Canada: Failure To Contact Interpreter Critical In Decision To Set Aside Over 80 Conviction

Last Updated: January 30 2018
Article by David Schell

In the recent case of R. v. John, a summary conviction appeal court set aside a conviction for Over 80 as a result of the police not contacting an interpreter when they should have done so.

In this case the first language of the accused was Tamil.  He was arrested and advised of his rights including his section 10 (b) Charter right to counsel.  According to the trial judge's findings, the police noticed the ethnicity of the accused and that he had an accent. Despite being aware of these facts, the police did not ask if he needed an interpreter.

The accused exercised his right to counsel and the police put him in contact with duty counsel on four occasions and the accused spoke with English speaking duty counsel on three of those calls.  After his last conversation with duty counsel, the accused told the arresting officer that he did not understand duty counsel.  Rather than request an interpreter, the arresting officer assumed the accused understood English and took him into the breath room where he was required to blow into the breathalyzer.

At trial, the trial judge found that the police had violated the accused's right to counsel when they failed to obtain the services of an interpreter after he told them he could not understand duty counsel.  Despite this finding, the trial judge felt the Charter breach was not serious enough to exclude the breathalyzer evidence under section 24 (2) of the Charter.  As a result the accused was convicted of Over 80.

The accused appealed the conviction.  In the appeal decision  Justice Harris of the Ontario Superior Court of Justice took a different view with respect to the seriousness of the Charter breach.  In determining whether the trial judge erred  in concluding the breach was not serious, Justice Harris stated the following:

Boiling down these reasons, I believe one main error is evident. The conclusion that the police believed they had satisfied their obligations after the appellant said he did not understand duty counsel simply endorsed the subjective belief of the police. It failed to consider the critical question of whether, applying the objective perspective, the police acted reasonably.

My view of the record is that a finding of police wilful blindness was inescapable. The police were told by the appellant that he had not understood duty counsel and made no efforts to rectify the problem by either offering an interpreter or further exploring the issue with the appellant. Minutes after saying that he did not understand duty counsel, the appellant was whisked into the breath room and was required to give the first breath sample. This was a serious breach.

Justice Harris excluded the breath results, allowed the appeal and the Over 80 conviction was set aside and an acquittal entered.

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