R. v. Nassif, 2023 NLSC 161

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Nassif , 2023 NLSC 161 Date : December 14, 2023 Docket : 202101G5406 HIS Majesty The KING v. Amgad Nassif Before: Justice Stacy Ryan Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: October 31-November 4, 2022; May 8-11, 2023

Summary: The Applicant made an Application seeking a declaration that his rights pursuant to sections 7, 8, 9, 10 and 14 of the Charter were infringed. The Court found a breach of sections 8, 9, 10(a), 10(

b) and 14 of the Charter . The Court excluded evidence pursuant to section 24(2) of the Charter . Appearances: Deidre D. Badcock Appearing on behalf of the Crown Andrea K. Vizsolyi Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Genest, [1985] 1 S.C.R. 59; R. v. Cornell,2010 SCC 31; R. v. Tran, (SCC), [1994] 2 S.C.R. 951; R. v. Backhouse (2005), (ON CA), 194 C.C.C.(3d) 1, [2005] 127 C.R.R. (2d) 1 (Ont. C.A.); R. v. Butters, 2014 ONCJ 228; R. v. Craig, 2016 BCCA 154; R. v. Vu, 2013 SCC 60; R. v.Grant, 2009 SCC 32; R. v. Nguyen, 2008 ONCA 49; R. v. Price, 2020 NLSC 124; R. v. Bartle, (SCC), [1994] 3 S.C.R.173; R. v. Vanstaceghem (1987), (ON CA), 36 C.C.C. (3d) 142, 1987 CarswellOnt 100 (C.A.); R. v. Taylor, 2014SCC 50; R. v. Baca, 2009 ONCJ 194; R. v.

Arezes, 2018 ONSC 6967; R. v. Sinclair, 2011 SCC 40; R. v. Dussault, 2022 SCC 16; R. v.McColman, 2023 SCC 8; R. v. Lafrance, 2022 SCC 32; R. v. Lambert, 2018 NLCA 39; R. v. Oickle, 2000 SCC 38 STATUTES CONSIDERED: Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the CanadaAct 1982 (U.K.), 1982, c. 11; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Ryan J.: INTRODUCTION [1] The Applicant, Amgad Nassif, is charged under an indictment filed September 29, 2021, and the charges are described in theindictment as follows: Count 1 THAT between the 5th day of July, 2018 and the 17th day of July, 2019 at or near St. John’s, in the Province of Newfoundland &Labrador, did unlawfully have in his possession child pornography, contrary to

Section 163.1(4) of the Criminal Code. Count 2 THAT between the 5th day of July, 2018 and the 17th day of July, 2019 at or near St. John’s, in the Province of Newfoundland &Labrador, did unlawfully access child pornography, contrary to

Section 163.1(4.1) of the Criminal Code. [2] The Applicant has elected to be tried by a Judge Alone. [3] This decision deals with a pre-trial Charter Application in which the Applicant alleges a breach of his rights under the Charterof Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the“Charter”). [4] He specifically claims a breach of the following rights: • That the Applicant’s

section 8 right was infringed when the police executed a search warrant in an unreasonable manner; • That the Applicant’s

section 8 right was infringed when the police failed to file a Report to Justice and failed to renew a DetentionOrder after its expiry in October 2019; • That the Applicant’s

section 7 and 10(

b) rights were infringed when the police failed to ensure proper translation of the warrant orthe statement; • That the Applicant’s

section 9 and 10(

a) rights were infringed when the police (

a) physically detained him for one hour with nosufficient explanation as to why; and (

b) psychologically detained him during and after this physical detention; and, • That the Applicant’s

section 14 rights were infringed when the Provincial Court failed to provide any interpreter during theApplicant’s February 13, 2020 court appearance. [5] The Applicant is requesting exclusion of any evidence gathered as a result of the breaches pursuant to section 24(2) of theCharter.

[ 6 ] A voir dire was held October 31- November 4, 2022, and May 8-11, 2023. EVIDENCE PRESENTED AT THE VOIR DIRE [ 7 ] An Agreed Statement of Fact was presented at the voir dire and can be found attached as

Schedule “A”. [ 8 ] The Crown called several witnesses, the first being retired Cpl. Ann Noel, Sgt. Chad Norman, Cst. Terry Follett, Cst. Adam Brake, and Sgt. Daniel Morrissey. [ 9 ] The Applicant provided evidence, as did his wife, Waeed Wehbi. Evidence of retired Cpl. Ann Noel [ 10 ] Retired Cpl. Ann Noel testified that: − She retired January 3, 2022 after a 33 year career with the Royal Canadian Mounted Police (RCMP); − In July of 2019 she was stationed in Gander with the Internet Child Exploitation (the “ICE”) unit; − She traveled to St.

John’s on July 17, 2019, to prepare for this search which was to be carried out on July 18, 2019; − She was assigned the role of exhibit officer. She was to take photos and diagrams during the search; − The search was initiated at 8:16 a.m., her position was at the rear of the home, she stood outside when entry was gained to ensure nobody left.

She went in at 8:20 a.m.; − When she entered the home, it had already been cleared and there were four people in the living room; − She did not unholster her firearm nor did she witness any other officer draw their firearm; − She took photos of the search area and made diagrams, she assigned rooms for each officer to search, if the officers found evidence, she would note it and bring it to the technology team who was outside in a van; − The only people in the home besides the search team were the Applicant, his wife and two sons; they were first gathered in the living room.

When the Applicant had to go to work, he went to the bedroom to get changed and he was accompanied by Cst. Follett; − At approximately 8:45 a.m. there was a discussion with Sgt. Norman about whether they should wait to search until they could secure a translator; she was directed not to search until one was found; − At 9:20 a.m. she was advised the search could begin; − At no time were the residents of the home placed in restraints; and − Several items were seized, the search concluded at 11:40 a.m. Cross-examination of Cpl. Ann Noel [ 11 ] On cross-examination, Cpl.

Noel testified that: − She didn’t enter until after the other officers entered the home;

− She did not see the officers going upstairs; − She did not see any officer with their firearm drawn; − She was not involved in explaining the warrant to the family; − She took photos prior to the warrant being explained to the family, she had legal authorization to enter the home and photos were a part of that process; − After she took the photos, she was advised the search was not able to proceed so she was unable to assign rooms, however she had already assigned three rooms and told the officers not to go in; − She was not involved with the interpreter; − She was not aware of the language they spoke although she did see their Syrian passports; − She had opportunity to observe the family, she said the children did not appear frightened, and she is not aware whether anyone asked the children were they frightened; − She had no specific training in language issues, she is aware of different languages in the province as she worked in Labrador and there were several languages spoken in that part of the province; − The RCMP provides no training on how to deal with language issues when they arise but she is aware of the need to ensure someone understands what is happening; − She has received no training on refugees from war torn countries; − She was not aware of the immigration status of this family, she did not know they were refugees; and − She is not personally aware of the situation in Syria.

Evidence of Sgt. Chad Norman [ 12 ] Sgt. Chad Norman testified that: − He has been a member of the RCMP for almost 27 years; − He was a member of the ICE unit and had been a member of this unit for approximately 7 years; − His role in the search was that of team leader or supervisor of the search; − He was wearing civilian clothes, but had a bullet proof vest on with police marked on the front of the vest; − He did have a firearm;

− He arrived at 8:16 a.m., he went to the left of the home, he was one of the last to enter and entered when Cpl. Noel advised him he could; − His firearm was in holster prior to entry, he did not unholster it; − He did not observe any other officer with their firearm unholstered; − When he entered the home, Cst.

Mackey was there with 4 family members; − He is not aware when or how the family were placed in the living room; − He outlined the plan to execute the warrant, when they first enter the home, they need to clear and secure the rooms to ensure officer safety and prevent destruction of evidence; − When inside the house Cst. Mackey was speaking with the family, mostly to Ms.

