluntariness and on the trial proper. Those witnesses are the following:

• Border Services Officer (“BSO”) Jeffrey Burke
• BSO Silvio Civitarese
• BSO Gwenyth Hartleb
• Regional Intelligence Officer (“RIO”) Cody Lemieux
• RCMP Constable Ian Smith
• RCMP Constable Jason McFarlane

[4] In addition, Mr. Sharma gave evidence on the application only.

Background Facts

The Primary Booth

[5] Although this witness was not identified as providing evidence on the application, she was the first officer who had contact with both of the accused. I refer to her evidence for purposes of the narrative only.

[6] BSO Melissa Naud was the CBSA officer working in the primary booth in Windsor. Mr. Gill and Mr. Sharma drove their tractor-trailer across the Ambassador Bridge and attended BSO Naud’s booth at approximately 10:40 a.m. on September 22, 2017. Mr. Gill was driving, and Mr. Sharma was in the passenger seat. For reasons she described in her evidence, BSO Naud decided to refer the vehicle for examination. She sent the accused to the CBSA secondary location for that purpose. After she provided directions, Mr. Gill and Mr. Sharma entered their truck and drove to the secondary location.

The Arrest and Contact at the Secondary Location

[7] All of the officers who had contact with Mr. Sharma at the secondary location off-site facility gave evidence. Mr. Sharma was put in a holding cell; he was read his rights, and he made contact with duty counsel. Mr. Gill was put in a separate holding cell. Mr. Gill’s holding cell had a camera that recorded everything that occurred in the cell. There was no sound to the camera. Mr. Sharma’s holding cell did not have a camera, and the officers were not wearing body cameras. Accordingly, there was no recording of events that occurred in Mr. Sharma’s cell. With that background, I summarize the officers’ evidence.

BSO Silvio Civitarese

[8] BSO Civitarese worked with the CBSA from August 1991 until May 2018. He was stationed in Windsor. On September 22, 2017, BSO Civitarese was working at the secondary location off-site facility. At 12:15 p.m., he received a radio call from Superintendent Eric Ballerman to attend at the dock, which was located at the secondary location off-site facility. There, he was told about the discovery of the suspected cocaine in the truck.

[9] BSO Civitarese, along with Superintendent Ballerman and BSO Jeffrey Burke, attended at the driver’s waiting room where Mr. Sharma and Mr. Gill were located. At approximately 12:30 p.m., BSO Civitarese spoke to Mr. Sharma. BSO Civitarese told Mr. Sharma that he was being arrested for smuggling cocaine into Canada. The three officers escorted the two men to the holding cells in the secondary area. They arrived in the cells at approximately 12:38 p.m.

[10] BSO Civitarese read Mr. Sharma his rights and cautions verbatim from his notebook and cautions card, respectively.

[11] Mr. Sharma said that he wanted to speak with a lawyer. At that point, BSO Civitarese left the holding cell. At 12:50 p.m., BSO Civitarese called Legal Aid Ontario (“Legal Aid”). He called Legal Aid a second time at 1:55 p.m. Legal Aid returned the call at 2:10 p.m. BSO Civitarese took the phone into the cell, plugged it in, gave it to Mr. Sharma, and left the cell. Mr. Sharma spoke with duty counsel for approximately two minutes. After the telephone call was completed, BSO Civitarese went back into the holding cell and retrieved the phone. He asked Mr. Sharma whether he was satisfied with the call and the information he received, and Mr. Sharma said, “Yes.”

[12] Mr. Sharma told BSO Civitarese that he had a heart condition and had to take medication at 2:00 p.m. BSO Civitarese, with the help of BSO David Cook, retrieved the medication from the truck cab. BSO Civitarese went to the holding cell and provided the medication to BSO Gwenyth Hartleb. BSO Hartleb provided the medication to Mr. Sharma at 2:17 p.m.

