Rights to Counsel

Rights to Counsel and Language You Can Understand

The Canadian Charter of Rights and Freedoms [Charter] establishes the Right to Counsel which is codified in section 10(b) of the Charter.  

With that right comes the right to understand your rights in a language other than English.  Where special circumstances exist the police are obligated to contact a lawyer or interpreter to facilitate the right to counsel.  This is a well established precedent in Canadian law.  In the decision of Regina v. Vanstaceghem, [1987] O.J. No. 509, the Ontario Court of Appeal held that in special circumstances the onus rests with police to facilitate contact with an interpreter.  

Often times the police fail to properly deal with accused in their custody who have language difficulties.  They fail to notice signs that demonstrate the person may not understand their rights and may not be able to exercise their rights to counsel in English.

For example, the person may have a thick accent and speak broken English.  The person may say things like my English is poor or I speak little English.  The words I find most compelling are I don't undersand English and or I need an interpreter.  One would think that under the circumstances above police would make efforts to contact an interpreter; however,  even in these extreme circumstances the police have failed to meet their obligations under the Charter.  

The appropriate remedy for this type of breach is an exclusion of evidence pursuant to section 24(2) of the Charter.  The trial judge will consider the 3 prong test in Regina v. Grant, [2009] S.C.C. 32 when making an assessment to exclude evidence.  After weighing the 3 factors the court will determine whether or not the evidence ought to be excluded.  

In my experience, most often this type of breach is due to lack of training or lack of insight by police.  This is an important factor to consider by counsel in cases where the accused's first language is not English and an interpreter or counsel who spoke the accused's first language was not contacted.  

I find that judges will be reluctant to allow evidence in when such a breach occurs because Canada is a multi cultural society where all ethnicities are respected.  The courts will likely not look the other way when language rights coupled with rights to counsel are ignored by police; even if they are done so not in bad faith, because the impact of the Charter protected interests of the accused are significant.