Court File and Parties

Date: December 11, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kidane Abrha-Beyene

Before: Justice Heather McArthur

Heard: December 7, 2012

Reasons for Judgment released: December 11, 2012

Counsel:

• M. Bloch, for the Crown
• D. Heath, for the accused

McArthur, J.:

A. Introduction

[1] Mr. Abrha-Beyene is charged with one count of driving "over 80". His trial is set for February 4 and 5, 2013. He requires a Tigrigna interpreter. On December 7, 2012, a voir dire was held to determine whether Mr. A.T., a conditionally accredited interpreter, is qualified.

[2] For the reasons that follow, I find that Mr. A.T. is not qualified to provide interpreter assistance for the scheduled trial.

B. Facts

[3] As noted above, Mr. Abrha-Beyene's trial is set for two days in February. I am told that there will be a number of Charter issues raised. As well, there is a potential that Mr. Abrha-Beyene will testify.

[4] There is no dispute that Mr. Abrha-Beyene will require a Tigrigna interpreter for his trial. The Crown proposes that Mr. A.T. provide interpreter assistance. Tigrigna is his first language. As a child, Tigrigna was spoken in his home. He took English as a subject up to grade four and thereafter took his courses in English. He has been in Canada for 30 years and attended university here. His wife also speaks Tigrigna, but for the most part he speaks English at home.

[5] Mr. A.T. has been providing court interpreter services for seven years. He interprets in two languages, Tigrigna and Amharic. About 70% of his interpreting assistance is in the Tigrigna language. Mr. A.T. has interpreted in a wide range of criminal matters including bail hearings, guilty pleas, preliminary hearings and trials at the Ontario Court of Justice and the Superior Court of Justice. He also interprets for the Immigration and Refugee Board of Canada. He is not aware of any criticism of his work by a judge or a lawyer.

[6] In June 2009, Mr. A.T. underwent the new accreditation testing established by the Ministry of the Attorney General (MAG). He received his conditional accreditation result sometime in the summer or fall of 2010. Mr. A.T. understood that he would have to re-take the test within two years and said that the MAG provided a three hour course to prepare him for the next test. He has contacted them three times about re-taking the test and to date has not been provided that opportunity. The last time he contacted them was about a month ago. He was informed that a schedule for re-testing will be released next year and if there is a spot available for him, he will be informed.

[7] The Crown obtained Mr. A.T.'s test results. They are as follows:

• Consecutive Dialogue (English only): 63%
• Oral Recall (English only): 52%
• Shadowing (English only): 89%
• Sight Consecutive (Translation from written text into Tigrigna and back into English): 63%

[8] Mr. A.T. testified that the standards for testing the Tigrigna language are different than the standards used for other, more prevalent languages. Hill J. provided a detailed explanation of the two different testing methods in R. v. Dutt, [2011] O.J. No. 2502 (Ont. S.C.J.) at paras. 76-88. The Ministry retained the Vancouver Community College (VCC) to devise and implement interpreter testing. The VCC developed a bilingual test that is administered for 24 languages. For other languages, however the VCC employs the English only test taken by Mr. A.T. For example, in the continuous dialogue portion of the test, something is said in English, and then the interpreter repeats it in English. The shadowing involves listening to a continuous text in English and repeating it in English while the original speaker continues to speak. Although the sight consecutive portion tests written language transference, there is no assessment of oral language transference ability.

C. Applicable Legal Principles

[9] Section 14 of the Canadian Charter of Rights and Freedoms provides:

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.

[10] The s. 14 right bears a close relationship to many other legal rights guaranteed under the Charter, such as s. 15 (equality rights) and s. 27, which mandates that the Charter be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. Of import, the right to interpreter assistance under s. 14 is a means of ensuring that criminal proceedings comply with the constitutional guarantee of a fair and public hearing in s. 11(d) of the Charter. The close connection between s. 14 and other Charter guarantees suggests that the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of s. 7 of the Charter. As noted by Lamer C.J., in R. v. Tran, [1994] S.C.J. No. 16 at para. 38, "the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country." (See also, R. v. Tran, supra, at paras. 36-37)

[11] The minimum constitutional threshold to meet the obligation under s. 14 does not require perfection, but it is high. In order to comply with constitutional standards, court interpretation must be continuous, precise, impartial, competent and contemporaneous. (See R. v. Tran, supra, at paras. 55, 43)

[12] In assessing whether a proposed interpreter meets constitutional standards, it is important to keep in mind that the words 'qualified' or 'competent' are not necessarily co-extensive with the terminology 'certified' or 'accredited." (See R. v. Rybak (2008), O.R. 81 (Ont. C.A.) at para. 84) That said, as noted by Hill J. in R. v. Dutt, supra, at para. 54:

....because the courtroom is not a linguistics laboratory and a unilingual trial judge is not qualified to administer language or interpretation skills tests, and without simply ceding to an interpreter's self-promoted claim of competence there necessarily is a dependency upon some objectively balanced standard of competence. Understandably, the default position of the court is often, therefore, significant though not exclusive reliance on what it hopes is a reputable external accreditation of an interpreter.