BSO Gwenyth Hartleb

[13] BSO Hartleb has been a CBSA officer stationed at the Ambassador Bridge since February 2002. In September 2017, she was working at the CBSA secondary location off-site facility for inspections of commercial vehicles. She assisted BSO Burke and BSO Civitarese in the arrest of Mr. Gill and Mr. Sharma. She was eventually tasked with ensuring the well-being of both Mr. Gill and Mr. Sharma while they were in the holding cells. She began to watch over them at 12:25 p.m. and continued until the RCMP collected them at 7:05 p.m.

[14] BSO Hartleb was present at the arrest of Mr. Sharma. She saw BSO Civitarese read Mr. Sharma his rights. She provided water to Mr. Sharma at 12:53 p.m. and enquired after his welfare. Mr. Sharma said that he was okay. She recalls Mr. Sharma saying that he needed to take his high blood pressure medication. She recalls giving him his medication after another officer retrieved it. She said that every 20 minutes, she conducted a wellness check with Mr. Sharma by either knocking on the window and showing the thumbs up or opening the door to check on him verbally to see if he needed water or to use the bathroom. She recalls that Mr. Sharma was given something to eat at 6:24 p.m.

[15] BSO Hartleb recalls that Mr. Sharma spoke to duty counsel for approximately two minutes from 2:07 p.m. to 2:09 p.m.

[16] BSO Hartleb described Mr. Sharma as quiet. She said she had no difficulty understanding him when he did communicate.

BSO Jeffrey Burke

[17] BSO Burke has been a CBSA officer since May 2016. On September 22, 2017, he was working at the CBSA secondary location off-site facility. He became involved with this case when he was asked to assist with an arrest. BSO Burke attended at the driver’s lounge with BSO Civitarese and Superintendent Ballerman. BSO Burke asked one of the accused, Mr. Gill, to stand up and turn around. He applied handcuffs and said, “I am arresting you for smuggling controlled drugs.” Mr. Gill asked what was found, and BSO Burke said drugs. He read Mr. Gill his rights to counsel. He asked Mr. Gill if he wanted to speak to a lawyer, and the answer was, “Yes.”

[18] BSO Burke did not interact with Mr. Sharma once Mr. Sharma was placed in the holding cell.

RIO Cody Lemieux

[19] RIO Lemieux has been employed with the CBSA since 2010. He has been an intelligence officer since June 2016. On September 22, 2017, RIO Lemieux was called to attend a seizure at the CBSA secondary location off-site facility. He attended at 12:52 p.m.

[20] At 1:41 p.m., RIO Lemieux attended at the detention cells to give a secondary caution to both accused. His evidence was that a secondary caution after the accused speaks to duty counsel is standard procedure. He spoke to Mr. Gill. He intended to then speak to Mr. Sharma, but BSO Civitarese told him to hold off because Mr. Sharma had not spoken to duty counsel yet.

[21] At 2:37 p.m., RIO Lemieux attended at Mr. Sharma’s cell to speak with him. He read him a secondary caution verbatim from his card. He asked Mr. Sharma if he understood, and the response was, “Yes, I understand.” He asked if Mr. Sharma spoke to duty counsel, and the answer was, “Yes.” He asked if he was content with the legal advice, and the answer was, “Yes.” He told Mr. Sharma to let the officers know if he wanted to contact another lawyer or if he needed anything. RIO Lemieux said he spoke English to Mr. Sharma, and Mr. Sharma appeared to understand.

[22] RIO Lemieux contacted the operational control centre of the RCMP at 2:43 p.m. He provided basic details of the case. The RCMP responded and arrived at the CBSA secondary location off-site facility at 4:22 p.m., where a briefing took place. At 5:13 p.m., Constable McFarlane of the RCMP re-arrested Mr. Sharma and took custody of him. At 7:15 p.m., Mr. Sharma was placed in the rear passenger seat of an RCMP vehicle. Constable McFarlane sat beside Mr. Sharma, and RIO Lemieux drove the vehicle to the RCMP airport detachment. The men were silent during the ride. At the time of this witness’s evidence Mr. Sharma’s counsel, Mr. Caroline, conceded that nothing that was said on the ride to the airport detachment was a threat or an inducement with respect to Mr. Sharma.

[23] RIO Lemieux observed the interview of Mr. Sharma, which was undertaken by Constable Ian Smith at 8:56 p.m. The interview concluded at 9:55 p.m. RIO Lemieux had no further contact with Mr. Sharma unless briefly in the same hallway.

