COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chen, 2025 ONCA 168

DATE: 20250306

DOCKET: C68462

Pepall, Harvison Young and Sossin JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Shou Chen

Appellant

John Kaldas and Anthony Wong, for the appellant

Andrew Cappell, for the respondent

Heard: December 4, 2024

On appeal from the conviction entered by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury, on April 25, 2019.

Pepall J.A.:

INTRODUCTION

[1] Section 14 of the Canadian Charter of Rights and Freedoms states that “[a] party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.”

[2] The appellant was charged with second degree murder. It is uncontested that he does not understand or speak English, the language of his criminal proceedings. A Taishanese[^1] interpreter was requested for the appellant. He had one interpreter for the first half of the trial and another interpreter for the second half. Two audits of the interpretation of the first half of the trial requested by the Ministry of the Attorney General (“MAG”) reported that the portions reviewed revealed an interpretation that was not Taishanese but 100 percent Cantonese.

[3] The appellant was convicted of second degree murder and now appeals from that conviction. He relies on a breach of his s. 14 rights under the Charter, errors in the trial judge’s instructions to the jury on the appellant’s not criminally responsible defence, and an assertion of ineffective assistance of counsel arising from trial counsel’s decision to proceed with a bifurcated trial.

[4] The appellant also applies for an order to adduce fresh evidence relating to the s. 14 ground of appeal including the Crown audits of the interpretation at trial, the differences between Taishanese and Cantonese, and the ineffective assistance of counsel ground of appeal. The Crown filed materials in response and consents to the admission of the fresh evidence. I would admit the fresh evidence as requested. While not directed at any issue litigated at trial, the proposed evidence “seeks to shed light on the validity of the trial process” and is admissible for that purpose: R. v. Saini, 2023 ONCA 445, 90 C.R. (7th) 212, at para. 34; R. v. S.T., 2024 ONCA 572, at para. 14. It is in the interests of justice to admit the fresh evidence.

[5] The respondent fairly and candidly concedes that there were shortcomings in the interpretation services provided to the appellant which should not have occurred and are properly the subject of criticism. What happened should not have. However, relying on: R. v. S.A., 2021 ONCA 434, 493 C.R.R. (2d) 105; R. v. L.C.T., 2012 ONCA 116, 288 O.A.C. 133; and R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, the respondent submits that s. 14 does not require interpretation to be perfect; there must be a real possibility that the appellant either did not understand or was misunderstood; any objection to the interpretation provided must be timely. The respondent accepts that there are significant differences between Taishanese and Cantonese, that a monolingual Taishanese speaker would not fully understand someone speaking standard Cantonese, and that the impugned interpretation was into standard Cantonese rather than the “Taishanese dialect”. However, the respondent submits that the appellant has failed to meet his onus to show a reasonable possibility that he did not understand the interpreter. The respondent particularly relies on evidence of the deceased victim’s son and a police constable’s preliminary inquiry testimony plus the appellant’s lack of complaint at trial in support of its position that there was no breach of s. 14.

[6] I disagree and for the following reasons, would allow the appeal on the ground relating to s. 14 of the Charter. As a result, there is no need to address the other two grounds of appeal.

BACKGROUND

[7] The appellant speaks Taishanese. He was born to a farming family in a rural village in the Guangdong province of China and immigrated to Canada in 2000. In China, he was a farmer and after moving to Canada, he worked making fortune cookies until he was 65. His education consists of a few years of elementary school “on and off” in the 1940s and 1950s. His instruction was in Taishanese and the language of the appellant’s village was Taishanese. He does not read or write in any language and is functionally illiterate. The appellant maintained that he can understand Cantonese “a little here, and a little there”. It is undisputed that the appellant has no English language capability. He does not speak nor understand English.

[8] At the time of the offence, the appellant was 70 years old. The Crown’s expert forensic psychiatrist, Dr. A. Iosif, described him as mild-mannered, pro-social, and rule-abiding. In the morning of October 15, 2014, he was riding his bicycle and crossed paths with an acquaintance, Xian Xu Liu, age 63. There was no evidence of any pre-existing animosity between the two. Both were born in the Taishan region of China.

[9] Video surveillance showed the appellant getting off of his bicycle, engaging in a conversation with Ms. Liu, and then suddenly lunging and attacking her. After the attack, the appellant placed his bike against a wall and departed on foot. A passerby found Ms. Liu lying in the grass bleeding. Ms. Liu subsequently died and an autopsy revealed that she had sustained multiple blunt force injuries. Police recovered a metal bar with blood on it near Ms. Liu’s body that appeared to be from the appellant’s bicycle.

[10] The appellant was arrested and charged with second degree murder. Dr. Mark Pearce, his attending psychiatrist, diagnosed him as suffering from late-stage onset schizophrenia and could not rule out a cognitive disorder. The appellant also claimed to be directed by ghosts at the time of his attack on Ms. Liu.

SECTION 14 OF THE CHARTER

[11] For the reasons that follow, I have concluded that the interpretation provided at trial did not meet the requirements of s. 14 of the Charter. As such, I would allow this ground of appeal.

(1) Relevant Background and Fresh Evidence

(a) Police Interview and Preliminary Inquiry

[12] On October 16, 2014, the appellant was interviewed by Detective Worden. PC Liang, who speaks English and Cantonese, served as the appellant’s interpreter. The recorded interview revealed numerous references to a lack of understanding by PC Liang or the appellant. For instance, PC Liang said, “I'm telling him that some of it I don’t understand because of the, the dialect, so ...”; I don’t think he understand [sic] my question”; “I can’t understand any of that”. There was also the following exchange.

