WARNING
The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(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 victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 09 16 COURT FILE No.: 22-70007888 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Marcial Katimaba MANIGBAS
Before: Justice C. Faria Heard on: March 14, 2024 Oral Decision on: March 14, 2024 Written Ruling on Voir Dire Qualifying Interpreter released on: September 16, 2024
Counsel: David Spence...................................................................................... counsel for the Crown Mitchell Hawkes........................ s.486 counsel for the defendant Marcial MANIGBAS The defendant Marcial MANIGBAS....................................................... on his own behalf
Faria J.:
I. Introduction
[1] Mr. Manigbas is charged with sexual assault contrary to s. 271. He is self-represented. His trial was scheduled to start on March 14, 2024; however, three interpretation issues arose.
i. Should an interpreter be provided for the complainant witness?
ii. Is Kwang Hyuon Joo a qualified Japanese language interpreter in this trial?
iii. Is Ayae Komri a qualified Japanese language interpreter in this trial?
[2] Three voir dires were conducted and I provided my decisions orally as follows:
i. Yes, an interpreter should and will be provided to the complainant during her evidence.
ii. No, Kwang Hyuon Joo is not qualified to provide interpretation at this trial.
iii. Yes, Ayae Komri is a qualified Japanese language interpreter for this trial.
[3] These are my reasons for those decisions.
II. Need for an Interpreter
[4] The Crown on behalf of the complainant, TN, requested a Japanese language interpreter. He submitted TN can communicate in the English language, however, she needed a Japanese language interpreter to either interpret or stand by to do so, if she required assistance to testify if she did not understand a question.
[5] Mr. Hawkes, s. 486 Counsel, assisting the court on this issue, submitted that given TN had communicated with authorities in the English language, she did not need an interpreter to testify, and he opposed the Crown’s request on behalf of Mr. Manigbas.
Evidence
[6] TN testified, in the English language, that she was born in Japan and immigrated to Canada. She attended English language classes when she was young in Japan, and then attended English as a Second Language (ESL) classes when she arrived in Canada. She graduated high school via an adult program.
[7] TN has been employed in Canada and used both the English language and the Japanese language while working as a shiatsu massage therapist, a kitchen helper, a dishwasher, and working in a hotel as a caterer. She described her written English language skills as “not super good and intermediate.” She has been in Canada for about 25 years.
[8] She testified that though she did call 911 and spoke in English, and she did provide her statement to police in English, she was uncomfortable and stressed and did not understand some words used. She did not think an interpreter was available to her at that time, and so did not ask for one.
[9] TN testified she sometimes has difficulty comprehending some words in the English language in medical and legal contexts. In addition, after the events that led to the charge, she experienced a concussion which negatively affects her English-speaking ability as does stress.
Analysis
[10] Neither counsel provided caselaw to support their positions.
[11] I considered both parties submissions and concluded the court’s truth-seeking function requires evidence to be elicited and provided in a manner that is best suited to achieve that purpose, if available.
[12] In every trial, legal terminology and complex or advanced vocabulary is frequently used. These terms and words are used when counsel ask questions of witnesses, even when the substance of the trial and its issues are straightforward. A witness with practical fluency in the English language, may in the context of a trial, not be familiar with the vocabulary, the jargon, or the concepts contained in a question, even if they understand most questions and even if questions are simplified.
[13] It is common sense that a witness who does not need an interpreter in many aspects of their life, may need one to communicate when testifying in a trial. This is the case here.
[14] TN articulated the reasons she needs an interpreter. She had difficulty with some words when she communicated with police. She identified the legal sphere as one with some words she does not understand. Her concussion and the stress of testifying compound her difficulty when speaking in English.
[15] I accept TN’s evidence. I therefore granted the Crown’s request to have a Japanese language interpreter available to the complainant while she testified.
III. Legal Principles
[16] In Tran [1], the Supreme Court articulated that to be sufficient, interpretation must be continuous, precise, impartial, competent, and contemporaneous.
[17] Justice Watt elaborated for the Ontario Court of Appeal that:
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. [2]
[18] 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. [3]
[19] Justice Hill said the same in Sidhu [4]:
“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”.
[20] 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. [5]
IV. Interpretation Voir Dire : Kwang Hyuon Joo
[21] Kwang Hyuon Joo testified he learned to speak Japanese while in Korea during his studies from 1995 to 2001 when he was in electrical engineering, then obtained his MBA, and finally his doctorate in Information Science.