RCMP Constable Jason McFarlane

[24] Constable McFarlane has been with the RCMP since 2009. He attended at the CBSA secondary location off-site facility on September 22, 2017, arriving at 4:13 p.m. He and Constable Ian Smith arrived in one vehicle. Two other officers arrived in a secondary vehicle. The CBSA officers briefed the RCMP officers on their arrival. Constable McFarlane entered Mr. Sharma’s cell and was present when Constable Smith re-arrested Mr. Sharma at approximately 5:15 p.m. Mr. Sharma was read his rights and cautioned; he then spoke to duty counsel.

[25] At approximately 7:15 p.m., Constable McFarlane and RIO Lemieux placed handcuffs on Mr. Sharma and removed him from the holding cell. They put Mr. Sharma in the back of RIO Lemieux’s vehicle. Constable McFarlane and Mr. Sharma sat in the back seat, and RIO Lemieux drove the vehicle to the RCMP airport detachment. They arrived at 7:34 p.m. Mr. Sharma was put in a separate room while Mr. Gill was interviewed. When Mr. Gill’s interview was over and he was no longer in the interview room, Mr. Sharma was taken to the interview room. Mr. Sharma’s interview lasted from 9:02 p.m. to 10:00 p.m.

RCMP Constable Ian Smith

[26] Constable Smith has been an RCMP officer with the Border Integrity Unit for approximately 12 years. He is the RCMP officer in charge of the investigation.

[27] On September 22, 2017, Constable Smith was contacted to attend at the CBSA secondary off-site facility. He received the call at 3:15 p.m. He arrived at the CBSA site and received a briefing. He was told that approximately 30 kilograms of suspected cocaine was found inside a trailer. The briefing concluded at 4:50 p.m., and Constable Smith attended in the cell block area. He arrested Mr. Gill.

[28] At 5:08 p.m., Constable Smith arrested Mr. Sharma for importation and possession of a controlled substance for the purpose of trafficking. Constable Smith asked Mr. Sharma whether he understood the charges, and Mr. Sharma responded, “Yes, sir.” Constable Smith read Mr. Sharma his rights to counsel and asked if he understood. Mr. Sharma responded “Yes” and said he had already spoken to Legal Aid. Constable Smith read Mr. Sharma a second warning and asked if he understood. Mr. Sharma responded, “Yes.”

[29] During this exchange, Mr. Sharma was seated on the bench at the back of the cell. The officers were standing in front of him wearing civilian clothing with police vests.

[30] Constable Smith’s evidence is that Mr. Sharma had no difficulty understanding him. Mr. Sharma did not indicate that he had any difficulty. Constable Smith was inside the cell with Mr. Sharma for approximately three to four minutes. No recording of this interaction is available, as recordings were not available for that particular holding cell.

[31] Constable Smith called Legal Aid duty counsel at 5:12 p.m. and left a message. He called again at 5:24 p.m. and, on this occasion, the call was answered. Constable Smith explained the arrest and handed the phone to Mr. Sharma to speak to duty counsel in private. Constable Smith left the cell. Mr. Sharma spoke to duty counsel from 5:26 p.m. to 5:36 p.m.

[32] After Mr. Sharma was finished with the call, Constable Smith re-entered the cell and asked Mr. Sharma if he understood the instructions from duty counsel. Mr. Sharma’s response was, “Yes, sir.” Constable Smith was not involved in the transport of Mr. Sharma to the RCMP airport detachment.

Mr. Sharma

[33] Mr. Sharma gave evidence on the voir dire.

[34] Mr. Sharma was born in India. He is 56 years of age. His first language is Punjabi. He also speaks Hindi. Mr. Sharma was a pharmacist in India. He came to Canada with his family in 1992 to secure a better life. Mr. Sharma has a wife and three children aged 27, 23, and 14. All three children currently still live at home.

[35] When Mr. Sharma first came to Canada he settled in Brampton, Ontario. He worked in a factory for five years. Since 1997, Mr. Sharma henceforth is a truck driver.

