Court File and Parties

Court File No.: Newmarket Court File No. 14-02224 Date: 2015-02-19

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Vyacheslav Saprikin

Before: Justice H.I. Chisvin

Ruling on Application

Released on February 19, 2015

Counsel:

• J. Fuller for the Crown
• K. Anders for the accused Vyacheslav Saprikin

Decision

CHISVIN J.:

Overview

[1] Mr. Saprikin is charged with the offences of impaired driving and refusing to provide a breath sample. Counsel on his behalf has brought an application before the Court requesting that the Crown provide a translated transcript of what occurred in the breath room as part of their disclosure obligation.

[2] The factual circumstances relating to the matter are as follows: On March 21, 2014, the accused was arrested for the offence of impaired driving. After he was arrested, he was taken back to the police station to perform a breath test. What occurred in the breath room is all on video. This is where Mr. Saprikin is alleged to have refused to provide a sample. The video would show the best evidence of the event that the Crown says forms the basis of the offence before the Court. In other words, the actus reus of the offence is allegedly on that video.

[3] The Crown, despite both verbal and written requests, has refused to provide a translated transcript of the videotape of the breath room. What makes this situation unique is that Mr. Saprikin speaks Russian. As happenstance would have it, the breath technician also spoke Russian; thus the entire conversation between the two in the breath room is in Russian. All the Court has by way of translation, and all that was given Mr. Saprikin, is a two-page summary of words supposedly spoken by Mr. Saprikin as translated into English by the breath technician. This is a total of 6 singles, some of which are single words.

[4] Counsel for Mr. Saprikin has argued that the translated transcript of the events is necessary in order to allow Mr. Saprikin to make full answer and defence. It is also needed so that he can properly instruct his client. The Crown argues that they had fulfilled their disclosure obligation as they provided the video to counsel and if he needs a translation of what occurred, he can get it done himself.

[5] The question, then, before the Court is, should the Crown be obligated in these circumstances to provide a translated transcript of what occurred in the breath room as part of their disclosure obligation?

Legal Framework

[6] The requirement of the Crown to provide disclosure is a longstanding obligation and can be found as a necessity in the Supreme Court of Canada decision in R. v. Stinchcombe. Sopinka J., speaking on behalf of the Court, spent a great deal of time setting out the obligation of the Crown to provide disclosure and why the providing of disclosure is so important.

[7] In his decision, Sopinka J. includes a consideration of the proper role of the Crown as an administrator of justice as expressed by the Supreme Court of Canada in Boucher v. The Queen.

[8] Sopinka J. said in his judgment that not only is it important to provide disclosure to an accused to allow them to make full answer and defence, but the providing of disclosure also saves time in the criminal justice system, as it allows the parties to assess the case, leading to pleas of guilty and withdrawals of charges. Thus, providing disclosure allows all parties to know both the strength and weaknesses of the case and to make important decisions early on in the proceedings so as to save the administration of justice both time and money. It leads to fairness and thus, justice being done.[^1]

[9] In support of their argument, the Crown provided a number of decisions which they contend support their position, notwithstanding recognition of the requirements of disclosure as set out in Stinchcombe.

Crown's Authorities

[10] The first of these decisions is one by the Yukon Territory Court of Appeal in R. v. Rodrigue; leave to appeal to the Supreme Court of Canada being refused. This judgment deals with the following factual situation: The accused had elected to have a French trial. At his preliminary hearing, the accused applied to have the evidence, such as statements and notes, provided to him in French. The justice at the preliminary hearing declined to make the order, requiring the Crown to provide translated disclosure. The ultimate essence of his decision, that is, the preliminary hearing court judge's decision, had as much to do with concluding that as the preliminary hearing court judge, he had no jurisdiction to order the Crown to provide such disclosure. The preliminary hearing court judge allowed the matter to be adjourned so that the accused could appeal his decision where he declined jurisdiction to make the order.

[11] The appeal of the matter to the Yukon Territory Court of Appeal actually deals with the issue, primarily of jurisdiction of the court, to hear the appeal from the decision of the preliminary hearing court judge. It deals very little with the actual issue of whether or not the Crown was obligated to provide disclosure. The Court of Appeal found that there was no jurisdiction to appeal the decision of the preliminary hearing court justice. The only comment made by the Court of Appeal interestingly enough relating to the requirement that disclosure be provided, is contained in paragraph 34 of the 36-paragraph decision. In this paragraph, dealing with whether or not the Crown would have to provide translated material, the Court says:

I say nothing about the right of the judge who will preside at the trial to ensure that the trial process is fair to the accused. It may well be that the documentary evidence tendered at the trial by the Crown requires that the translation by the Crown be made available to the defence to ensure a fair trial.

[12] Thus, in my view, Rodrigue does not stand for the proposition that the Crown is not required to translate evidence for an accused.

[13] The Crown also presented this court with the trial judge's decision in R. v. Cameron, from the Quebec Court (Penal and Criminal Division) in Montreal. Again, the facts of this case are very different from the matter before this court. It dealt with an accused who had elected to have a trial in French. The trial had proceeded that way, the accused having a bilingual counsel. The accused appeared to have no issue in understanding the trial proceedings. Indeed, he made it very clear to the court that he understood French. As the trial progressed, for some reason, the trial judge allowed the accused to discharge his bilingual counsel. The accused then retained a new unilingual counsel, one who spoke English only. An application was then brought requesting that all the disclosure and all the trial proceedings, up to the point in time that the English-only speaking lawyer came on board, be translated from French into English.

[14] The learned trial judge set out extensive reasons why the requirement for translation would not be granted in that case. What is important, in my view, in that decision would be the references that the trial judge made where he indicates that there may be times when a translation might be ordered to ensure a fair trial to see that the accused is able to make full answer and defence.[^2] At paragraph 15, the trial judge in Cameron notes "That does not mean that the Court cannot order such translations, if it is needed to ensure a fair trial and full defence and answer".