PC Liang: I’m asking if he had that opportunity to speak to a lawyer already. He said the legal lawyer – the free legal lawyer didn’t give him much help. He indicated that he was about to talk about the incident, I told him not to do it.

Detective Worden: Okay. Did you – the lawyer you talked to, did he speak to you in your native language of Cantonese?

PC Liang: He said due to his dialect in Cantonese, sort of like me with the lawyer – legal aid lawyer, he was able to understand only parts of what he said. Majority of it, he believes the lawyer did not understand him.[^2]

[13] At the preliminary inquiry, PC Liang testified on his interaction with the appellant. He testified that he only spoke Cantonese and English and he translated for the appellant in Cantonese. Among other things, he said he asked the appellant whether he understood his rights to counsel and he nodded and that he appeared to understand the questions posed by the staff sergeant during the booking process because he complied with the directions. He never expressed any confusion about the translation PC Liang provided. PC Liang maintained that the appellant understood Cantonese as did his wife, Bi Lian Chen. He testified that in the booking hall when the appellant wanted to use the washroom, he asked the appellant whether he spoke Cantonese, and the appellant said “yes”. The appellant never told PC Liang that he spoke Taishanese.

[14] Under cross-examination, PC Liang acknowledged that there was a dialect problem the two were having and that the appellant was having a hard time understanding everything PC Liang was saying and he did not understand 100 percent of what the appellant was saying.

[15] In his September 17, 2018 report, Dr. Pearce noted that a Taishanese interpreter was needed for all clinical interviews and that there was a significant language barrier at the appellant’s police interview as the translating officer did not speak Taishanese. “Mr. Chen likely didn’t understand all the questions posed and the interpreting officer didn’t always understand what Mr. Chen was trying to communicate. Overall and while I’m not trying to criticize the officers in question, the detective wasn’t able to fully explore the reasons for the offending or get answers to key questions …”.

[16] For his preliminary inquiry, a Taishanese interpreter was requested for the appellant. Verna Chong was his interpreter at his preliminary inquiry and for the second half of his trial. No issue is taken with her interpretation.

[17] Ms. Chong first met the appellant after he was arrested and while he was being detained at the police station. They spoke in Taishanese. She stated that he was very happy to see somebody that could speak his dialect. He told her he did not know what was happening because he had a Cantonese police officer talking to him and he did not understand Cantonese. She acknowledged that the appellant would know some words in Cantonese, such as getting a coffee or saying hello to people, that sort of thing.

[18] She has acted as an interpreter since 2003 or 2004 and is accredited to interpret Cantonese, Taishanese, and Kaiping dialects of the Chinese language but has not been accredited by MAG. She stated that the appellant speaks a dialect of Taishanese that is very distinct from Cantonese and that a Cantonese speaker would be unable to fully understand him. She describes Taishanese as a group of languages distinct from Cantonese. She and the appellant speak the same dialect of Taishanese because they came from the same region of Taishan. At the preliminary inquiry and trial, sometimes the appellant would poke her and advise that he could not hear or understand.

(b) The Trial

[19] Ms. Chong was unavailable for the commencement of the appellant’s trial which started on April 1, 2019. Anna Auyang was the interpreter provided by MAG for the trial before Ms. Chong was able to attend. She was one of only two conditionally accredited Taishanese interpreters on MAG’s registry at the time of trial, and there was only one fully accredited Taishanese interpreter. She interpreted from the second to the ninth day of the trial. This covered the Crown’s opening address and the proceedings relating to 12 witnesses.

[20] Ms. Auyang filed an affidavit as part of the fresh evidence and was cross-examined. She swore that she had been conditionally accredited by MAG to interpret Taishanese since 2016. However, the MAG test was for her English capability, not her Taishanese ability. She admitted that she was never tested in the Taishanese language by MAG. She was unsuccessful in being accredited by MAG to interpret Cantonese but had been accredited for Cantonese by the Immigration and Refugee Board since 2013. Cantonese is her first language and was the language of instruction at her high school in Hong Kong where she grew up. She maintained that Taishanese is a dialect of Cantonese and, in her experience, people who speak Taishanese also speak Cantonese. The two “are very intertwined” and “[m]any of the common expressions are the same.” She described her own interpretation as “a mixture of Cantonese and Taishanese, but ‘heavier’ on the Cantonese side.” According to her, the appellant also spoke a “mixture” of the two, but she found it difficult to understand him given his mumbling and “baby talk”. She claimed to be in the habit of repeating things for him but it was “difficult to do so consistently given the pace of the proceedings.”

[21] She took an oath during the appellant’s trial to translate from English to the Taishan dialect of Cantonese. Specifically, the oath she took was:

Q […] Do you affirm that you shall truly and faithfully interpret the evidence of both given and all other matters and things from the present charge from the English language to the Taishan dialect of Cantonese language, to the English language of – no, from the Taishan dialect of the Cantonese language to the English language, to the English language to the Taishan language of the Cantonese language to the best of your skill and ability?

A Yes, I do.

[22] In her cross-examination, Ms. Auyang said that during the trial, the appellant told her he could not hear well. She stated that the appellant confirmed that he understood the way she was speaking.

[23] In her affidavit, she stated:

In my interactions with Mr. Chen, he spoke a mixture of Cantonese and Taishanese. I found it difficult to understand him, as he mumbled and spoke in “baby talk” that was neither fully Cantonese nor fully Taishanese. It appeared to me that only Mr. Chen’s family members could completely understand him. I would frequently have to ask him for clarification to make sure that I understood him as well as possible.

