Court Information

Court File No.: Toronto

Date: 2013-10-17

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jong-Hee Lee

Before: Justice Fergus O'Donnell

Heard on: 27 March and 28 August, 2013

Reasons for judgment released on: 17 October, 2013

Counsel:

• Mr. Paul M. Alexander for the Crown
• Mr. Stephen Price for the defendant, Jong-Hee Lee

O'Donnell, J.

Overview

[1] Jong-Hee Lee appeared before me charged with impaired driving and driving with a blood alcohol concentration in excess of the legal limit. The Crown has proceeded only on the impaired driving charge and has called four police officers in support of its case. No evidence was called on Mr. Lee's behalf.

The Interpreter Qualification Voir-Dire

[2] As a preliminary matter, Mr. Lee asserted that he needed the help of a Korean interpreter. There was no issue raised on this trial with respect to whether or not Mr. Lee actually satisfied the pre-condition for an interpreter as set out in s. 14 of the Charter, a protection that is to be interpreted liberally.[1] No interpreter fully accredited by the Ministry of the Attorney General (MAG) was available for his trial. The Crown offered Hae-Ja (Helen) Park to interpret for Mr. Lee and proposed that we enter into a voir-dire to determine if Ms. Park was suitably qualified to provide interpretation services to Mr. Lee to ensure that his rights under s. 14 of the Charter were met. Ms. Park had taken the MAG accreditation test but did not have her results yet. In the final result, I decided Ms. Park was qualified to interpret, with reasons to accompany my reasons on the trial proper.

[3] Mr. Price objected not only to Ms. Park's qualifications but also to the appropriateness of holding any such voir-dire. In doing so, he was not alone. Certainly, some judges of this court have declined to enter into qualification voir-dires for interpreters, observing, among other things, that they are not themselves qualified to determine the linguistic abilities of an interpreter in relation to a language the judge himself does not speak.

[4] I found in favour of the Crown on the issue of whether or not to hold a voir-dire into Ms. Park's qualifications. It is fair to say that there are many challenges with respect to the court interpreter system in Ontario. Leaving aside preliminary issues of whether or not every person who asks for an interpreter genuinely needs one and the practical challenges the state may have to overcome in providing interpretation services in some of the world's less common languages and dialects, there are serious issues that need to be addressed sooner rather than later. For example, the availability (or perhaps more accurately the frequent unavailability) of fully MAG-accredited interpreters in such commonly encountered languages as Korean, Portuguese or Tamil would appear to merit a raised eyebrow or two in Toronto, one of the most culturally diverse cities in the world. The system's limitations may be most starkly displayed by its occasional inability to provide a fully-accredited interpreter in the French language, in Canada of all places. There may also be valid questions about the timeliness of testing and results and about whether or not all of the criteria of the MAG accreditation standard are actually that relevant to the world of criminal trials. And, of course, the painful and time-consuming realities of conducting a qualification voir-dire in which the proposed interpreter must serve as both the witness on the voir-dire and as the interpreter of her own words and everyone else's words are certainly enough to cause trepidation in even the most stalwart judge or counsel.

[5] However, with all due respect to those who hold the opposite view, I held that the holding of a qualification voir-dire was not within the discretion of a trial judge. The words "accredited" and "qualified" are not interchangeable, and neither are the words "unaccredited" and "unqualified".[2] The MAG accreditation process can be very helpful insofar as it provides some quantifiable results and may lead to agreement between the parties on the issue, but it is not necessarily determinative, one way or the other, of the issue of whether or not a proposed interpreter meets the standard required by the Supreme Court of Canada in R. v. Tran, [1994] S.C.J. No. 16. The parties will generally accept a MAG-accredited interpreter as being qualified, but are entitled to challenge her qualification despite any such accreditation. Ultimately, whether she is qualified or not is an issue for the judge to determine. Often, the lack of accreditation signifies nothing other than that the interpreter has not taken the MAG test or has not received her results back yet.

[6] As I have mentioned, some of my colleagues have refused to hold qualification voir-dires on the basis that doing so lies outside our competence. While I accept that there may be some occasions on which a judge may decline to enter into a qualification voir-dire requested by one of the parties, such occasions should be exceedingly rare. I might imagine, for example, that in exercising her power to control the use of trial resources, a judge might decline to enter into a qualification voir-dire for a proposed interpreter who had repeatedly been found by judges not to be qualified and for whom the party could not proffer any apparent intervening change in circumstances that might be expected to change the result.

