R v AG, 2018 ABQB 1043

Court of Queen’s Bench of Alberta Citation: R v AG, 2018 ABQB 1043 Date: 20181219 Docket: 170407159Q1 Registry: Edmonton Between: Her Majesty the Queen - and - AG Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. Corrected judgment: A corrigendum was issued on December 20, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________

Reasons for Decision on Voir Dire of the Honourable Mr. Justice M.J. Lema _______________________________________________________ A. Overview [ 1 ] This is my ruling on the admissibility of a videotaped interview of a suspect in a sexual assault and sexual interference investigation into an incident in Edmonton, Alberta in the summer of 2015. The accused contends that language difficulties prevented him from understanding his right to silence and that statements made could be used as evidence against him.

The result, according to him, is that his statement was not voluntary. [1] [ 2 ] AG is charged with sexual assault contrary to s. 271 of the Criminal Code of Canada and sexual interference contrary to s. 151 CCC. His trial began on December 10, 2018 with testimony from the complainant, both via videotaped statement and at the trial, and from two other witnesses. The Crown’s fourth witness, Detective Bryan Kincheloe interviewed the accused on April 11, 2017.

The interview was videotaped. [ 3 ] The Crown sought to enter the videotaped interview as evidence against the accused; accordingly, we entered into a voir dire to determine its admissibility. Detective Kincheloe answered some preliminary questions, describing how the interview was arranged, and we then watched the videotaped interview as part of the voir dire . Afterwards, the Crown examined the detective about the interview, followed by defence cross-examination. The accused then testified about the interview, answering questions from his counsel and from the Crown. I then heard arguments from both parties. B.

Issues [ 4 ] The issue is whether Mr. G’s statements to the police during the interview were voluntary. The particular concerns here are whether he understood that he had a right to remain silent and what was at stake (i.e. that he was being charged with the offences noted above and that any statements he made could be used against him). C. Findings [ 5 ] I find that Mr. G was aware that he had a right to remain silent and of what was at stake and, accordingly (with no other voluntariness concerns raised), the statement was voluntary and is thus admissible in the trial. D. Discussions of Mr.

G’s rights during April 11, 2017 interview [ 6 ] The following excerpt from the interview reflects Detective Kincheloe’s discussions with Mr. G about the latter’s rights. I am focusing on the passages touching on Mr. G being arrested and charged with sexual assault and sexual interference, his right to remain silent, and any statement being useable against him. (The bulk of the rights discussion centred on the right to counsel, which Mr. G waived, and which is not under challenge here. I have omitted those segments.) Q [Det. Kincheloe]: Now I’m conducting ah a sexual assault investigation … A [Mr. G]: Mmmhmm.

Q: … that happened quite some time ago and you are kind of the last person I need, need to speak with about this and ah right now, through my investigations … Q: Mmmhmm A: … I have enough that ah you’re gonna be charged with this offence, OK, for sexual assault and I’ll explain everything, OK. I don’t want you to be confused about anything. A: OK, sir. Q: I’m going to explain everything to you and I might have a few questions for you and you can have some questions for me, too, at the end as well, OK. A: Mmmhmm. Q: But um ah there’s this form here that I need to explain to you, OK.

Now it’s important as a police officer that ah, that everybody I

speak with understands their rights. A: Yes. Q: In Canada, OK, everybody every Canadian citizen has rights. A: Yes, sir. Q: And when I speak with someone, it’s important for me that they know their rights. A: Mmmhmm. Q: So I’m gonna go over this sheet with you and it talks about your rights … A: Mmmhmm. Q: … and um if you, I’m I’m gonna read it out to you and go through it with you and if you have a question about it or if something’s not clear about, about what I’m saying, ah let me know that you don’t understand it or, and I’ll try and explain it to you as best … A: OK. Q: … as I can.

A: Yes, sir. [discussion re insertion of name and date] Q: … we’re at police headquarters. So right now um you will be charged with sexual assault and sexual interference, OK. Do you know what sexual interference is? A: Like can you explains it? Q: so sexual interference is when someone um touches someone else sexually … A: Mmmhmm. Q: … ah when that other person is under 16 years old. A: Mmm. Q: OK? A: OK. [segment re “right to counsel” omitted] Q: If you change your mind, that’s OK, all right? So it says here you have the right to a reasonable opportunity to contact a lawyer.