Wehbi, and the conversation was in English; − They knew there may be a language barrier prior to the search but he did not know the primary language of the occupants and they did not know who, in the home, was responsible for the acts alleged; − The RNC do not have interpreter services on staff; − Depending on the language spoken, RNC uses the Association of New Canadians (the “ANC”) to provide services.

Upon identifying the primary language of the occupants, they would attempt to find a local interpreter; − They did not bring an interpreter with them for safety reasons, that person would not be trained and it would be another person the police would have to protect; − They did not want to call the ANC prior to the search in the event the family would be alerted; − He could tell Ms.

Wehbi needed assistance; − There were two children there; a young boy, aged 6 or 7, and a boy in his early teens, it was apparent the teenage boy had a better command of the English language; − They were trying to satisfy the requirements of the Charter and spoke to Ms. Wehbi about an interpreter; − He called the ANC and spoke to someone about getting an interpreter; − They were advised the family was from Syria;

− He received a call back and there was no interpreter available, they were advised to call again in ten minutes; − They did not make any other attempts to get an interpreter from elsewhere.

With the house becoming secure, they preferred an in person interpreter; − The process of finding an interpreter was taking longer than anticipated so he reached out to telecoms to see if they could identify someone; − His main concern was explaining right to counsel, police caution and the search warrant; − At that point there was no specific suspect, but in his experience anybody within the household could have knowledge of various pieces of evidence, and more often than not, the males were likely responsible.

In the house there was a teenage boy and an adult male; − They are also aware internet services could be shared and felt it could be someone who does not live in the home that accessed internet while they attended at the house; − The occupants of the home were not placed in handcuffs; − He was aware Cst. Mackey was attempting to provide rights to counsel in English; − Cst. Mackey was explaining to the teenage boy and he was interpreting for the family; − He received a call back from ANC who advised they were unable to find anyone in person; Raya with the ANC attempted to explain over the phone; − Cst.

Mackey called her at approximately 9:26 a.m. put her on speaker phone and right to counsel and police caution were explained in Arabic; − They were in the home approximately one hour and 10 minutes before they secured an interpreter over the phone; − During that time, there was no evidence conscripted that he is aware of; − He did hear parts of their discussion; − The interpreter was on the phone, reviewing the search warrant, from 9:26 a.m. -9:56 a.m.; − No lawyer was called in his presence; − The search was conducted. Upon rights and caution being given, Cst.

Mackey asked about the passwords for the devices seized; − He was not present when the passwords were given;

− During their time in the house the boy went outside to play basketball and the Applicant went to work; and − The whole family seemed pleasant, and there was no expression of fear. Cross-examination of Sgt. Chad Norman [ 13 ] On cross-examination, Sgt. Chad Norman testified that: − The occupants were told they were free to leave; Mr.

Nassif chose to go to work at 10:13 a.m.; − Police left the house at 11:46 a.m.; − He has no training with the use of interpreters, his organization does have their cultural sensitivity training; − There is no training provided for dealing with people from war torn countries; − He did not ask the family about their immigration status; − He has no knowledge of the situation in Syria and what the presence of police might mean; − He preferred to wait to search until the family understood what was happening; − He said with a search warrant he wanted to give the family the opportunity to understand but at the same time they were occupying their home, they did not wish to impact them any longer than necessary.

There comes a point when a decision has to be made as their knowledge/understanding of the warrant does not affect the right to search.

They were not obligated to wait but preferred this route; − He knows from speaking with translators that some languages have different dialects; − He does not recall telling ANC the family was from Syria; − He did not ask Raya for qualifications; she said she spoke the language and could interpret; − He did not ask where she came from; − He does not know of any training the ANC provides to interpreters; − He does not recall if the family was advised they were detained but acknowledges his notes reflected that he heard the family being advised that because the family was detained, they could speak to a lawyer; − He had concerns about the occupant’s level of comprehension; the teenaged boy seemed to understand most of the conversation, followed by Ms.

Wehbi; and

− Not executing the search warrant was never a consideration unless they had reason to believe there was no evidence there. They were judicially authorized to search. Evidence of Cst. Terry Follett [ 14 ] Cst. Terry Follett testified that: − Cst. Follett has been a member of the Royal Newfoundland Constabulary (RNC) since 2006.

He is with the Computer Forensic Unit and works with ICE; − He was part of the search party conducted by the Police in July 2019; − He also reviewed evidence prior to the warrant being sought; − During the search he was wearing civilian clothes which consisted of jeans, sweatshirt, equipment, sidearm, police vest, handcuffs. He did not have a regular duty belt on; − He was to search the rooms after entry into the home, after the residents of the house were secured; − The first person he saw was an adult woman who presented herself at the door.

He identified himself as a police officer, informed they had a search warrant and were permitted inside the home; − Once inside, he began searching the main floor, there were occupants upstairs; − His firearm was unholstered and he had it held with both hands, pointed toward the floor at a 45-degree angle; − He did not point his firearm at any of the occupants; and − When asked why he had drawn his gun, he said he was trained to do that. He encountered two child occupants while his gun was out. Evidence of Cst. Adam Brake [ 15 ] Cst.

Adam Brake testified that: - He had been assigned to the Drug Unit since 2020; - He was involved in the execution of the search warrant on July 18, 2019, he was still a part of the Drug Squad at that time. He became involved in the search as prior to that time he worked with a combined unit, Drug & ICE, he was used to assist; - He was tasked to provide cover to the rear of the house. He remained on the back side in the event someone came or went. He remained in that position until the residence was secured; - Upon entering the home, he assisted with locating all persons inside and securing the house.

The purpose of locating all occupants was for safety reasons; - He was probably one of the last officers to enter, he stayed in the back until everything was secured, and once the house was secured, he went in; - He was wearing civilian clothing with his police vest and a CID holster. His firearm was holstered and he did not take it out. He did not draw his firearm as he felt there was no perceived threat, he had no reason to remove it and once inside the residence was already secured and cleared; - He has executed search warrants in the past where his firearm was drawn.

He was part of a tactical team and they execute high risk warrants. During those searches, it is not uncommon to have firearms drawn; - There are considerations when drawing a firearm: perceived threat, experience of officers (what he may perceive as threatening, others may not), going into someone’s home, during initial stages it is common to have firearm drawn but pointed at floor or downward

due to unfamiliar layout of home and unfamiliar people; and - On cross-examination, Cst. Brake said it was possible if he were one of the first to enter the home, he may have unholstered his firearm; it would be pointed toward the floor. Evidence of Sgt. Daniel Morrissey [ 16 ] Sgt. Daniel Morrissey testified that: - He worked with the RNC in Churchill Falls for approximately 10 years; - He assisted in the execution of the search warrant on July 18, 2019. He was seconded by the RCMP and assigned to the National Sex Offender Registry; - He was not involved with the investigation.

