2015 QCCQ 9636, 2015 QCCQ 9636

Ashevak c. R. 2015 QCCQ 9636 JC1649 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI NORTHERN VILLAGE OF SALLUIT « Criminal division » N° : 640-01-027497-123 DATE : August 20, 2015 UNDER THE PRESIDENCE OF : HONOURABLE PAUL CHEVALIER, J.C.Q. Jaimisie ASHEVAK Applicant c. THE QUEEN Respondent JUDGMENT ON A MOTION FOR EXCLUSION OF EVIDENCE ( Sec. 10(a) , 10(

b) and 24(2) of the Canadian Charter of rights and freedoms ) [ 1 ] Should a statement given by the accused, charged with sexual interference with a child, be excluded on account of an alleged breach of his right to be promptly informed of the reasons for his detention and on account of an alleged breach of his right to be informed of his right to retain and instruct counsel without delay and to exercise that right? [ 2 ] Accused, an Inuk person, on August 29, 2012, was met at his home by police officers and brought to the police station to be questioned about an alleged sexual assault committed in May, 2012. [ 3 ] Defense position is that accused was detained when he was met at his place by the officers; that he was not informed promptly of the reasons thereof; that he was not informed that he had the right to consult a lawyer without delay; that he was not given a reasonable opportunity to do so and that he did not give a valid waiver of his rights. [ 4 ] Accused claims that his mother tongue is Inuktitut and that his understanding of the English language is not very good. [ 5 ] Therefore since he was only told at his home by the officers to follow them, without being explained why, he felt he had no choice. [ 6 ] At the police station, informed that he was questioned for a sexual assault, he did not understand well the rights that were given to him, asked for a translator but was denied that right, and tried to answer as well as he could.

Had he understood that he could call a lawyer, he would have asked for one. [ 7 ] Crown’s position, based on the contradictory testimony of the police officer who dealt with the accused, is that the police conduct complied with the rules and that the accused’s version cannot be relied upon. [ 8 ] The Court is satisfied that when accused was invited to go to the police station, he knew it was to be questioned about an incident that occurred while he was baby-sitting; that when specifically informed that he was interviewed about a sexual assault on a 3 years old child he was told immediately to stop talking about it and was then given his rights, formally and in a simplified way.

The detention started at that point.

[ 9 ] Analyzing accused’s assertion that he has limited abilities to comprehend English, the Court acknowledges the fact that Mr. Ashevak is a 47 years old Inuk, whose mother tongue is Inuktitut, who speaks Inuktitut at home, whose work, when he was working, did not require him to speak English and that in a community like Salluit, from day to day, an Inuk is generally not required to speak English, unless his job so demands. [ 10 ] Even though, when told to put his hand or the bible, accused did so without waiting for translation, he nonetheless had to wait for the translation to be sworn in.

When cross-examined without translation, accused was able to answer some simple questions, but did not understand “what is the name of your lawyer?” nor “What is the color of my robe?” The Court is convinced that accused was not then putting on

an act and that he has only a basic knowledge of English, able to understand simple words. [ 11 ] Even the interviewing police officer recognized that accused had to look and search for his words when answering questions, showing that Mr.

Ashevak was not familiar with English. [ 12 ] The Court is satisfied that accused’s grasp of English did not allow him to understand correctly his rights and to fully appreciate what a waiver meant. [ 13 ] Therefore, there was a duty on the police officer to offer some translation assistance - that was available according to the officer’s version - or to make thorough inquiries to make sure accused understood clearly his rights and the consequences of waiving them, especially considering the Inuk he was dealing with had never dealt with the police before. [1] [ 14 ] As Mr.

Justice Johnson said in the case of Qrunngnut , “a working knowledge of English does not equate to understanding all the legalese used in the consent”. [2] [ 15 ] The Court concludes that there was at least a breach of the accused’s rights under sec. 10(

b) of the Canadian Charter and that accused did not give an informed and valid waiver. [ 16 ] Should the statement given by accused be excluded? [ 17 ] Even if the interviewing police officer may have in good faith believed that accused’s comprehension of English was enough, all the circumstances should have brought him to further investigate accused’s understanding of his rights, considering the importance of these rights. [ 18 ] The impact of the breach on the Charter-protected interests of the accused is enormous in view of the importance of obtaining legal advice when one is detained in order to decide to give a statement or not.

A misunderstanding of the consequences of a waiver also bears a significant impact on one’s decision to exercise or not a Charter-protected right. [ 19 ] There is a societal interest in the adjudication on the merits of a criminal charge, especially one of this kind.

However society’s interest cannot be reached if a conviction is based solely on an illegally obtained statement. [ 20 ] The Court concludes that admitting in evidence the statement of the accused would bring the administration of justice into disrepute. [3] [ 21 ] Therefore the motion for exclusion of evidence is granted and the Court will exclude the statement from the evidence. PC/nc PAUL CHEVALIER, J.C.Q. Me Marie-Josée Barry-Gosselin, For the Crown. Me Joannie Jacob, For the accused. Dates of the hearing : October 2 and 3, 2014