I’m obliged not to take a statement from you or ask you to participate in any process that might provide evidence against you until you are certain about whether you want to exercise this right. So do you understand that … A: Like … Q: .. what I’ve read? A: … Um like if I can’t like, I can’t speak, I can’t like doing nothing even yeah, like if you have any like evidence or something? Q: So, so it’s up to you if you want to talk to me, OK. A: OK. Q: I’m not forcing anything from you here. I want to make it, like I said, as comfortable for you as I can … A: Mmmhmm.

Q: … because in my investigation, I need to speak with everybody involved. A: Mmmhmm. Q: OK? A: So it’s not only me, sir? Q: It’s not only you that I’m speaking with, OK. A: Oh OK.

Q: but I am s, you’re the last person to speak with … A: Mmm. Q: … in regards to this, OK. A: Got it. Q: So do you understand this here that I’ve re, that I’ve read to you? Do you want me to read it over again? A: Yes, sir. Q: OK. You have the right to a reasonable opportunity to contact a lawyer. A: Mmmhmm. Q: I am obliged not to take a statement from you or ask you to participate in any process that might provide evidence against you until you are certain about whether you want to exercise this right. So it’s, it’s sayin’ that um you can speak with a lawyer … A: Mmmhmm.

Q: … at any time and I’m obliged, you don’t have to tell me anything. No one’s forcing you to speak to me right now, OK. So do you understand that? A: Yes, sir. [segment re “right to counsel” omitted] Q: K so this is the, this is um somethin’ else I have to read you. It says you are not obligated to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand that? A: Yes, sir. Q: OK, you can put your answer there. OK now before I put this form away … A: Mmmhmm. Q: … do you have any questions about this at all? A: Mm, uh no, sir. Q: OK, OK good.

Um if you, ah if you do have a question at all, ah I’m here to answer that for you. A: Mmmhmm. Q: So I can explain it a little bit more if you’re a little confused about some of the things on here. A: Um this one it’s nothing serious, nothing to concern a me, like paperwork right, to start … Q: Mmmhmm. A: … but the concern is, I don’t know, I don’t know who’s complaining, who’s … Q: Yeah. A: … [hard to discern] and when. Q: And we’ll discuss all of that. A: Yeah. Q: We’ll discuss. A: Mmmhmm. Q: These are just your rights, right. A: Yes.

Q: And like I said, so you put no but like I said, during our time … A: Yes, sir. Q: … today, if you change your mind … A: OK.

Q: … let me know … A: OK, sir. Q: … and we’ll go in, I’ll give you a phone to speak with a lawyer. A: No, not right now, sir. Q: O, all right, OK. So I want to point out that right now you will be charged with this. A: Yeah, yeah. Q: OK, that means you’re, you can’t leave. You’re … A: Mmmhmm. Q: … under arrest. A: Yes. Q: OK, so you can’t go out the door right now. A: Mmmhmm. Q: OK? But I’d like to speak about this. A: So I’m not going home … I stay here. Q: Right, right now, no. A: Oh. Q: OK? A: I thought … Q: Yeah, you’re gonna stay with me for now. You’re under arr … A: Ok, yeah, yeah.

Q: … you’re under arrest, OK. A: Yes, sir. Q: And um, so there’s no more questions about this [indicating caution form]? A: No more, sir. Q: I’ll put this away … A: Yeah. Q: … but like I said, if you change your mind about contacting a lawyer … A: Mmmhmm. Q: … let me know …, A: Ok, sir. Q: … and I’ll provide you that … A: Yes, sir. Q: … opportunity, OK. We’ll put this table back here … [end of initial discussion about Mr. G’s rights.] E. Arguments Crown arguments [ 7 ] The Crown made various arguments supporting the admissibility of Mr. G’s statement to Detective Kincheloe.

Since the defence raised only one argument against admissibility (the accused’s subpar proficiency in English prevented him from understanding both his right to remain silent and that what he said could be used in evidence against him), I will limit my analysis to the Crown’s

arguments on that aspect. [ 8 ] The Crown argued that the governing case law is found in R v Oickle [2] ; R v Nguyen [3] ; and R v Blackduck [4] . The first case provides the overall framework for a voluntariness analysis, and the other two apply it in the context of a suspect, interviewed in English, with subpar English skills. [ 9 ] Concerning Mr. G’s proficiency in English, the Crown did not accept that he was unable to understand the right to counsel or that his statements might be used in evidence against him. The Crown emphasized that: 1. Mr.

