ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4-0000-599/11
DATE: 20120517
BETWEEN:
HER MAJESTY THE QUEEN – and – MICHAEL CHIONG
Patricia Garcia , for the Crown
Ryan Clements , for the Defendant
HEARD: April 30 and May 1, 2012
Reasons for Decisions Regarding The Interpreter
BENOTTO J.
[ 1 ] The accused is charged with sexual assault and unlawful confinement. The defence will be consent or mistaken apprehension of consent.
[ 2 ] The complainant lives in Korea. She requires the assistance of a Korean interpreter to give her evidence by video-link. The accused does not require an interpreter. He speaks English and (I am told) some basic to intermediate level Korean. He does not consider himself fluent in Korean.
[ 3 ] At the pre-trial conference some 5 months ago, Defence counsel advised that he would be insisting on an accredited Korean interpreter. Specifically, he requested an interpreter accredited under the Ministry’s “new” system for accreditation for criminal law proceedings. This system provides for two levels of accreditation. One is “accredited” which means the person scored 70% on the test. The other is “conditionally accredited” which means the person scored between 50 and 70%.
[ 4 ] In Ontario there are no accredited Korean interpreters. Only two people are conditionally accredited. Neither appear to be available.
[ 5 ] The Crown proposed that I conduct a voir dire to determine whether two interpreters who are not accredited are qualified to interpret the evidence of the complainant. The defence argues that I should not conduct a voir dire but rather adjourn or stay the proceedings. The defence argues that unless a conditionally accredited translator is presented, the threshold for reliability is not met for a voir dire to be conducted.
Decision on Whether to Hold a Voir Dire
[ 6 ] In R. v. Sidhu, 2005 (ON SC) , [2005] O.J. No. 4881, Justice Hill said that, regardless of the interpreter’s accreditation status, the court has discretion to conduct a qualification inquiry or a voir dire.
[ 7 ] A number of my colleagues have decided not to conduct a voir dire when the qualifications of the interpreter are in question. (See: R. v. Keffle 2012 ONSC 1579 ; R. v. N.S., [2012] O.J. No 3255 ; R. v. Khan , [2010] O.J. No. 396 .) The rationale in these cases includes that fact that it would not be appropriate for a judge, who has no knowledge of the foreign language, to conduct a competency inquiry in the face of Ministry accreditation standards.
[ 8 ] There are, however, distinguishing features here which highlight the need to resolve this issue on a case by case basis.
[ 9 ] Mr. Chiong is not asserting a right under section 14 Charter of Rights and Freedoms. Indeed, he cannot for he is not a witness and not himself in need of a translator. He has no standing under section 14 which provides that "[a]party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted ... has the right to the assistance of an interpreter."
[ 10 ] Instead, Mr. Chiong asserts his rights to a fair trial under section 11(d) and 7. He correctly states that he is entitled to a fair hearing by an independent and impartial tribunal, that he is presumed innocent and thus, he must hear all the allegations against him. In order to determine whether these fundamental rights will be infringed if the complainant’s evidence is translated by the proposed interpreters, I must conduct a voir dire . I am not willing to simply assume that his rights to a fair trial will be infringed if non-accredited translators are used to interpret the evidence of a witness.
[ 11 ] The ability of the court to make that determination here can be analogized to the qualification of an expert witness. The court routinely considers the qualifications of experts in fields such as medicine and science, in which the judge has no personal expertise. The inquiry involves a consideration of the potential expert’s formal study, practical experience, and so on.
[ 12 ] I decided to conduct the voir dire.
Decision on Voir Dire
[ 13 ] Two translators were proposed by the Crown and examined and cross-examined: H.P. and S.I.
H.P.
[ 14 ] Ms. P. was born in Korea and immigrated to Canada in 1975. She had completed one year of university studying English in Seoul. She came to Canada, applied to three universities, and was accepted at all three. She entered University of Toronto in 1978 and did an honours programme in Linguistics. She then started, but did not complete a Masters programme, also at the University of Toronto.
[ 15 ] H.P. worked in a bilingual capacity at two banks in Toronto and then began a career translation. She is accredited by the Immigration and Refugee Board of Canada and has translated for numerous hearings and appeals. She has worked for Citizenship and Immigration Canada and the Canada Border Service Agency. She has been in court for detention reviews at the immigration holding center, the West detention center and the Don Jail. She has translated for witnesses, for accused in criminal proceedings, in bail hearings, in Small Claims Court, in Family Court. She has translated at examinations for discovery, for law firms, for psychological assessments, for medical assessments, at hospitals and has provided translation services for law firms.
[ 16 ] She has done simultaneous and consecutive translation. The simultaneous translations included the G20 Conference in Toronto, a Korean government official at City Hall in Toronto, an international conference eon Nuclear Power organized by the Carnegie Foundation and international NGO History Convention in Toronto.
