R. v. Ly

[1993] O.J. No. 268

Facts

ON PD

Officer at RIDE conversed with accused in English and communicated s. 10(b) information in English...officer testified spoke English "fine", slight accent... accused was asked if he understood his RTC and said that he did, answered affirmatively when asked if understood breath demand, arresting officer asked accused at station if wanted to call a lawyer, shhok head and said "no", breath tech asked accused if understood English , accused responded "a little bit", when asked if problems understanding what being said, accused said no, officer's evidence accused understands English "if you speak to him slowly"... advised of s. 10(b) rights again, asked if wanted to speak to a lawyer or duty counsel, or to seek legal aid, responded would call a friend in the morning... accused testified born in Vietnam, arrived in Canada in 1989, English very much a second language, trial judge found as a fact while not fluent in English, greater comprehension than he attempted to have the court believe

Reasons

ON PD

it was plain to the breath tech that English was not the accused's first language, obligation to make further inquiry as to the accused's understanding of the content of the right to counsel...The accused should have been asked whether he desired to have an interpreter present to translate his rights for him...re 24(2) fundamental importance of the right of all persons in police detention to be advised of their rights in a manner which is comprehensible to them. Courts must guard against the perception that violations of this important right will be condoned.

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