CITATION: R. v. Basiev, 2021 ONCJ 420

DATE: July 23, 2021

Information # 3821-998-20-38100370

ONTARIO COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

v.

ALAN BASIEV

R U L I N G O N V O I R D I R E

REMOTELY BEFORE THE HONOURABLE JUSTICE D. MAUND,

on July 23, 2021, in ORILLIA, Ontario

APPEARANCES:

K. STAATS Counsel for the Crown

E. ASHUROV Counsel for Alan Basiev

MAUND, J. (Orally):

This is the matter of the Crown and Alan Basiev, and it is a ruling on a voir dire held earlier in the month. Now, Mr. Basiev is charged with three offences contrary to the Criminal Code of Canada, namely: impaired operation, operation with a blood alcohol concentration equal to or greater than 80 milligrams percent, and dangerous operation of a motor vehicle. The events of these alleged offences occurred in the Town of Innisfil on December 27, 2019.

This is my ruling on a pretrial voir dire held on July 8th last, to determine if the proposed three unaccredited interpreters had the required skills and qualifications to meet the constitutional standard for the right to have an interpreter during a trial process.

The standards for such a voir dire were reviewed by the Ontario Court of Appeal and are included in Rybak, that's R-Y-B-A-K, madam reporter, and that is cited at 2008, 233 Canadian Criminal Cases (3d) 58. Rybak applies the essential principles originally established by the Supreme Court of Canada in R. v. Tran. The citation for that is [1994]2 SCR 95, Tran spelled T-R-A-N. And those principles set the required standard for trial interpretation very high, but not to a level of perfection.

The five factors that a trial judge must consider to apply these principles are these: is the interpreter competent? Is the interpreter impartial? And can the interpreter provide continuous interpretation? Can the interpreter provide continuous interpretation? I emphasize the last point, can the interpreter interpret with accuracy? So whether accredited or not, the central issue to be determined always is one of competency. Does the proposed interpreter have the language skills and experience to discharge their duties in a manner as required? And in accordance with the factors set out in Tran by the Supreme Court of Canada. Give me a moment, please. All right, thank you.

Now, it is not fatal to these proceedings that the proposed interpreter is not accredited to any degree. Nor is the fact that an interpreter who is fully accredited always sufficient. Competency is always subject to potential challenges. The advantage of the fact of accreditation by a neutral agency is that they perform certain tests to provide objective evidence of basic skills in competency for an interpreter.

The process of this voir dire to determine standards of competency was, in my view, unsatisfactory in its nature. All three proposed interpreters were able to give evidence via Zoom and were subject to cross-examination on their skills and life experiences. The accused, Mr. Basiev, given his language issue of course, is not in a position to give evidence on this voir dire.

In the end, my appreciation and understanding of the potential language issue on the part of the accused was based, in part, on what his counsel was able to tell me about his preferred language of communication. His language is Ossetian, which is not widely spoken in the world. And it became apparent from the witnesses that Mr. Basiev speaks primarily one of the three Ossetian dialects, namely Digoron. And I am advised that the Digoron dialect of Ossetian is spoken by less than 10 to 20 percent of Ossetian speaking people. Digoron is not generally understood by the majority of Ossetian speakers who speak the primary dialects of Ossetian, which are known as Kudar and Iron.

During the hearing, Mr. Basiev did speak in English clearly at certain points, although he did not give evidence. And the Crown takes the position that he did have proficiency in speaking English with the officers during the incident. So that is the indicator. However, I am unable to come to any conclusion from that alone that the accused has sufficient understanding of English to understand the evidence in a criminal trial conducted entirely in the English language. I simply do not have a basis for that.

His counsel tells me that he is able to communicate with his client in a limited fashion with some words of Russian. Fortunately, Mr. Ashurov is fluent in Russian. But counsel also advises that his client is not fluent, not fully fluent, in the Russian language.

I also have the evidence of the proposed interpreters, two of them, at least, who spoke to Mr. Basiev at my prompting during the voir dire. And they spoke in their own dialects of Ossetian and also in Russian to a limited extent. They understood that those dialects were not apparently spoken by Mr. Basiev. In other words, he did not speak the dialects that they attempted to speak to him in in Ossetian. And they also understood that those dialects were not fully understood by the accused.

