Courts have reached similar results in cases where the police failed to act appropriately when they were aware of the limited cognitive capacity of the accused when reading the standard police caution.

• R. v. Roberts, supra The investigating and arresting officer was aware of the accused’s limited education and communication skills. The officer should have known that as the accused was both “unsophisticated and unlearned,” he was unlikely to have understood the police charge. Special care should have been taken during the interview process. See para. 41.
• The notion of special circumstances has also been defined to include language barriers. This includes situations where it is evident that the accused’s native language is something other than English or if a person is deaf.

Problems, comments, and observations

• In Evans, supra, McLachlin J. stated that in most cases, it can be inferred from the circumstances that the detainee understood what he/she has been told. In such cases, the duty on police to go to further lengths to ensure understanding will be discharged when the individual responds affirmatively to the question of whether the given charge is understood. Without special circumstances, such as the obvious cognitive or language impairment of the accused, police are not required to go further and facilitate understanding.

There is one problem in all of this: What happens when the circumstances are not so clear and it is not obvious that the accused person does not understand? The research contained in the program materials as well as the evidence in the reports on literacy prepared by the John Howard Society reveal that if a person has low literacy skills, he or she has likely spent much of life attempting to hide a lack of understanding. It is therefore doubtful that people with low literacy skills will readily admit that they cannot read or write well.