His role was to assist in searching, he would be assigned a place to search, when complete, he would wait for another area to search; - He and Cst. Brake were tasked with clearing the main floor and the basement. His firearm was holstered and he did not unholster it; and - The search was completed at 11:10 a.m. ISSUES [ 17 ] The issues are as follows: i. Was the Applicant’s right to be free from unreasonable search and seizure pursuant to

section 8 of the Charter breached? There are four sub-issues arising from this: i. Did the police execute the search in an unreasonable manner by drawing a firearm while searching the upstairs area of the home? ii. Did the police breach section 29(1) of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”) thereby rendering the lawful search unreasonable? iii. Did the police fail to file a Report to Justice as required by

section 490 of the Code ? iv. Did the police fail to renew a Detention Order pursuant to

section 490 of the Code ? If so, does this render an otherwise valid search and seizure unlawful? v. Did the failure of the police to bring an interpreter to the home when executing the search warrant render the search unlawful? ii. Was the Applicant’s right to be free from arbitrary detention pursuant to

section 9 of the Charter breached? iii. Was the Applicant’s right to be informed promptly of the reason for detention pursuant to

section 10(

a) of the Charter breached? iv. Was the Applicant’s right to retain and instruct counsel without delay and to be informed of that right pursuant to

section 7 & 10(

b) of the Charter breached? v. Was the Applicant’s right to the assistance of an interpreter pursuant to

section 14 of the Charter breached? vi. If the answer to any of the above questions is affirmative, what is the appropriate remedy? vii. Was the statement wherein the Applicant provided the password to his cell phone a voluntary statement? CANADIAN CHARTER OF RIGHTS AND FREEDOMs [ 18 ]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [ 19 ] The Applicant claims the police breached his

section 8 Charter right in a number of ways: i. The police executed the search warrant in an unreasonable manner; specifically, that the drawing of a gun by one police officer resulted in an unreasonable search; ii. The police executed the search warrant in an unreasonable manner by failing to have an interpreter present; iii. The police breached section 29(1) of the Code by failing to arrange for an interpreter to explain the search warrant; iv. The police failed to file a Report to Justice as required under

section 489.1 of the Code ; and v. The police failed to apply, pursuant to

section 490 of the Code , for a further Detention Order.

Facts Surrounding the Execution of the Search Warrant [ 20 ] There was no hard entry into the home. The police arrived at the house, knocked on the door, and were permitted inside by the Applicant’s wife. [ 21 ] Once inside, the first task for the police was to secure the home by relocating people to a central area which was in the living room. [ 22 ] All officers, with the exception of Cst. Follett, testified they did not draw their firearms as they did not perceive any threat. [ 23 ] Cst. Follett was one of the officers responsible for securing the home. Cst.

Follett participated in the planning session for execution of the warrant. There was no plan for firearms to be drawn. [ 24 ] Upon arrival at the home to execute the warrant and upon being inside, he was called to the upstairs area of the home. There were two children and an adult male upstairs. He requested assistance once he attended the upstairs. He drew his firearm as he was going up the stairs; he held his firearm in two hands with his arms out and pointed at the floor at a 45-degree angle. [ 25 ] He testified he drew his firearm as he was trained to do.

He encountered occupants of the home while his firearm was drawn. He saw two children and an adult male. [ 26 ] When he saw the children, he asked them to come downstairs. They complied with no issue. He woke the adult male, asked him to come downstairs and he also complied. [ 27 ] He said his gun was still drawn and pointed at the floor when dealing with the occupants. He said he did not point his firearm at anyone. When the rooms were secured he holstered his firearm. [ 28 ] Cst. Follett said he did not recall if he told the children to put their hands up.

He also did not recall if the light was on in their bedroom. When asked if his firearm was visible, he said he had it out of the holster, but he was not able to say whether anyone saw it. [ 29 ] Cst. Mackey testified she prepared the operational plan and a decision was made that officers would be required to have their firearms and OC/pepper spray.

She testified that even though they could prepare for the search by performing computer checks, and by surveilling the home, it was impossible to know what the situation would be upon arrival in the home. [ 30 ] A large number of officers were present to execute the search. Cst. Mackey said she felt they needed a significant number of officers for safety and efficiency reasons. In respect of safety, Cst. Mackey testified she did not know what they would find when they entered the home. In respect of efficiency, Cst.

Mackey testified a number of the officers were ICE trained and could assist in performing the search efficiently. [ 31 ] Cst. Mackey testified that they were aware there were two adults and two children living in the home. [ 32 ] Cst. Mackey testified she was called upstairs to assist Cst. Follett when he called out “there are more up here, I need someone” or something along those lines. She did not draw her firearm and she did not recall seeing any other officer with their firearm drawn. [ 33 ] Cst. Mackey went into the Applicant’s bedroom, he was in bed. She said he was startled when he woke.

She said she told him to get out of the room and he said “naked”. After hearing this, she asked Cst. Follett to switch rooms, she then went to the boys’ room. The boys got dressed and went downstairs. Cst. Follett went to the Applicant’s room. [ 34 ] Cst. Brake testified he did not draw his firearm; however, he was not the first officer in the home. By the time he entered the house it had already been secured.

He testified if he was one of the first officers to enter the home, it is quite possible he would have drawn his firearm, but it would be pointed towards the floor and would not leave that position. [ 35 ] Sgt. Morrissey testified he was one of the first officers to enter the home from the rear entrance. He did not draw his firearm as he did not perceive any threat. [ 36 ] The Applicant’s wife, Waeed Wehbi, testified she saw the officer with his firearm drawn at the bottom of the stairs.

She said the officer had the firearm held with two hands in front of him but could not remember which way it was pointing. [ 37 ] The Applicant testified that the officer pointed his firearm at his children. He initially testified that the officer told them “Don’t move” and the Applicant said, “if we moved he would fire at us”. When asked if the officer used those words, the Applicant said no. [ 38 ] The Applicant said he woke when he heard a loud sound and his children crying.

He said he thought harm was being done to his children. [ 39 ] The Applicant said he looked through the door on the right and he saw the police officer pointing the firearm at his children and they raised their hands. [ 40 ] He denied that Cst. Mackey went in his room and woke him. He said he saw Cst. Mackey put her hands on Cst. Follett’s firearm and push the angle in which he was holding it towards the floor, away from his children. [ 41 ] He said the officer with the firearm had it pointed at him, the officer then put the Applicant’s hands behind his back and dragged him down the stairs.

When asked if he was forced down the stairs, the Applicant said the officer waited until he had his clothes on then the officer placed the Applicant’s hands behind his back, and they went downstairs. [ 42 ] He doesn’t recall the officer holstering his firearm.

[43] He said there was only one officer in his room and that was the officer with the firearm. [44] On cross-examination, the Applicant testified his hands were not behind his back, rather to the side. He also testified the officertold him not to touch anything, however, when pressed, he said the officer didn’t use words just gestures. [45] The Applicant testified the officers were shouting, however, the audio recording does not confirm this. The Law [46] A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search isconducted is reasonable (R. v.

Collins, (SCC), [1987] 1 S.C.R. 265). [47] The Applicant relies on R. v. Genest, [1985] 1 S.C.R. 59 as support that drawing a firearm may result in a finding that a searchwarrant was executed in an unreasonable manner. In Genest, the number of police present for the search was approximately 15-20. Thepolice did not knock and announce; rather, they broke the door open with a battering ram. [48] In Genest, the police were required to provide evidence of fears that the accused was dangerous; they did not.

Fears for thesafety of the searchers and the possibility of violence are reasons for the use of force in the execution of a search warrant, but no attemptwas made by the police at trial to lay the factual foundation to support this approach (Genest at para. 54). [49] In R. v. Cornell, 2010 SCC 31, at paragraph 20, quoting R. v.

Cornell, 2009 ABCA 147, Cromwell J stated: I respectfully agree with Slatter J.A. when he said in the present case that "[s]ection 8 of the Charter does not require the police to puttheir lives or safety on the line if there is even a low risk of weapons being present” [50] The Applicant claims the drawing of a firearm by a police officer executing the search was an unreasonable use of force in thecircumstances. The Applicant further claims there was no suggestion the occupants of the home were prone to violence.

The Applicanthas no criminal record and the police knew there were children in the home. [51] The Crown claims the search warrant was executed in a reasonable manner, carried out to ensure preservation of evidence,safety of the officers and safety of the occupants of the home. [52] I find that the drawing of the gun in this case was not excessive force, even though no other officer drew their firearm. [53] The manner in which the police entered the premises is not in issue.