Counsel indicated that Mr. Basiev was able to tell him that he had a very limited understanding of what was said during those brief discussions with the two proposed interpreters.

All of this will indicate that my understanding of Mr. Basiev's actual language issue and needs is incomplete due to the nature of the process. My understanding is based on some of the evidence, but on a large part anecdotal; what was provided to me through counsel.

As Justice Watt observed in Rybak at paragraph 75, and I quote:

“....it is defence counsel who is most likely to have the greatest contact with the accused, thus the person who is in a preferred position to offer assistance on the issue of the nature and extent of the accused's need of interpreter assistance.”

Defence counsel, Mr. Ashurov, was very clear that the only meaningful assistance for his client, in his view, would be provided by an interpreter qualified and experienced in the Digoron dialect of the Ossetian language.

Now, there are no accredited Ossetian speaking interpreters in the Province of Ontario. For all I know, there are no accredited Ossetian speaking interpreters in Canada. I was told that Ossetian is a rare and, to some extent, diminishing language in the world, as it is subject to being overwhelmed by the predominant neighbouring languages such as Russian. The Digoron dialect, I came to understand, is a rare strain of a rare language in the world.

I do wish to acknowledge, thank and salute the heroic efforts on the part of the Interpreter's office to seek out and present several Ossetian speaking potential interpreters for this voir dire.

I have no information to suggest that their office was specifically advised prior to the voir dire by counsel for either side that Mr. Basiev is a speaker of the dialect in Ossetian known as Digoron. Such information, if available, may have focused their efforts to seek out qualified interpreters, but we will never know. I do appreciate the willingness on the part of the three proposed interpreters to make themselves available for the voir dire. And they gave evidence as to their experiences and language skills, and their CVs were entered as Exhibits A, B and C in this voir dire.

Our hearing on July 8th stretched well into the day and I thank all of them sincerely for their patience as participants in this inquiry. They were certainly neutral people outside of our justice system.

Of the three proposed interpreters, while Mr. Ali Noori spoke other neighbouring languages to Ossetia, he does not speak any dialect of Ossetian. Quite briefly stated, I agree with both counsel that Mr. Noori could not be of assistance at trial as an interpreter.

Mr. Konstantin Slanov who testified from Moscow was closer to the mark. While he has no formal training as an interpreter, Mr. Slanov has had experience in translation, including translating Ossetian folktales into English. He studied in Ossetian in his early school years, but later primarily in Russian for both his degrees. Mr. Slanov tells us that he has lived his entire lifetime speaking Ossetian, primarily in the southern dialect which is Kudar, and he also speaks the northern dialect of Iron. These are the primary dialects I mentioned earlier.

He told the court that he did not speak the Digoron dialect of Ossetian. He testified that if Mr. Basiev spoke primarily Digoron, he would not be able to properly interpret it for him during the trial. His understanding of that dialect is limited, that is Digoron. However, he said from his experience, that Digoron speaking Ossetians should usually be able to understand the Iron dialect.

After attempting to speak to Mr. Basiev, Mr. Slanov indicated that he used both some degree of Russian and his own Iron dialect to have that proposed conversation. Counsel advised that his client did not understand that conversation at all. That is to say the conversation with Mr. Slanov. The Crown and Defence agreed in their argument, and I also agree with them, that Mr. Slanov, despite his best efforts, would not be able to translate at trial to the required standard.

And finally, the evidence of the third proposed interpreter, Marianna Kelekhsaeva. She comes the closest to suitability on the evidence proposed. I will not outline all of her experience and employment and skills, which are fully set out in her CV filed as Exhibit A in this voir dire. She holds a degree in linguistics from Ossetian State University, which is in Russia, and she has extensive translation experience including work in different venues, including the Sochi Olympics I was told, where she worked as a translator. However, she has no formal training or experience with court interpreting. She may pursue this, but she is not at this time.

Her native language is Ossetian. She has lived in Ossetia her whole life and she is fluent in both the majority dialects of Iron and Kudar. She testified that Digoron is not a dialect in which she is fluent, although I understood that she spoke some of the words. If Mr. Basiev speaks only Digoron, she said she would not be able to translate. However, she believed that most Ossetian people understand and speak the Iron dialect. That is, at least, her experience. She did not comment on the degree of understanding of Mr. Basiev.