I do not remember Mr. Chen ever telling me that he had any difficulty understanding me when I interpreted for him. Likewise, I do not remember Mr. Chen’s lawyer ever expressing to me that Mr. Chen was having any difficulty understanding me. I also do not remember anyone from Mr. Chen’s family ever telling me that he was having difficulty understanding me.

[24] In cross-examination, when asked whether she interpreted in Cantonese throughout the proceedings, she responded: “That’s my strongest dialect that I could do the best.” She said the appellant speaks some Cantonese but he primarily speaks in his dialect. She also used sign language with him. She “spoke Cantonese with a little bit of Taishan dialect in it”, “not fully Taishanese”. She acknowledged that she did not understand the appellant fully.

[25] She admitted that she asked the appellant in Cantonese whether he could hear and translated him as saying he could hear when in fact, he said he could not. She admitted she mistranslated him. Similarly, the instruction she gave him to push her if he could not hear was in Cantonese.

[26] Ms. Chong took over for the remainder of the trial. Ms. Chong listened to the audio recordings for the preceding days of the trial. For those that were audible, Ms. Chong stated that Ms. Auyang was not interpreting from English to Taishanese but to a very standard form of Cantonese. She stated that the appellant speaks a regionally distinct form of Taishanese that is very different from Cantonese. He would understand some words but not the entirety of the proceedings. For instance, on April 1, Ms. Auyang interpreted him as saying: “Now I can hear, now I can hear” when he actually said “I cannot hear.” On the same day, Ms. Auyang told him in Cantonese: “We want to know exactly at what time you can hear and at what time you cannot hear.” The appellant responded: “Only can hear some whenever, now does not work. I cannot hear.” However, Ms. Auyang interpreted this as: “Now it's working.”

[27] Ms. Chong maintained that Ms. Auyang “never spoke one word Taishanese. It’s all in Cantonese.”

[28] On April 1 and April 18, the trial judge engaged with the appellant on his need to do something if he could not hear. On April 1, Ms. Auyang, as a subsequent interpretation evaluation assessment reveals, misinterpreted the appellant as saying the interpretation was okay when he did not. The judge, focusing on the appellant’s hearing, instructed Ms. Auyang:

Mr. Chen has to understand that if he cannot hear something, he is to draw it to your attention immediately because we do not want to have this problem throughout the trial where we are replaying witnesses’ evidence. Would you just tell him that?

[29] On April 18, 2019, counsel reported to the court that the appellant’s son-in-law, who had been observing the proceedings, complained to him about Ms. Auyang’s interpretation. As a result, counsel had spoken with the appellant who had said he neither heard nor understood everything. The trial judge replied:

As everyone knows, we had a back and forth early on to make sure that every word was properly interpreted in these proceedings so that Mr. Chen could hear it all. We have been through the understanding issue. Not every accused, whether they have an interpreter or not, understands every single thing that happens in a case. That is why they have the assistance of counsel, so they can understand what happens.…

As part of this process we made sure that, if there were any other difficulties, someone would speak up immediately so that we would know that there was a problem and we could deal with it immediately. Mr. Chen was told in, I think, unequivocal terms that if he had any issue, he should immediately do something about it. Madam Interpreter was given those instructions, as well. From time to time Madam Interpreter has put up her hand and interrupted. She has been doing that. From my vantage point, which is not a bad one, I have never seen Mr. Chen speak up and say, “I’m not getting this”. He has never done that. I am looking directly at him.

(c) MAG’s Interpretation Evaluation Assessments

[30] In response to the appellant’s allegations of errors identified by Ms. Chong, the Crown requested that the MAG Court Interpretation Unit (the “CIU”) obtain an Interpretation Evaluation Assessment.

[31] The CIU sent a five-minute segment of the trial recording for an Interpretation Evaluation Assessment to be done by Yuki Eng. Ms. Eng concluded that Ms. Auyang’s interpretation “was 100% in Cantonese”. While her speech was clear, she “altered” the information shared by Mr. Chen. Mr. Chen’s speech “was not very clear originally, hence it may cause understanding problems.” Ms. Auyang did not ask for clarification or repetition, which could have enhanced the quality of interpretation. Ms. Eng identified various errors of note. On April 1, 2019, the appellant’s lawyer advised the trial judge that the appellant “did not hear or understand” certain evidence. The volume of the audio was adjusted and the trial judge inquired about the impact of the adjustment. The appellant answered “with the interpretation, then I can hear. At the end of the conversation I couldn’t hear it clearly. I can hear it now after it’s fixed.” Ms. Auyang interpreted this as “[i]nterpretation was ok, was the mic that was not working. When the mic works, like now, I can hear you.”

[32] The trial judge told Ms. Auyang that the appellant was to draw to her attention if he could not “hear” something. No mention was made of interpretation, not surprisingly given the mistranslation that “interpretation was okay”.

[33] The CIU also retained Wanru (Angie) Gong to perform an audit of Ms. Auyang’s interpretation. Ms. Gong was qualified for interpretation in 2018 or 2019. Ms. Gong also stated that the interpretation was “100% Cantonese” and “not…Taishanese at all.” According to her, it “seems like [Mr. Chen and Ms. Auyang] can understand each other” despite one speaking Taishanese and one speaking Cantonese. Ms. Gong believes that Ms. Auyang should “speak louder” and “pay attention [to] numbers while doing interpretation”. Examples of errors on the assessment form she completed include:

• "At approximately 12:50 PM" was interpreted as "At approximately 12:13 PM";
• "Approximately 27 years" was interpreted as "approximately 20 years";
• "it was a palm print in blood in a bicycle seat" was interpreted as "it was a fingerprint in blood in a bicycle seat";
• "We are talking about a minute and maybe 25 seconds later" was interpreted as "We are talking about at time of 10:45";
• "we’re looking at the December 16 report that you prepared" was interpreted as "we’re looking at the [not clear about the month] 14 report that you prepared".