[36] Mr. Sharma became a Canadian citizen in 1998. He had to take an English test to obtain his citizenship. It was a written test with questions to be answered yes or no. There was no oral test. Mr. Sharma has not taken classes or any formal education in English.

[37] Mr. Sharma and his wife speak to each other in Punjabi. Their three children speak English. Mr. Sharma and his wife speak Punjabi to the children.

[38] Mr. Sharma had never been arrested prior to the arrest on the charges before the court. He had never been in court before this trial. He said he was not able to follow the court proceedings in English and required a Punjabi interpreter throughout the proceedings.

[39] Mr. Sharma gave evidence on the arrest. He recalls being stopped at the border and arrested in the driver’s lobby. He recalls being told that there was a drug in the truck. He was not familiar with the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). He recalls being put in a holding cell separate from Mr. Gill. Mr. Sharma recalls being given water to take medication for high blood pressure. Aside from his blood pressure, Mr. Sharma’s physical condition is “fine.”

[40] Mr. Sharma does not recall receiving his rights to counsel from BSO Civitarese. He does recall speaking to duty counsel, a lawyer named Paul, on only one occasion. He recalls speaking to Constable Smith.

[41] Mr. Gill was driving at the time he and Mr. Sharma crossed the border into Canada. They had just switched drivers at the duty free shop. At the time of the arrest, Mr. Sharma had been awake since approximately 2:00 a.m. to 3:00 a.m. He said he was in the holding cell for a number of hours before Constable Smith arrived. Except for the occasion when he was brought medication, he was alone. He was given access to the washroom on two occasions.

[42] Mr. Sharma recalls Constable Smith arriving and telling them that he was an RCMP officer. He remembers being re-arrested for bringing drugs into Canada. He does not recall being told that he was under arrest for importing a controlled substance. He did not know what the words “controlled substance” meant. He did not know what the word “trafficking” meant. He understood that something had been transported across the border into Canada but nothing other than that.

[43] Mr. Sharma recalls Constable Smith advising him that he could talk to counsel over the phone, and he would be provided with a phone. He did not know what the words “retain and instruct counsel” meant. He did not know what the words “Legal Aid duty counsel” meant. His recollection is that of being told that he should talk over the phone and that it would be beneficial to him. The phone was handed to him.

[44] Mr. Sharma was asked in his evidence if he understood everything “Paul” said to him. His answer was, “No, not a lot.” He said that Constable Smith did not ask him if he understood what was said on the call. He said he did not tell Constable Smith that he understood what was said.

[45] Mr. Sharma realized at that time that he was being charged with a serious offence.

[46] Mr. Sharma was asked in his evidence whether he wanted to speak with a lawyer and obtain legal advice. His answer was, “I did not know I could speak to counsel.” He was asked in his evidence, if he had known would he want to speak with a lawyer. His answer was, “Yes, in that case I should certainly do that.”

[47] Mr. Sharma’s native language is Punjabi. He did not and does not feel comfortable speaking in English about complicated matters. Mr. Sharma has had a Punjabi interpreter during the course of this lengthy trial. Constable Smith did not tell him that he could speak to a lawyer who spoke Punjabi. Constable Smith did not tell him that he could have the assistance of an interpreter when speaking to duty counsel. Mr. Sharma said if he was given the opportunity, then he would have asked for either a lawyer who spoke Punjabi or an interpreter.

[48] After Mr. Sharma was moved to the RCMP detachment, Constable Smith conducted the videotaped interview with him. Mr. Sharma said he did not understand everything that Constable Smith said in the interview.

[49] Under cross-examination, Mr. Sharma confirmed that he did not tell the officers that he could not understand what they were saying. He did not request the assistance of an interpreter. He did not tell the arresting officer that he spoke Punjabi. He did not tell the officer who read him his rights that he spoke Punjabi. He understood what the word “arrest” meant, and he knew that he was arrested because a drug was on the truck. He did not tell the officer who brought him his medication that he spoke Punjabi. When asked why not, he said that the officers did not ask and, “So I didn’t know if I could tell them or not.” During the interview, he did tell Constable Smith that he spoke Punjabi.