[7] As for the contention about judges being unsuited to assess the qualifications of an interpreter in order to ensure that a defendant understands his trial or that a witness's testimony is accurately conveyed, the short and absolute answer is that there is nothing new or different in what is being asked of us. My inability to understand Tagalog or Tamil or Turkish or any of the hundreds of other creoles, dialects and languages spoken by defendants and witnesses every day is not my only limitation. My limitations in understanding the natural and applied sciences are at least as vast. Gilbert and Sullivan would never have catalogued my capacities as a means of describing the very model of a modern major-general and while the Renaissance man may have been as comfortable discussing Copernicus as Catalan, not every modern magistrate is a Renaissance man. Yet how many judges would refuse to enter into a qualification voir-dire for an expert witness on DNA issues simply because, hypothetically of course, they only passed grade ten science by promising the teacher not to enrol in grade eleven science? None of us. So it must be with interpreters. Where there is a dispute between the parties over a proposed interpreter's qualifications it is our obligation, however reluctantly, to go once more into the breach.[3]

[8] Having gone into the breach, I heard testimony from Ms. Park about her qualifications. As I have mentioned, this is one of the most frustrating processes in a trial system that already justifiably values fairness more highly than efficiency. Ms. Park had to hear counsel's question and translate it into Korean for Mr. Lee, then answer it in English or Korean and translate it into the other language and then repeat that very awkward and tiring process with each successive question. If she was found to be qualified, that qualification would necessarily apply to the evidence heard on the voir-dire, which was part of Mr. Lee's trial, and all would be well. If she was found not to be qualified, we would have had to move on to some other candidate for interpreter. The inefficiencies of this system where "all's well that ends well, but…." highlight the importance of having a much larger group of fully accredited interpreters in as many languages as is reasonably feasible.

[9] I do not propose to document all of the evidence with respect to Ms. Park's qualifications. Ms. Park came to Canada from Korea as a first-year university student in 1975. In 1998 she obtained an Honours Specialist B.A. in linguistics from the University of Toronto. At the time of the voir-dire Ms. Park had written her MAG accreditation test but had not received her results. She had been accredited by the Immigration and Refugee Board of Canada in mid-2007, having started in interpretation work for law firms in 2002. She had also worked in family court, for various tribunals, for doctors and for various conferences, including the 2010 G20 conference in Toronto. Her advent to the world of criminal court interpretation was much more recent, starting in traffic court in 2009 and in criminal court itself in 2011. She estimated that she had interpreted for defendants in criminal cases between ten and twenty times and had also interpreted for witnesses. She had been subjected to qualification voir-dires on about five occasions and had been found unqualified once, on one of the early cases. She said that she was more comfortable in criminal court than she had been at the start, having developed a better mastery of criminal court terminology.

[10] In the mid-1990s, Ms. Park spent five years teaching Korean to school-age children. She speaks English and Korean at home.

[11] Ms. Park testified that about thirty per cent of her interpretation assignments at the IRB involve Korean-speaking counsel. She has never had a complaint about the quality of her interpretation, despite working almost daily for the IRB. I had qualified Ms. Park as an interpreter on an earlier refuse-sample case in which the Korean-speaking counsel intervened to correct another interpreter with respect to her interpretation, but expressed no such concerns during Ms. Park's interpretation.

[12] At the end of the process, I was very satisfied that Ms. Park was qualified to provide the high level of interpretation service that is required under s. 14 of the Charter. I was left with the sense that she was providing a very balanced account of her experience and limitations in her testimony.[4] While it was true that she had relatively short experience in criminal trials and even less in impaired/over 80 trials, I do not see those facts as determinative or even necessarily highly relevant to the final assessment. An assessment of an interpreter's qualifications includes numerous components. I shall not list them all here, but obviously general facility in the languages involved is essential. The ability to absorb, process and translate content in a timely (not necessarily simultaneous) fashion with a high degree of accuracy is also crucial. The confidence and maturity to assert oneself when faced with a judge, lawyer or witness who speaks too fast are essential.[5] Familiarity with specialized terminology is obviously advantageous, but it is also something that is often acquired over time. In assessing a person's suitability to serve as an interpreter, I am far less concerned about whether or not they understand the significance of "rate of elimination" than I am about whether they will let the judge know that they require an explanation in order to translate it accurately.

The Trial Proper

[13] The Crown called four police officers in support of its contention that Mr. Lee's ability to operate a motor vehicle was impaired by alcohol in the wee hours of 3 October, 2011. An in-car video of Mr. Lee's driving was also introduced into evidence.

[14] I should say at the outset that with four witnesses to the events of that night, there was no absolute consistency in their evidence. Given human nature, that is hardly surprising; indeed, perfect consistency of evidence would probably be more concerning than some variance. Having heard the witnesses I felt that they gave their evidence in a fair and balanced way. I have no concerns about the officers' credibility. For example, Constable Osman's evidence seemed very fair and balanced and free of exaggeration. It is fair to say, as Mr. Price suggested, that certain of the potential indicia of impairment do involve some degree of subjectivity and that a trier of fact ought to be alive to that reality.