[34] Ms. Gong was mostly unresponsive to the questions on cross-examination as she did not remember much about the case except that the interpreter was speaking in Cantonese.

(d) Expert Reports

[35] Genevieve Yuek-Ling Leung prepared an expert witness report dated July 31, 2023 for the Crown. She has a Ph.D. in Educational Linguistics from the University of Pennsylvania. She was an assistant professor in rhetoric and language at the University of San Francisco between 2012 and 2018 and has been an associate professor since then. She also serves as the Academic Director of the MA program in Asia Pacific Studies. Her report did not specifically relate to Ms. Auyang’s interpretation but provided some historical context.

[36] She wrote that Taishan is a county-level city of Guangdong province in China. The area was agrarian and most people lived in villages with others of the same surname. Most people born and raised in Taishan speak Taishanese. Because of migration and intermarriage, many people in the region also speak some form of (standard or near-standard) Cantonese. When the People’s Republic of China was established in 1949, Mandarin was first promoted and then adopted in 1955 as the official language. In 1958, with Mao’s Great Leap Forward, speaking a non-mandarin Chinese language was considered counterrevolutionary or subversive behavior. She wrote:

As such, depending on age, it is possible for people from Taishan to be monolingual Taishanese (especially the elderly and those who left China around or before or around 1955); to be bilingual Cantonese-Taishanese (also the elderly and those who left China around or before 1955); or to be multilingual with various degrees of fluency in using Cantonese, Taishanese, and Mandarin (especially for younger people and/or those who have travelled in and out of the Pearl River Delta and/or are more educated).

[37] In the 1940s and 1950s the language of public education in Taishan was “mostly/nearly all Taishanese, with some Cantonese (depending on the teacher).”

[38] When asked whether Taishanese was a form/dialect of Cantonese, Professor Leung reported that it was not. One is not a dialect of the other but each is part of the larger Yue language family.

As sister dialects, Taishanese and Cantonese are both typologically considered dialects. Each is part of the larger Yue language family; one is not a dialect of the other. Taishanese can be called a dialect (or a language) as long as Cantonese is also called a dialect (or a language). The term in Chinese that linguists use to characterize Taishanese is fangyan. A word that has been in use since the second century B.C., fangyan refers literally to the language of a place; so Taishanese is what is the fangyan spoken in Taishan. When Western linguists studied the languages of China, they mistranslated fangyan as “dialect” and the Chinese government has also followed suit in insisting that the English translation be “dialect” so that Mandarin becomes central to the construction of a Chinese identity; to many globally, this translation also made sense, since it followed the adage “A language is a dialect with an army and a navy” – the variety with more power (Mandarin, Cantonese) became to be known as the “language” and those with less power … became to be known as the “dialect.” The mistranslation has stuck, but it is also not precise. [...] Taishanese has enough distinct lexical, syntactic, morphological, and phonological differences from Cantonese (and vice versa) that they can be considered different languages, or at least to be called sister dialects. Despite this clear linguistic evidence, it would be remiss not to mention that beyond the English mistranslation, there are sociopolitical implications for using “language” to refer to Taishanese or Cantonese, especially in comparison to Mandarin, so this is often why it is not done in certain public spheres. [Citations omitted.]

[39] Professor Leung was asked to what extent she expected Cantonese to be comprehensible to a monolingual Taishanese speaker, and she said that “it depends on social factors like education and interpersonal networks” and later added vocation and age of exposure to Cantonese. She opined that “for someone with limited schooling and whose life centered around the village or the countryside, or solely worked in communities with other Taishanese people, it is possible to live without much Cantonese exposure at all.” In the context of someone born around the 1940s, Professor Leung stated that “because of social/political/economic instability happening around the time … it is also common for people of this age group to be ‘left behind’ in the sociolinguistic field and not be as bi/multilingual as younger generations.”

[40] Jia Wang is the interim director of the China Institute at the University of Alberta. She provided a will-say statement that is part of the fresh evidence package. Her statement addressed the distinction between the concepts of language and dialect. She described the Chinese language as follows:

Chinese is a cluster of languages spoken by the Han Chinese majority and some ethnic minority groups. Though often referred to simply as “Chinese”, many of the spoken varieties known as “fang yan” or dialects, are mutually unintelligible. For example, the differences between Mandarin and Cantonese are so vast, they are often compared to English and Dutch or English and French….

The concept of a “dialect” in Chinese differs from what an English speaker might expect. In English, many consider dialects similar to accents – for instance, American English, British English or Australian English speakers have little to no trouble conversing unless the accent is particularly thick. But this is not the case for many speaking different Chinese dialects.

Taishanese, spoken primarily by residents of Taishan of Canton (Guangdong) Province and those migrated from the region, is known in China as a unique dialect that is difficult for non-speakers to understand. Though bearing some resemblances to Cantonese (since both of them are part of the Yue language group), Taishanese pronunciation and vocabulary can differ greatly from Cantonese due to notable influence from Gan language which originates in Jiangxi Province. Taishanese is related to Cantonese but has little mutual intelligibility with the latter. Without proper training in Cantonese, a Taishanese speaker cannot understand Cantonese and same is true vice versa.