There was no force used to enter the home, the officersperformed a “knock and announce” and were permitted entry. [54] After consideration of all the testimony on this issue, I accept Cst. Follett’s evidence that when he was called upstairs, he didnot know how many people he would encounter. I also accept his evidence that he did not point his firearm at anybody, rather, hepointed it toward the floor. [55] I accept the evidence of Cst. Mackey when she said she did not see Cst.

Follett’s firearm drawn but it was possible that he couldhave drawn the firearm and she did not see it. [56] I find the Applicant’s recall was impacted by being startled and awoken by the police presence. [57] A number of inconsistencies arose in his testimony as a result. He said Cst. Mackey was not in his room however, Cst. Mackeytestified she was in his room when he awoke and he said “naked”. This is a very specific word and when Cst. Mackey was questioned asto whether or not she was sure, she was confident he said that word. The police stated they had to wake the Applicant.

The Applicantsaid he was awake and saw the police point the firearm at the children. The Applicant also stated the officers were yelling but there is arecording of the search and that does not appear to be substantiated. [58] There is nothing in the evidence to suggest the officers acted in an aggressive manner towards the Applicant. He was nothandcuffed, he was permitted to dress and he was relocated to the living room along with everyone else. [59] I accept the Applicant (and his family) were fearful, however, I find the search was carried out in a reasonable manner and isnot in breach of the Applicant’s

section 8 Charter right to be free from unreasonable search and seizure. Does a failure to have an interpreter explain the warrant to the occupants of the home breach section 29(1) of the Code, therebybreaching

section 8 of the Charter? [60] Section 29(1) of the Code states: 29(1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce itwhen requested to do so. [61] The Applicant’s position is that while the police had the warrant with them, they failed to organize an interpreter to attend thehome to interpret the warrant. [62] This, according to the Applicant, failed to afford the Applicant protection as intended by section 29(1). [63] The Crown did not address this aspect of the search in their brief but did address the failure to have an interpreter present whichI will address below. [64] The purpose of section 29(1) is stated in R. v.

Cornell at paragraph 43:

… to allow the occupant of the premises to be searched to know why the search is being carried out, to allow assessment of his or herlegal position and to know as well that there is a colour of authority for the search, making forcible resistance improper. [65] There is no evidence that a request was made to the police to present the warrant. While there were indeed language issues, thepolice did attempt to explain the warrant and after some time, did secure an interpreter.

Once the interpreter was secured, the police didexplain the warrant, however, there was no failure to produce it upon request. [66] It is not incumbent on the police to bring an interpreter with them to the search. The police, prior to the search were not awarethat language was going to present as a barrier to communication. They thought it may present a problem but there was no way ofknowing that an interpreter would be required until they entered the home and attempted to communicate with the occupants.

Even ifthey were aware language was going to be a barrier, they did not know which language was spoken by the family. Finally, as Cst.Mackey testified, even if they could secure an interpreter prior to entering the home, the interpreter would not be permitted to enter priorto the home being cleared due to safety concerns. [67] The Applicant has not established, on a balance of probabilities that the police failed to comply with the requirements undersection 29(1), thereby breaching his right to be free from unreasonable search and seizure.

Does the failure by the police to organize an interpreter prior to the execution of the search warrant contribute to theunreasonableness of the search? [68] The Applicant claims the failure to take reasonable steps to organize an interpreter prior to execution of the search warrantbreached the Applicant’s right under

section 8 and contributed to the unreasonableness of the search. [69] The Applicant claims the police were in touch with Newfoundland and Labrador Housing and canvassed all members of thehousehold with that organization, however, the police did not ascertain where the Applicant was from or which language he spoke, nordid they ask his immigration status. The police were aware there may be a need for an interpreter but took no steps to organize one. [70] The Applicant relies on R v. Tran, (SCC), [1994] 2 S.C.R. 951 as support for this position.

The Applicantsuggests that while the execution of the search warrant is not a direct court proceeding, it is still a part of the process whereby theaccused’s

section 7 interests are engaged. [71] The Applicant further relies on a statement from Tran at page 975 to state that: The very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend andcommunicate in the language in which the proceedings are taking place. [72] The Applicant claims this should extend to police interactions with accused persons, particularly where police are aware oflanguage barriers in advance. [73] It is not incumbent on the police to bring an interpreter with them to execute a search warrant, nor is it incumbent on the policeto secure an interpreter prior to executing the warrant. [74] The police indicated they did not bring an interpreter with them as firstly, they were not certain one was needed, secondly, theydid not want to alert the family that a search of their home was imminent, and they did not want to bring an untrained person to the homewith them for safety reasons. [75] This is not an unreasonable position. [76] As stated in Tran at page 961: At the outset, I would like to make it very clear that the discussion of s. 14 of the Charter which follows relates specifically to the rightof an accused in criminal proceedings, and must not be taken as necessarily having any broader application.

In other words, I leave openfor future consideration the possibility that different rules may have to be developed and applied to other situations which properly ariseunder s. 14 of the Charter -- for instance, where the proceedings in question are civil or administrative in nature. [77] Execution of a search warrant is not a court proceeding as envisioned by

section 14 of the Charter. Interactions with the policewhen English is not the first language of an accused person are protected by other provisions of the Charter, namely

section 10. Did the attempt to have the Applicant’s child interpret the warrant make the search unreasonable? [78] The Applicant claims it is inappropriate and traumatizing to attempt to use the Applicant’s 12-year-old son to interpret. I agreeit is inappropriate. [79] The Crown submits the officers on scene recognized this was not ideal, stopped their search and took time to procure andsecure an interpreter to ensure that the Applicant fully understood the warrant. [80] I do not agree it contributes to making a search unreasonable.

It is clear the police were at a loss as to how to proceed whilewaiting for the interpreter and it is also clear they were attempting to use the child to explain to his parents what was happening. This isnot an ideal situation but does not contribute to making the execution of a search warrant unreasonable. Did the police breach the Applicant’s right under

section 8 of the Charter by failing to file a Report to Justice? [81] The Applicant is alleging a breach of

section 8 of the Charter by the police for failing to file a Report to Justice in accordancewith

section 489.1(1)(

b) of the Code.

[82] It is not necessary to outline the provisions of this

section of the Code as the Crown has filed a Report to Justice in the requiredform dated July 24, 2019, and the corresponding Detention Order authorizing the RNC to detain the items listed in the Report to Justicefor a period of three months from the date of seizure. [83] Consequently, the Applicant’s argument that the police failed to file a Report to Justice thereby breaching his right undersection 8 of the Charter must fail. Did the police breach the Applicant’s right under

section 8 of the Charter by allowing the Detention Order to expire? Facts surrounding the expiry of the Detention Order [84] It is not in dispute the Detention Order expired on October 24, 2019, and no further application was made to the court, nor wereproceedings instituted until the charges were laid on February 13, 2020. [85] Cst. Mackey testified that she did not apply for a renewal order. She testified it was an error on her part when she missed thedeadline. Upon realizing this she took steps to determine how to proceed.

She consulted with two lawyers and a supervisor. [86] She testified that she retained possession of the devices because the Applicant was being investigated with respect to a seriouscharge. Cst. Mackey also stated she was manipulating a copy of the electronic evidence, not an original. Cst. Mackey would not returnthe device in any event as it contained what she believed to be child pornography.

There was no guarantee the device could be erasedcompletely, and she could be seen as distributing child pornography if she returned the device without knowing whether or not thevideos/images were erased. [87] The Applicant’s position is that failure to renew the Detention Order is a lack of good faith on the part of the police. Cst.Mackey was aware the Order had expired and did not take steps to rectify the situation. [88] The Crown position is that the Detention Order expired but when this occurred, the police had already copied the files from thedevice and were manipulating the copy and not the original.

