CITATION: R v. Endis Marku, 2026 ONSC 1562

COURT FILE NO.: CR-25-00000471-00AP

DATE: 2026 03 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Jannat Gardezi for the Respondent Crown

– and –

ENDIS MARKU

Gursharn Sandhu for the Appellant

HEARD: March 11, 2026

REASONS FOR DECISION

[On appeal from the conviction entered on April 30, 2025, by Justice T. Kranjc of the Ontario Court of Justice.]

D.E. HARRIS J.

1The Appellant, Endis Marku, appeals against his conviction entered April 30, 2025, by the Honourable T. Kranjc for the offence of operating a conveyance with a blood alcohol concentration exceeding the legal limit, contrary to s. 320.14(1)(b) of the Criminal Code.

2I dismissed the appeal at the hearing, and these are my reasons for doing so. The argument made upon the appeal was that the trial judge erred in her analysis and treatment of whether the Appellant had language deficits which interfered with his understanding of his s. 10(b) Charter right to counsel: see R. v. Ukumu, 2019 ONSC 3731, aff’d on other grounds 2021 ONCA 91.

3There are two specific complaints. First it is said that the trial judge, in relying on the evidence of the arresting officer, failed to take an objective approach to the language capacity issue: see Ukumu, at para. 32(e). The second complaint is that the trial judge erred in relying principally on the Appellant’s English comprehension at the time of trial, more than a year after the offence.

4I disagree with both arguments. In my view, the trial judge’s reasons on the language issue were free of error. Her reasons on the subject constitute 8 pages and were rigorous and in-depth. She dealt fully with the two issues the Appellant is now raising and rejected them. Her findings are owed a high degree of deference. She had an obvious advantage in evaluating the language issue, having been able to observe the Appellant firsthand during his testimony.

5In relation to the alleged error that the trial judge did not properly engage with the objective test, the trial judge accepted as correct the arresting officer’s observations in relation to the language issue. But she did so only after careful consideration. The objective aspect, like objective grounds behind an arrest, is to ensure that the subjective observations and conclusions of the police are not the final word. Judicial oversight is necessary: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241; R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 24. A trial judge is not compelled to accept the observations of the police and must put them to the judicial reasonableness test.

6Here, the trial judge did not accept the police officer’s evidence without specific and detailed analysis. She considered all the circumstances and made a considered, well reasoned finding based on not only the officer’s observations but other evidence as well. In particular, there were three videos from the night in question of the Appellant which the trial judge heavily relied on with respect to gauging the Appellant’s facility with English. The videos were of the arrest, the Appellant in the police car after arrest and interactions with an officer in the breath room.

7The trial judge expressly recognized the need to apply the objective test. She held that there were no special circumstances requiring the police to go further than they did. Contrary to the Appellant’s submissions, the circumstances said to be special circumstances requiring the police to go further cannot be evaluated in a vacuum or out of there contextual placement. Although the Appellant had not been in Canada for very long, spoke with an accent, made one grammatical error in saying his wife was “scary” as opposed to “scared”, and used an Albanian interpreter at trial, there were strong countervailing factors that superseded these facts. The Appellant’s language was proven to be quite proficient by the officer’s observations and based on the videos. It was apparent that he had no difficulty understanding the right to counsel. The four factors relied upon by the Appellant faded into the background. On the ultimate issue of comprehension of English, the trial judge’s conclusion was well supported.

8With respect to using an interpreter, I would add that arguably it is not evidence at all. Without deciding that, it may well be appropriate for a trial judge to refer to it. But using an interpreter does not necessarily bolster a claim of lack of language comprehension. A judge may well be obliged to consider whether the interpreter was actually needed or whether the request for an interpreter was being used as a self-serving tactic to advance a language argument. The trial judge engaged in this analysis in this case and found that the use of the interpreter did not advance the Appellant’s language claim. She was entitled to come to this finding.

9Moving to the second issue, as she said in her reasons, the trial judge was fully alive to the potential difference between the Appellant’s English proficiency at the time of the arrest and his proficiency at trial after more than a year had passed. But again, she referenced the three videos and the evidence of the police officer to conclude that his English was good and that he understood his rights.

10The language issue was closely tied to the Appellant’s credibility. The Appellant testified on the voir dire about his lack of English comprehension. The trial judge found major credibility problems with his evidence on that subject and rejected it. She found he was evasive and tried to actively downplay his ability with English. The Appellant concedes that the credibility findings cannot be challenged. The negative credibility finding virtually foreclosed the success of the Appellant’s language argument.

11In conclusion, no legal errors or misapprehensions were committed by the trial judge. These are the reasons why the appeal was dismissed.

D.E. HARRIS J.

Released: March 13, 2026

CITATION: R v. Endis Marku, 2026 ONSC 1562