Ontario Court of Justice

Date: 2019-06-11

Court File No.: Central East - Newmarket 4911-998-18-00519

Between:

Her Majesty the Queen

— AND —

Timothy Magondo

Before: Justice P.N. Bourque

Ruling on Interpreter

Oral Reasons given: February 1, 2019 Written Reasons released: June 11, 2019

Counsel:

• T. Hamilton, for the Crown
• M. Engel, for the Defendant

BOURQUE J.:

Overview

[1] The defendant is charged with driving with excess alcohol alleged to have occurred on January 13, 2018. The matter is set for two days of trial before me.

[2] The defendant is a native of Zimbabwe and his native language is Shona. I am satisfied (based on the evidence that I will review below) that this defendant requires an interpreter in the language in order for his s.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:

[5] 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.

[6] 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.

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.

[7] As stated in R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81 (C.A.), "79- 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". As further stated in R. v. Moo, 2014 ONCJ 127:

[16] The reason the law does not require perfection is "because it is well known that court interpretation between source and target language is seldom, if ever, perfect". ... By applying the law purposively, as Rybak instructs at para. 66, a functional, realistic and attainable standard is achieved.

The Evidence

Alison Beard

[8] …is the girlfriend of the defendant. She is 23 years old and she has been dating him for two years. She describes that he has been in Canada for five years. He finished high school but had to do it in an adult setting. He tried community college but did not complete it and she believed that it was for language issues that was the primary factor. She says that she and he can communicate but they often use a computer translation "APP" when there are some difficult concepts. I am satisfied that he has established his need pursuant to the constitutional standard for an interpreter in these proceedings.

Court Support

[9] Filed on consent was a statement from the court support office in Newmarket. There is no accredited interpreter in the Shona language and court support has been attempting to find an interpreter since June 12, 2018. The court sought the assistance of three different agencies and the agency Exacta responded that they had an interpreter who could come on very short notice. A previous interpreter that they sought did not attend on the first day set for this trial.

Isabel Murambiwa

[10] …has been offered as the proposed translator from English to Shona and from Shona to English.

[11] Filed with this witness was her Curriculum Vitae. She also gave viva voce evidence.

[12] She is a mature woman and was born in Zimbabwe. She spoke Shona as her native tongue but is fluent in English, Ndebele, Xhosa and Zulu.

[13] She came to Canada in 2006. She attended University of Ontario and received a Bachelor's degree in Criminology and Justice. She is presently going to Centennial College and is studying Community Development. She states that she is active in the expatriate Zimbabwean community in Toronto and does Evangelical work at the Methodist Church Zimbabwe Fellowship Canada.

[14] Since 2013, she has been a contracted interpreter with the Immigration and Refugee Board of Canada. In that capacity, she interprets simultaneously for board hearings. She indicates that she passed an exam to qualify (a pass is 75 per cent or greater), and indeed now also marks the exams of other applicants and also does audits where the competency of interpreters is questioned at the Refugee Board.

[15] She stated that she has done some 50 hearings with the Board.

[16] She indicated that she did a criminal trial in Brampton in the past year and has recently started to interpret at an Ontario Court Trial in Scarborough which is a drinking and driving case.

Analysis

[17] She is not accredited by the Ministry of the Attorney General. She did indicate that she is getting more calls for work there and as a result wishes to take the test. She does not know the details of the test.

[18] She has interpreted in court proceedings and indeed is in the midst of providing interpretation to another Ontario court. She has experience in some 50 previous proceedings in a court-like setting. I find that the issues in the Refugee Board can be at least as serious as any issues that appear in this court.

[19] I accept that she had not completed a drinking and driving trial and I accept that there are technicalities in the law and language that would be a challenge.

[20] In terms of my task here I quote Justice Paciocco in R. v. Moo, 2014 ONCJ 127, where he said: "It is notoriously difficult to make such assessments…the best that judges can do and what they are required to do, is draw reasonable inferences from objective criteria".

[21] In R. v. Moo, I note that the proposed interpreter was not accredited and had tried the Ministry of Attorney General test several times unsuccessfully. He however was involved with the United Nations in translating immigration literature. He worked as an interpreter in the community in non-judicial proceedings. He also provided interpretation services in about a dozen matters in Ontario courts. He had done some 5 criminal trials.

Conclusion

[22] After reviewing all of the information before me and cognizant of the fact that the proposed candidate is not accredited in the Ministry system, I find that she has in her resume several factors which lead me to believe that she would be able to fulfil the constitutional requirement. The fact that she has done a criminal trial and is in the middle of another one and especially the fact that she is accredited by the Refugee Board leads me to the conclusion that the Crown has discharged its onus on a balance of probabilities.

[23] I therefore will allow this candidate to provide interpretive services to the defendant in satisfaction of his s.14 right to understand the proceedings and to be understood if he wishes to give any testimony.

Released: June 11, 2019

Signed: "Justice P.N. Bourque"