Court File and Parties

Court File No.: OLD CITY HALL

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Karma Wangchuk

Before: Justice Beverly Brown

Heard on: November 8, 2011, February 10, 27 and May 2, 2012

Reasons for Judgment released: May 30, 2012

Counsel:

• Mr. D. Lerner for the Crown
• Mr. T. Pain for Karma Wangchuk

BROWN J.:

Introduction

[1] Mr. Karma Wangchuk is charged with the offence of having over 80 mgs of alcohol in his body while operating a motor vehicle on December 11, 2010. The case was remanded from time to time, then put over for trial to November 8, 2011. There was a request that a Tibetan interpreter be obtained for the benefit of the defendant. On the trial date, in the context of a concern regarding the competence of the interpreter who attended court for the trial, the Crown indicated its view that Mr. Wangchuk did not require an interpreter. This court engaged in a pre-trial voir dire exploring issues related to the need for and competence of the interpreter who attended in court for the trial. Mr. Wangchuk testified in the voir dire, as did P.C. Exton, the investigating officer. The Crown also filed in evidence a DVD tape which contained events recorded in the booking process, during dealings with the officer in the breath room, and the release by the booking sergeant. Submissions were made by both counsel, and the Court now releases its reasons in this voir dire.

Need for an Interpreter

Where the accused "does not understand or speak the language" of the court (English):

[2] Section 14 of the Charter provides:

"14. 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."

[3] In the first case where the Supreme Court of Canada considered this Charter right, R. v. Tran, [1994] S.C.J. No. 16, at para. 9, the Court noted that the right to interpreter assistance guaranteed by s. 14 is conferred upon an accused who does not understand or speak the language of the court. [emphasis added] The Court stated that this Charter right is tied to s. 650 of the Criminal Code, which stipulates that an accused shall be present during the whole of the trial. S. 14 of the Charter further specifies, as commented upon in various cases, that this is a right of an accused to be "linguistically present". In considering this right, the Court noted that everyone has a common law right to a fair hearing, including the right to be informed of the case one has to meet and the right to make full answer and defence. The ability to understand and be understood is a minimal requirement. This right is also echoed in international human rights instruments, including the United Nations' International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[4] The court elaborated that an accused has the right to know, in full detail, and contemporaneously, what is taking place in the proceedings which will decide his or her fate. There must be a purposive and liberal interpretation of this right and a principled application of this right. The guarantee of this right is to create a level and fair playing field and not to provide some individuals with more rights than others.

[5] Often, in many cases that have been considered by courts dealing with this Charter right, there is no issue as to whether the accused is in need of interpreter assistance. Both parties agree that an interpreter is required. That is not the situation in the case at bar, and this issue has been the subject of evidence and submissions.

[6] In that regard, the Supreme Court in Tran noted, at para 42:

"42. First, it must be clear that the accused was actually in need of interpreter assistance --- i.e., that he or she did not understand or speak the language being used in court. Although the ultimate burden of proof in establishing the required level of need rests, of course, on the party asserting that he or she has suffered a violation of his or her s. 14 rights, it is important to appreciate that the right to interpreter assistance is not one which must necessarily have been invoked or asserted in order to be enjoyed. As part of their control over their own proceedings, courts have an independent responsibility to ensure that those who are not conversant in the language being used in court understand and are understood. Accordingly, unless the issue of interpretation is only being raised for the first time on appeal and/or there is some question as to whether the right is being asserted in bad faith, establishing "need" will not normally be an onerous step."

[7] Clearly, this is a prerequisite to the right to having an interpreter. For instance if an accused speaks English well, the court should not engage in a process of determining, where that accused also speaks another language, the competence of an interpreter provided for that accused.

[8] As set out in para 45 of Tran, the onus with respect to establishing this need falls on the party asserting the violation (where there is an appeal and the party argues that there was a breach of the appellant's s. 14 Charter right). In this case, where the defendant makes a request for a Tibetan interpreter (and the opposing party challenges the need for the interpreter), the onus falls on the defendant and the standard of proof is one of a balance of probabilities.

[9] The Court in Tran held that courts should be generous and open-minded when assessing an accused's need for an interpreter. In the case at bar, the court has not had an opportunity to hear the accused speak or attempt to speak in English in court. Accordingly, this is not a situation as noted by the Supreme Court in Tran where it becomes apparent to the judge that an accused has for language reasons had difficulty expressing himself or understanding the proceedings and that the assistance of the interpreter would be helpful. In other cases, this court has often come across this situation and requested an interpreter be provided for the benefit of an accused. In those cases the need for an interpreter was not an issue. In this case, defence counsel requested the services of a Tibetan interpreter for his client. In this scenario, the Court in Tran noted the procedure as:

"48…

(2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified."

[emphasis added]

Accordingly, the court must make a determination in this case as to whether the request is justified.

[10] The Supreme Court directed trial judges, in paragraphs 52 and 53 of Tran, to approach the task of this determination with sensitivity and understanding. The court must not be too quick to draw adverse inferences where the claimant of the right has some facility with the language being used by the court. Quoting from other cases, the Court agreed that interpreter assistance should not be denied unless there is "cogent and compelling evidence" that the request is not made in good faith, but rather for an oblique motive.