(e) Evidence from the Appellant and Other Witnesses

[41] As part of the fresh evidence filed, the appellant was interviewed on May 20 and 27, 2021 and cross-examined on January 24 and February 27, 2024. In his interview he said he could not understand what was being said before Ms. Chong took over the interpretation at the trial but he did not remember much as the trial was so long ago. When asked whether he could speak Cantonese, he stated: “Well I cannot speak Cantonese, sometimes I could say something they may understand but I speak Taishan.” When asked if he had friends or family that only speak Cantonese, he said: “Cantonese, sometimes something understood, and sometimes not understood.”

[42] When asked how much of the trial he understood, the appellant replied that he did not “understand any, any day because I feel like I am a bull.” He said that neither the judge nor his lawyer asked him if he could understand and he could not hear what was being said. He maintained he said he could not hear but they didn’t do anything. He told his wife he did not understand.

[43] The appellant did not tell the interpreter that he did not understand nor did he tell his lawyer. He acknowledged he had difficulty hearing.

[44] In cross-examination, the appellant stated that when he met with the police officer after he was arrested, the officer spoke in Cantonese and he spoke in Taishanese and they understood each other here and there. Some of the answers, he may not have been able to give.

[45] The deceased’s son, Wan Peng Mei, gave evidence at trial, part of which the respondent relies on regarding the s. 14 ground of appeal. Mr. Mei stated that he had worked at the same place as the appellant and would drive him home most days. They spoke in the car. Mr. Mei stated that the appellant sometimes spoke in Cantonese and sometimes in Taishanese. When asked about this in cross-examination, the appellant maintained he spoke with the deceased’s son in Taishanese.

[46] The appellant’s wife, Bi Lian Chen, provided an affidavit and was cross-examined as part of the fresh evidence on appeal. She only speaks Taishanese. During the first half of the trial, she noticed that the interpreter was not fluent in Taishanese. She raised the issue with her son-in-law who in turn raised the issue with their lawyer, but she asserted that nothing was done until a second interpreter who could speak Taishanese started to interpret.

[47] The appellant’s daughter, Wan Yu Chen, was born in China and is fluent in Taishanese and Cantonese. When they lived in Taishan, Taishanese was spoken in their home, not Cantonese. The same was true in Toronto. She maintained that her father did not understand or speak Cantonese. Her father told her he did not hear clearly or did not understand but she never said anything to the lawyer about this.

[48] The son-in-law of the appellant, Gin Ding Liu, also provided evidence. He speaks some English but no one else in the family does. He said that he and his mother-in-law were concerned that the appellant would not know what was going on as the interpreter during the first half of the trial was not fluent in Taishanese. He said there is some overlap between Cantonese and Taishanese but his father-in-law did not speak Cantonese and could understand at most about 30 percent of the conversation.

[49] Mr. Liu stated that he raised the interpretation issue with their lawyer very early on at least two or three times but nothing was done. “It felt like the court was preoccupied with simply finishing the trial and did not want any delays even though my father [sic] did not understand what was going on.”

[50] During cross-examination, Mr. Liu said the first interpreter at trial spoke a mixture of Taishanese and Cantonese. He maintained he told their lawyer on the first day that the interpreter was not interpreting everything into Taishanese.

[51] In his affidavit filed as part of the fresh evidence, trial counsel stated that he was alive to the issue of the appellant’s rare dialect posing a challenge to his ability to communicate and understand others. If he or his family had communicated to him that the translation was inadequate, trial counsel would not have hesitated to raise it with the court. He had raised the appellant’s hearing problems at the preliminary inquiry and also when he was concerned the evidence was not being fully interpreted to the appellant at the preliminary inquiry. On one occasion at trial, the evidence was replayed due to an audio problem.

(2) Positions of the Parties

[52] The appellant submits that his s. 14 Charter right was breached, stating that the interpretation provided was not just incompetent, it was in the wrong language. The standard set out in R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 979 requires “continuity, precision, impartiality, competency and contemporaneousness”. The appellant argues that a voir dire about the interpreters’ qualifications should have been held, as was said to be the “general rule” in R. v. Dutt, 2011 ONSC 3329, 236 C.R.R. (2d) 305, at para. 55. MAG’s own policy was that interpreters who are conditionally accredited should not be assigned to a lengthy trial involving difficult vocabulary: R. v. Akaeze, 2012 ONSC 7046, 274 C.R.R. (2d) 76, at para. 54.

[53] The appellant submits that the onus is not on an accused to notice and correct inaccuracies: R. v. M.R., 2020 ONSC 408, at para. 38. This is particularly so for an “unsophisticated, uneducated, mentally ill senior citizen with diminished faculties and absolutely no English language ability.”

[54] According to the appellant, the s. 14 standard cannot be satisfied with an overlap of Cantonese and Taishanese. In a multicultural society, courts frequently deal with related languages and do not treat them as interchangeable.

[55] The respondent submits that s. 14 does not require interpretation to be perfect, and there must be a “real possibility that the appellant either did not understand or was misunderstood”: S.A., at para. 28. Any objection to the interpretation provided must be timely: L.C.T., at paras. 83-84; Rybak at para. 95.

[56] The respondent agrees that there are significant differences between Taishanese and Cantonese, that a monolingual Taishanese speaker would not fully understand someone speaking standard Cantonese, and that Ms. Auyang was at times interpreting into standard Cantonese rather than the “Taishanese dialect”. However, the respondent submits that the appellant has failed to show a reasonable possibility that he did not understand Ms. Auyang. The respondent relies on Mr. Mei’s trial evidence and Constable Liang’s preliminary inquiry testimony. Further, the appellant failed to raise any deficiency in interpretation although he was able to raise a concern when the microphone was not working on the first day of the trial and knew to poke Ms. Chong when he did not understand her interpretation.

