R. v. Evans, 2019 QCCQ 2138

Leblanc c. R. 2019 QCCQ 2138 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF KAMOURASKA TOWN OF RIVIERE-DU-LOUP « Criminal division »

No: 250-01-030758-188 DATE: March 20, 2019 ______________________________________________________________________ BY THE HONOURABLE ANDREE ST-PIERRE, J.C.Q. ______________________________________________________________________ RAYMOND LEBLANC Petitioner - accused v HER MAJESTY THE QUEEN Respondent - prosecutor ______________________________________________________________________ JUDGMENT ON A MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ [ 1 ] The accused, who faces accusations for operating a motor vehicle while impaired and with a concentration of alcohol in his blood exceeding the legal limit, presents a motion to exclude the evidence, because his rights were infringed. [ 2 ] The accused contends he was never given his rights in English and the police officer did not take reasonable measures to ensure he understood why he was detained and the importance of exercising his rights to consult a lawyer.

He also argues that the renunciation to the right to talk to a lawyer must be explicit, unequivocal and when an accused is aware of the exact reasons for his detention.

SUMMARY OF THE FACTS [ 3 ] The accused was arrested on March 31, 2018, in Dégelis, as he was driving his car, not long after he left a bar. He failed the ADA test and then was given the order to provide a breath sample. He was brought to the police station, where he was read his right to contact a lawyer, which he did not do. Breath sample were taken at the police station. All the event took place in French. POINT OF CONTENTION [ 4 ] The question is: − Did the accused understand his right to contact a lawyer?

THE LAW [ 5 ] The Charter of Rights and Freedoms provides that everyone has the right, when arrested or detained, to retain and instruct counsel without delay and to be informed of that right. [ 6 ] In R. v. Evans [1] , the Supreme Court wrote : When considering whether there has been a breach of s. 10(

a) of the Charter , it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b) . […] The purpose of s. 10(

b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties set out above). But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding.

[ 7 ] All the cases submitted by the lawyers show that each case has to be decided on its own merit. Those cases also teach us that when there are special circumstances to reasonably alert the officers on the accused comprehension, they have to take reasonable steps to ascertain that the constitutional rights are understood. The Courts apply R. v. Bartle [2] , where the Supreme Court wrote: Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(

b) caution, such as language difficulties or a knows or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(

b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible. [ 8 ] Judge Lacourciere from the Supreme Court of Ontario wrote in R. v. Vanstaceghem [3] : The crucial question, which was a question of law, was whether the accused had been advised of his rights pursuant to s. 10(

b) of the Charter in a meaningful and comprehensible manner. [ 9 ] In that case, the accused, who is a Francophone, was arrested and spoke with the police officer in English. He told him he did not understand the breathalyzer demand and the officer gave him the card so he could read it in French. The accused said at the trial he did not hear the word “lawyer” and did not understand his right to instruct counsel. The Supreme Court of Ontario decided that the circumstances were unusual, the officer being aware of the fact the accused was French and did not understand the breathalyzer demand. [ 10 ] In R. v.

Lukaveck [4] , the accused is Yugoslavian. He said he understood when he was given his rights but he testified he did not. The Court decided there were special circumstances, the accused spoke with a heavy accent and he did not answer when asked if he wished to speak to a lawyer. [ 11 ] In. R. c. Ly [5] , the accused told the breathalyzer technician he understood English “a little bit”. The Court states there was special circumstances considering that the officer had to speak slowly to the accused in order for him to understand what he was saying.

The Court decided the accused should have been asked whether he wanted to have an interpreter. [ 12 ] In R. v. Arezes [6] , Justice I.W. André, from the Ontario Superior Court of Justice, decided the police officer should have taken additional steps to ensure the accused understood his rights considering the accused spoke English with an accent, the police officer changed the phrasing of the right to free advice from a legal aid lawyer to be certain he understood and he answered yes to everything. [ 13 ] In R. v.

Silva [7] , the police officers were aware of a difficulty with comprehension of the breath demand and the accused was directed to a posted Portuguese translation. Justice G.S. Gage decided that fact among other things should have prompted an offer of translation assistance. [ 14 ] In R. v. Foster [8] , Judge Minnie did not conclude the accused rights were infringed because he spoke with the police officer in English about his business, his medication, time he spent in New Brunswick. He answered he did not want to speak to a lawyer when informed of his right but he asked for one later.

