WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Central East - Newmarket 13-03944

Date: 2016-07-08

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

E.P.

Before: Justice P.N. Bourque

Ruling on Application for Non-Accredited Interpreter

Released: July 8, 2016

Counsel:

• J. Gleitman, for the Crown
• M. Fairney, for the defendant, E.P.

Decision

BOURQUE J.:

Overview

[1] The defendant is charged with sexual assault and sexual interference upon the person of a five year old child between 2013 and 2015. The matter is set for 5 days of trial before me.

[2] The defendant is an elderly man. I heard evidence from his daughter that he was born and raised in the Philippines on the island of Cebu. He has a grade 3 education. He lived in the Philippines and worked as a cook. He spoke Visayan (also spelt Bisayan) all his life. He has some knowledge of Philippine from watching television. He has come to Canada with his wife to visit with his daughter's family. They have been here for 3 years. He has not worked here. Based on this evidence, I am satisfied that this defendant requires an interpreter in the Visayan language in order for his section 14 rights to be met.

[3] The Crown brings application before the commencement of the trial to allow these proceedings to proceed in a situation where they cannot produce an accredited interpreter in the language of the defendant. As the interpreter is non-accredited, the burden is on the Crown to rebut, on the balance of probabilities the "presumption of incompetence" for non-accredited interpreters: see R. v. Akaeza 2012 ONSC 7046.

The Law

[4] Section 14 of the Canadian Charter of Rights and Freedoms states:

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] I quote from and adopt the words of Horkins J. in R. v. Wong, 2011 ONCJ 264:

The law as it relates to court interpreter in the criminal trial context can be easily stated. Section 14 of the Canadian Charter of Rights and Freedoms guarantees every party or witness to a proceeding, who does not understand or speak the language in which the proceedings are conducted, the right to the assistance of an interpreter.

In addition to Section 14 of the Charter, Section 7 of the Charter guarantees fundamental justice. Section 15 guarantees an equality of treatment in the application of the law. Section 27 deals with multiculturalism. These are all Charter values that support the importance of the right to the assistance of an interpreter in a criminal case. In addition, an accused has a right to consult with counsel. This is a right which continues throughout the trial process and is impossible without the assistance of a competent interpreter. Providing a competent interpreter is, therefore, not some charity provided to the accused. It is an essential constitutional right.

The purpose of section 14 is to ensure a fair hearing. The court has an independent responsibility to ensure that this purpose is fulfilled. An accused has a fundamental right to be present during the proceedings before the court. In a very real sense, and in a legal sense, an accused with no ability to understand the proceedings is not legally present before the court.

In addition to the rights of the accused, the court has a right to a competent interpreter. The absence of a competent interpreter directly undermines the integrity of the fact-finding process.

The required standard of interpretation is not set out in Section 14 of the Charter. However, it is clear from the case law that the required standard, although high, is not one of perfection. The minimum standard is competence. Interpretation must be continuous, precise, impartial and contemporaneous. Summaries and partial interpretations are insufficient.

It is the Crown's responsibility to ensure that an appropriate interpreter is available in criminal proceedings. . .

A fully accredited interpreter is, according to the case law, presumptively competent and there is no general obligation on the court to conduct any further inquiry into the interpreter's ability, absent some cause arising to do so.

The corollary of this has been stated that an interpreter who is not fully accredited is then presumptively incompetent and competency either has to be established or the proceedings cannot continue.

[6] As stated in R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, "Section 14 guarantees 'the right to the assistance of an interpreter'. The standard imposed by the unadorned words of the guarantee is high, but does not rise to the unattainable – perfection".

The Evidence

Merfa Yap-Bataclan

[7] . . . is a native of the Philippines and is 61 years old. Growing up in Manila, she spoke three languages, English, Philippine and the primary dialect of Visayan (Cebuano). She spoke Cebuano with her parents and her cousins.

[8] She obtained her Bachelor's degree in 1977. She joined the civil service and worked as a translator of documents and did viva voce translations and operated in the three (and other) languages. She stated that she spoke the Visayan dialect every day with co-workers and clients of her department. She described that most citizens of the Philippines have some of the Philippine language which is the official language of the country.

[9] During this time she did not have any formal interpreter training but just did interpretation on a continuing basis. She would often attend court in the Philippines as a social worker and would act as an interpreter. After the civil service, she worked for UN sponsored organizations and began a Masters' degree (which she did not finish). During the course of her work, she also learned Vietnamese, Laotian, and Indonesian. She continued to speak Cebuano with her parents and cousins.

[10] She also did a lot of translations of training materials as most of them were sourced from the United States and were in English. She did written as well as oral translations.