[11] In R. v. Rybak, 2008 ONCA 354, [2008] O.J. No. 1715 (C.A.), the Court dealt with the appeal of an appellant found guilty of second degree murder who raised as one ground of appeal an argument that there had been a breach of s. 14 of the Charter as a result of the quality of interpretation provided for him in the trial. The appellant was almost 25 yrs of age and had come to Canada from Poland 5 or 6 yrs previously, had not attended any schools in Canada, and in his work as a roofer spoke both English and Polish. The Court of Appeal for Ontario adopted the principles set out by the Supreme Court in Tran. The Court also acknowledged the need of the court to ensure for a "language-deficient accused" the "standard as if she or he were conversant in the language of the trial proceedings". The Court also noted that there is a degree of variability as to what is required for some people to achieve that standard, which in the context of that appeal was tied to the Court's consideration of what this court might characterize as intermittent interpretation at the trial, when called upon to assist.

[12] While many other cases were put before this court for consideration of the issue, and this court has researched additional cases touching upon this issue, the facts and situation in the case at bar appear to be factually quite unique.

[13] Mr. Wangchuk is 42 yrs of age and he works for Canada Post as a mail man. He testified that he can speak English. He agreed that English is very important in his job. He has been in Canada since 1999, some 12 years before this trial. He was born in India where he spoke Tibetan. He started to learn English in second or third grade, while in school in India. He went to Grade 12. He did not take English classes when he came to Canada. He obtained his driver's licence in Canada, and was hired after a job interview in English.

[14] The court also considers his testimony that he is in a common law relationship with a Tibetan-speaking spouse, and that he has Tibetan-speaking friends. It did not seem that he had any Tibetan-speaking colleagues at his employment.

[15] In addition to this viva voce testimony of Mr. Wangchuk, this case is particularly unique in that the court has in evidence a DVD tape which recorded various events in the course of the police investigation at the police station, including various comments and words spoken by Mr. Wangchuk to the booking officer, to the police officers who interacted with him including in the breath room for both samples, and finally the process of releasing Mr. Wangchuk. There was no issue with respect to the voluntariness of those statements of Mr. Wangchuk, and they were led by the Crown solely for the purpose of showing the use of English by Mr. Wangchuk, touching upon the issue with respect to any need for an interpreter for this trial. While Mr. Wangchuk was questioned about his use of English during these interactions, the DVD tape is the best evidence of his use of English during dealings with the police officers at the station during the investigation. Throughout this time, Mr. Wangchuk was extremely polite. All of the words spoken by everyone were in English. While he often nodded his head and said "yes" or "yes sir" in response to questions put to him by the officers, and indicated on multiple occasions that he understood what he was being told, he also gave much longer answers and full sentences in English. He spoke more than minimal answers and his answers were responsive to the questions. This court also considers his testimony that he was very scared and very nervous. Having noted that, it seems that Mr. Wangchuk was very comfortable responding to English-speaking officers and using English himself. No lack of understanding was apparent, with the possible exception of direction by the officer passing him the mouth piece on the tube attached to the instrument, who when leaning over to reach to Mr. Wangchuk told him to sit up straight, to which Mr. Wangchuk briefly stood up, then sat back down when the officer told him to sit down. It is also apparent through the testimony of Mr. Wangchuk, and the investigating officer Charles Exton that Mr. Wangchuk asked the officer "please let me go, I will never do it again" and "this is the first time I've ever done such things and please release me and I'll never do this again".

[16] Judging from the evidence before this court in this voir dire, it seems clear to this court, particularly arising from careful listening of the DVD tape, that Mr. Wangchuk speaks English well and answered responsively in English to the officers who interacted with him on various occasions at the police station. He at various times gave longer answers to questions indicative of his understanding and ability to communicate in English.

[17] The Crown has made a submission that notwithstanding the need for sensitivity, the court should not expect an accused person to understand all of the terminology in a drinking and driving trial in English. In essence, the Crown argued that in considering the s. 14 Charter right, the court should not expect an accused to understand the English words used in such a trial which are particularly technical and terms of art, where any English-speaking accused person would benefit from legal advice to explain those terms. One term that was explored was for a "suitable sample". This court could add to the list many other terms such as "approved instrument", "duty counsel", "approved screening device" and many other terms of art that are used by counsel and judges in cases of this nature, that do not find their way into common usage of the English language. These are terms that this court has found, in dealing with many cases of this nature, both with unrepresented parties and represented parties who are giving testimony, that there is often less than full comprehension of the meaning of those words from the responses of those English-speaking parties.