[22] He is accredited by the Immigration Refugee Board (IRB) as a Japanese language interpreter and assists the MCIS organization with interpretation services but does not do much of this work as he has only had about 5 or 6 cases. Joo testified that he used the Japanese language about 30 minutes a week.
[23] It was agreed by all parties that Kwang Hyuon Joo did not have the competency in the Japanese language to interpret in the criminal trial setting of this case.
V. Interpretation Voir Dire : Ayae Komri
Evidence
[24] Ayae Komri testified she has been a Japanese language interpreter since 2014, a period of 10 years. Japanese is her mother tongue, and though not born there, she was raised in Japan for 14 years. Her first four years of schooling were in Japanese, and then she went to an International School and studied in the English language in Japan.
[25] In Canada, after high school, she attended the University of Waterloo for a science program, then transferred into nursing, then left that program and went to the University of Toronto (U of T) for a language translation certification. The U of T program was taught in the Japanese language and included legal terminology.
[26] Ms. Komri passed the Interpreters Language Skills and Assessment Test (ILSAT) which requires a 70% grade and became an interpreter.
[27] She speaks Japanese with her family, for the purposes of work, and consumes Japanese media. She goes to Japan frequently. She speaks “standardized Japanese” which she explained is the language most often spoken in formal situations such as medical and legal environments. If she does not understand a word used in dialect, she gets clarification.
[28] Ms. Komri has interpreted in the medical context for patients required to provide consent for medical procedures. Her experience is in consecutive translation.
[29] In the legal context, Ms. Komri testified she has interpreted for the Children’s Aid Society, in discoveries for civil litigation in lawyers’ offices, regarding insurance claims after motor vehicle collisions, and in police investigations. She has interpreted during Ontario Review Board (ORB) hearings and has interpreted for complainants providing videotaped statements to police in allegations of domestic violence and sexual assault in Toronto. She estimated having interpreted in 30 to 40 civil litigation contexts and another 30 to 40 in the police investigation context.
[30] Ms. Komri is not Ministry of the Attorney General (MAG) accredited as a Japanese language interpreter but has interpreted once in the Ontario Court of Justice. She is awaiting the result of her application to be accredited. She testified her obligation is to impartially interpret what she hears.
Position of the Parties
[31] The Crown submitted that Ms. Komri’s experience was sufficiently extensive and relevant in the legal field to satisfy this court she is competent to interpret in this trial.
[32] Mr. Hawkes, as s. 486 Counsel, again as courtesy to the court, submitted on behalf of Mr. Manigbas that because Ms. Komri is not a MAG accredited interpreter, she is not competent to interpret at this trial.
Analysis
[33] Ms. Komri has academically recognized proficiency in both the English and Japanese languages. She has relevant professional experience and accreditation in both languages as an interpreter in Toronto for 10 years. She has interpreted in the specific legal environments of civil discoveries, the ORB, and police investigations.
[34] Ms. Komri has a demonstrated ability to interpret consecutively, and this trial does not need simultaneous interpretation. Furthermore, given TN’s evidence about her English language fluency, Ms. Komri is likely to be required to provide only intermittent interpretation on an “as needed” basis only as TN’s level of need for interpretation is low.
[35] Ms. Komri is familiar with the anticipated substance of this proceeding. The task at this trial is to interpret the evidence of a complainant of sexual assault. Ms. Komri has interpreted sexual assault complainants’ statements, on video, for police investigations. These statements contain similar content as that expected at this trial. The format, though not identical, is similar in that questions will be asked and answered regarding a specific, personal, and intimate event that is alleged to have occurred. The nature and complexity of this trial is a familiar one to Ms. Komri.
[36] The length of this proceeding, the testimony of a complainant, does not appear to be any longer or more arduous than the length of the proceedings Ms. Komri is experienced with interpreting during discoveries, the giving of ORB evidence, or police statements.
[37] After a review of Ms. Komri’s proficiency in both languages, the level of need in this case, the length and type of proceeding, and the substance and complexity of the case, I find Ms. Komri is proficient in both the English and Japanese language to provide competent Japanese language interpretation and can perform the role of interpreter in this case.
Released: September 16, 2024 Signed: Justice Cidalia C.G. Faria
Citations
[1] R. v. Tran, [1994] 2 S.C.R. 951 at para 246. [2] R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81 (Ont.C.A.) at paras. 81, 82, 85. [3] Rybak, at para 84. [4] R. v. Sidhu at para. 298. [5] R. v. Moo, 2014 ONCJ 127; R. v. Dutt, 2011 ONSC 3329; Tran; Rybak; Sidhu.