The Law [89]

Section 490.1(1) of the Code states: 490.

(2) Nothing shall be detained under the authority of paragraph (1)(

b) for a period of more than three months after the day of theseizure, or any longer period that ends when an application is made under paragraph (

a) is decided unless (

a) a justice, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thingdetained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period iswarranted and the justice so orders; or (

b) proceedings are instituted in which the thing detained may be required. [90]

Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anythingseized under

section 489.1, there is an obligation on the justice to supervise its detention. The

section also sets out an elaborate scheme tofacilitate the return of items seized to their lawful owners (R. v. Backhouse (2005), (ON CA), 194 C.C.C. (3d) 1,[2005] 127 C.R.R. (2d) 1 (Ont. C.A.) at para. 112). [91] There is conflicting law regarding whether or not a failure to file an application for authorization to continue to detain the thingsseized can constitute a breach of

section 8 of the Charter. [92] I agree with the line of reasoning that retention of the things seized is captured by

section 8 of the Charter, in particular the lineof reasoning from Pacciocco J in R. v. Butters, 2014 ONCJ 228 wherein he states at paragraph 55: In my view, decisions permitting Charter challenges to unreasonable retention of seized goods are in keeping with the language andpurpose of

section 8. If the continuation of a seizure is not lawful, the seizure becomes unreasonable contrary to

section 8 of the Charter. [93] Once goods or things are seized, the invasion of privacy rights does not end. The things seized will likely be examined orfurther searches conducted. For example, the contents of a computer or cell phone may be extracted; the things seized may beforensically tested for DNA, fingerprints, alcohol or drug content; the things seized may be copied; and financial documents may beaudited. The privacy rights of a person connected to the seized items may be significantly engaged after the search itself has concluded(R. v.

Craig, 2016 BCCA 154, at para. 180). [94] The Charter protects against unreasonable search or seizure. In my view, a seizure does not end with the picking up of things.The requirement for a Return to a Justice is the ongoing judicial supervision of things seized - both under a warrant, pursuant to awarrantless search, and pursuant to a common law search (Backhouse at para 105). This is the only public record of what was in factseized, whether the items were named in the warrant, whether they were seized as found in plain view, and what was seized outside of awarrant.

As noted, there can be a significant invasion of privacy after the picking up of the items—including DNA testing, forensictesting, copying and other examinations. Thus, the privacy interests are continuing (Craig, at para. 181). [95] The Detention Order expired on October 24, 2019. There was no application made to renew the Order nor was there a charge orcharges instituted.

Thus, there was a statutory reporting obligation and the police failed to comply with the requirements. [96] The items at issue here are various cell phones and electronic devices that were seized as a result of a search warrant issuedpursuant to

section 487 of the Code. There is a high privacy interest engaged in these items as they hold a high level of personal andprivate information.

[ 97 ] It is well settled that the search of cell phones , like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places” ( R. v. Vu , 2013 SCC 60 , at paras. 38 and 40-45 ). [ 98 ] The Crown claims the information taken from the seized phones had already been copied or extracted onto police hard drives by August 19, 2019, during the time the Detention Order was in effect. They submit by August 19, 2019, the police were working with a copy of the hard drives and not manipulating the original devices. [ 99 ] Cst.

Mackey testified the device would not have been returned in any event as she was of the opinion child pornography was on the device and there was no way to ensure, even with wiping of the device, that the images were not retained. [ 100 ] I am of the view that this is a factor to take into account under a section 24(2) analysis rather than whether or not there was a wrongful retention of items seized. [ 101 ] I find the police were required to file an application pursuant to section 490(2) of the Code , and they did not.

This constitutes an unlawful retention of items lawfully seized during the search. [ 102 ] The continued seizure of the items is unlawful and constitutes a breach of the Applicant’s right pursuant to

section 8 of the Charter . Was the Applicant arbitrarily detained? The facts surrounding the detention [ 103 ] The police entered the home with a search warrant. The Applicant has not challenged the validity of the warrant. The occupants of the home; the Applicant, his wife and two children, were placed in a common area where the police could see them so as to prevent possible destruction of evidence. They were not allowed to move about the home without an officer supervising them. [ 104 ] This detention continued until interpreter services were retained. Through an interpreter, Cst.

Mackey advised the family she was no longer detaining them and they could leave if they wished. It is clear the Applicant and his family were still physically detained as they were not free to move about the house without supervision. [ 105 ] Cst. Mackey said the movements of the occupants were controlled for safety reasons (to prevent possible grabbing of officer’s weapons), and for preservation of evidence (to prevent anyone from leaving the home with evidence). Cst.

Mackey also testified they were looking for small devices, so the Applicant’s movements were controlled to ensure he didn’t destroy devices (ensure preservation of evidence). [ 106 ] Cst. Mackey also testified the occupants were confined to one room until the warrant and right to counsel/police caution were reviewed. The Law [ 107 ]

Section 9 of the Charter states : 9. Everyone has the right not to be arbitrarily detained or imprisoned [ 108 ] This

section protects citizens by limiting the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification ( R. v. Grant , 2009 SCC 32 , at para. 20 ). [ 109 ] Detention under sections 9 and 10 of the Charter refers to the suspension of a person’s liberty interest by a significant physical or psychological restraint ( supra , at para. 44). [ 110 ]

Section 9 rights are intertwined with

section 10 rights ( supra , at para. 44). [ 111 ] The Applicant argues he was physically and psychologically detained arbitrarily and that he was not informed promptly of the reason for his detention (an issue I will analyze below). [ 112 ] The Crown claims that while the Applicant was detained in the home in the sense he was not free to roam the house without supervision, he was not detained in the traditional sense. He could leave when he wished, and he in fact did leave when he advised he had to work. [ 113 ] This may have been the case when the interpreter arrived on scene (via telephone).

However, prior to the interpreter arriving, the Applicant was told to go to the living area of the house and that he had to stay there. [ 114 ] I find the Applicant was detained, but was it arbitrary? [ 115 ] While the Applicant was detained for approximately one hour and 15 minutes, it was not arbitrary. The police entered the home with a valid search warrant.

One of the tasks upon entry was to secure the home and place the occupants in a common area so the search warrant could be carried out. [ 116 ] I accept the justification from the police that placing the occupants of the home in a central location under supervision allowed for control of their movements for safety reasons and to prevent possible destruction of evidence. [ 117 ] I find the Applicant has not established, on a balance of probabilities that his right pursuant to

section 9 of the Charter was infringed.

Were the Applicant’s rights under

Section 7, 10(a) & 10(

b) breached? [ 118 ]

Section 7 of the Charter states: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 119 ]

Section 10 of the Charter states: 10. Everyone has the right on arrest or detention: (

a) to be informed promptly of the reasons thereof; (

b) to retain and instruct counsel without delay and to be informed of that right; … [ 120 ]

Section 10 is engaged when there is an arrest or detention. [ 121 ]

Section 10(

a) ensures the individual knows why they are detained so they can decide whether to submit to the arrest or detention. Knowing the extent of their jeopardy allows for an informed choice on whether to exercise the right to counsel under

section 10(b).

Section 10(

b) ensures that a detained individual understands that they have a right to silence and can make a meaningful choice about whether and how to exercise that right ( R v. Nguyen, 2008 ONCA 49 , at para. 20 ). [ 122 ] The Applicant (and his family) were detained for approximately one hour and 15 minutes before being advised of the reason for the detention, and approximately one hour and 45 minutes before being advised of his right to counsel. [ 123 ] It was apparent, immediately upon entry, that there was a language barrier and an interpreter was necessary.