[18] It is interesting to note that in considering the testimony of Mr. Wangchuk, and in particular his concession that he speaks English, it appears to this court that Mr. Wangchuk simply feels a greater comfort level in speaking Tibetan than English. This context is more akin to an accused person's choice as to either of the two official languages for a bilingual trial. For instance, an accused has a right to choose the official language in which he or she wishes to be tried. The accused person can choose English or French, since both are official languages in Canada. It is a personal choice, and encompasses a consideration of the level of comfort in testifying. The Supreme Court of Canada noted this context as to the choice of English or French in a bilingual trial in R. v. Beaulac (1999), 134 C.C.C. (3d) 481 at pp. 507-8. The right of an accused to a trial in either of the two official languages of Canada is in order to assist official language minorities in preserving their cultural identity. An accused has the right to make a personal choice as between either of those two official languages based upon his or her personal situation. As noted by the Supreme Court, in considering this right to the language of choice for an accused, "absent evidence that the accused does not speak the language chosen, an accused is free to make his or her choice of the official language spoken by the judge or judge and jury by whom he or she will be tried". This is to be distinguished from the necessity based test provided in s. 14 of the Charter, where a threshold must be met, albeit a "modest threshold at best" with respect to a party who does not understand or speak English. The distinction between these two scenarios is discussed in Hill, S. Casey, David M. Tanovich and Louis P. Strezos (eds.): McWilliams' Canadian Criminal Evidence, 4th ed. (Aurora, Ont.: Canada Law Book, 2005, looseleaf service), at pp. 19-13 to 19-14.

[19] While Mr. Wangchuk might prefer to have a Tibetan interpreter, in that he would be more comfortable having a Tibetan interpreter for the trial proceedings, the test for this court to consider is not whether he would "prefer" Tibetan to English but rather whether he does not understand or speak English. The test of preference for an English-speaking accused, who has the right to choose between one of the two official languages for a trial, is not the same test of an accused who speaks one of the official languages (eg. English), but would prefer to have an interpreter in a non-official language.

[20] This court has also considered the summary conviction appeal court judgment in R. v. Siguencia, 2010 ONSC 1911, [2010] O.J. No. 1438, where Ducharme, J. upheld the trial judge's findings that the accused did not require an interpreter as he spoke English. There was no genuine need for an interpreter in that case. In another summary conviction appeal court judgment, R. v. Maru, [2006] O.J. No. 2674, Hill, J. noted that the request for an interpreter must be justified. In that case, the witness spoke English and counsel had simply requested an interpreter in Punjabi for that witness. The court noted in reviewing the necessity requirement for an interpreter, as set out in s. 14 of the Charter, that where an interpreter is used "credibility findings may be more difficult to make where the filter of a court interpreter operates between questioner and witness", as considered in R. v. Sidhu (2006), 203 C.C.C. (3d) 17 at pp. 104-5. In R. v. Burke, 8 Cox Crim. Cas. 45, 47 (1858), the court considered the advantage that would be enjoyed by a witness who did not require an interpreter, but nonetheless had an interpreter, and was able to gain an advantage of considering an answer to the question while the interpreter went through the redundant or useless task of interpreting the question. This was also commented upon in D. J. Heller, "Language Bias in the Criminal Justice System" (1995), 37 C.L.Q. 344.

[21] In assessing whether an accused has proficiency in English, this court is mindful that proficiency in English is not one and the same as broken English, some proficiency in English, or conversational English that does not allow the person to fully appreciate English words in the way in which it would be required for full participation in a trial. As commented upon in McWilliams' Canadian Criminal Evidence, supra, referring to the National Centre for State Courts, Court Interpreting Publications & Resource Material, Court Interpretation: Model Guides for Policy and Practice in the State Courts (Modified to Sept. 4, 2002) at pp. 125-6:

"Many individuals have enough proficiency in a second language to communicate at a very basic level. But participation in court proceedings requires far more than a very basic level of communicative capability. Consider that in order for non-English speaking criminal defendants to testify in their own defense they must be able to:

• accurately and completely describe persons, places, situations, events;

• tell "what happened" over time;

• request clarifications when questions are vague or misleading; and

• during cross-examination:

▪ recognize attempts to discredit their testimony;

▪ refuse to confirm contradictory interpretations of facts; and

▪ defend their position.

Moreover, for defendants to evaluate and respond to adverse testimony of witnesses, and assist in their defense, they must comprehend the details and the subtle nuances of both questions and answers spoken in English during the testimony of adverse witnesses, and, at appropriate times, secure the attention of counsel and draw attention to relevant details of testimony."

[22] In considering this test, the court is sensitive to the purpose of s. 14 of the Charter, and the fact that every accused facing a criminal charge has the same right to an interpreter if that accused does not understand or speak English.

Conclusion

[23] This court has considered the evidence in this case with sensitivity, particularly in the context of the low threshold for having the right to an interpreter guaranteed by s. 14 of the Charter. The court has played the tape and listened carefully to it, and carefully reviewed all of the evidence touching upon this issue. While most of the cases referred to by counsel in this case have not considered the necessity issue in relation to the need for an interpreter, this court considers the cases noted above where necessity was an issue and considered. In this case, the court finds that Mr. Wangchuk speaks English and also speaks Tibetan. While he might prefer to have his trial conducted in Tibetan, he can also speak English. In the unique context in this case, Mr. Wangchuk does not have the right to a Tibetan interpreter for the trial pursuant to s. 14 of the Charter.

Released: May 30, 2012

Signed: "Justice Beverly Brown"