G moved to Canada in 2012, when he was 20 years old; 2. his first language is Ilocano, and he also spoke Tagalog and Pangalatok, plus “a little bit of English, when he arrived in Canada; 3. he has lived in Canada since then; 4. at the time of the statement (April 11, 2017), he had been living in Canada for over four years; 5. he learned English from his co-workers at two different jobs (landscaping company and department store); 6. in both of those jobs, he had contact with English-speaking colleagues, clients, and customers and was able to communicate with them; [5] 7. Detective Kincheloe contacted Mr.

G on April 4, 2017 to set up an interview with him at police headquarters to discuss a sexual assault / sexual interference investigation. After noting that Mr. G spoke with an accent, he contacted him again the next day and asked if he would like a translator’s assistance at the interview. According to Detective Kincheloe’s recollection on these points (refreshed by reviewing his notes), Mr. G declined, saying that he “understood English” and that he “had been in Canada for five years”, so no translator was required; 8. during the voir dire , Mr.

G testified that he did not remember being asked if he wanted a translator, could not recall telling Detective Kincheloe that he did not need a translator, and (asked if it was possible he did say that) “really couldn’t remember.” On cross- examination, he acknowledged that he did not make notes of the April 4 or 5 conversations; 9. he said that he remembers the April 4 conversations and is sure that he was not told by Detective Kincheloe that he was investigating a sexual assault / sexual interference matter; 10. per the Crown, “this is in addition to his evidence that he had no idea why he was going to the police station to speak with Detective Kincheloe and that he made no notes about these conversations to assist in refreshing his memory.” In the Crown’s view, Mr.

G’s evidence about the phone calls is unreliable; 11. at the interview, while he initially starts with one- and two-word answers to questions, he eventually begins to communicate more expansively; 12. during the interview “the conversation flows back and forth with questions and answers, clarification is sought and given, and details are discussed”; 13. Mr. G appeared alert and engaged throughout the interview; 14. Detective Kincheloe reminded him many times that, if he did not understand something, he could ask for an explanation and one would be provided; 15. the interview lasted two hours.

Defence pointed out a only handful of instances where it appeared Mr. G did not understand something [6] ; 16. he was given “full opportunity during the interview to explain himself and describe what he does remember. He sits and speaks both casually and in a relaxed manner. Although there is some over talk and some non-verbal responses, it is clear enough to understand the [Mr. G’s] words, and for a transcript to be prepared” (quoting Crown counsel); 17. during the interview, when the subject of access to a lawyer was being discussed, Detective Kincheloe had Mr.

G explain his understanding of his right to contact counsel, which he did, and with his own words i.e. he was not just “parroting back” this information; 18. in his testimony on the voir dire , Mr.

G said he did not think about calling a lawyer during the interview but agreed that that was his choice; and 19. his demeanour during the “ Charter caution” dialogue was “relaxed and casual” (quoting the Crown). [ 10 ] The Crown submitted that a suspect’s decision to decline an offer of a translator will not necessarily eclipse the police duty to ensure that an accused understands and can communicate in the language of the interview, nor will it automatically render a statement inadmissible. [ 11 ] The inquiry into Mr.

G’s understanding of the right to silence and what was at stake in speaking to the police is contextual and fact-specific. Given his clear ability to communicate, gauged from the natural flow of the conversation, the care with which Detective Kincheloe explained his rights and the material circumstances and tried to ensure that Mr. G understood him, in addition to the facts that he was offered a translator and expressly declined on the basis of adequate English, the statement should be admitted. [ 12 ] Fundamentally, Mr.

G knew what the charges were, understood his right to silence and that statements made could be used

against him. Accordingly, the requirements of voluntariness are unquestionably met, and so the statement should be admitted into evidence. Defence arguments [ 13 ] The defence agrees that ruling on this voir dire requires a “contextual, fact-driven inquiry” and conceded that the voluntariness concern here stems exclusively from Mr. G’s proficiency in English (no concerns about threats, promises, inducements, oppressive conditions, or police trickery).