[15] The issue for me to determine in this trial is whether or not Mr. Lee's driving was impaired and, if so, if that impairment was in whole or in part due to alcohol consumption. The Court of Appeal for Ontario has made it clear in cases such as R. v. Stellato, that the degree of impairment that must be proved does not have to be particularly severe. However, that relatively low standard cannot be used to dilute the omnipresent requirement that the fact of impairment of driving and its root, at least partially, in alcohol consumption,[6] as with any other criminal case, must nonetheless be proved beyond a reasonable doubt.

[16] Mr. Lee's difficulties began shortly after 1 a.m. on 3 October, 2011. Two police officers were southbound on Don Mills Road just east of the Fairview Mall. At that point a traffic light controls traffic on Don Mills to allow TTC vehicles to exit from a station adjacent to the mall. This creates a T-junction, with the stem of the T coming out of the bus depot and ending with the west sidewalk of Don Mills Road.

[17] The light for southbound traffic was red. The officers stopped behind the stop line. They saw that Mr. Lee's car was already stopped, but his car was entirely within the intersection, rather than behind the stop line. When the light turned green, Mr. Lee moved to the left lane without signalling and signalled for and made a left turn onto Sheppard Avenue. At this point the officers activated their emergency lights and Mr. Lee turned left onto a driveway in the mall and pulled over. The officers remained in their car making some checks and, after about thirty seconds, Mr. Lee pulled away, stopping further into the mall when the officers followed him again.

[18] The evidence upon which the Crown could rely to prove Mr. Lee's ability to operate a motor vehicle was impaired by alcohol includes the following:[7]

(a) He stopped his car fully within the intersection and there was no apparent reason for that (e.g. no car following close behind that might have caused him to proceed further for fear of being rear-ended if he stopped at the stop line).

(b) He appeared not to have had the full lighting system on his car operational at 1 a.m. since there was no rear illumination on the car once he released the brakes.

(c) He failed to signal the double lane change on Don Mills.

(d) His turn from Sheppard Avenue to the driveway was a bit wide, "but nothing unusual". On the in-car video, this turn is mildly sloppy in the sense that it was not made entirely from the left-turn lane.

(e) He had a smell of an alcoholic beverage on his breath.

(f) When asked for his licence, ownership and insurance, he handed the officer an iPhone. Mr. Lee then retrieved his ownership and insurance from the glovebox and had to be prompted again for his licence. He retrieved his wallet from the seat beside him. The wallet did not resemble the phone he had originally picked up.

(g) The police had to ask for his driving documents three times before they got them. According to one of the principal officers Mr. Lee's fumbling for documents was extreme relative to the average traffic stop.

(h) His eyes were bloodshot, according to two officers. One of them said it was striking, like a white rabbit with red eyes.

(i) His eyes were glassy.

(j) Although Mr. Lee had a clear accent, his speech seemed somewhat slurred, said one officer.

(k) He pulled away from the stop thirty seconds after being pulled over. This is rare.

(l) He repeatedly asked the officers to let him go, saying it was his fault and that he should have taken a taxi. He told the Korean-speaking officer that he (Mr. Lee) was a lightweight when it came to alcohol tolerance.

[19] Evidence that might support the conclusion that Mr. Lee was not impaired, or to be more precise that might contribute to the existence of reasonable doubt on that issue included:[8]

(a) Plenty of drivers over-run the stop line and most of them are not impaired.

(b) Plenty of drivers fail to signal lane changes, although this is less common when there is a marked police car behind them.

(c) The (relatively short) driving on Sheppard Avenue and the turn into the mall driveway were normal.

(d) The mistaken handing over of the phone was caught almost immediately by Mr. Lee himself, saying "that's not my wallet". The evidence could be consistent with him reaching for the wallet on his passenger seat and noticing the item's true nature when it came into his line of sight as he passed it to the officer.

(e) Even sober people can be nervous and fumble for documents in a traffic stop.

(f) Two officers who dealt with Mr. Lee noted no slurring in his speech. Notably, a third officer, the Korean-speaking officer, noted no slurring.

(g) There are innocent explanations for people having red eyes.

(h) There was no apparent fumbling with documents when they were presented according to one of the principal officers.

(i) Mr. Lee had no apparent difficulty standing or walking.

(j) Mr. Lee had no difficulty unwrapping or installing the approved screening device mouthpiece. The officer who dealt with him most said he demonstrated no problems with motor skills.

(k) Neither of the principal officers felt they had the grounds to arrest Mr. Lee for impaired driving.

[20] There was no admissible evidence before me on this trial with respect to Mr. Lee's blood alcohol concentration and its impact on his ability to operate his motor vehicle.

Has The Crown Proved Its Case Beyond A Reasonable Doubt?