(3) Applicable Legal Principles

[57] The leading case in Canada on s. 14 of the Charter is Tran. In that decision, Lamer C.J. noted at pp. 960-61 that s. 14 confers on an accused “a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court”.

[58] He also described at p. 977 the purposes served by s. 14:

First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.

[59] A party must have the same opportunity to understand and be understood as if they were conversant in the language being used in the proceedings: at pp. 977-78. That said, the Chief Justice cautioned that the principle of linguistic understanding should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings are given or seen to be given unfair advantage. “Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others” (emphasis in original): at p. 978. This principle was emphasized by Wagner C.J. in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, a case dealing with official language rights and s. 530 of the Criminal Code, R.S.C., 1985, c. C-46, where he stated, at para. 6, that instrumentalizing language rights on appeal is a highly objectionable practice that must be sanctioned to the greatest extent possible. Language rights should not be raised for the first time on appeal for an ulterior motive or for purely strategic reasons.

[60] To establish a breach of s. 14, first it must be clear that the accused was in need of interpreter assistance – they did not understand or speak the language used in court. In this regard, courts have an independent responsibility to ensure the accused understands the language and is understood. Establishing need is not normally an onerous step unless the issue of interpretation is being raised for the first time on appeal and/or there is some question as to whether it is being raised in bad faith: Tran, at p. 979.

[61] Second, the accused must show a departure from the standard of interpretation that is required to ensure that they have the same opportunity to understand and be understood as if they were conversant in the language used in court. This standard can be helpfully defined by reference to a number of criteria, including continuity, precision, impartiality, competency, and contemporaneousness: Tran, at p. 985; Rybak, at paras. 80-81. Precision and competency, which are the principal elements engaged on this appeal, must ensure that the interpretation is of a high enough quality to ensure that justice is done and seen to be done.

[62] Third, the accused must establish that the alleged lapse in interpretation occurred in the course of the proceeding itself when a vital interest of the accused was involved – i.e., when the case was being advanced: Tran, at pp. 979-80; Rybak, at para. 86.

[63] According to Tran, the question is whether there is a possibility that accused parties may not have understood a part of the proceedings by virtue of their difficulty with the language used in court: at pp. 990-91. That said, the standard of interpretation under s. 14 is not perfection. The burden of proof is on the accused and the standard of proof is balance of probabilities.

[64] Chief Justice Lamer described the question to be answered at pp. 990-91 of Tran:

Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right – namely, that of linguistic understanding – should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.

[65] A court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case: Tran, at p. 994.

[66] Chief Justice Lamer summarized at p. 998:

The scope of the right to interpreter assistance guaranteed by s. 14 of the Charter may be stated in the following broad terms. The constitutionally guaranteed standard of interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency and contemporaneousness. An accused who does not understand and/or speak the language of the proceedings, be it English or French, has the right at every point in the proceedings in which the case is being advanced to receive interpretation which meets this basic standard. To establish a violation of s. 14, the claimant of the right must prove on a balance of probabilities not only that he or she was in need of assistance, but also that the interpretation received fell below the basic, guaranteed standard and did so in the course of the case being advanced. Unless the Crown is able to show on a balance of probabilities that there was a valid and effective waiver of the right which accounts for the lack of or lapse in interpretation, a violation of the right to interpreter assistance guaranteed by s. 14 of the Charter will have been made out. While there will be circumstances in which waiver of the right to interpreter assistance will not be permitted for reasons of public policy, in situations where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant.

[67] The absence of a timely objection does not constitute a waiver of the s. 14 right. Nor is it determinative of a s. 14 claim on appeal: R. v. Mitroi, 2018 BCCA 236, 362 C.C.C. (3d) 374, at para. 31. It can, however, be a very serious consideration in determining whether the accused has satisfied the burden of proving that interpreter assistance was required and that the interpretation provided fell short of the requisite standard. This is particularly relevant in situations where the accused needs only limited assistance from the interpreter and is able to follow the court’s direction that they speak up about interpretation problems, but fails to do so: Rybak, at paras. 94-96 and 101; L.C.T., at paras. 82-85.

[68] Courts must not be too quick to draw adverse inferences where the accused has some facility with the language used in the proceeding: Tran, at p. 985. Judges must avoid falling into the trap of the “misinterpretation fallacy” by always expecting the accused to identify errors when they have limited understanding of the language being interpreted to or from: M.R., at para. 39; Dutt, at para. 30, citing R. v. Koaha, 2008 NUCA 1, 432 A.R. 343, at para. 29. As the Saskatchewan Court of Appeal noted in R. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at para. 54: “a claimant who lacks comprehension or the ability to communicate may be totally unaware of deficiencies in the interpreter assistance provided.” This is one of the challenges associated with a lack of complaint. If the accused do not understand or speak English, how are they always to know whether something has been improperly interpreted?

(4) Application of Principles

[69] Applying these principles to this case, I will first summarize the context. The accused was 70 at the time of the offence and at the time of trial 4 1/2 years later, 74 years old.[^3] He was diagnosed with late onset schizophrenia. Although Dr. Iosif, a forensic psychiatrist, determined that a not criminally responsible due to mental disorder (NCR) verdict was not supported from a psychiatric perspective, she described his presentation as being impacted by mental illness and possibly intellectual capacity. As evident from the trial transcript, he also had some hearing impairment. He did not testify so there was no opportunity for the trial judge to observe the interaction between him and others while on the stand. His education consists of two years of intermittent elementary school in a village in China in the 1940s and 1950s and he is illiterate. He does not speak nor understand English. As such, he was dependant on the interpreter for his trial for second degree murder.