[13] Hill J. notes that in a voir dire the court can look at a number of things such as the experience of the interpreter having regard to such factors as the mode of interpretation required, the expected duration of the proceedings, the technical nature of the subject matter, any issues of language dialect and, in some cases, the certification test results of the interpreter. I find that while the courts may look to a number of factors, a valid skills test is the most reliable way to determine if an apparently competent individual is in fact qualified. The court should look at the nature of the accreditation and in particular whether it is founded upon objectively valid testing of language and interpreting skills. (See R. v. Dutt, supra, at para. 56)

D. Analysis

[14] The Crown points to three factors which he says establish that Mr. A.T. is qualified. First, the fact that Tigrigna is Mr. A.T.'s first language and that he is clearly proficient in English. Second, that Mr. A.T. has already been interpreting for Mr. Abrha-Beyene, both in and out of the courtroom, and they seem to communicate without difficulty. Third, and most importantly, that Mr. A.T. has seven years court interpretation experience. I will address each point in turn.

[15] First, I have no doubt that Mr. A.T. is bilingual. He grew up speaking Tigrigna at home and much of his schooling was in English. I also wish to point out here that I have no doubt that he takes his job seriously and understands that he has an important role to play in the administration of justice. Bilingualism, however, does not necessarily equate to an ability to interpret. Indeed, as Hill J. noted in R. v. Dutt, supra, at para. 72, "the Ministry clearly acknowledged that the 'bilingualism is enough' model of court interpretation is an insufficient guarantor of being able to discharge the government's obligations to honour the s. 14 Charter right".

[16] Second, while Mr. A.T. may be sufficiently qualified to provide interpreter assistance for brief court appearances, the level of ability required for the anticipated trial is higher. The MAG recognizes that there is a distinction between trials and other court matters. The Ministry's published list of eligible proceedings for conditionally accredited interpreters includes bail hearings, guilty pleas and interpreting for a witness other than the accused. (See R. v. Wong, [2011] O.J. No. 2352 (Ont. C.J) at paras. 32-34) While this list is not binding on courts, it supports the position that the ability to interpret at set dates does not translate into being qualified to interpret for a trial. This is particularly so if the trial is anticipated to be lengthy and have complex Charter issues such as the present case. In the same vein, the ability to chat in the hallway with the accused does not mean that Mr. A.T. will have the ability to interpret at a trial to the required constitutional standard.

[17] Third, his previous court experience does not assist a great deal in determining whether Mr. A.T. is qualified for this trial. The Crown points to the fact that no one has complained about his interpretation before. As Hill J. explains however, a "misinterpretation fallacy, accepted unfortunately by courts on occasion, is that the beneficiary of the interpretation assistance will be able to identify error. If that were always the case, the accused would, of course, not require an interpreter." (See R. v. Dutt, supra, para. 30) The fact that there have been no complaints about Mr. A.T.'s interpretation could mean one of two things. First, there were no problems with his interpretation. Second, there were issues with his interpretation, but the judge and counsel did not speak Tigrigna, and the accused lacked sufficient proficiency in English to identify the difficulties.

[18] I find then, the best way to assess Mr. A.T.'s qualifications to interpret for the trial is to examine the objective skills test that he took. In this case, Mr. A.T. took an English only test. This is a less reliable indicator of interpreting skills than bilingual testing. Despite the lower standards of this test, Mr. A.T. only achieved conditional accreditation status. He scored below 70% in every category except 'shadowing.' As noted by Hill J. in [R. v. Dutt, supra, however, this aspect of the test appears to be the same shadowing exercise used in the old testing system; a system that he found to be "on balance an invalid or unsuitable instrument for reliably assuring that someone who passed the test would actually be a qualified court interpreter capable of participating in a criminal trial." (See R. v. Dutt, supra, at para. 8 and 86; R. v. Sidhu, [2005] O.J. No. 4881 (Ont. S.C.J.) at para. 112).

[19] I find that Mr. A.T.'s results on the VCC testing are such that I am not satisfied that he is qualified to interpret for the trial. The fact that Mr. A.T. failed to be accredited on an English only test is a significant factor in my analysis. A different analysis might well apply if the conditional accreditation status flowed from the VCC bilingual testing.

E. Conclusion

[20] I accept that Mr. A.T. takes his job seriously and conducts himself professionally. I also accept that Mr. A.T. is bilingual in Tigrigna and English. That fact, however, in combination with his previous court experience, including interpreting on this case, does not provide me with sufficient information to determine if he is qualified to interpret for the scheduled trial. Thus, his results in the VCC testing are a significant factor for consideration. Mr. A.T. underwent English only testing and failed to be fully accredited. In all of the circumstances, I am not satisfied that he is qualified to interpret for Mr. Abrha-Beyene's trial.

Date: December 11, 2012

Signed: Justice Heather McArthur

Footnotes

[1] In R. v. Wong, [2011] O.J. No. 2352 (Ont. C.J), Horkins J. stated that "valid skill tests are clearly the only reliable way to determine if an apparently competent individual is in fact qualified". I am unable to say that the skills tests are the only way to make this determination, as a case could present itself in which there are other factors which satisfy the presiding justice that an interpreter is qualified. However, I certainly accept that in many instances the most significant factor in making this assessment will be reliance on objectively valid testing.

[2] When the MAG brought in the new court accreditation model for testing interpreter proficiency, it was anticipated that those individuals who were conditionally accredited would be required to take the test again within two years. In the interim, training was to be provided to assist them in being fully accredited. (See R. v. Dutt, supra, at para. 106 and R. v. Wong, supra, at para. 31) As noted above, Mr. A.T. has attempted to re-take the test to no avail. I have no explanation as to why the MAG has failed to provide him the opportunity to re-take the test.