The defence cited the following excerpt from R v Nguyen [7] : Therefore, based on a review of the authorities discussed, there are several approaches that have been used to determine the admissibility of statements from an accused with language difficulties and they may be summarized as follows: • If the accused’s understanding and ability to communicate in the English language is so deficient that it would have been impossible for them to understand the police or make any statements in English, then the statement is not proven to be voluntary and is inadmissible ( Lapointe ; Abugattas-Osorio ).

This does not appear to be based upon any of the specific factors identified in Oickle (such as operating mind), but rather on the fact that the statement does not truly amount to the accused’s statement ( Lapointe ). • Where the accused’s English is not quite so deficient, then the court must decide whether the accused’s language difficulties prevented them from understanding their right to remain silent and the fact that, by speaking, they were giving up this right.

In such cases, the statement may be found not to be voluntary ( Blackduck ; Singh ). [ 14 ] The defence invoked the second passage here i.e. language difficulties not so severe that effective communication was prevented but serious enough that Mr.

G did not understand that he was not required to speak to the police and that statements made could be used against him. [ 15 ] It also invoked the decision of Charbonneau J. (as she then was) in R v Blackduck [8] , in particular the following extracts: … Having an understanding of language to function in certain types of interactions is not the same thing as understanding rights, legal concepts and the potential ramifications of certain decisions. … Here, the issue boils down to whether Mr. Blackduck understood his right to remain silent.

Bearing in mind that voluntariness implies an awareness of what is at stake, and of the implications of speaking, or not speaking, to the authorities about the alleged events, I am not satisfied that it has been established to the required standard of proof. I am not satisfied beyond a reasonable doubt that Mr. Blackduck understood his right to remain silent and gave that right up with a full understanding of what was at stake in speaking to Sgt. Landry that day. I am also not satisfied that he fully appreciated that what he was telling Sgt.

Landry could be used in a prosecution against him. [ 16 ] Applying the Nguyen and Blackduck analyses here, the defence argued that: 1. although the videotape of the interview depicts some “conversational flow”, there are also large portions where Mr.

G answers with one word or simply “Mmmhmm”; 2. at one point, he characterizes the rights discussion and associated documents as “paperwork” and “nothing serious.” That squares with his evidence that he was not told, when offered a translator, that he was a suspect in anything and that he did not understand he was charged criminally until the end of the interview i.e. he did not truly appreciate “what was a stake” while being interviewed; 3. other segments of the interview depict Mr. G providing answers that “do not make sense with what is being asked”; and 4. at one point, when Detective Kincheloe asks Mr.

G what happened, the latter responds by asking the detective to tell him what happened. [ 17 ] Fundamentally, the defence argues, the voir dire evidence raises, at minimum, a reasonable doubt about Mr. G’s understanding of his right to silence and what was at stake in speaking to the police. Accordingly, the statement should not be admitted as evidence in the trial. F. Law [ 18 ] In R v Oickle [9] , the Supreme Court of Canada stated: Voluntariness is the touchstone of the confessions rule.

Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [ 19 ] In that passage, the Court outlined the principal risks to voluntariness. The following “order of operations” may assist in understanding the relationship among these risks: 1. the threshold issue is the presence of an operating mind.

Before using a suspect’s words against him or her, we need to know, at minimum, that the words came from a mind capable of perceiving reality, remembering, understanding questions, and answering. Shock [10] , hypnosis [11] , “complete emotional disintegration” [12] and other conditions [13] may interfere with or prevent the performance of one or more of these functions. Fairness demands that the statement coming from a non-operating mind be excluded. [14] Fundamentally, it may not be a true confession i.e. an admission of actual involvement in or responsibility for the events under investigation;

2. the next issue is whether language or other potential barriers to communication prevented the suspect from understanding and responding to the interviewer. In R v Lapointe [15] , the Ontario Court of Appeal framed the test as: … whether the [suspects’] understanding and ability to communicate in the English language [were] so deficient that it was impossible for them to have understood the police or to have made any statements in English. Only then could it be said by the judge that the statements did not amount to their statements. [16] 3. next is the concern that the suspect make an informed choice.