Upon recognizing this, the police immediately sought the services of an interpreter by contacting the Association of New Canadians. An interpreter did not become available until the police were in the home for approximately one hour and 15 minutes. After securing an interpreter via phone, Cst. Mackey proceeded to review the search warrant with the Applicant and his family. [ 124 ] While waiting for an interpreter, an attempt was made to explain to the family why the police were there by using their teenage son as an interpreter.

This is not appropriate and not acceptable. [ 125 ] I find the Applicant was not advised promptly of the reason for his detention. The Applicant has established a breach of

section 10(

a) of the Charter . Was the Applicant’s right under

section 10(

b) breached? [ 126 ] The answer to this question requires an examination of two encounters with the police, those being : (

a) at the home when executing the search warrant, and (

b) at the police detachment when interviewing the Applicant in February 2020. [ 127 ] As stated above, everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of the right.” At the home when executing the search warrant [ 128 ] The Applicant’s right to counsel was provided approximately one hour and 45 minutes after the police arrived at the residence to execute the search warrant. This is a breach of the Applicant’s

section 10(

b) right to be advised of the right to retain and instruct counsel without delay. [ 129 ] It is unclear whether or not the Applicant chose to exercise his right to counsel, however, it is clear the Applicant’s wife takes the primary role in attempting to communicate with the interpreter and the police. [ 130 ] In an excerpt of the transcript of the Applicant’s encounter with the police at his home, at no point does the interpreter indicate to the police that Mr. Nassif is declining the opportunity to contact a lawyer: 1495 Cst. Mackey: So I’ll read it to you and you can translate to them and ah okay it’s 9:56.

That just for my notes Raya I’m reading rights and counsel. Raya: OK Cst. Mackey: Ahm, you do not have to say anything unless you want to but whatever you do say may be given in evidence. Raya: Uh Huh (Arabic conversation) Cst. Mackey: OK and I need to know if they understand that? Raya: (Arabic conversation) Mrs. Nassif: OK Raya: (Arabic conversation) OK, yeah they did. Cst. Mackey: OK so yes and yes. OK and just ahm their right to speak with a lawyer is next. Ahm so they are not detained or arrested. They are free to go at anytime. OK

Raya: Yeah (Arabic conversation) Cst. Mackey: But they do have a right to retain and instruct a lawyer in private without delay. Ahm this means that they can call any lawyer that they want to ahm you have the right to 24 hour free legal aid service. From a legal aid lawyer and this advice is given in private and without charge and the lawyer can explain the legal aid plan to them, did you Raya: OK (Arabic conversation) OK, sorry she is asking about Cst. Mackey: Uh huh Raya: You mentioned the free legal aid advice that they can get is from the Legal Aid Commission? Cst. Mackey: Yes, it is. Raya: Oh, OK Cst.

Mackey: And I have a phone number here Raya: OK, (Arabic conversation) Cst. Mackey: Ok and I need to know if they understand that one as well. Raya: (Arabic conversation) Yeah Cst. Mackey: OK and I have the telephone number for the 24 hour free legal advice. Ahm I’ll leave them with this number as well, it’s 1- 800-563-9911 Raya: Uh huh (Arabic conversation) Mrs Nassif: Ok, Ok Cst. Mackey: OK. And then my next question there is do you want to call a lawyer? So that ahm Raya: Yeah Cst. Mackey: I would suggest that a translator is doing to have to be available for them to speak with a lawyer as well Raya: Sure Cst.

Mackey: So this might be something where Raya: Yeah Cst. Mackey: They’re not detained and not arrested that they might want to figure out through the association Raya: [unintelligible] right, yeah ahm ah [Arabic conversation] Sorry she is saying we heard but they are not sure and they don’t know what like she she’s a bit confused. So she said I don’t know whether we need to [unintelligible] or we are going to have a lawyer or not Cst.

Mackey: OK so there’s no charges right now so ahm unless they had questions about the search warrant, ahm a lawyer I mean I can’t give them advice to call a lawyer or to not call a lawyer Raya: Right, yeah Cst. Mackey: It’s totally their decision Raya: Yeah Cst. Mackey: They’re free to leave their their residence and and follow up with a lawyer if they wish to or if they want to right now we can try and get them to speak with a lawyer now Raya: Uh huh (Arabic conversation) ahm officer she’s not sure but I think that the language is a barrier. She is mentioning the language is a barrier to speak with a lawyer.

They would need an interpreter. Cst. Mackey: Yes, yeah I agree that I think that a inter interpreter would be needed so we can stand by with the ah with the association there understand that you have time restraints on the phone but we can Raya: Yes yes Cst. Mackey: Continue to wait if she wants to try that that’s I mean we’re gonna be here Raya: Yeah Cst. Mackey: So, it’s up to them if they want to call a lawyer or not or if they wanna call one later or not. It’s it’s totally their decision right Raya: Uh huh and you’re staying for the search warrant right. You are checking some devices now?

Cst. Mackey: Yes, that’s correct there are several Officers probably four, three or four or five searching rooms now for devices. We’re gonna be here for at least I’d say an hour, hour and a half at least at the minimum Raya: OK, yeah, OK (Arabic conversation) huh ah first she said ah she said maybe after you finish they are going to find someone or deal with the checking with a lawyer Cst. Mackey: OK Raya: and then she said I don’t know Cst. Mackey: OK Mrs. Nassif: (Arabic) Raya: (Arabic) A.

Nassif: (Arabic) Raya: Ahm I’m sorry officer he’s asking he said I’m going to work now, am I allowed to take my phone with me or should I leave it? Cst. Mackey: He has to leave it Raya: (Arabic) A. Nassif: OK Raya: OK Cst. Mackey: Now, it’s up to them at this point like I’ve read them that they don’t ha they do not have to answer any of my questions Raya: Uh huh Cst. Mackey: At all ahm but I would like to know if they will provide any passwords to their phones Raya: OK Cst. Mackey: Ahm to computers Raya: yes Cst.

Mackey: That we might find Ahm but they do not, they have to understand that they do not have to give us that information. It would be totally their decision Raya: Yeah, right Cst. Mackey: So, if they wanted to speak with a lawyer before making that decision that’s something for them to consider Raya: (Arabic conversation) Yes, she said yes for sure we will give you the passwords Cst. Mackey: OK Cst. Follett: I didn’t hear what Cst. Mackey: Yes for sure they will give us the password Cst. Follett: OK Cst.

Mackey: OK well we’ll go ahead and take them as they can give them to you and translate to me Raya Raya: Yes, OK (Arabic conversation) Mrs. Nassif: OK [ 131 ] There is no clear communication from the Applicant that he understands what is being said to him or that he is waiving the right to contact counsel. [ 132 ] The Applicant’s wife, upon being told of her right to counsel, seems confused and is uncertain as to what to do. She mentions that language is a barrier if they want to speak to a lawyer.

After some conversation, the interpreter indicates “She said maybe after you finish they are going to find someone or deal with the checking with a lawyer.” The interpreter then advises the police “and then she said I don’t know”. [ 133 ] The Applicant then asks, through the interpreter if he is allowed to take his phone when he leaves for work. He is advised he cannot. This makes it clear he does not understand why the police are there and what they are searching for. [ 134 ] Cst. Mackey then asks if they would provide the password to their phones.

