Court File and Parties
Ontario Court of Justice
Date: 2013-06-20
Court File No.: Central East - Newmarket 4911-998-12-08343-00
Between:
Her Majesty the Queen
— And —
Sung-Woo Lee
Before: Justice W.W. Bradley
Heard on: June 20, 2013
Ruling on Voir Dire released on: June 20, 2013
Counsel:
- Ms. J. Kim — counsel for the Crown
- Mr. S. Park — counsel for the defendant Sung-Woo Lee
Decision
BRADLEY J.:
[1] The defendant, Sung-Woo Lee, is charged with the offences of Assault with a Weapon, contrary to section 267(1)(a) of the Criminal Code and Assault Causing Bodily Harm, contrary to section 267(b) of the Criminal Code.
[2] Both the defendant and the complainant, Me-Young-Lee, require a Korean interpreter.
[3] This matter has had two prior trial dates which did not proceed because fully accredited Korean interpreters were not available.
[4] Counsel for the defendant has raised the issue of the competency of the interpreters present in court for this trial.
[5] A voir dire has been held to determine the competency of Jun Young Choi as a Korean interpreter in compliance with the requirement of section 14 of the Charter of Rights and Freedoms.
[6] Ms. Choi is not accredited by the Ministry of the Attorney General for Ontario, but is conditionally accredited.
[7] Ms. Choi took the Ministry test on August 16, 2012 and in mid-October 2012 was informed that she was conditionally accredited. She met the criteria for consecutive translation but not the criteria for simultaneous translation. The requirement is a test score of 70 percent and for the simultaneous translations she received a score of 62.3 percent.
[8] Ms. Choi was born in Korea and attended all levels of education, including graduating from a Korean University. Her major in university was English, linguistics and literature.
[9] She immigrated to Canada in 2000 and since then has received training at M.C.I.S. (Multilingual Community Interpreter Services), the University Health Network, Seneca College and Access Alliance.
[10] The joint training program by M.C.I.S. and Access Alliance involved 120 hours of training in Rules for Professional Conduct for Interpreters. She received a Cultural Interpreter Language and Interpretation Skill Assessment Certificate.
[11] Her experience with the University Health Network involved interpreting for patients at three Toronto hospitals. She has done that since 2007.
[12] Ms. Choi has also acted as an interpreter for the Immigration and Refugee Board, the Canadian Border Services Agency and Probation and Parole offices. Ms. Choi acknowledges the interpretative skill required for those agencies do not require the higher standards as that for a court interpreter.
[13] Ms. Choi reads English language newspapers and speaks Korean with her family at home and in her social network.
[14] She has attended at courts in Southern and Central Ontario since December of 2012 and assisted in interpretation primarily for guilty pleas and bail hearings. She was found to be competent to interpret at a trial in April of 2013 and in 2011 was found not to be competent to testify at a trial following voir dires.
[15] Since writing the Minister of the Attorney General's test, training was provided by the Ministry on October 25 and 26 of 2012 involving Rules of Professional Conduct for Interpreters.
[16] The required standard of interpretation is set out in section 14 of the Charter, that is:
- 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.
[17] As set out in R. v. Tran, [1994] 2 S.C.R. 951:
...the principle of linguistic understanding which underpins the right to interpreter assistance should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings, be it English or French, are given or seen to be given unfair advantages over those who are fluent in the court's language. 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.
To be sufficient, interpretation must be continuous, precise, impartial, competent and contemporaneous.
[18] Justice Hill in R. v. Sidhu, [2005] O.J. No. 4881, gave guidance as to the level of interpreter assistance that is required. That is, that the constitutionally guaranteed right to interpreter assistance is a right to a competent interpreter. It is not a right to an accredited interpreter.
[19] Justice Hainey in R. v. Tesfai, [2013] O.J. No. 2155, a decision of the Superior Court on April 8, 2013, cites R. v. Dutt, 2011 ONSC 3329 at paragraph 12 in which Justice Hill sets out a number of factors for the court to consider in determining an interpreter's competency. Those factors include:
...the nature of the accreditation and the validity of the test upon which it is based, the test results attained, the mode of interpretation required, the expected length of the proceedings, and the technical nature of the subject matters in the proceeding.
[20] At paragraph 24, Justice Hainey states:
Where the proposed interpreter is not fully accredited by MAG, Crown counsel will have to present objective evidence to the court upon which a competency ruling can be made. In the absence of objective and persuasive evidence of the proposed interpreter's competence it will be difficult for the court to conclude that the proposed interpreter is competent because, as Hill J. observed, the courtroom is not a linguistics laboratory.
[21] In R. v. Dutt, supra, Justice Hill at paragraph 118 refers to paragraphs 64-65 of the Tran (supra) decision:
64 ... it may be useful to keep in mind the distinction between "consecutive" (after the words are spoken) and "simultaneous" (at the same time as words are spoken). While it is generally preferable that interpretation be consecutive rather than simultaneous, the overriding consideration is that the interpretation be contemporaneous. Although I need not decide the matter, I would tend to agree with Steele, at pp. 248-49 of his article, that, although consecutive interpretation effectively doubles the time necessary to complete the proceedings, it offers a number of advantages over simultaneous interpretation. Simultaneous interpretation is a complex and demanding task for which court interpreters, unlike conference interpreters, are seldom trained. Moreover, it requires expensive sound equipment with which our trial courtrooms are rarely equipped. In addition, simultaneous interpretation works best when there is a minimum of distraction both for the interpreter and the listener(s), a feature which will not always be present in our busy courtrooms. Consecutive interpretation, on the other hand, has the advantage of allowing the accused to react at the appropriate time, such as when making objections. It also makes it easier to assess on the spot the accuracy of the interpretation, something rendered more difficult when one has to listen to the original language and its translation at the same time, as would be the case with simultaneous interpretation.
65 All of these factors suggest that consecutive interpretation is the better practice as compared to simultaneous interpretation.
[22] In determining the issue, the court must use an objective standard of competence in weighing and balancing the factors relevant to the issue of competence.
Analysis
[23] In this case, on the testimony of Ms. Choi she is fully bilingual in English and Korean. She speaks Korean at home with her family and her social network.
[24] She has been called upon to provide her services as an interpreter to a number of Agencies, as well as assisting in interpretation for bail hearings and guilty pleas.
[25] She has been found to be competent to interpret at a trial in April of 2013, but not at a trial in 2011. As such, her experience as an interpreter at trial is very limited.
[26] She wrote the interpreters test for the Ministry of the Attorney General and met the criteria for consecutive translation, but not for simultaneous translation.
[27] Ms. Choi has received training for interpreters, but that has been in the area of professional conduct.
[28] The trial before the court does not appear to be complex, technical or lengthy.
[29] It is proposed that consecutive translation be used as opposed to simultaneous and that is the preferred method. Further, Ms. Choi met the criteria for consecutive translation on the Ministry of the Attorney General's test.
[30] Having regard to all factors, I am satisfied that the qualifications for court interpreting in Korean have been met applying objective standards and that Ms. Choi is competent to act as a Korean interpreter.
Released: June 20, 2013
Signed: "Justice W.W. Bradley"