Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 01 21 Metro North, Toronto Region COURT FILE No.: 254563

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HURSHED TURSUNOV

Before: Justice Cidalia C. G. Faria

Heard on: January 18, 2022 Ruling on Voir Dire Qualifying Interpreter released on: January 21, 2022

Counsel: Paul Alexander................................................................................... Counsel for the Crown Yaroslav Obouhov …………………Counsel for the defendant Hurshed TURSUNOV

Faria J.:

Overview

[1] Mr. Tursunov is charged with Impaired Driving and Sexual Assault. He needs the assistance of an interpreter for his trial. The issue has some history.

[2] The court was informed on April 1, 2021 that Mr. Tursunov had been communicating with his counsel in the Russian language and so a Russian language interpreter was ordered for his first trial date. It was then discovered this was not the language he required, but rather he needed an Uzbek language interpreter. A voir dire to qualify such an interpreter was previously conducted unsuccessfully [1] and so a second voir dire was embarked upon before me. On that date, in an oral Ruling, I found Mr. Bakhodirjon (Bahadir) Shakhnazarov to be a competent interpreter for the trial set to start on January 18, 2022.

[3] On January 12, 2022 the Crown informed the court the previously qualified interpreter was no longer available, and a third voir dire to qualify another Uzbek language interpreter was to proceed before me on January 18, 2022. On that date I gave an oral Ruling finding the proposed interpreter, Mr. Bakhtier Shakhnazarov, competent to interpret in the Uzbek language at trial. These are my written reasons.

Evidence

[4] The Crown proposed Mr. Bakhtier Shakhnazarov for qualification as an Uzbek language interpreter. He filed his resume as an exhibit and relied on a previously filed booking video of Mr. Tursunov at the police station after his arrest.

[5] Mr. Shakhnazarov is fluent in English, Uzbek, Turkish and Russian. He obtained a master’s degree in public administration in Turkey in 1996, a licence to practice law in Uzbekistan in 2002, and a Paralegal Diploma in Toronto in 2011. He has been employed as an interpreter in the Uzbek language for three separate American companies as well as for Canada Border Services Agency and Able Translations.

[6] Mr. Shakhnazarov became certified to interpret from the Uzbek language into the English language and vice versa at Immigration and Refugee Board Hearings in 2010 as well as for Citizenship and Immigration Canada from 2009 to 2013, and 2018 to the present time. He has been continuously employed as an interpreter in the Uzbek language since 2010.

[7] His resume was unchallenged.

[8] Mr. Shakhnazarov testified he grew up speaking Uzbek, worked as an independent journalist, published, and hosted his own television show in Uzbek. He first learned basic English in 1974, studied the language in university when he was in Turkey in 1992 and began to speak it regularly when he immigrated to Canada in 2008 where he completed the College level Paralegal program in English in 2011.

[9] He testified he interpreted in the legal context during Immigration and Refugee Hearings after he became qualified in 2010. In Provincial Offences Court he interpreted traffic matters including trials and guilty pleas. He has interpreted for whole days and he is familiar with legal terms. He can do both simultaneous and consecutive interpretation but tends to do consecutive.

[10] In cross-examination, Mr. Shakhnazarov testified the traffic trials he interpreted were short and about 5 to 8 years ago. Some did involve driving offences including Careless Driving and alcohol related offences. When questioned about qualifying as an interpreter with the Ministry of the Attorney General, he responded he had taken the test once, more than 10 years ago, and failed. He did not try again as he became employed and busy as an interpreter thereafter until now. He interprets “over the phone and face to face” for the Government of Ontario, immigration, insurance cases, doctors, medical appointments, and administrative situations. In addition, he testified that the Uzbek language is not in demand at the Ministry of the Attorney General, with only one or two cases a year, and so he decided not to re-apply.

Law

[11] The right to interpretation is set out in s.14 of the Charter of Rights and Freedoms:

s. 14. 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.

[12] In Tran [2], the Supreme Court articulated that to be sufficient, interpretation must be continuous, precise, impartial, competent, and contemporaneous.

