Court Information

Court File No.: Not provided

Date: April 4, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Felipe DeLeon

Before: Justice Heather McArthur

Heard: January 18 and March 13, 2013

Reasons on Interpreter Voir Dire released: April 4, 2013

Counsel

M. Sabat — for the Crown

A. Bugo — for the defendant

Decision

McArthur, J.:

A. Introduction

[1] Mr. Felipe DeLeon is charged with two counts of sexual assault and two counts of sexual interference. His trial is set for four days starting in May. He requires a Tagalog interpreter. The Crown proposes that Ms. Kathleen Hao interpret for the trial. Although Ms. Hao is only conditionally accredited, the Crown submits that in light of her background, training and experience, she is qualified to provide simultaneous interpretation assistance. In the alternative, the Crown argues that Ms. Hao is qualified to offer consecutive interpretation assistance.

[2] The defence counters that in light of the high standards required by s. 14 of the Canadian Charter of Rights and Freedoms, Ms. Hao is not qualified for either simultaneous or consecutive interpretation. The defence advances two main points in opposition to Ms. Hao's assistance. First, the defence submits that the Ministry of the Attorney General (MAG) has established an objective testing system to determine interpreter qualifications. Under this system, MAG has suggested that only fully accredited interpreters should be used for criminal trials. Since Ms. Hao has only been conditionally accredited, she is not qualified to interpret for trial. Second, the defence points to Ms. Hao's evidence that there are times when she uses English words while interpreting. Thus, the defence argues, Ms. Hao cannot be said to be providing precise interpretation and I should refuse to qualify her on that basis.

[3] For the reasons that follow, I find that Ms. Hao is not qualified to provide simultaneous interpreter assistance. I find, however, that she is qualified to provide consecutive interpretation assistance for the scheduled trial. I will address each submission raised by the defence in turn.

B. Analysis

Issue One: Does the fact that Ms. Hao is conditionally accredited mean that she is not qualified to provide either simultaneous or consecutive interpretation assistance for Mr. DeLeon's trial?

[4] 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.

[5] While the minimum constitutional threshold to meet the obligation under s. 14 is high, it does not require perfection. In order to comply with constitutional standards, court interpretation must be continuous, precise, impartial, competent and contemporaneous. (See R. v. Tran, [1994] S.C.J. No. 16 at paras. 55, 43)

[6] In determining whether a proposed interpreter meets constitutional requirements, 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) Given that the courtroom is not a "linguistics laboratory", significant reliance will be placed on the results of objective testing of language and interpreting skills. That said, the Court can also look at factors such as the factual and legal complexity of the matter and the interpreter's background and experience. (See R. v. Dutt, supra, at para. 54, 56)

[7] Here, while the trial has been set for four days, it does not appear to be factually or legally complex. There are no Charter issues or other pre-trial motions. The Crown anticipates calling two witnesses, the complainant and her mother. The complainant is under 17 and the Crown intends to rely on s. 715.1(1) of the Criminal Code and play her video statement. A transcript has been prepared and the interpreter will have an opportunity to review the videotape and the transcript before trial.

[8] In terms of Ms. Hao's background and experience, she was born in the Philippines and lived there until she was 20. At home, she spoke both a Chinese dialect and Tagalog. Starting in elementary school, her classes were in English. In the school yard, she spoke a mixture of a Chinese dialect, English and Tagalog, with more of an emphasis on Tagalog. Following high school, she attended university and received a B.A. in Asian Studies and a B.S. in Marketing Management. Her courses were in English.

[9] For a year after university, she spoke Tagalog every day at her job as a buyer in a department store. Following that, she moved to Taiwan and taught English as a Second Language for 14 years. Although she did not speak Tagalog at work, she spoke Tagalog often during this time as her roommates were from the Philippines. She came to Canada in 2006 and taught English as a Second Language and also worked on subtitle editing. Neither of these jobs involved speaking Tagalog.

[10] In January 2011, Ms. Hao completed a 100 hour interpreter training course with Multilingual Community Interpreter Services. She then took, and passed, the ILSAT test (the Interpreter Language and Interpreting Skills Assessment Tool). Following that, she began interpreting in either Mandarin or Tagalog on an almost daily basis for a number of agencies. She estimated that about 60% of the time she was assisting with Tagalog interpretation.

[11] Ms. Hao began interpreting in the courts in May 2011. She interprets on an almost daily basis. About 50% of the time she is assisting with Tagalog interpretation. She has interpreted in Tagalog for set dates, bail hearings and guilty pleas. She has provided Tagalog interpreter assistance for two trials; once for a witness and once for the defendant.

[12] Ms. Hao took the MAG test in November 2011. The test has three components: sight translation, consecutive interpretation and simultaneous interpretation. To be accredited, an interpreter needs to score 70% or higher in each of the three components. An interpreter who scores between 50% and 70% in all three is considered conditionally accredited. An interpreter who scores 50% or less in any of the three components is classified as unaccredited. (See R. v. Dutt, supra, at para. 13) Ms. Hao's marks were as follows:

• Sight Translation: 73.6%
• Consecutive Interpretation: 67.8%
• Simultaneous Interpretation: 45.1%

Given Ms. Hao's result in simultaneous interpretation, she failed to be even conditionally accredited.

[13] In October 2012, Ms. Hao re-took the test. In light of her previous passing score of 73.6% on sight translation, she was only re-tested on consecutive and simultaneous interpretation. She was conditionally accredited after achieving the following results:

• Consecutive Interpretation: 70%
• Simultaneous Interpretation: 64.4%

While Ms. Hao's score on the simultaneous interpretation component was significantly higher than the first time she took the test, she did not achieve the 70% required to be accredited. Ms. Hao explained that she found the simultaneous interpretation component to be challenging. For example, as will be detailed later in these reasons, she used English words out of habit when doing simultaneous interpretation. She did not find the same level of difficulty with the other components. This is reflected by the fact that simultaneous interpretation is the only component in which she failed to achieve 70% or higher.