[50] On the day of the arrest, Mr. Sharma was fasting. He said he was on his third day of a seven-day fast. He said he was asked if he wanted food but declined. He confirmed that the female officer checked on him several times and asked him if he wanted water or to use the washroom. He did not tell the female officer that he spoke Punjabi. He understood the conversations about water and medicine.

[51] Mr. Sharma did not tell any of the officers that he did not understand what they were saying or that he spoke Punjabi.

[52] After Mr. Sharma spoke to duty counsel on the phone, he said the officers asked him, “Did you speak to him?” and he said, “Yes.” He said he was not asked if he was able to understand duty counsel, and he did not tell the officers that he did not understand what the duty counsel told him. He did not ask for a lawyer who spoke Punjabi. He said he did not know he had the right to ask for a Punjabi-speaking lawyer or a Punjabi interpreter.

The Interview

[53] By the time of Mr. Sharma’s videotaped interview with Constable Smith, according to Mr. Sharma’s evidence, he was on day three of a seven-day fast and had been awake for nearly 20 hours. This is inconsistent with the evidence of BSO Hartleb who had a note that Mr. Sharma received food in the holding cell.

[54] I have reviewed the video of the interview several times. Mr. Sharma’s accent throughout the interview is heavy. Throughout the interview, Mr. Sharma’s speech is difficult to understand, and Constable Smith had to ask him to repeat his answers many times. Just a few minutes into the interview, Constable Smith asked Mr. Sharma where he came from. The answer was “Punjab.” Constable Smith asked Mr. Sharma if he spoke Punjabi, and the answer was “Yes.”

[55] Mr. Sharma’s answers to questions were short, often “yes sir” or “yeah”. Many times, pronouns were missing. Many times, Mr. Sharma’s responses were awkward at best or nonsensical at worst. When Mr. Sharma was asked about the start of his trip to California, he said, “I pick load from Kitchener.” When Mr. Sharma was asked about his actions at a truck stop, he said, “I pick the tea from there.” Mr. Sharma could not recall company names. When he was asked about the name of the company where he picked up a load in Ontario, Canada, he said, “Uh you know I think the caps, plastic.” Mr. Sharma frequently used the wrong tense for verbs. When he was asked where he went after Kitchener, he said, “Go to Sarnia.” At times it was clear that Mr. Sharma did not understand the question put to him. Many of Mr. Sharma’s answers were inaudible, and at times Constable Smith appeared frustrated.

[56] When Mr. Sharma was asked about cell phones, he said he did not have one with him. He said Mr. Gill had two phones. Mr. Sharma had difficulty describing the cell phones.

[57] It was patently obvious throughout the interview that Mr. Sharma was struggling with the English language.

Position of the Parties

Position of Mr. Sharma

[58] Mr. Whitzman, on behalf of Mr. Sharma, points out that Mr. Sharma was put into a holding cell at the CBSA secondary location off-site facility with no video- or audio-recording ability. The only evidence on the interactions between Mr. Sharma and officers is by way of viva voce evidence. That was in 2017. Now, all interactions between an accused and officers are recorded.

[59] Mr. Whitzman asserts that it should have been obvious to the officers that Mr. Sharma required an interpreter. He has a thick accent. He said “yes” to all inquiries. He asserts that the interview itself disclosed a difficulty in comprehension.

[60] Mr. Whitzman asserts that, in all the circumstances, Mr. Sharma was deprived of a meaningful exercise of his right to counsel when he needed it most. He points out that the statement is not an essential part of the Crown’s case. The Crown is not seeking to introduce it as part of its case but rather seeks to use it in cross-examination should Mr. Sharma choose to testify.

[61] Mr. Whitzman suggests that the remedy is to exclude the statement and to refuse to allow the Crown to use it in cross-examination.

Position of the Crown

[62] The Crown agrees that police have a duty to protect the rights of detained persons. The Crown agrees that if there are objectively special circumstances, the police have a duty to take steps to protect the rights of the accused. The Crown asserts that there is no objective basis for believing that special circumstances exist here. Mr. Sharma interacted with two officers who put him in touch with Legal Aid duty counsel. There were no signs, other than his accent, that he did not understand English.