[135] The interpreter speaks in Arabic and then says “Yes, she said for sure we will give you the passwords”. The Applicant providesthe password to his cell phone. [136] The applicant’s response was equivocal when asked if he wanted to contact a lawyer. There was no direct answer from theApplicant and the Applicant’s wife stated they didn’t know what to do. In the circumstances, Cst. Mackey was required to obtain fromthe Applicant a “clear and unequivocal” waiver of his Charter right to counsel prior to requesting the passwords. [137] In R. v. Price, 2020 NLSC 124, the Court found at paragraph 35 that: Once there is an arrest or detention,

section 10(

b) imposes a number of positive duties on the detaining officer: (

i) the duty to inform thedetainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;(ii) if a detainee has indicated a desire to exercise this right, the duty to provide the detainee with a reasonable opportunity to exercise thisright (except in urgent and dangerous circumstances); and (iii) the duty to refrain from eliciting evidence from the detainee until he or shehas had that reasonable opportunity (again, except in cases or urgency or danger) (R. v. Bartle, (SCC), [1994] 3 S.C.R.173 (S.C.C.) at 192). If the

section 10(

b) right is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy facedby detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as thedetention arises (R v. Suberu, 2009 SCC 33, at para. 41). [138] In R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173, the Court stated as follows at paragraph 19: Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices anddecisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert.Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(

b) caution, suchas language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fullyunderstands the s. 10(

b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v.Baig, (SCC), [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891. [139] In R. v. Vanstaceghem (1987), (ON CA), 36 C.C.C. (3d) 142, 1987 CarswellOnt 100 at paragraph 20, theOntario Court of Appeal found: It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 ofthe Charter. As

section 10(

b) stipulates, the accused or detainee must be informed. This means that the accused or detainee mustunderstand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice withrespect to the exercise or waiver of the guaranteed rights.

If the rights are read in English only, and the accused’s or detainee’s knowledge of the English language does not allow sufficientcomprehension of the matter, those are “special circumstances” which alert the officer and oblige him to act reasonably in thecircumstances. [140] The police, to their credit did recognize that a mere recitation of the Applicant’s rights in English would not be sufficient. Thus,they arranged for an interpreter.

The right to counsel and police caution was provided through the use of an interpreter. [141] The issue is there was no answer from the Applicant with respect to whether or not he wished to contact counsel. [142] In Price, the court also stated at paragraph 37: The standard for valid waiver of a Charter right, including the right to counsel, is "very high" (R. v. H. (L.), 2008 SCC 49 ,[2008] 2 S.C.R. 739 (S.C.C.), at paragraph 41). A waiver must be "premised on a true appreciation of the consequences of giving up theright" (H. (L.), at paragraph 43, citing Wilson J. in R. v.

Clarkson, (SCC), [1986] 1 S.C.R. 383 (S.C.C.) at 396). "A clearand unequivocal waiver is thus essential, but not sufficient: it must be accompanied by a proper understanding of the purpose the rightwas meant to serve and an appreciation of the consequences of declining its protection" (H. (L.), at paragraph 43). [143] I find there was a breach of the Applicant’s

section 10 (

b) right to retain and instruct counsel without delay and to be informed ofthat right. The interview at the police station [144] The Applicant attended at the police station on February 13, 2020, upon the request of Cst. Mackey. An interpreter was present toassist the Applicant. [145] Cst. Mackey provided the Applicant with his right to counsel and facilitated the Applicant in speaking to a lawyer. [146] The Applicant claims his right to counsel were breached at the station.

He says he does not recall being placed on the phone witha lawyer, does not recall any advice the lawyer may have given, and that he understood 60% of what the interpreter said to him. [147] That he doesn’t remember is not the same as he did not understand. It is clear at the police station he understood that he couldspeak with a lawyer with the assistance of an interpreter. In fact, he did speak with a lawyer.

When he came back into the room, Cst.Mackey asked if he spoke to a lawyer and the Applicant says yeah. [148] They begin the interview and at line 817 of the transcript the following conversation takes place:

Nassif: Did we agree that we will not talk until I get the lawyer. Abriham: And he was saying that he will not talk further until he gets a lawyer Cst. Mackey: and again, that his right Abriham: [Arabic} again this is your right Cst. Mackey: Yeah but Nassif: I believe I answered her questions but I will wait for the lawyer [149] Further, at line 847, the Applicant states in Arabic “I have the right no answer”, for example. Cst. Mackey confirms this. [150] R. v. Taylor, 2014 SCC 50 restates the importance of the Charter obligation under

section 10(

a) and 10(

b) of Charter atparagraph 21: The purpose of the s. 10(

b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equallyif not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instructcounsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v.Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensures that an individual who is under controlof the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free andinformed”: R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. [151] In R. v. Bartle, the court stated at paragraph 19 “Absent special circumstances indicating that a detainee may not understandthe

section 10(

b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assurethemselves that a detainee fully understands the

section 10(

b) caution...”. [152] With regard to language issues, Justice Nelson in R. v. Baca, 2009 ONCJ 194 (cited with approval by R. v. Arezes, 2018 ONSC6967) set out a very useful set of principles: (

i) The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances whichrequire the police to ensure the accused understands his rights to counsel; (ii) Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of apossible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused’s language; (iii) When it is clear that an accused has difficulty understanding the language, especially when he states he has difficultyunderstanding, special circumstances may arise; (iv) The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is notdeterminate of the issue of special circumstances.

An accused may not be aware such accommodations exist; (

v) Whether or not the police believed the accused understood his rights is not determinative of the issues; (vi) When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights tocounsel. This is the case even when the accused does not complain with respect to the advice given. [153] The Applicant spoke to duty counsel with the assistance of an interpreter. The Applicant did not advise Cst.

Mackey he did notunderstand the interpreter, nor did he advise he did not understand his rights as provided through the interpreter. [154] There is no duty on the police to refrain from asking questions after the Applicant has spoken to counsel. The only time theywould have to refrain from asking questions is if it was clear the Applicant did not understand his rights. [155] The Applicant restated he does not have to answer Cst. Mackey’s questions. That he doesn’t recall being placed on the phonewith a lawyer is different from his lack of understanding of whether or not he was speaking with a lawyer.

When he was questioned if hehad spoken to a lawyer he indicated yes. [156] The Applicant also does not recall retaining any advice he may have been given over the phone. A lack of recall is different fromlack of understanding. [157] The Applicant states it is clear that the interaction referred to above wherein the Applicant states “did we agree that we will nottalk until I get the lawyer and “I believe I answered her questions but I will wait for the lawyer” are objectively observable indicators thatthe conduct of the police undermined the legal advice received by the Applicant.

[ 158 ] I disagree. The right to counsel does not entitle a detainee to have a lawyer present during the interview, even when the interview takes place in custody ( R. v. Sinclair , 2011 SCC 40 , at paras. 37-39 ). [ 159 ] The Applicant relied on R. v. Dussault , 2022 SCC 16 to suggest that the police undermined the legal advice the Applicant was given. The situation in Dussault is quite different from the situation we have in this case.

In Dussault , the police advised the lawyer they could come to the police station but then proceeded to question the accused. [ 160 ] If the Applicant thought the lawyer was coming to the police station, he did not relay that to the police. [ 161 ] The Applicant testified he was saying yes he understood everything so he could leave. He did not tell the police officer, nor did he tell the interpreter he did not understand. In fact when he was asked if he understood he said yes. [ 162 ] The Applicant indicated Cst . Mackey forced him to talk, however, there is no evidence before me to suggest that.