[70] The appellant’s need for an interpreter is uncontroverted and thus the first element required to satisfy a s. 14 breach as described in Tran is readily satisfied. So too is the third element, that is, the alleged lapse in interpretation occurred during the proceedings. As mentioned, the challenged interpretation occurred over the course of eight days of trial during which the Crown presented its opening statement and 12 witnesses testified. This leaves the second step that the appellant must satisfy to establish a breach of s. 14 of the Charter: He must show that the interpretation at his trial fell below the constitutionally guaranteed standard.

[71] The appellant was to have a Taishanese interpreter. Although Ms. Auyang was a conditionally accredited Taishanese interpreter, based on audio recordings they reviewed, the two external interpreters contracted by MAG’s CIU to audit the interpretation conducted by Ms. Auyang, both opined that her interpretation was “100% in Cantonese”. Ms. Chong viewed the appellant’s family as friends and considered the appellant to have been wrongfully convicted. Nonetheless, her interpretation was never disputed. She reviewed excerpts of Ms. Auyang’s trial interpretation and was also of the view that it was in Cantonese, not Taishanese.

[72] The oath Ms. Auyang took was to translate the “Taishan dialect of Cantonese” to the English language and vice versa. To repeat, Dr. Leung, the expert retained by the Crown discussed the differences between Taishanese and Cantonese:

Taishanese can be called a dialect (or a language) as long as Cantonese is also called a dialect (or a language). […] Taishanese has enough distinct lexical, syntactic, morphological, and phonological differences from Cantonese (and vice versa) that they can be considered different languages, or at least to be called sister dialects.

[73] In response to the written Crown query, “To what extent, if at all, would you expect spoken Cantonese to be comprehensible to a monolingual Taishanese speaker?”, Dr. Leung answered:

It would depend on how much education and exposure to extended social networks this monolingual Taishanese speaker had. For a fairly mobile Taishanese young person nowadays, there should be some exposure to spoken Cantonese in their daily lives. However, for someone with limited schooling and whose life centered around the village or the countryside, or solely worked in communities with other Taishanese people, it is possible to live without much Cantonese exposure at all.

[74] The experts, Dr. Leung and Ms. Wang, and Ms. Chong all rejected Ms. Auyang’s assertion that Taishanese and Cantonese were essentially the same language with some variation of tones and accents.

[75] The Tran criteria of continuity, precision, impartiality, competency and contemporaneousness are not exhaustive but help in assessing the interpretation that was provided.

[76] As Tran instructed, prejudice is not required to establish a breach of s. 14 although Saini, at para. 37 suggests that the number, quality and impact of the interpretation errors are relevant. See also S.A., at paras. 26-32.

[77] The record does disclose important errors. On April 1, 2019, an issue was raised by Ms. Auyang about the microphones. She said, “He couldn’t hear anything”. After the audio equipment was adjusted, the trial judge asked the appellant whether it was working now. According to Ms. Chong, the appellant said “I cannot hear”, yet Ms. Auyang interpreted him as saying “Now I can hear. Now I can hear.” Later that same day, during the segment of the audio that Ms. Eng was asked by the CIU to evaluate, Mr. Chen said, “With the interpretation, then I can hear. At the end of the conversation I couldn’t hear it clearly. I can hear it now after it’s fixed.” but Ms. Auyang added in the English translation “[i]nterpretation was ok.”

[78] Key to the Crown’s argument is the assertion that the appellant understood Cantonese. There is no question that the appellant understood some Cantonese. The deceased’s son who worked with the appellant testified that he would speak to him in Cantonese. The appellant himself stated that he cannot speak Cantonese but “sometimes I could say something they may understand”. PC Liang was of the view that he understood the cautions given to him in Cantonese when he was arrested. It seemed to Ms. Gong, based on the limited instances captured on the audio recording of Ms. Auyang speaking to the appellant, that they understood one another.

[79] Moreover, one must consider the position of some of the medical practitioners who assessed the appellant that he was malingering the extent of his cognitive decline and not taking all of his prescribed medications. In addition, and importantly, the appellant did not himself raise any issue about the interpreter’s competence with the judge or his lawyer.

[80] In spite of all of these factors, I am satisfied that the appellant has met his onus that on a balance of probabilities his s. 14 rights were breached. Chief Justice Lamer instructed in Tran, at pp. 990-91 that “the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.” This court’s decisions in S.A. and Saini have characterized this threshold as a “real possibility” of not understanding the proceedings. Given that the standard guaranteed by s. 14 is not one of perfection, in my view, this is a fair characterization. That said, on either description, the appellant has met his onus.

[81] The appellant sought a Taishanese interpreter and he received a Cantonese interpreter. The interpretation was 100 percent Cantonese. I accept the evidence of Professor Leung and Ms. Wang that the concept of dialect in Chinese differs from what an English speaker might expect and though related, Taishanese has little mutual intelligibility with Cantonese.