[63] Ms. Rooke, for the Crown, submits that the court must be satisfied that in the face of special circumstances, the police nevertheless proceeded. She asserts that there was no s. 10(b) Charter breach. She submits that if there was a breach, it was not a flagrant or deliberate one, and the statement ought to be admissible under s. 24(2) of the Charter.

Analysis

[64] Were Mr. Sharma’s s. 10(b) Charter rights “to retain and instruct counsel without delay and to be informed of that right” breached? What is the significance of the failure to record interactions between the officers and Mr. Sharma in the CBSA holding cell? Was the recorded statement voluntary? These questions are all interrelated.

[65] In R. v. Moore-McFarlane (2001), O.R. (3d) 737 (C.A.), the appellants were convicted of certain offences. They appealed against their convictions. One of the grounds of appeal was that the trial judge’s ruling on the voluntariness of statements to the police was unreasonable. The Court of Appeal agreed, and a new trial was ordered.

[66] One of the main issues raised on the appeal was the interviewing police officer’s failure to record the statements allegedly made. The appellants, at para. 61, submitted that there should be both “a common-law and a constitutional obligation on the police to create a record, preferably by videotape, of all custodial interrogations and waivers of the section 10(b) right to counsel.” On that issue, the Court of Appeal said the following, at paras. 64 and 65:

I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson and Oickle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobucci J. says so expressly in Oickle in the following words (at para. 47, p. 345):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over-and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [Emphasis in original]

[67] In Moore-McFarlane, the statement itself not being recorded led to questions about the accuracy and completeness of the statement. In this case, it is the interactions with the accused respecting his rights to counsel that were not recorded. The evidence is clear that Mr. Sharma was given his rights to counsel in English. He was given access to English-speaking counsel. The real question is whether he ought to have been given the option of speaking to a lawyer who speaks Punjabi or the assistance of an interpreter.

[68] Knowing what the Court of Appeal had to say in 2001 about the necessity of accurate recordings between police and persons in custody, it is troubling that in this case, in 2017, steps were not taken to record those interactions. However, the evidence of Mr. Sharma on those interactions is, for the most part, consistent with the evidence of the officers. Mr. Sharma agrees that he was told he could speak to counsel on the phone. At all times the officers spoke to Mr. Sharma in English. Mr. Sharma gave short answers. Mr. Sharma was put in touch with an English-speaking lawyer by phone. Mr. Sharma did not tell any of the officers that he had difficulty with the English language and did not say that he spoke Punjabi.

[69] There are two inconsistencies in the holding cell evidence that stand out. The evidence of the officers is that Mr. Sharma spoke to duty counsel on two occasions while Mr. Sharma could only recall one occasion. Mr. Sharma said that he was on day three of a seven-day fast, but BSO Hartleb had a note that Mr. Sharma was provided with food.

[70] Given the general consistencies of the evidence, in my view the failure to record the interactions is not fatal to the use of the statement as evidence. It is a factor to consider.

[71] The real issue is whether Mr. Sharma ought to have been provided with the assistance of a Punjabi interpreter or a Punjabi-speaking lawyer. Does the fact that he was not given that option mean that his s. 10(b) rights to counsel have been violated? The onus of proving a s. 10(b) violation rests on the accused: see R. v. Nagalingam, 2020 ONSC 4519, at para. 11.

[72] Section 10(b) of the Charter gives individuals detained by police the right to “retain and instruct counsel without delay and to be informed of that right.” The detainee must be informed of his right in a “meaningful and comprehensible manner”: see R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142, at p. 147. The issue was explained by the Court of Appeal, at p. 148, in adopting the words of Stortini J. in the decision of R. v. Michaud (1986), 45 M.V.R. 243 (Ont. Dist. Ct.), at pp. 248-249:

It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.

If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are “special circumstances” which alert the officer and oblige him to act reasonably in the circumstances.

[73] In Vanstaceghem, the Court of Appeal found that the police’s failure to advise the appellant of his rights in French breached his s. 10(b) Charter rights. The Court of Appeal did not address the issue of whether, if he had requested a lawyer, he should also have been told that he had the right to consult with counsel in French.