When Ms. Kelekhsaeva spoke to the accused, again at my prompting, she understood that Mr. Basiev preferred to speak in Digoron. The witness used a variety of Ossetian dialects known to her when she spoke. And she said she understood him and she thought that he was responsive. However, Mr. Basiev advised his counsel immediately after that his comprehension of that conversation was no more than “50/50.”

The Crown submits that Ms. Kelekhsaeva's lack of experience and training as a simultaneous translator would not make her unsuitable to this task. And that she was able to converse sufficiently with Mr. Basiev from what she told us. And with the use of other languages, including some English and some Russian and all of the Ossetian dialects known to her, that she could convey sufficient understanding to the accused of the evidence and arguments submitted at trial.

The position of the Defence, as I have already noted, is that Ms. Kelekhsaeva is not qualified for the task. That a person with no direct court experience as an interpreter who does not speak the same language dialect as the accused, cannot meet the standards required set out in the caselaw and the Charter. As I have already noted, the standard for this issue is not perfection.

Generally speaking, I agree with the Crown that a combination of patience and accommodation during the trial could make up for a lack of formal training and experience on the part of Ms. Kelekhsaeva. Ms. Kelekhsaeva strikes me as a person with such language skills, temperament and life experience that she will qualify some day as an excellent interpreter should she pursue such a career.

The reason I must respectfully disagree with the position of the Crown about her suitability is this. Despite her best efforts, I am left in real doubt that she would be able to interpret the proceedings in criminal trials with the required degree of accuracy and competency. From everything I have learned, I cannot be certain, but I have concluded that Mr. Basiev's primary language of comprehension is Ossetian in the Digoron dialect. Two of our Ossetian speaking witnesses believed that most Digoron speaking Ossetians can, or perhaps should, understand the two other primary dialects of Ossetian. The accused professes through his counsel that he does not understand them at all. That is to say the interpreters who spoke to him. I am left with no confidence from his discussions, that he has the degree of understanding based on what they attempted to do.

To quote Justice Watt in Rybak beginning at paragraph 100:

‘....the teachings of Tran are that the interpretation provided must be sufficient to ensure that the language deficient have the same opportunity as the language proficient to understand and be understood....”

Proper comprehension is essential. In my respectful view, it cannot be sufficient if you provide a degree of interpretation cobbled together with other languages that might, if we are lucky, produce a “50/50” level of understanding on the part of an accused person.

Ms. Kelekhsaeva is a well-qualified person in many ways. I regret to conclude, however, that she would not be up for the task of interpreting on behalf of the accused in this trial in the Ossetian language, as I viewed, it based on the voir dire. I say with regret, because I acknowledge, as I have now learned, that finding a person uniquely qualified to interpret for the accused, Mr. Basiev, will be a difficult task. The trial dates set of October 21 and 22 are looming. They are already the subject of a proposed 11(b) application, I have been advised by counsel. And with my Ruling today, and now on with the knowledge of what will actually be required, the quest to find another interpreter who is qualified must begin again. I fear that in the absence of an early resolution to this difficult issue, the trial dates will be in jeopardy.

So, at this point, having made my Ruling, I ask counsel to perhaps go to a breakout room as long as they wish to talk about where this matter goes from here. Can I just add that before we got started, I mentioned to the clerk and my reporter that I am ordering an expedited copy of this Ruling, which I will approve as soon as I get it and will direct staff to deliver copies of the ruling to counsel for the Crown and Defence. And in addition, to the interpreters’ office that is responsible for this quest, and as a courtesy to the participants who tried to assist us, to them as well, to the persons who CVs are before the court. So, that is my Ruling. I won't state the abundantly obvious more than I have. I realize this creates difficulties, but there it is.

M A T T E R A D J O U R N E D

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Francine Wolfe, certify that this document is a true and accurate transcript of the recording of R. v Alan Basiev, in the Ontario Court of Justice on July 23, 2021, held at Orillia, Ontario, taken remotely from Recording No. 3821_Orill02_20210723_083830__10_MAUNDD.dcr, which has been certified in Form 1.

July 29, 2021 __ ________________________

(Date) Francine Wolfe

(Signature of authorized person)