This first involves awareness of the very existence of a choice i.e. as between making and not making a statement (the right to silence). In most reported cases, the suspect is aware of the right to remain silent, whether because of an explicit and well-understood police caution, other encounters with law enforcement, or otherwise. [17] Beyond that, the choice must be made with an appreciation that any statement made can be used against the person. [18] Language difficulties or other barriers to comprehension may affect the suspect’s awareness of having a choice to speak or not and what is at stake in speaking.

In contrast to the language issues noted earlier (which prevent effective communication), the phenomenon here is language skills allowing basic communication but blocking an understanding of the right to silence and what is at stake in speaking. [19] This lesser but still critical language problem was examined in R v Blackduck [20] .

As noted earlier, Charbonneau J. (as she then was) held: Having an understanding of language to function in certain types of interactions is not the same thing as understanding rights, legal concepts, and the potential ramifications of certain decisions. … voluntariness implies an awareness of what is at stake, and of the implications of speaking, or not speaking, to the authorities about the alleged events …. [21] 4. the next issue is whether the choice was freely made. The focus shifts to the suspect’s motivation for making the statement.

It may be that, owing to an outsized inducement offered by the investigators, an improper threat [22] , oppressive conduct [23] , or some combination, the suspect manufactured the statement to win the inducement, escape the threat, or shut down the oppression. Such motivations for making statement may also coincide with an accurate confession. However, with the Crown bearing the onus of proving a voluntary confession beyond a reasonable doubt, a material risk of a false confession often means an insurmountable hurdle for the Crown.

Fairness to the accused demands that the questionable confession be excluded; and 5. offside police trickery may be a reason to nonetheless exclude the statement. [24] The objective here is “maintaining the integrity of the criminal justice system” i.e. denouncing and deterring police conduct that “shocks the community.” [25] For this reason, an otherwise voluntary statement may be excluded. [ 20 ] To summarize, where in making a statement to a person in authority the suspect had an operating mind and the language skills to understand and effectively participate in the interview, was aware he or she had a choice to speak or not and of what was at stake, made a free choice to speak, and was not tricked by “shocking” police tactics, the requirements of voluntariness will be satisfied. [26] G.

Analysis [ 21 ] The issue here is whether Mr. G knew that he had a right to remain silent and what was at stake when he decided to speak. The defence asserts that, because of language difficulties, Mr. G did not understand that he had a right to remain silent and what was at stake in speaking to the police. [ 22 ] The following factors are relevant here: 1. no “surface indicators” signal that Mr. G did not understand that he had a choice to speak and “the stakes.” The videotape of the interview (as reflected in part by the dialogue reproduced above) reflects effective communication. Detective Kincheloe and Mr.

G are able to communicate, on a wide array of subjects, for two hours. At points, Mr. G looks quizzical and sometimes asks for clarification. At others, his response seems to reflect a failure to understand. (Those emphasized by the defence are examined in detail below). However, the vast majority of their conversation is a true dialogue, with questions posed and answered, clarifications and details provided both ways, and the conversational “lead” changing occasionally; 2. at no point during the interview did Mr. G ask for a translator.

In any case, given the effective communication that actually or apparently occurred, Detective Kincheloe had no reason to believe that Mr. G was struggling with English to the degree that basic communication or an understanding of his rights or the stakes were prevented. In other words, the circumstances did not trigger an obligation on the detective to stop the interview, engage a translator, and start over, or even to inquire whether Mr. G needed an interpreter; 3. on the subject of whether Detective Kincheloe contacted Mr.

G on April 5, 2017 to ask if he would like an interpreter at the interview, I prefer the detective’s account of that phone call over Mr. G’s. The detective made detailed notes of his phone calls with Mr. G, including the April 5 call; Mr. G did not. Mr. G did not assert that that phone call, a day after their first phone conversation, never occurred or offer any recollection or understanding of what the second call concerned. His evidence was that he did not remember the conversation during the second call. As well, the level of proficiency shown by Mr.

G during the interview squares with someone who has lived over four years in Canada as an adult and who would reasonably decline the offer of a translator; 4. Mr. G was asked, and was able, to explain his understanding of the essence of his right to contact counsel (“Like if I need to call um a lawyer, like you provide a phone line.”); 5. in voir dire testimony, Mr. G testified that, at the time of the interview, he did not know what lawyers did.