WHO IS THE ACCUSED? [ 15 ] He was born in New Brunswick and lived there until he turned 9. He then moved to Boston Massachusetts with his mother and his step-father. In United States, they spoke English at home. He came back to New Brunswick when he was 15 years old. [ 16 ] When he got back, he went to French school for 3 – 4 weeks. Since he could not understand, he transferred to Rexton until grade 10, where the classes were in English. [ 17 ] Later, he went to New Brunswick Community College in Bathurst. There, the books were in English and the classes in French.

He stayed there 6 months, he quit because he had too much trouble, specially with physics, and people laughed at him when he did not understand the word « caoutchouc ». [ 18 ] The accused says his native tongue is French and if it is « Shiac » or Acadian, he understands. He also says that if people speaks slowly, he understands French. He states his main language is English. [ 19 ] The accused children and their mother are French and his children were raised in French. He lost touch with his children from age 7 to age 16. [ 20 ] His girlfriend is French so are her children.

They speak French but they end up speaking English because they misunderstand each other. When he goes at his mother’s, the accused says she speaks French. [ 21 ] As to what happened on March 31 st 2018, the accused says he didn’t understand much, he knew basically what was going on. [ 22 ] He himself says he told the police officer, when he asked about his language, that it is French but he is much better in English. [ 23 ] He says everything the police officer told him sounded the same.

ANALYSIS [ 24 ] Language barrier might lead an accused to misunderstand what goes on but here the accused understood everything: he answered questions correctly, he acted as he was asked by the police officers. For example, he threw his chewing gum when they asked him, he blew correctly when he was explained the consequences of a refusal. Doing so he showed the police officers he understood French. [ 25 ] Furthermore, his girlfriend also talked to the police officer in French. [ 26 ] When the police officer talked to him about the consumption scenario, the accused filled the sheet and answered the questions

by himself without any mistake and without the help of the police officer. [ 27 ] His lawyer says the answers show he did not understand the questions. In fact, the Court realises question 6 can be understood as to why he had drinks not why he remembers how many he had. The question is simply « why ». It is not a question of language and any French person could understand the question the same way the accused did. [ 28 ] The police officers had to be certain the accused understood why he was arrested, he had the right to call a lawyer and he had the right to remain silent.

The accused does not recall he said he understood his right to contact a lawyer but he does not say he did not. [ 29 ] No one says they had difficulties to understand the accused, he used some English words when he talked but they could understand each other. [ 30 ] When he talked to police officers the accused talked in French. He had an accent but having an accent doesn’t mean you don’t understand the language.

There was no clue the accused did not understand. [ 31 ] The Court accepts the police officer’s testimonies as to the fact the accused didn’t ask for any English speaking lawyer or to be talked to in English. [ 32 ] The police officer asked the accused if he understood and he answered « oui ». He said : « oui c’est fine, oui c’est bon, oui c’est fine, oui c’est bon. » [ 33 ] The accused texted his girlfriend in French. He tells her he doesn’t understand what is going on but his first words are in French. His girlfriend answers in English. The last text is at 4:48 and he says he does not know what is going on.

Mrs. Pelletier says she took a screenshot of her cell phone in New Brunswick so the time showed is New Brunswick time. That means the accused texted her at 3:48 asking if he was impaired. In fact, the police officer gave him his papers after that, at 3:54.

That’s when he knew for sure his alcohol level. [ 34 ] He now says he didn’t want to be a no sense to the police officers but everyone was polite no none was rude with him so nothing supports the fact that police officers would have been mean or rude with him had he asked questions. [ 35 ] He understood his right to talk to a lawyer because he says, in Court: « I thought I would call one when I get home. » If he wanted to call one right there, he should have said so even if it was one in New Brunswick. [ 36 ] The accused’s girlfriend, Cindy Pelletier is not of any help to him in her testimony.

She insists a lot on the fact that French people from New Brunswick do not understand each other from a community to another. [ 37 ] The fact is, they certainly have their own accent, their own expressions, they use a lot of English words but still, they speak French. The accused himself says he speaks French. [ 38 ] As for the accused, she states he will answer truthfully to a question if it can be answered by no or yes.

The question « Est-ce que vous comprenez? » is that kind of question and he answered « oui » the three times that question was asked. [ 39 ] The accused, who had the burden to prove his rights were infringed failed to do so. [ 40 ] The Court is convinced the accused understood his rights and waved his right to talk to a lawyer. FOR THESE REASONS, THE COURT [ 41 ] DISMISSES the motion to exclude the evidence. __________________________________ ANDREE ST-PIERRE, J.C.Q . Me Isabelle Gavioli Counsel for the prosecutor Me Francis Paradis Counsel for the accused Date of hearing: February 21, 2019