COURT FILE NO.: CR-11-10000380-0000

DATE: 20120323

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – HAGOS KEFFLE

Ms. Mareike Newhouse, for the Crown
Mr. Robert Tomovski, for the Defendant

HEARD: March 5, 2012

c orrick j.

RULING: COURT INTERPRETERS’ QUALIFICATIONS

[ 1 ] Mr. Keffle is charged with robbery, and appeared before me for trial on March 5, 2012. He requires the services of an Amharic interpreter. Two Amharic interpreters attended in court to assist Mr. Keffle. Neither interpreter is accredited as a court interpreter by the Ministry of the Attorney General (the “Ministry”).

[ 2 ] Ms. Newhouse asked me to conduct a voir dire to determine whether the two interpreters were competent to interpret for Mr. Keffle. Mr. Tomovski submitted that I ought not to conduct a voir dire. I declined to conduct a voir dire and gave brief oral reasons for that decision. Given the importance of the issue, I am providing the parties with these brief written reasons.

[ 3 ] Both interpreters, Mr. E. and Mr. A., were formerly accredited by the Ministry as Amharic interpreters. In November 2005, Hill J. concluded in the case of R. v. Sidhu (2005), 2005 42491 (ON SC), 203 C.C.C. (3d) 17 that the test used at the time to accredit people to act as court interpreters in criminal trials was invalid and unsuitable. Beginning in 2009, the Ministry implemented a new testing and accreditation model for court interpreters. Two different types of tests are administered under the new model – a bilingual court interpreter test and an English-only court interpreter test. Both tests are described in detail by Hill J. in the case of R. v. Dutt 2011 ONSC 3329.

[ 4 ] The English-only test is described in R. v. Dutt at paragraph 85 as follows:

The English interpreting test has four sections. The first is oral recall of a short passage in English. The second portion of the test is consecutive dialogue, which has pauses for the interpreter to repeat in English. There is a shadowing exercise, which is listening to a continuous text in English and repeating it in English, while the original speaker continues to speak. And then there is a sight portion, where the interpreter does a sight translation of a written text from English into the other language, and then later an interpretation of that sight translation back into English.

[ 5 ] The English-only test does not test the interpreter’s proficiency in the second language, nor the ability of the interpreter to simultaneously interpret from the language of the court to the second language and keep up with what is being said in the courtroom. The bilingual court interpreter test is not available for the Amharic language. Mr. E. and Mr. A. took the English-only court interpreter test in 2009. Mr. E. scored 34% in oral recall; 41% in consecutive dialogue; 44% in shadowing; and 48% in sight consecutive. Mr. A. scored 37% in oral recall; 43% in consecutive dialogue; 60% in shadowing; and 59% in sight consecutive. As a result, they were not accredited as court interpreters.

[ 6 ] In my view, the scores attained by the proposed interpreters do not demonstrate a threshold level of interpreter competence. Based on this information, I was not prepared to conduct a voir dire or inquiry into the competence of Mr. E. and Mr. A. to interpret at Mr. Keffle’s trial. The Ministry has set the standard for determining that an interpreter is competent to interpret in a criminal trial. That standard involves attaining a certain score on a test that has been specifically designed to test interpreter competence. In the absence of fluency in the Ahmaric language, it is impossible for me to assess the competence of an Ahmaric interpreter.

[ 7 ] Ms. Newhouse argued that I should conduct an inquiry into the competence of the interpreters notwithstanding their test scores. She pointed out that both interpreters had been accredited under the former system, and that Mr. E. had acted as a court interpreter for Mr. Keffle in two preliminary hearings without complaint or incident.

[ 8 ] I cannot place any weight on the fact that the interpreters were accredited under the former system. The former system of accreditation was found to be based on an invalid test. Furthermore, as Taylor J. pointed out in R. v. N. S. [2010] O.J. No. 3255 (OCJ) at para. 14, “it is relatively common knowledge that the attrition rate following the new tests was nothing less then dramatic. ... Only approximately one-third of previously accredited interpreters achieved fully accredited status. Approximately another 50 percent were conditionally accredited and the balance were not accredited at all.”

[ 9 ] Similarly, the fact that Mr. E. has previously interpreted for Mr. Keffle without incident or complaint does not persuade me that I should embark on an inquiry into his competence as an interpreter. It is not logical to assume that a person who requires the service of an Amharic interpreter would be in a position to know whether the interpretation was accurate.

[ 10 ] Knazan J. held that Mr. E. was competent to interpret for Mr. Keffle at a preliminary hearing: R. v. Keffle [2011] O.J. No. 1840 (OCJ). In determining that Mr. E. was competent to interpret, Knazan J. relied on the fact that Mr. E. had been accredited under the former system, had not yet been tested under the new system, and had been interpreting in criminal proceedings for many years. I have already indicated that accreditation under the old system is, in my view, no indication of competence. Mr. E. has now taken the test under the new system, and did not attain the necessary score to become accredited. With respect, I do not agree that the length of time Mr. E. has provided interpreter services is an indication of competence in the absence of evidence regarding the accuracy of the interpreter services rendered, and in the face of the scores he attained on the Ministry’s test.

[ 11 ] Mr. Keffle is charged with robbery, a serious offence punishable by life imprisonment. Section 14 of the Charter guarantees Mr. Keffle the right to the assistance of an interpreter. I agree with Ms. Newhouse that s. 14 does not guarantee the right to an accredited interpreter, but it does guarantee the right to a competent interpreter. Unaccredited interpreters are presumptively incompetent: R. v. Sidhu.

[ 12 ] In view of the fact that the two proposed interpreters have not met the standard set by the Ministry to be accredited or conditionally accredited as court interpreters, the scores the interpreters attained on the English-only interpreter test, and the fact that I am not fluent in the language of the interpretation, nothing could be gained by conducting a voir dire to determine the competence of the interpreters. I do not know what criteria I could apply in the circumstances to determine their competence. Mr. Tomovski has referred me to four decisions in which the court declined to conduct an inquiry into the competence of an unaccredited court interpreter for reasons similar to the ones I have outlined: R. v. N.S.; R. v. Thillayampalam [2011] O.J. No. 6060 (OCJ); R. v. Shanmugalingam [2011] O.J. No. 396 (OCJ); and R. v. Khan (unreported decision of Harvison-Young J. of the Superior Court of Justice dated May 26, 2010).

[ 13 ] For the foregoing reasons, I declined to conduct a voir dire into the competence of the two interpreters. Mr. E. and Mr. A. are not competent to act as court interpreters in this trial.

Corrick J.

Released: March 23, 2012

COURT FILE NO.: CR-11-10000380-0000

DATE: 20120323

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – hagos keffle

RULING: COURT INTERPRETERS’ QUALIFICATIONS Corrick J.

Released: March 23, 2012