[74] In R. v. Nguyen, 2020 ONSC 7783, the accused spoke Vietnamese. He was arrested after a traffic stop, and the police officer read Mr. Nguyen the standard form s. 10(b) right to counsel information from his notebook in English. He was asked if he understood and replied in the affirmative. Mr. Nguyen did not ask if he could speak to a Vietnamese-speaking lawyer or have a Vietnamese interpreter. He testified, at para. 19, that he “didn’t know that he was able to ask for” a Vietnamese lawyer. He said if he had been told he had this option he would have requested it.

[75] At para. 27, Dawe J., in addressing special circumstances, referred to R. v. Bassi, 2015 ONCJ 340, and R. v. Ukumu, 2019 ONSC 3731. I take the following from these decisions:

• Where the court finds that special circumstances are present, officers must take reasonable steps to ascertain that the detainee has understood his constitutional rights.
• When implementing the right to counsel, officers must facilitate contact with counsel in a manner that addresses the detainee’s language issues.
• At the informational stage, this can be done by giving rights to counsel through an officer who speaks the detainee’s language, or through an interpreter. In some cases, depending on the detainee’s level of English, the information can be provided through more careful explanation of the right to counsel by the arresting officer.
• At the implementation stage, common measures used to facilitate rights to counsel where there are language issues are the use of duty counsel who speaks the detainee’s language, or simultaneous interpretation.
• Where special circumstances have been found to exist, the failure of police to ask if the detainee would like an interpreter to translate his right to speak to counsel has been found to violate s. 10(b).
• The detainee does not bear an onus to ask for counsel or duty counsel in a language other than English, since detainees may not be aware that they have this right.
• Where special circumstances are triggered, the police have a duty to advise the detainee that they can consult with counsel in another language, and to facilitate the detainee doing so.
• The following may give rise to special circumstances: 1) there is objective evidence that English is not the detainee’s first language; and 2) there is some objective evidence of some lack of understanding of the right to counsel or other information that the police provided to the detainee at the time of the detention.

[76] In R. v. Oliva Baca, 2009 ONCJ 194, at para. 25, Nelson J. provided a list of relevant factors:

1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.
2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issue; or offer an accused the opportunity to speak to duty counsel who speaks the accused’s language.
3. When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.
4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.
5. Whether or not the police believed the accused understood his rights is not determinative of the issues.
6. When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.

See also the decision of Nagalingam.

[77] Did special circumstances exist in this case? In my view, they did not at the time the accused was given his rights to counsel.

[78] Mr. Sharma spoke English with a thick accent. When he was read his rights to counsel he was asked if he understood, and he responded, “Yes, sir.” This exchange happened twice: once with BSO Civitarese and again with Constable Smith. I accept the evidence of these officers that Mr. Sharma spoke with Legal Aid duty counsel on two occasions. He was asked if he understood the information provided, and he said, “Yes, sir.” There was nothing, other than the accent, to alert the officers to a problem. Although it must have been clear to the officers that English was not Mr. Sharma’s first language, there was no objective evidence illustrating Mr. Sharma’s lack of understanding of the rights to counsel or of the information counsel provided.

[79] The situation was different at the time the recorded statement was obtained. Constable Smith, early in his questioning of Mr. Sharma, was aware that Mr. Sharma was an immigrant from India. He was aware that Mr. Sharma’s first language was Punjabi. As the interview progressed, he was aware that Mr. Sharma had difficulty with some questions. He was aware that, at times, Mr. Sharma had difficulty answering questions in English. He was aware that Mr. Sharma had a somewhat limited grasp of the English language. Many times, Mr. Sharma’s responses were inaudible and had to be repeated. He was aware that Mr. Sharma had not slept in 20 hours, although he may not have been aware that Mr. Sharma was on day three of a seven-day fast.

[80] In my view, after becoming aware of these issues, Constable Smith ought to have paused the interview to ensure that Mr. Sharma had understood his rights to counsel and the legal advice he received.

