A Landmark Case: R. v. Evans

In R. v. Evans¹³ a decision of the Supreme Court of Canada in 1991, Madam Justice Beverley McLachlin emphasized that, with reference to s.10 (a) and (b) of the Charter, a person is not informed unless they have understood the information conveyed. In her words:

"A person who does not understand his or her right cannot be expected to assert it. The purpose of s.10 (b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties set out above). But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused: they must take steps to facilitate that understanding."¹⁴

The appeal to the Supreme Court came after a youth with lower than normal mental capacity was convicted of first degree murder in the brutal killings of two women. When the youth had originally been arrested, he was told he had the right to counsel. When the police asked him if he understood this right, he said he did not understand what the right to counsel entailed, but the police failed to explain the right to him, and he declined counsel. In addition, the youth was originally arrested on a marijuana charge since the police believed that his brother had committed the murders. When the youth became the prime suspect in the two murders, the police did not formally advise him that he was then being held for murder nor did they reiterate his right to counsel.

This case clearly connected the right to understand to the right to a fair trial. It established the principle that a message has not been communicated unless the person receiving the message understands it.