That does not square with the many references by Detective Kincheloe to the availability of lawyers (including free legal advice) during the opening segment of the interview. At no point did Mr. G say “I don’t know what you’re talking about” or “tell me what a lawyer is” or otherwise signal a lack of understanding on this point. At one point he says “I don’t know a lawyer, sir.” That statement points to at least a basic level of awareness of what lawyers do;

6. concerning statements made and their use against him, the following exchange occurred: Q: I’m obliged not to take a statement from you or ask you to participate in any process that might provide evidence against you until you are certain about whether you want to exercise this right [to contact a lawyer]. So do you understand that … A: Like … Q: … what I’ve read? A: …um like if I can’t like, I can’t speak, I can’t like doing nothing even yeah like if you have any like evidence or something. Q: So, so it’s up to you if you want to talk to me, OK. A: OK. Q: I’m not forcing anything from you here.

I want to make it, like I said, as comfortable as you as I can. A: Mmmhmm. 7. while Mr. G’s main response is superficially difficult to understand, in context my reading is that he was saying (effectively): “I don’t have to speak, or do anything, even if you have evidence against me.” This is confirmed when, after explaining Mr. G’s rights in the formal language of the written Charter caution they were examining together, the detective paraphrases, using simpler expressions like “up to you if you want to talk to me” and “I’m not forcing anything from you here.” Mr.

G signals assent to, and an understanding of, the paraphrases; [27] 8. comments and questions originating from Mr. G also signal that he was aware of the context (being under criminal investigation). For instance, he asks, early in the interview (during Detective Kincheloe’s review of the right to contact counsel), “Um … the, what’s the person like …”, to which Detective Kincheloe responds “I’ll explain all of that …” A: “Mmmhmm.” Q: … in just a little bit but I have to make sure before I go through with that, you understand your rights.” I infer that Mr.

G was asking about who the complainant was and that the detective understood that in saying (effectively) “we’ll get to that.” A short while later, Mr. G again raises this subject: “ … but the concern is, I don’t know, I don’t know who’s complaining, who’s …” Q: yeah. A: “ … and when.” Q: “and we’ll discuss all of that”; 9. told that he was under arrest and that “you can’t go out the door right now”, Mr. G responded “So I’m not going home … … I stay here”; 10. the defence emphasized a passage, just preceding Mr.

G’s question about who the complainant is and at the conclusion of their discussion about his rights, as follows: Q: Do you have any questions about this at all? A: Mmm, uh, no, sir. Q: OK, OK good. Um if you, ah if you do have a question at all, ah I’m here to answer that for you. A: Mmmhmm. Q: So I can explain it a little bit more if you’re confused about some of the things on here [i.e. the Charter rights document]. A: Um this one it’s nothing serious, nothing to concern a me, like paperwork right, to start … Q: Mmmhmm.

A: but the concern is [not knowing identity of complainant – dialogue reproduced above]. 11. the defence suggested that, in his “nothing serious” comment, Mr. G was characterizing the interview and the investigation at large as such i.e. he did not appreciate the significance of the investigation and its potential consequences for him. Alternatively, he was saying that the Charter caution itself was “nothing serious”, or perhaps both. I do not read it the same way. I take Mr.

G as saying, after stating many times that he understood his right to contact counsel, that the Charter caution portion of the interview would not become meaningful or significant for him, in a practical sense, until he understood the details of the allegations against him, particularly the identity of the complainant; 12. over the course of the interview, Mr. G’s responses evolve from largely abbreviated to occasionally more expansive i.e. his English- language skills were shown to enable more nuanced conversation; 13. the detective made it very plain in the opening of the interview that, if Mr.

G did not understand anything, he would be happy to explain it; 14. at various points, Mr. G does not follow the line of question; however, the detective restates the question, often reframing and simplifying it, until Mr. G understands. The videotape and transcript disclose no instance of a total “communication breakdown” i.e. a given point that could not be discussed or explored; 15. Mr. G was aware that the interview was being recorded and that notes were being taken of his discussions with the detective; [28] 16. the detective reviewed the Charter caution sheet with Mr. G. As seen in the videotape, Mr.

G was attentive and engaged during that discussion. He appeared to be reading over the document with the detective, in addition to hearing it read out to him,

section by section.