[13] Justice Watt elaborated in Rybak [3] for the Ontario Court of Appeal as follows: continuity ensures interpretation is continuous without breaks; precision does not require perfection; impartiality is to ensure it is objective and unbiased; and the interpretation is to be contemporaneous with the proceeding being interpreted, preferably done consecutively.

[14] Regarding competence, Justice Watt stated:

“Competence and accreditation are not co-extensive. In absence of universally acceptable standards for assessing interpreter competency, neither presence nor absence of accreditation can be considered dispositive of the issue of competence.” [4]

[15] Justice Hill said the same in Sidhu [5] when he stated:

“There is no constitutional right to an accredited interpreter – there is a however a right to a competent interpreter. Accordingly, the essential issue is not whether the court interpreter has been ‘formally trained’ but whether the interpreter is ‘qualified’ to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous interpretation”.

[16] A non-exhaustive list of factors to be considered in the determination of competence are: proficiency in both languages; consecutive vs simultaneous interpretation; level of need; length of proceeding; type of proceeding; complexity of the case; substance of the case; and demonstrated ability. [6]

Position of the Parties

[17] Mr. Alexander for the Crown submits Mr. Shakhnazarov’s language skills are not challenged and the expected substance of the evidence in this trial, driving while impaired and sexual assault, is relatively simple and straightforward without technical terms. He emphasized Mr. Shakhnazarov’s experience in the legal field, particularly how obtaining a Paralegal Diploma in Canada in English demonstrates both his skill in the English language and his familiarity with legal terms.

[18] Mr. Obouhov, for Mr. Tursunov, submits Mr. Shakhnazarov lacks formal training, his experience with trials in Provincial Offences Court is dated and limited, and he is not formally accredited.

[19] It is worth noting both parties appear to acknowledge the Uzbek language is not one frequently used in criminal courts in Ontario and a provincially accredited Uzbek language interpreter is not available. In addition, both parties referred in submissions to evidence heard on the voir dire held on April 1, 2021 where Mr. Bakhodirjon (Bahadir) Shakhnazarov was qualified as an Uzbek interpreter for this trial. Mr. Bakhodirjon (Bahadir) Shakhnazarov is the son of the current proposed interpreter, Mr. Bakhtier Shakhnazarov.

[20] Mr. Alexander submits the father is more experienced and qualified than the son pursuant to both their evidence. Mr. Obouhov submits the son is more experienced and qualified than the father.

[21] I make no finding of comparison. Each proposed interpreter is to be evaluated pursuant to his/her/their own skill and experience in the context of the guiding judicial principles and jurisprudence.

Analysis

[22] As indicated earlier, Mr. Tursunov is entitled to continuous, precise, impartial, competent, and contemporaneous interpretation during his trial. It is not disputed this proposed interpreter could provide continuous, precise, impartial interpretation contemporaneously. There is a dispute however, as to whether he is competent.

[23] There are several factors to consider in the determination of Mr. Shakhnazarov’s competence.

a. Proficiency in both languages

[24] Mr. Shakhnazarov’s proficiency in both English and Uzbek is unchallenged, and appropriately so as it is excellent. Uzbek is his first language. It is the language of his education and professional life in the fields of law, journalism, and broadcasting. Similarly, he learned English early, studied it consistently, obtained a College Diploma as a Paralegal in English, and the English language is an essential skill to his professional occupation in Canada as an interpreter.

b. Consecutive vs Simultaneous Interpretation

[25] It is proposed this trial proceed with consecutive interpretation. Of the two types, consecutive interpretation is less demanding. It provides the interpreter and the defendant an opportunity to clarify any uncertainty, proceed at a comfortable pace for the interpreter and the defendant, and interpret smaller amounts of content.

c. Level of need

[26] Mr. Tursunov understands English. He interacted with police officers and responded to them in English as seen in the Booking Video tendered into evidence on April 1, 2021 in the previous voir dire. He made some small talk, made requests and complaints, analogized his situation to another and used humor. He understood his rights and exercised them. Counsel agree he needs interpretation for his trial, but he certainly has basic English language competency.