[82] The interview transcript after the appellant was arrested discloses numerous instances in which the appellant and PC Liang could not understand each other. When PC Liang asked if the appellant had been able to consult with counsel, he responded that he had trouble communicating with the Legal Aid lawyer who spoke Cantonese. Indeed, at the preliminary inquiry, PC Liang testified that it could be possible that the appellant had difficulties understanding and that he himself had difficulties comprehending the appellant because of the “dialect”. Trial counsel noted in his docket of October 14, 2017 “Attempt to speak with client with Cantonese lawyer. Lawyer explains dialect makes it very difficult and he doesn’t believe client understands everything being said”.

[83] Lastly, the appellant’s son-in-law did complain through trial counsel that Ms. Auyang “was not interpreting, not doing the job”.

[84] I acknowledge the Crown’s argument that the son-in-law could not be considered an independent witness. In addition, unquestionably the appellant understood some Cantonese. However, when I consider the whole of the record and the state of the appellant – a unilingual, non-English speaking, uneducated, unsophisticated, elderly accused who was diagnosed with late-onset schizophrenia and for whom a cognitive disorder could not be ruled out – I am persuaded that there was a real possibility that the appellant may not have understood the proceedings by virtue of his difficulty with the language used by the interpreter in court. I view this as a rather unique case. A failure to complain during the trial is not a bar to a s. 14 ground of appeal but will typically weigh very heavily against an accused. Here however, the appellant had an interpreter in his trial for second degree murder but not for the language he spoke and understood.

[85] It remains to address whether, as the appellant submits, a voir dire into the qualifications of Ms. Auyang ought to have been conducted as suggested in Dutt.

[86] Courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and therefore to protect an accused’s right to interpreter assistance, irrespective of whether the right has been formally asserted: Tran, at pp. 979 and 981.

[87] By the time a criminal case is called for trial, the need for interpreter assistance has generally already been established. Nonetheless, a trial judge’s gatekeeping role includes being satisfied with the qualifications of the interpreter. Where there is legitimate reason to doubt the interpreter’s competence, the trial judge should conduct an inquiry into the interpreter’s qualifications: Tran, at p. 988; Rybak, at para. 83; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at para. 108.

[88] A trial judge should inquire into whether the proposed interpreter has been accredited or conditionally accredited by MAG. Neither the presence nor absence of accreditation can be considered dispositive of whether the interpretation provided is competent: Rybak, at para. 84; Singh, at para. 109. If a proposed court interpreter is not accredited or conditionally accredited by MAG, though discretionary, a trial judge should give serious consideration to conducting a voir dire. See R. v. Gadam, 2015 ONSC 7204, at para. 10. For lengthy and complex proceedings, it may be advisable to err on the side of caution. The greatest degree of confidence will be provided where an interpreter has been tested in both the language used in court and the language of the accused: Dutt, at para. 97. At the same time, a trial judge must always be mindful that court time be used efficiently and may consider a voir dire to be unnecessary.

[89] At the outset of the proceedings, the trial judge should establish a system for the accused to advise the court if any difficulty with the interpretation arises: R. v. Sidhu (2005), 2005 CanLII 42491 (ON SC), 203 C.C.C. (3d) 17 (Ont. S.C.), at para. 335(8). It is advisable to use the interpreter to ensure that the accused understands the importance of alerting the court about any deficiency in interpretation at the earliest opportunity. This is particularly important if the defence counsel does not understand the accused’s language and is not in a position to notice any problem with the interpretation.

[90] After the proceeding has begun, the trial judge and both counsel should remain alert to any interpretation problem that appears to arise. Some interpretation errors or lapses can be adequately cured by having the court reporter read back the relevant parts so that they can be re-interpreted: Tran, at p. 1010. The presiding judge may also offer to re-commence the hearing of an issue to cure the absence of an interpreter or any interpretation issue that has occurred: Rybak, at para. 45. At times, it may even be necessary to conduct a further inquiry into the interpreter’s competence: M.R., at paras. 34-40.

[91] That said, as noted by the Manitoba Court of Appeal in R. v. Gebru, 2019 MBCA 73, 378 C.C.C. (3d) 468, at para. 63, there is no magic formula as to what a trial judge should say and do. The key is to ensure that there is compliance with the principles described in Tran and reflected in the wording of s. 14. I would also add that defence counsel has a role to play: Rybak, at para. 75. The need for a competent interpreter should be raised at the earliest opportunity so as to ensure that no difficulties subsequently arise.

[92] No voir dire was conducted into the competency of Ms. Auyang. At a minimum, it would have revealed that she was conditionally accredited and might have revealed that she was never tested in Taishanese. The appellant requested a Taishanese interpreter and a voir dire could have revealed that this was not Ms. Auyang. I acknowledge that in this case, the judge was in a difficult position as Ms. Auyang provided an oath that she would translate English into the Taishanese dialect of the Cantonese language yet did not. In addition, she mistranslated the appellant as saying that the interpretation was okay when he had not said that.

[93] To close, as Lamer C.J. observed in Tran, at pp. 976-77, “a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system.” As I have concluded that the appellant’s s. 14 Charter right was breached, I would order a new trial. Under the circumstances, there is no need to address the remaining grounds of appeal.

DISPOSITION

[94] For these reasons, I would allow the appeal based on a breach of s. 14 of the Charter. In the circumstances, I would order a new trial.

Released: March 6, 2025 “S.E.P.”

“S.E. Pepall J.A.”

“I agree. A. Harvison Young J.A.”

“I agree. Sossin J.A.”

[^1]: The words Taishanese, Taishan, Toishanese, and Toisan-wa are used interchangeably to describe the appellant’s language. For ease of reference, I will use Taishanese throughout these reasons.

[^2]: The appellant does not raise any issue regarding his rights to counsel and to remain silent.

[^3]: He is now in his 80s and out of prison.