He did not say that he could not read English. He did not say, at any point, that he did not understand anything; 17. unfamiliar words, like “waive”, were explained to him; [29] 18. the detective was painstaking in explaining Mr. G’s rights, taking it “element by element”, paraphrasing when necessary to put things in shorter or simpler terms, and continually asking Mr. G if he needed further explanation; 19. Mr.

G’s proficiency in English far exceeds that of the accused in Singh [30] , where Morgan J. found that “much of what the Defendant said was incomprehensible”, many of the Defendant’s words and sentences were unintelligible (“most pages have multiple spots where the statement was unintelligible”), there was a “crucial gap in his comprehension”, the police provide only a very cursory explanation of the accused’s rights before starting questioning, and “the Defendant was oblivious of the s. 10(

b) caution” [31] ; and 20. I draw the same distinction between Mr. G’s English proficiency and that of the accused in Blackduck , where Charbonneau J. (as she then was) found that “Mr. Blackduck answered “yes”, “yeah” and “ok” at points where one would not expect him to do so if he actually understood what Sgt. Landry was telling him. This is consistent with [his] testimony that when he does not understand what someone is telling him and is not sure what to say, he tends to just say “yes.”’ In contrast, Mr.

G’s responses were not similarly “out of synch” and, if the handful of instances where they were (for example, in the discussion about waiving the right to counsel), Det. Kincheloe reversed gears and made sure Mr. G understood the question, with an “in synch” response following. As well, Mr.

G did not testify that he has a habit of saying “yes” or otherwise signaling assent when he does not know what is being asked or discussed. [ 23 ] Fundamentally, where a suspect is offered the benefit of a translator and declines, and over the course of an interview demonstrates an ability to communicate effectively, and where the investigator proceeds slowly (offering to explain anything not understood), and provides such explanations (using plain language), and in any case repeats explanations from different angles, and the accused at no point asks for a translator, and where a two-hour discussion contains not a single instance of a communication “dead-end”, and unfamiliar words were explained in accessible language (with no signs of remaining incomprehension or misapprehension by the accused), and a transcript could be produced with very few instances of “could not discern” (and with none of those appearing to reflect communication difficulties on material points), and where the accused never once said “I don’t understand”, “I need some help” or anything similar, voluntariness concerns anchored in language difficulties are speculative. [ 24 ] I find, based on the entire videotaped interview and from all the evidence tendered on the voir dire , including Mr.

G’s testimony, that he knew that: 1. he was being interviewed by a police detective at a police station; 2. the focus of the meeting was an investigation into sexual assault and sexual interference; 3. the discussions were being videotaped and transcribed; 4. he was under arrest (from the outset of the interview) as a suspect in the investigation; 5. he had rights, including to silence and to the assistance of a lawyer; and 6. what he said to the detective could be used against him. H. Conclusion [ 25 ] For the reasons outlined above, I find beyond a reasonable doubt that Mr.

G’s statements during the interview with Detective Kincheloe on April 11, 2017 were made voluntarily and that, as a result, the statements are admissible in the trial. Heard on the 13 th and 14 th days of December, 2018. Dated at the City of Edmonton, Alberta this 19 th day of December, 2018. M.J. Lema J.C.Q.B.A. Appearances: Kristen Logan

Alberta Justice and Solicitor General for the Crown Amanda Hart-Dowhun ADH Law for the Accused _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice M.J. Lema _______________________________________________________ On page 2, paragraph 2, line 1, the reference s. 276 of the Criminal Code of Canada was changed to s. 271 . [21] See also R v Liew [21] , where Boswell J. stated: “I have trouble accepting that the language difficulties of the accused in this case are not a relevant consideration in terms of the voluntariness of their statements.

Those difficulties impact significantly on their understanding of why they were arrested, the comprehension of their right to counsel and, perhaps most profoundly, their right to silence . I agree with the view expressed by Watt J … in R v Worrall [2002] O.J. No. 2711 (Ont.

S.C.J.) , at para. 106 , that “voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.” [26] In Lapointe , an additional concern was whether (in that pre-videotaped-interview era) the investigators had accurately written down the suspects’ testimony i.e. that the messages, received by the investigators as intended by the suspects, were accurately recorded. The ONCA found that this authenticity concern falls outside the scope of a voluntariness voir dire , being a trial matter (evidence weight).

An analogous concern would be whether an interrogation videotape reflects the actual interview fully and accurately.