[14] Crown counsel and defence counsel largely agree on their assessment of Ms. Hao. Both counsel agree that Ms. Hao is fluent in Tagalog and English. Both counsel agree that she is motivated to improve her skills; for example, she sits in on criminal trials when not interpreting, and practices interpreting to herself. Both counsel agree that Ms. Hao is intelligent and articulate. They differ, however, on the impact of Ms. Hao's test scores. The Crown submits that the scores suggest that Ms. Hao has been improving her skills to the extent that she can provide simultaneous interpretation for trials. In the alternative, the Crown submits she achieved a passing score on consecutive interpretation and should be qualified on that basis. The defence concedes that the scores show Ms. Hao has been improving, but argues that she is not yet qualified to provide simultaneous interpretation for trials. He further submits that consecutive interpretation will be unwieldy, cumbersome and incompatible with his client's s. 14 Charter rights.

[15] Considering Ms. Hao's test scores, and her testimony regarding the particular challenges simultaneous interpretation poses for her, I am not satisfied that Ms. Hao is qualified to provide simultaneous interpretation. That said, subject to the second issue raised by defence counsel, I find that she is qualified to provide consecutive interpretation. She is bilingual, has taken an interpreter training course, has continued to work on her interpreting skills, has experience interpreting in a courtroom setting, and achieved a passing score in consecutive interpretation.

[16] Moreover, I am satisfied that consecutive interpretation complies with s. 14 Charter requirements. (See R. v. Dutt, supra, at para. 118; R. v. Rybak, supra, at para. 85) Indeed, as noted by Lamer C.J. in R. v. Tran, supra, at para. 64-65, while consecutive interpretation effectively doubles the time necessary to complete proceedings, it offers a number of advantages over simultaneous interpretation and may well be the better practice. I turn now to the second issue raised by defence counsel.

Issue Two: Does the fact that Ms. Hao uses English words when interpreting mean that she is not qualified to interpret for the trial?

[17] Ms. Hao occasionally uses English words when interpreting. She explained that there are three reasons for this. First, Tagalog is an incomplete language, and it is common in the Philippines to speak a mix of English and Tagalog. Based on her experience, most Tagalog speaking people would use English for certain words. Second, some words do not have a Tagalog equivalent. In those cases, she uses her judgment as to whether she would use the English word or attempt to explain the meaning as best she can by using a number of Tagalog words. Third, if she is unsure of the Tagalog equivalent to a word, sometimes she uses the English word out of habit. Defence counsel argues that the use of English words means that Ms. Hao is not providing precise interpretation and that it is unacceptable for any reason.

[18] In assessing this issue, I keep in mind the comments of Lamer C.J. in R. v. Tran, supra, at paras. 59-60. There, while acknowledging the importance of precision in interpretation, Lamer C.J. also cautioned that "interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection." Thus, the issue is not whether Ms. Hao can achieve perfection in her interpretation; rather, it is whether her interpretation will meet constitutional standards.

[19] While I initially found Ms. Hao's use of English words to be somewhat concerning, upon reflection, I am satisfied that her interpretation will comply with s. 14 Charter requirements. I say this because I believe that any issues arising from the occasional use of English words can be readily addressed. Ms. Hao can be instructed in clear terms that she should not use English words, unless in her experience a particular word is commonly used by those who speak Tagalog. Further, having consecutive interpretation, as opposed to simultaneous, will assist. Ms. Hao testified that she is less likely to use English words out of habit when doing consecutive interpretation. Finally, the defendant can, and should, alert his counsel or the Court any time an English word is used that he does not understand. If Ms. Hao uses an English word because in her experience those who speak Tagalog would use the English word, there is a good chance that the defendant will know the word. If he does not, by bringing it to the Court's attention, the issue can be dealt with immediately.

C. Conclusion

[20] Ms. Hao is qualified to provide consecutive interpretation assistance at Mr. DeLeon's trial. Her passing score on the consecutive interpretation component of the MAG test, in combination with her background, training and experience, satisfy me that she is qualified. I will instruct Ms. Hao not to use English words unless in her experience a particular word is commonly used by those who speak Tagalog. If at any time during the trial an English word is used that Mr. DeLeon does not understand, he should immediately alert his counsel or the Court. I am satisfied that proceeding in this manner will allow for interpretation that is continuous, precise, impartial, competent and contemporaneous.

Date: April 4, 2013

Signed: Justice Heather McArthur

Footnotes

[1] The Vancouver Community College (VCC) was retained by the Ministry to design, administer and mark the test. Some cases refer to this as the VCC test. In submissions before me, both counsel referred to this test as the MAG test. As a result, in this ruling I use the term MAG test.

[2] The Chinese dialect she spoke at home was not Mandarin.

[3] Ms. K.H. is also fluent in Mandarin. Although bilingualism is a necessary aspect of interpretation, however, it does not necessarily equate to an ability to interpret. (See R. v. Dutt, supra, at para. 72)

[4] For example, there is no Tagalog equivalent for the word 'felony'. Ms. K.H. testified that as a result, when interpreting she would simply say 'felony'. If she were to try to use Tagalog words to explain, then she would say something like 'the biggest offence known to law'.

[5] In R. v. Dutt, supra, Hill J. explained at para. 30 that 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." In this particular situation, however, Mr. DeLeon will be able to easily determine if he does not understand an English word used and immediately identify the problem.