[21] A determination of whether or not the Crown has proved impaired driving beyond a reasonable doubt typically involves the synthesis of all of the relevant evidence for and against impairment by alcohol, keeping in mind at all times the possible existence of other reasonable inferences that might arise from any individual indicator or even from a series of indicators. Although it can happen, it is not often the case that the Crown has evidence that the defendant is "falling-down drunk".

[22] It is often the case that several of the potential indicia of impairment are themselves ambiguous. For example, since the advent of daytime running lights on cars it can probably fairly be said that more sober drivers fail to activate their full headlights at night than was once the case. There is no obligation to signal a lane change unless failing to do so would impact other drivers and, although it would be prudent to indicate all lane changes as a matter of habit, many drivers seldom do. Driving licences are easy enough to obtain and to retain in Ontario that maintaining one's vehicle within its proper lane when turning is not the "norm" that one might expect. In this case, even the act of driving off after being pulled over by the police, followed by thirty seconds of inaction, might have an innocent explanation. At the same time, a sufficient accumulation of these and other indicia starts to take on a different complexion, becoming more supportive of an inference that the overall behaviour is the product of impairment.

[23] When I look at all the evidence before me in relation to Mr. Lee's driving, I find that I can agree neither with Mr. Alexander nor with Mr. Price, or alternatively that I agree with both of them. In relation to Mr. Price, I do not find the officers' opinions about whether or not they had grounds to charge Mr. Lee with impaired driving based on their observations on the road (i.e. before the breath readings were taken) to be determinative of anything. Based on what they saw, I have no doubt that the events they described provided an objectively reasonable basis to believe that Mr. Lee's ability to drive was impaired by alcohol. Of course, the test for conviction is dramatically higher than the test for arrest and it is here that I disagree with Mr. Alexander and agree with Mr. Price. While I believe that the evidence establishes not only reasonable grounds to believe that Mr. Lee's ability to drive was impaired by alcohol, I would go further and say that the evidence before me makes it more likely that his ability to drive was impaired by alcohol than not. However, given the ambiguity of certain of the indicia, and even keeping in mind my obligation to look not only at the individual elements but at the whole of the evidence, I cannot comfortably say that I am satisfied beyond a reasonable doubt that Mr. Lee's ability to drive was impaired by alcohol.

[24] In light of that conclusion, Mr. Lee is entitled to an acquittal on the impaired driving count. As I telegraphed to Mr. Price at the end of submissions, however, that is not necessarily the end of the matter. Given my conclusion about the force of the evidence and the concerns that evidence raises for public safety, I shall ask counsel to address the issue of whether or not Mr. Lee should be subjected to a peace bond requiring him to maintain a blood alcohol concentration of zero while operating a motor vehicle for a defined period.

Released: 17 October, 2013

Footnotes

[1] Although it can happen, there has hitherto seldom been any dispute when a defendant asserts his need for an interpreter at trial; the Crown typically accepts the defendant's assertion at face value. There is obviously some potential for mischief in the assertion of a s. 14 right. Some defendants who do not actually require an interpreter may ask for one because it can provide a benefit when subject to cross-examination. Others may demand an interpreter based not on genuine need but in the hope that the state will be unable to provide one in a timely fashion and hoping to create a bogus s. 11(b) argument. None of those issues arises on the present case. If the Crown disputes the defendant's actual need for an interpreter, there would be an onus on the defendant to demonstrate that he actually satisfied the requirements of s. 14 of the Charter.

[2] See, for example, the decision of the Court of Appeal for Ontario in R. v. Rybak, 2008 ONCA 354, [2008] O.J. No. 1715.

[3] Since I ruled in the Crown's favour on the issue of whether or not the court should normally entertain a proficiency voir-dire for unaccredited interpreters, the issue has been addressed on a certiorari application by Justice Hainey of the Superior Court of Justice in R. v. Tesfai, 2013 ONSC 2772, which held that a refusal to conduct a competency voir-dire for an interpreter because of the mere absence of MAG-accreditation is not jurisdictional error, but is error on the part of a trial judge.

[4] For example, she was very forthright about her learning curve with respect to criminal law terms and she made it clear that her ability to keep up with testimony could be limited by the fact that Korean syntax is reversed from the syntax that speakers of English or the romance languages take as the norm.

[5] The proof on this point is in the pudding, as Ms. Park did interject when someone spoke too fast.

[6] Or drug consumption, as the case may be.

[7] Some of these observations are reflected in the observations of one officer, some in the observations of more than one, a consideration that I must take into account in assessing the overall strength of the Crown's case, while recognizing that no two people will ever perceive, or recall, the same event in exactly the same way.

[8] Obviously, there is no obligation on Mr. Lee to prove anything or to create any doubt; the obligation to displace any reasonable doubt lies on the Crown.