[11] She wished to work with the UN in New York but came to Canada to have a better life for her family. She became an interpreter and has interpreted in the criminal, family, Provincial, and Superior courts in Ontario. She took an interpreters course with the Barbara Schleifer Clinic for 4 months in 2007. She wrote a certification exam in 2010 but did not pass one part of it, namely the simultaneous translation section (one of three sections). The exam was for Tagalog, not this language. She has received a basic certification CILSAT, and believes that she has a conditional accreditation (she does not have any conditional accreditation).

[12] The witness seems to understand her duties as an interpreter and the interpreter's oath to the court. She advises that she has spoken briefly with the defendant and believes he speaks some Philippine as well as Visayan (Cebuano).

[13] The witness also stated that she was in the midst of a Paralegal course of instruction but she could work around it by doing it in the evenings.

[14] The Crown filed two exhibits which set out the difficulties that the Crown was having in finding an appropriate accredited interpreter. I take no umbrage with their efforts and while I do not wish to be seen to be "picking through" their work I note that a Visayan interpreter was located in New York and California.

Analysis

[15] The proposed interpreter is not accredited in any language. She took an exam for the language Tagalog, not Visayan. She is not conditionally accredited in the simultaneous interpretation of any language.

[16] She is an extremely intelligent and accomplished woman. Her C.V. and her oral testimony, speak to a person who is proficient in many languages and has for most of her life, used several languages on a continuing basis. She has, and I accept that she has spoken Visayan and particularly the sub dialect Cebuano. I accept that she has interpreted (at least one occasion) for a trial (she believes in the Superior Court) where she was translating Visayan for a civil trial. I accept that based on her life experience she is capable of understanding the written and spoken language of Visayan.

[17] All of the above speaks to her competence to interpret in this trial.

[18] The following factors however give me pause:

(a) There is absolutely no objective testing standard that I can use to assess this witness's ability to translate in court. She has not taken any formal testing for translating to and from Visayan. Unlike the many cases cited to me, she does not have even conditional accreditation;

(b) In her testimony she admitted that her ability to understand the language (Visayan) is better than her ability to speak it. For the purpose of this trial, she will be translating English testimony into Visayan for the accused;

(c) Ministry guidelines suggest that a translator do not go for more than two continuous days. This trial is set for 5 days;

(d) I find that the defendant's knowledge of English is minimal at best and he will be totally reliant upon the simultaneous translation for him to understand this trial;

(e) She has not been actively translating or using this language on a daily basis for many years.

[19] As Hill, J. said in R. v. Dutt, at par 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 obligation to honour the s. 14 Charter right".

[20] The Ministry of the Attorney General recognizes in their guidelines that there is a distinction between trials and other court matters. For example, conditionally accredited interpreters can be used for a witness other than the accused (I note that a witness also has the section 14 rights). But where the trial is to interpret for the accused and it is expected to be lengthy and complex, "the ability to chat in the hallway with the accused does not mean that the interpreter will have the ability to interpret at a trial to the required constitutional standard": see R. v. Kidane Abrha-Beyene 2012 ONCJ 762.

[21] I note that in the case of R. v. Blair, [2012] O.J. No. 1834, that was a case where the court dealt with an interpreter for a Crown witness, and did not involve the active simultaneous translation demanded of a person who is actively translating everything said in the courtroom.

[22] I have been advised that this court in Newmarket has made genuine and strenuous efforts to secure the services of an interpreter for this case. It may be that an accredited interpreter in Visayan does not reside in Ontario. The language is certainly not as common as the major languages of the world, although I note that some 30 million people in the Philippines (one-third of the total population) speak it. As stated by Beilby J. in R. v. Akaeze, 2012 ONSC 7046, "I accept that the pool of...interpreters is extremely shallow but that practical set of circumstances is, for the purposes of my considerations, irrelevant. As referenced earlier, the constitutional requirement is not tempered by the availability of interpreters".

[23] The crown has pointed me to the passage in R. v. Rybak, 90 O.R. (3d) 81, where is states: "unaccredited interpreters may only be used in situations of extreme urgency. …..Extreme urgency refers to last minute calls".

[24] This charge was laid in May of 2015. The trial date was set on November 3, 2015 and the request for the Visayan interpreter was made then. We have over a month to go before the trial of this action. I do not consider this to be a situation of extreme urgency.

Conclusion

[25] After reviewing all of the information before and cognizant of the fact that the proposed candidate is a remarkable person and may possibly be able to provide the necessary interpretation, I cannot say that the Crown has discharged its burden to show on a balance of probabilities that this candidate is capable of providing translation to the appropriate standard so I can be satisfied that the defendant's section 14 rights have been satisfied.

[26] I therefore will not allow the trial to proceed with the translator proffered by the Crown.

Signed: "Justice P.N. Bourque"

Released: July 8, 2016