[81] In R. v. Arezes, 2018 ONSC 6967, Andre J. dealt with this issue in similar circumstances. At para. 25, he said the following:

The police are not clairvoyant. They may not immediately recognize something that is not obvious. However, the police have the obligation, when interacting with a detainee whose first language is not English, to make scrupulous efforts to be reasonably confident that the detainee understands everything that is being said to him or her.

[82] In Her Majesty the Queen v. Gonzalez, 2018 ONSC 936, at para. 64, Andre J. said, “[t]he police must raise the issue of an interpreter where there is something to suggest that the subject is having trouble understanding and/or communicating with the officer.”

[83] When Constable Smith was aware that English was not Mr. Sharma’s first language, and that indeed at times Mr. Sharma struggled with the English language, he ought to have terminated the interview and arranged for Mr. Sharma to speak with a duty counsel who either spoke Punjabi or had the assistance of a Punjabi interpreter.

[84] In my view, Mr. Sharma’s s. 10(b) Charter rights were infringed when he was not given the option of speaking to a duty counsel in Punjabi once it became clear that Punjabi was his first language and that, at times, he struggled with the English language. It follows then that the video statement evidence was obtained in a manner that unjustifiably limited or denied a Charter right.

Should the Statement be Excluded Under s. 24(2) of the Charter?

[85] Mr. Whitzman, on behalf of Mr. Sharma, requests that the video statement be excluded under s. 24(2) of the Charter. Ms. Rooke, on behalf of the Crown, suggests that she should be entitled to use the statement in cross-examination of Mr. Sharma, should he decide to give evidence, because its admission in the proceedings would not “bring the administration of justice into disrepute.”

[86] The framework for the application of s. 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32, [2009] S.C.C. 32, at para. 71:

A review of the authorities suggests that 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. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[87] With respect to the first factor, the seriousness of the Charter violations, I accept that BSO Civitarese, Constable Smith, and the other officers who dealt with Mr. Sharma at the CBSA secondary location off-site facility did not set out on purpose to breach Mr. Sharma’s Charter rights. I accept that Constable Smith, in embarking on and continuing with his interview with Mr. Sharma, did not set out on purpose to violate Mr. Sharma’s Charter rights. However, the circumstances exhibit an insufficient sensitivity to the language comprehension issue that became apparent during the course of the interview. English was obviously not Mr. Sharma’s first language, and the failure of the officers to inquire as to Mr. Sharma’s first language and to advise him that he could speak to duty counsel in Punjabi suggests at least some degree of ignorance of Charter standards. I see the first Grant factor as favouring exclusion, although less strongly than would have been the case if the breach had been wilful and flagrant.

[88] The second Grant factor, the impact of the breach on Mr. Sharma’s Charter-protected interests, strongly favours exclusion. Mr. Sharma was entitled to receive meaningful legal advice before he did anything that harmed his interests. He did speak to Legal Aid duty counsel in English, but I cannot speculate about whether his understanding of his legal situation would have been significantly different if he had been given the option of conducting this conversation in Punjabi.

[89] Mr. Sharma said that he did not know that he had the option of speaking with a lawyer in Punjabi and that if he had known, he would have requested it. I accept that evidence. Given the obvious difficulty Mr. Sharma had with the English language during the interview, I can only conclude that he would have jumped at the chance of speaking with a lawyer in Punjabi if given the opportunity.

[90] As for the third Grant factor, society’s interest in the adjudication of the case on its merits, the statement is not an essential part of the Crown’s case. The Crown is not seeking to introduce the statement as evidence. The Crown seeks only to hold the statement in abeyance, to be used should Mr. Sharma choose to testify. In these circumstances, in my view, the third factor is equivocal; it does not favour admission, and it does not favour exclusion.

Disposition

[91] In the result, I grant Mr. Sharma’s application and exclude the statement.

Original signed by Justice Pamela L. Hebner

Pamela L. Hebner Justice

Released Orally: September 23, 2021

COURT FILE NO.: CR-18-4296

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Preet Kiran Singh Gill And Suresh Sharma

RULING ON APPLICATION

Hebner J.

Released Orally: September 23, 2021