The Applicant testified she should have stopped asking questions. I’ve indicated earlier this is not the case. [ 163 ] I find the Applicant has not established, on a balance of probabilities, that his right to counsel pursuant to

section 10(

b) was breached during the interview at the police station. Was there a failure to provide the assistance of an interpreter at the first court appearance? Facts surrounding the alleged

section 14 breach [ 164 ] The first court appearance was February 13, 2020. The Applicant was brought to the Provincial Court for bail purposes. The duty counsel advised the court that an interpreter was required. As a result and after some discussion with the Crown, the Applicant’s matter was set over to the next day. The reason for rescheduling the matter was twofold; the Crown was deciding whether the Applicant was going to be released and to secure an interpreter. [ 165 ]

Section 14 of the Charter states: 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. [ 166 ] The leading case from the Supreme Court of Canada regarding

interpretation is Tran . The Court set out the test for determining whether or not an Applicant’s right to

interpretation has been breached: 1. It must be clear the accused was actually in need of interpreter assistance. 2. The claimant of the right must show, assuming it is not a case of a complete denial of an interpreter but one involving some alleged deficiency in the

interpretation actually provided, that there has been a departure from the basic constitutionally guaranteed standard of

interpretation. This standard is one of continuity, precision, impartiality, competency and contemporaneousness (para 44); 3. The claimant must establish that the alleged lapse in

interpretation occurred during the course of the proceedings themselves when a vital interest of the accused was involved- i.e. while the case was being advanced- rather than at some point or stage which was extrinsic or collateral to the advancement of the case. (para 45); 4. The onus in establishing a breach of s.14 of the Charter falls on the party asserting the violation and the standard of proof is one of balance of probabilities.

Once a court is satisfied that the first three requirements have been met, a violation of s.14 of the Charter will have been made out unless the Crown is able to prove, again, on a balance of probabilities, that there was a valid and effective waiver of the right which accounts for the lapse in (or lack of)

interpretation shown to have occurred. [ 167 ] A number of important points can be gleaned from the Tran decision: (

a) Section 14 of the Charter , however, confers upon all accused, irrespective of the gravity of the offence charged and its classification, a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court. (para 10); (

b) Section 14 involves the right to an interpreter in criminal proceedings and the issue of whether or not it has any broader application was left to another day. (para 11); (

c) The right to the assistance of an interpreter serves many several important purposes. First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second the right is one which is intimately tied to our basic notions of justice including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society’s claim to be multicultural, expressed in part through s. 27 of the Charter . (para 29);

[ 168 ] There is no dispute the Applicant required

interpretation and the request was made through duty counsel. The duty counsel indicated to the Court that English is not the Applicant’s first language and that

interpretation was required. [ 169 ] The Court then asks the Applicant if he understands what is being said and the Applicant answers “no”. [ 170 ] There was a discussion that ensued between the Court and the Crown regarding the Crown’s position on release.

The Court then asks the Applicant whether he understood anything that was just said and then proceeds to advise that his matter is going to be set over to the next morning and to secure an interpreter. [ 171 ] The Court then inquires whether there is anybody present who can explain to him. [ 172 ] There is a volunteer, a friend of the Applicant who says she can explain what is going on.

The Court then reads the charges with the friend interpreting and the Applicant says “Okay” when asked if he understands. [ 173 ] Duty counsel then asks the interpreter does he understand what they are trying to say and the interpreter responds “Yeah”. [ 174 ] Counsel for the Applicant argues it is not necessary to cite case law on this point as the Applicant has an unqualified right to an interpreter when participating in any proceedings before the Court. [ 175 ] The Crown takes issue with this position and I agree. As indicated, there is a test required to be satisfied before a

section 14 Charter breach is established. In Tran , at paragraph 49 , the court states:

(49) While the right to interpreter assistance is not an automatic or absolute one, it stands to reason, particularly with the elevation of the right to the level of a constitutional norm, that courts should be generous and open-minded when assessing an accused’s need for an interpreter.

As a general rule, courts should appoint an interpreter when either of the following occurs: 1. it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or 2. an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified. Was it clear the assistance of an interpreter was required? [ 176 ] It is clear the Applicant needed the assistance of an interpreter.

The duty lawyer indicated English is not his first language and he was not able to understand. Indeed, when the Court asked him whether he understood what was happening, he stated “No”. The Applicant has proven, on a balance of probabilities that the assistance of an interpreter was required. Was there a departure from the basic constitutionally guaranteed standard of

interpretation? This standard is one of continuity, precision, impartiality, competency and contemporaneousness [ 177 ] This case was close to a complete denial of

interpretation, however, the Court made inquiries as to whether anyone was present that could assist. The Applicant’s friend suggested she could assist. Once she was identified, she provided assistance in advising the Applicant of the charges. [ 178 ] If some

interpretation is provided, the Applicant must establish that the

interpretation fell below the constitutionally guaranteed standard. [ 179 ] The Applicant’s position is that no interpreter was provided and this is a breach of the Applicant’s

section 14 Charter right. The Applicant did not advance an argument that the

interpretation provided departed from the basic constitutionally guaranteed standard of

interpretation. Without this and to the extent that I am able, I will apply this test. Continuity [ 180 ]

Interpretation of the proceedings are required to be continuous. Breaks and interruptions are not to be encouraged or allowed ( Tran , at para. 60 ). [ 181 ] Summaries of the proceedings have usually not been viewed in a favorable light ( supra , at para. 58). [ 182 ] When the Applicant appeared in court, an interpreter was not engaged until the end of the proceedings.

A review of the transcript indicates that once the friend was engaged as an interpreter, the charges were read and the Court advised, through the interpreter, that the Crown was trying to verify some information, that the Applicant would be held in custody overnight and he was to come back in the morning to be either released by consent or for a bail hearing. [ 183 ] The

interpretation provided was not continuous. Precise [ 184 ] In determining this branch of the test, the Supreme Court, in Tran , at paragraph 62 , considered the difference in

interpretation (spoken word) and translation (written word).

[ 185 ] The standard for

interpretation will tend to be lower than it might be for translation. [ 186 ] I have been provided with no evidence from the Applicant that the

interpretation provided by his friend was not precise. Impartial [ 187 ] It also stands to reason that

interpretation, particularly in a criminal context, should be objective and unbiased…certain persons are disqualified, by reason of apprehension of bias, from acting as interpreter. Obviously a party litigant will not be permitted to interpret; but neither will a relative or a friend of a party; nor the judge, nor a person closely connected to the events giving rise to a criminal charge.

These rules may be relaxed if the proceedings are non-adversarial ( Tran , at para. 63 ). [ 188 ] The Court further stated: While I agree with Steele that an interpreter should be impartial, I would further relax these rules, particularly on preliminary issues such as bail release or adjournment in remote areas of our country, where the practical reality of Canadian geography coupled with the urgency presented by some cases would result in the interests of justice being better served. [ 189 ] The interpreter used cannot be said to be impartial as she was a friend of the Applicant.

It is not ideal but I find it was acceptable to use the Applicant’s friend, rather than no interpreter at all. This approach served to, at a minimum, explain to the Applicant what has happened in court. Competent [ 190 ] To meet the standard of protection guaranteed by

section 14 of the Charter ,

interpretation must be of a high enough quality to ensure that justice is done and seen to be done ( Tran , at para. 64 ). [ 191 ] In this province, there are no standards set by the Provincial Government. Tran says at the very least an interpreter must be sworn by taking the interpreter’s oath before beginning the proceedings. The court also states where there is a legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter’s qualifications (para. 64). [ 192 ] The Applicant’s friend was asked to assist with

interpretation. She did not take an interpreter’s oath or affirmation. The inquiry made was into whether or not she could understand English and speak the language of the Applicant. This branch of the test has not been met given she was not sworn or affirmed. Contemporaneous [ 193 ] The

interpretation should be contemporaneous and the preference is consecutive

interpretation ( Tran , at para. 66 ). From the transcript, the

interpretation was not contemporaneous and was consecutive in the sense it was done following the discussion in the court. It was sufficient to relay to the accused what was happening. Whether departure occurred while case was being advanced [ 194 ] The matter was called for a first appearance and for a determination of whether or not the Applicant should be released from custody. The matter was postponed to give the Crown time to make a decision with respect to judicial interim release and for the Court to se

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