This 1992 case from the British Columbia Court of Appeal involved an impaired driving charge¹⁸. The Court ruled that if there is something in the circumstances which suggests that the detainee does not understand his right to counsel, a duty to make further explanation or to facilitate the understanding will arise. While the decision not to exercise the right to counsel must be an informed one, "in the absence of any evidence to suggest the contrary, a constitutionally sufficient understanding of the right will necessarily be inferred from a positive response to the question 'do you understand?'"¹⁹

The judge in this case placed on the accused himself the responsibility for communicating his lack of understanding. If a person is low literate, he or she has likely spent much of life attempting to hide lack of understanding. Therefore, it is doubtful that people with low literacy skills will willingly admit that they cannot read or write well. It is important that the police officer, the defence lawyer and other court officials try to determine whether people accused of crimes, and witnesses or jurors do in fact understand.

Two Cases Which Cite Low Literacy as a Factor Relevant to the Right to Understand

Reference to low literacy in case law is rare, but it has been considered in recent cases to be a barrier to the exercise of the Charter rights of the accused.

For example, in R. v. Roberts²⁰, a 1991 Newfoundland case related to search and seizure under the Income Tax Act, the reasons for judgement acknowledge that "the accused was unsophisticated and illiterate [...]. In the circumstances the court was satisfied that the accused had not absorbed what was said to him by the tax authorities [...]. The investigative techniques employed here were seriously flawed and in particular the mere recitation of the accused's rights in the circumstances was purely pro forma [...]. A tax auditor present at the time knew that the accused was unsophisticated and unlearned, requiring that special care be taken during the interview process [...]. In the circumstances ss. 7 and 10(b) were infringed."²¹