[15] To this end, the trial judge again references back to the Yukon Supreme Court decision in Rodrigue where the judge said "There may be circumstances where the Court would, before the trial, make a ruling that without the translation of a document from a language other than an official language to an official language, or from one official language to the other official language in which the accused has chosen to be tried, the right of the accused to 'make full answer and defence' or to a fair hearing would be compromised".

[16] Once again, then, the decision of Cameron does not exclude the responsibility of the Crown from having to provide a translation of a transcript in the appropriate circumstance.

[17] The last case the Crown asked me to rely upon, the decision of Malloy J., sitting as a trial judge, in R. v. Hassanzada. Again, the factual circumstance of that case is very different than the matter before this court. In that case, the Crown sought to tender statements of a deceased who had testified at a preliminary hearing. At the preliminary hearing, the witness had used an interpreter and no issue was taken by counsel for the accused with respect to that interpretation. The deceased had also given a statement to the police, who used the assistance of another officer who spoke Tamil, as did the witness, and assisted in interpreting for that witness.

[18] At the trial, and the issue that Malloy J. had to deal with, was whether or not the accused, who sought a transcript of the Tamil words used by the police officer, was required to be provided by the Crown. She held that there was no basis for a belief that the police officer's translation was inaccurate or that there was an error with it, and that the deceased had testified at the preliminary hearing with the assistance of an interpreter and there was no suggestion that there was any difference between what she had said at the preliminary hearing and what was contained in her statement to the police.

[19] Thus, in my view, the factual circumstances in the matter before that court were very different than the matter before this court to consider.

[20] As I said earlier, counsel for Mr. Saprikin provided no specific cases, but argued that the fairness and the ability of the accused to make full answer and defence required that a translated transcript be produced. He continued that given the short length of the tape, the cost to have it translated would have been minimal against the cost of having to bring the application to this court and argue the motion before it. Additionally, he stated that he could not rely on his client providing a translation of the video, as his client's ability to speak English was poor and thus could obviously not give an appropriate translation.

Should the Crown be Required to Provide a Translated Transcript of the Breath Room Video?

[21] In reaching my conclusion, I have carefully considered the cases provided by the Crown and the principles that are important. I have also considered the Newfoundland and Labrador decision in R. v. Oszenaris, leave to appeal to the Supreme Court of Canada being denied. This case dealt with a different type of disclosure, that of electronic disclosure. In that case, defence counsel asked that the electronic disclosure provided by the Crown be reduced to paper disclosure and provided to counsel in that format. The Newfoundland and Labrador Court of Appeal refused that request but held at paragraph 19 of the decision:

. . . that electronic disclosure is meaningful if the disclosure materials are reasonably accessible -- a matter to be assessed in the circumstances of each case. I also agree a significant factor in assessing accessibility is the manner in which the material is electronically organized and formatted. Accessibility may also depend upon the circumstances of the accused, including accused's counsel.

[22] The principle that is clear from all of these cases is that whether or not the type of disclosure is appropriate and if the Crown needs to do more, must be assessed on the circumstances of each case. While there might be a general proposition that the Crown can determine a manner in which disclosure is provided to an accused, provided it is accessible, there may be specific situations where the Crown needs to do more.

[23] Again, the question is, is this a situation where the Crown should provide a translated transcript of the breath-room video, and thus, do more? The answer, simply put, is yes. There are a number of reasons for this. To do so carries on the tradition of the Crown at its highest as set out by the Supreme Court of Canada in Boucher v. The Queen. It also meets the importance of disclosure as set out by the Supreme Court of Canada in Stinchcombe. That is, it allows the accused to make full answer and defence, but perhaps even more importantly in this situation, is the only way in which the Crown themselves can properly assess the strength of its case and determine if the matter should be proceeded with, or whether it should be withdrawn. Not to do so, then, in actuality, delegates the responsibility to determine whether or not the matter should proceed after the police. That is, if the Crown does not have an English translation of what actually occurred in the breath room, how can it be that a Crown can properly review the matter, assess it for its strength or weaknesses, and even prepare to proceed to trial? If they do not, they are merely accepting the summary of the evidence as provided by a police officer without actually reviewing it.

[24] As well, had the Crown actually provided the translated transcript in advance to the accused, it would have saved time and the cost of bringing this motion. The relative cost to the administration of justice in providing a translated transcript is certainly far less than the cost of the court time necessary to bring this motion. This is especially true in a jurisdiction such as York Region, where we are constantly looking for ways to become more efficient with the very limited resources we have available to us.

[25] Finally, I note the following: At some point in time, should the matter proceed to trial, in all likelihood, the video would have been presented by the Crown as evidence. It is, after all, actual evidence of the actus reus of the offence that the Crown was alleging was a refusal of a breath sample. The video, in this matter, is clearly the best evidence of the events, and thus, one can only presume that the Crown would present it to the Court. The question then is, how is it that the trier of fact would know what is occurring on the video without a translation of the events? An interpreter would be required, a transcript of that translation would be necessary if the trier of fact feels the need to retire to contemplate the matter in order to provide a fully-reasoned decision with respect to what the ultimate outcome of the matter would be.

[26] Thus, the reality is, at some point, the Crown would have to obtain a translated transcript of the events in the breath room.

[27] As a result, the Crown will provide a translation of the video to Mr. Saprikin.

Signed: Justice H.I. Chisvin

Released: February 19, 2015

Footnotes

[^1]: Sopinka J. reiterated these comments in R. v. Egger, [1993] 2 S.C.R. 451.

[^2]: See R. v. Simard, [1995] O.J. No. 3989, at paragraph 14.