2012 QCCQ 8744, 2012 QCCQ 8744

R. c. Tanoush 2012 QCCQ 8744 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF VAL-D'OR « Criminal and Penal Division » N° : 615-01-016397-104 DATE : September 14, 2012 ______________________________________________________________________ BY THE HONOURABLE DANIEL BÉDARD, J.C.Q. ______________________________________________________________________ the queen Prosecutor c.

EVELYN TANOUSH Accused ______________________________________________________________________ JUDGMENT – APPLICATION UNDER THE CANADIAN CHARTER ( Sections 7 , 9 , 10a) , 10b) and 24(2) Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ I - INTRODUCTION [ 1 ] Madam Evelyn Tanoush, a person of Cree ancestry, submits a demand under the Canadian Charter Rights and Freedoms alleging that her rights to silence and to a lawyer were violated, when detained and arrested on December 14, 2009, a few minutes passed five o'clock in the morning. [ 2 ] More specifically, she submits that she did not understand the information given to her in French, considering she understands English.

II - ISSUE TO RESOLVE [ 3 ] Does the evidence tendered in a voir-dire convinces the Court that the constitutional rights of the applicant are violated, on December 14, 2009? [ 4 ] Does the applicant understand, on December 14, 2009, the information and demand given to her, in French and English? III - FACTS [ 5 ] Jonathan Godbout, police officer, is the officer patrolling on December 14, 2009. A call is received from dispatch advising them that there is some trouble at a local hotel. Him and his colleague arrive on site, a few minutes later.

People are drinking alcohol in the corridor, making noise, and disturbing peace. They send people in their rooms and expulse others. They also notice people drinking outside. When they arrive on site, it's a few minutes passed five in the morning. [ 6 ] He goes, with one of his colleague, to the parking area in the back of the hotel. They see a car being put in motion and in reverse. He goes to the passenger side of the car and the driver brings the window down. Immediately he smells and odour of alcohol. [ 7 ] He notices that the lady is a native person and identifies her with her permit.

He asks her to stop the motor. She does and comes out of the car. Her eyes are red, an odour of alcohol impregnates her breath and she stands correctly on the ground. [ 8 ] He asks her for her documents in French and she gives them to him. He notices that she is Anglophone and she utilizes some

French words. [ 9 ] His colleague Labrecque is with him. He gives her an order to blow in the screening device and utilizes English words. She tells him that she understands, it's not the first time. [ 10 ] The result is fail and she is arrested. In both French and English. His colleague Labrecque reads her, her rights in English with the card. His colleague, throughout the intervention, always addressed himself to madam Tanoush, in English. [ 11 ] She is transported to the police station and, ounce in the station, he gives her the standard form 049 to read.

It’s the form concerning her right to a lawyer and to silence. His colleague gives her the explanations in English and she signs the form. She advises him that she understands. She does not want to call a lawyer. [ 12 ] She is then brought to the Breathalyser room. She receives the explanations in French by the qualified technician and then, the information is translated in English by officer Labrecque.

Everything goes well and afterwards, officer Godbout fills in the « Level of consumption and physical condition » form , the English version. [ 13 ] Cross-examined, officer Godbout confirms that it is not the first time he proceeds to the interception or arrest of Anglophone persons in similar situations. It is not a problem. [ 14 ] He does not call his colleague Labrecque, who arrives on site on his own initiative. He does not remember the words in French that the accused utilizes during the interception.

He does not verify if the accuse knows how to read. [ 15 ] The second witness is officer Labrecque who confirms his arrival on site, on December 14, 2009. He assists officer Godbout, who tells him that the accused is Anglophone. Consequently, he provides all the explanations to the accused as to approved screening device. He explains the demand and how to blow. [ 16 ] She tells him she understands and that it is not the first time. When the result comes out and shows fail, he explains to her what is going to happen next.

More specifically, that she will be brought to the police station for the other tests and that she will have the possibility to contact a lawyer. All is done in English. [ 17 ] She tells him that she understands and follows. As for the standard form 049, he asks her if she understands and she answers positively and she does not want to contact a lawyer. [ 18 ] After the second test, he assisted officer Godbout in the filling of the « Level of consumption and physical condition » form. [ 19 ] Cross-examined, he states that with him, the accused speaks in English and he offers her to speak with a lawyer.

It is not in his report that he offered her to call a lawyer. [ 20 ] The certificate of qualified technician is filed in evidence. [ 21 ] Madam Tanoush, aged 27, confirms that on December 14, 2009, while she is seated in her car, hears a knock on the passenger side's window. The officer tells her to come out of the vehicle. [ 22 ] She knows a few words in French, but cannot hold a conversation in French. She denies saying to the officers that it is not the first time. [ 23 ] She confirms that the officers speak to her about contacting a lawyer. She is asked if she needs a lawyer, two or three times in a row.

She does not know what to do. Can she call or does she need the help of a lawyer, she does not understand. [ 24 ] She does not call a lawyer. She is annoyed with the two officers. [ 25 ] Cross-examined, she confirms that everything is translated. Form 049 is explained to her, yes. [ 26 ] Overall, on December 14, 2009, while at the police station, she does not know, following explanations, what to do. IV - ANALYSIS OF THE FACTS AND DECISION [ 27 ] The evidence tendered establishes that the accused knows, on December 14, 2009, the motives of the interception. She knows what is going on.

She understands the demand for the papers and documents. Furthermore, the Court is convinced that she tells to the officers present, that it is not the first time. [ 28 ] The Court is also convinced that the accused, even if she understands a bit of French, is not capable to follow a conversation in French and participate in it.

Nevertheless, officer Godbout succeeds in making himself understood and in order to avoid any confusion or misunderstanding, everything is translated in English. [ 29 ] Up to the point, where the accused arrives at the police station, the Court, from the evidence tendered, has no doubt as to the comprehension of the accused. When in the room where the telephone is located, the accused reads the standard form but more importantly, officer Labrecque gives her all the information in English and asks her two or three times if she wants the assistance of a lawyer.

She answers negatively. [ 30 ] Today, she states that she did not know what to do. Could she call or did she need the help of a lawyer. [ 31 ] The Court is convinced that objectively, on December 14, 2009, the information, explanations and demands of the police

officer are sufficiently clear to be understood by a person who is fluent in English. [ 32 ] Furthermore, the Court is not convinced by the evidence that madam Tanoush does not understand her right to contact a lawyer. The analysis of the evidence sends the Court in the opposite direction.

On December 14, 2009, Madam Tanoush understands her constitutional rights to contact a lawyer and to remain silent, but as it happens with a number of persons arrested, does not know what to do in the sense of what she should do, and is very annoyed with the situation and consequently the officers. [ 33 ] The analysis of the testimony of Madam Tanoush, namely her hesitations when questioned in relation with the signing of the standard form 049, establishes that, if confusion existed, it was not related to a language issue. [ 34 ] Indeed, the Court is convinced by the evidence tendered, that Madam Tanoush, like numerous persons arrested for impaired driving, was unsure of the best step to take, and finally decided not to call a lawyer. [ 35 ] FOR THESE MOTIVES, THE COURT : [ 36 ] DISMISSES the application. __________________________________ DANIEL BÉDARD, J.C.Q.

Me François Parent For the prosecutor Me Pascal Jolicoeur For the accused Date of hearing: July 18, 2012