d. Length of proceeding

[27] This trial is scheduled for 4 days to accommodate consecutive interpretation. Mr. Shakhnazarov has interpreted for whole days, but on individual matters that have been shorter. On this point there is no evidence the length of the proceeding is of significance other than to say there should be enough regular breaks to ensure the interpreter is sufficiently mentally well rested to continue the task, as with any interpreter who is assigned a 4 consecutive day trial.

e. Type of proceeding

[28] Mr. Shakhnazarov’s most similar experience to criminal proceedings is primarily in the guilty plea context of Provincial Court, and in traffic matters with some trials. He has not interpreted in a criminal trial. A criminal trial is more demanding than shorter guilty pleas or trials in Provincial Court. However, the criminal trial is not foreign to Mr. Shakhnazarov. As a Paralegal, he is qualified to work in the criminal court context and is familiar with the pace, environment, language, and legal terms of a criminal trial. His specific education is therefore an asset to his ability to interpret.

f. Complexity and substance of the proceeding

[29] The Crown submits this trial is not complex. The offences, in their essence, refer to whether or not Mr. Shakhnazarov had alcohol in his body which impaired his ability to drive, and whether or not he touched a person in a sexual manner without their consent. Specifically, the allegation is one of grabbing the buttocks of a person. Regarding the driving allegation, he argues it would be an offence that Mr. Shakhnazarov is familiar with given his experience with driving offences in Provincial Court.

[30] Mr. Obouhov argues the terminology of impaired driving is specific and Mr. Shakhnazarov does not have experience with such terminology in a criminal trial.

[31] The indicia of impairment are referred to with words and terms used in regular civilian vocabulary. Although they may hold legal significance, they are certainly not unusual in linguistic terms. There is no suggestion this trial will contain complex jargon, medical or scientific. The principles and jurisprudence of impaired driving and sexual assault may be nuanced and complex, but the material facts here do not appear to be.

g. Demonstrated ability

[32] Counsel for Mr. Tursunov relies most heavily on the fact Mr. Shakhnazarov is not formally accredited as an Uzbek language interpreter by the Ministry of the Attorney General, has not received training in the field of interpretation, and has not interpreted in a criminal trial, to submit Mr. Shakhnazarov should not be found competent to interpret a criminal trial.

[33] However, accreditation is not dispositive of the issue. The evidence is clear Mr. Shakhnazarov has worked as an Uzbek language interpreter for multiple organizations and government employers in a multiplicity of settings, including legal ones, for over a decade. His proficiency in both languages, his education, and his experience demonstrate competence strongly favouring qualification—particularly in the present context of a straightforward and uncomplicated trial.

Conclusion

[34] Given Mr. Shakhnazarov’s language proficiency in both Uzbek and English, his post-secondary education in both languages, his educational and professional familiarity with legal terms and the courtroom, and the totality and length of his experience as an Uzbek interpreter in multiple legal settings, I, having considered all the relevant factors, find Mr. Shakhnazarov to be competent to act as an Uzbek language interpreter in this trial.

[35] The trial will proceed with consecutive interpretation, frequent breaks, and opportunities for Mr. Tursunov and or Mr. Shakhnazarov to ask for clarification if so required.

Released: January 21, 2022 Signed: Justice Cidalia C.G. Faria

[1] The court was advised a voir dire proposing to qualify Maftuna Shakhnazarov as an Uzbek language interpreter was withdrawn by the Crown. [2] R. v. Tran, [1994] 2 S.C.R. 951 at para 246. [3] R. v Rybak, 2008 ONCA 354, 90 O.R. (3d) 81 (Ont.C.A.) at paras. 81, 82, 85. [4] Rybak, at para 84. [5] R. v. Sidhu, 2005 ONSC 42491 at para. 298. [6] R. v. Moo, 2014 ONCJ 127; R. v. Dutt, 2011 ONSC 3329; Tran; Rybak; Sidhu.