R. v. LaPointe and Sicotte, (1983) 1 O.A.C. 1 (CA)

• Judge: Lacourcière, Cory and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 24, 1983
• Jurisdiction: Ontario
• Citations: (1983), 1 O.A.C. 1 (CA)

R. v. LaPointe (1983), 1 O.A.C. 1 (CA)

MLB headnote and full text

R. v. LaPointe and Sicotte

Indexed As: R. v. LaPointe and Sicotte

Ontario Court of Appeal

Lacourcière, Cory and Tarnopolsky, JJ.A.

December 8, 1983.

Summary:

The two accused were charged with two counts of robbery and two counts of using a firearm during the commission of an indictable offence. Both accused gave oral statements to the police, which were taken down and submitted as the basis of the Crown's case. Following a voir dire, the trial judge ruled that the statements, although voluntary, were inadmissible because he doubted that the accused, whose mother tongue was French, had the capacity to make the statements attributed to them in English. The accused were acquitted because the Crown had no other evidence. The Crown appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial because of errors by the trial judge concerning the admissibility of the statements.

Civil Rights - Topic 2803

Language - Assistance of an interpreter - In criminal proceedings - The Ontario Court of Appeal commented that in every case where police officers deal with a suspect whose mother tongue is different, every effort should be made to find an interpreter - See paragraph 48.

Criminal Law - Topic 5332.1

Evidence - Confessions and voluntary statements - Voir dire - Duty of judge - The Ontario Court of Appeal discussed the duty of a judge on a voir dire respecting the admissibility of an accused's statement where the accused's language comprehension was an issue - The court held that the question to be decided was whether there was any evidence upon which the jury could find that the statement was the accused's statement - See paragraphs 28 to 29, 39 to 47.

Criminal Law - Topic 5337

Evidence - Confessions and voluntary statements - Admissibility - General - The Ontario Court of Appeal held that the authenticity and reliability of an accused's statement was irrelevant to the question of the statement's admissibility - See paragraphs 39 to 47.

Criminal Law - Topic 5340

Evidence - Confessions and voluntary statements - Admissibility - Effect of mental capacity of accused - The Ontario Court of Appeal held that an accused did not have to appreciate the consequences of making a statement, for the statement to be admissible - The court held that appreciation of the consequences was an improper consideration on a voir dire - See paragraphs 46 to 47.

Criminal Law - Topic 5353.2

Evidence - Confessions and voluntary statements - Authenticity of statements - Two accused, whose mother tongue was French, were arrested, cautioned and questioned in English - The accused voluntarily gave statements in English which were taken down in English - An interpreter was neither requested nor thought by police to be needed - One-fifth of both accused's spoken English was erroneous, mostly pertaining to grammatical imprecision - The trial judge concluded from the accused's lack of fluency that the police unconsciously edited the accused's words when recording them, so that the statements were not authentic - The Ontario Court of Appeal held that questions of authenticity should not be decided on a voir dire, which related only to admissibility - See paragraphs 23, 39, 43 to 47.

Criminal Law - Topic 5355

Evidence - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Ontario Court of Appeal held that questions of an accused's language comprehension and expression did not relate to the question of the voluntariness of his statement, but rather were issues of weight for the trial judge or jury - See paragraphs 35, 42 to 47.

Criminal Law - Topic 5355

Evidence - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Ontario Court of Appeal set out instances where an accused's statement could be held to be made involuntarily - See paragraph 25.

Criminal Law - Topic 5359.1

Evidence - Confessions and voluntary statements - Evidence and proof - The Ontario Court of Appeal discussed the burden of proof on the Crown at a voir dire respecting the admissibility of an accused's statement - The court held that the Crown did not have to prove, as a test of admissibility, that the statement as recorded was the accused's statement, or of rebutting, by proof beyond a reasonable doubt, a presumption of language incapacity by the accused - See paragraphs 45 to 47.

Cases Noticed:

Ibrahim v. The Queen, [1914] A.C. 599, refd to. [para. 23].

R. v. Horvath (1979), 25 N.R. 537; 93 D.L.R.(3d) 1 (S.C.C.), refd to. [para. 25].

Boudreau v. The King (1949), 7 C.R. 427, refd to. [para. 25].

McKenna v. The Queen, [1961] S.C.R. 660, consd. [para. 30].

R. v. Ward (1979), 25 N.R. 514; 14 A.R. 412; 44 C.C.C.(2d) 498 (S.C.C.), consd. [para. 31].

R. v. Nagotcha (1980), 32 N.R. 204; 51 C.C.C.(2d) 353, consd. [para. 32].

R. v. Santinon (1973), 11 C.C.C.(2d) 121 (B.C.C.A.), refd to. [para. 32].

Sinclair v. The King (1946) 73 C.L.R. 316 (Aust. H.C.), consd. [para. 33].

R. v. Tenorio, sub nom R. v. Torres, 27 C.R.(3d) 60 (Que. S.C.), not folld. [para. 35].

R. v. Hatzopoulos (1980), 27 C.R.(3d) 56, not folld. [para. 35].

R. v. Beaule and Ragot (1977), 38 C.C.C.(2d) 237, not folld. [para. 35].

R. v. Park (1981), 37 N.R. 501; 59 C.C.C.(2d) 385, consd. [para. 37].

R. v. Zanella (1980), 55 C.C.C.(2d) 567 (B.C.C.A.), refd to. [paras. 38 & 42].

R. v. Gauthier (1975), 10 N.R. 373; 27 C.C.C.(2d) 14, consd. [para. 41].

R. v. Babiak and Stefaniuk (1974), 21 C.C.C.(2d) 464 (Man. C.A.), refd to. [para. 42].

R. v. Starecki, [1960] V.R. 141 (Vict. S.C.), consd. [para. 45].

R. v. Washer (1947), 92 C.C.C. 218, not folld. [para. 46].

Authors and Works Noticed:

Kaufman, Admissibility of Confessions (3rd Ed.), p. 131 [para. 37].

Counsel:

Casey Hill and James Stewart, for the appellant;

Thomas Dungey and Ann Marie Jones, for the respondents.

This appeal was heard before Lacourciere, Cory and Tarnopolsky, JJ.A., of the Ontario Court of Appeal, on October 24, 1983. The decision of the Court of Appeal was delivered by Lacourciere, J.A., on December 8, 1983.