[ 17 ] Ms. P. translated for the Korean witness in this case during the preliminary inquiry. She stated that the witness has a standard Korean accent as opposed to a dialect and they had no difficulty understanding each other.
[ 18 ] She demonstrated knowledge of the impartiality requirements.
[ 19 ] During cross-examination she was given a list of 8 words to translate from English to Korean. She did so quickly, and wrote the Korean word in the Korean script. It was not suggested that she erred in any way.
I.M.
[ 20 ] Ms. M. was also born in Korea and educated in Ontario. She received a Bachelor of Science from the University of Toronto. She has worked extensively in the Ontario Court system. She was accredited under the old system. She took the new accreditation test and did not pass. She has not tried again.
[ 21 ] She has been qualified in three voir dires in the Superior Court of Ontario but works primarily in the Ontario Court at various locations.
[ 22 ] It is proposed that Ms. M. be a “back up” in the event that Ms. P. requires a break.
[ 23 ] The defence argues that neither should be qualified to translate here. Ms. P. has no formal training in court room matters, has not been accredited, has only been involved in bail hearings and does not have experience as a translator in court for a witness. Ms. M. has actually failed the test and thus should be disqualified outright. Simply put, it is submitted that there is no way for this court to judge the competence of the translator. Furthermore, in the face of Ministry guidelines, it would be inappropriate for the court to embark on this process.
Analysis
[ 24 ] There is no constitutional right to an accredited interpreter. There is, however, a right to a competent interpreter: R. v. Sidhu . In order to provide the accused with a fair trial and to maintain the public confidence in the court system, the person translating the evidence of a witness must be qualified to do so. In other words, is she qualified to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous interpretation: R. v. Tran (1992), 1994 (SCC) , 92 C.C.C. (3d) 218 (S.C.C.).
[ 25 ] In R. v. Rybak (2008), 2008 ONCA 354 , 233 C.C.C. (3d) 58 (Ont. C.A.), Watt J.A., speaking for the court stated:
The criterion of competence insists upon an interpretation of sufficiently high quality to ensure that justice is and appears to be done. We lack universally acceptable standards for the assessment of competency, although we do require an interpreter to take an oath or make a solemn affirmation before beginning any interpretation of the proceedings. Competence inquiries are mandated where there are legitimate reasons to doubt an interpreter's competence. Tran , at 248-9.
Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competency, neither presence nor absence of accreditation can be considered dispositive of the issue of competence. Tran, at 248-9. See also, State v. Pham , 879 P. 2d 321 at 326 (Wash. App., 1994) ; R. v. Ungvari , [2003] E.W.C.A. Crim. 2346 at para. 23; and Martins v. Texas , 52 S.W. 3d 459 at 473-4 (Tex. App., 2001) . [Emphasis in original.]
[ 26 ] In R. v. Tran , the court held that “[w]hile the standard of interpretation is to be high it is not one of perfection. It is defined to include though not to be limited to continuity, precision, impartiality, competency, and contemporaneousness.”
[ 27 ] In Sidhu , at paragraph 223 , Hill J. referred to a 2004 amendment to the Ministry’s General Court Interpretation Services Manual that broadened the permissible use of unaccredited interpreters in exigent circumstances to include any type of criminal proceeding. The manual provided that conditionally accredited persons would be assigned to shorter proceedings that do not have a difficult vocabulary and may be more informal. The examples used by the Ministry are bail hearings, guilty pleas, interpreting for a witness who is not an accused , case conferences and so on.
[ 28 ] Here, the interpreter is translating for a witness. The witness will undoubtedly provide a narrative account of the history of the relationship between the her and the accused and the events in relation to the night in question. I do not foresee that any esoteric or technical vocabulary will be required or that any legal terms will be need to be put to her.
[ 29 ] I am satisfied that Ms. P. recognizes the need for, and strives to attain, continuous interpretation without gaps or breaks. She also demonstrated an understating that she has a duty to the court, to translate as accurately and objectively without bias or partiality. She has experience and a resume that demonstrate competence to interpret the evidence of the complainant. I am also satisfied that she has a proper understanding of the duties and responsibilities of a court interpreter.
[ 30 ] As Hill J. observed at paragraph 335 of Sidhu , “[d]espite the court interpreter's accredited status, the court has a discretion to conduct a qualification inquiry or voir dire. ” As Watt J.A. observed in the above quoted passage from Rybak , the absence of accreditation is not dispositive of the issue of competence. Therefore, despite the proffered interpreter being unaccredited, the court retains a discretion to qualify the person where it is of the view that he or she can competently perform the task required to a level commensurate with the constitutional guarantee to a fair trial.
[ 31 ] While I am grateful for Ms. M.'s participation here and willingness to undergo a voir dire , it will not be necessary to require a “back up.” The evidence of the witness is scheduled to take one day. I do not need to consider her qualifications.
Benotto J.
Released: May 17, 2012
COURT FILE NO.: 4-0000-599/11
DATE: 20120517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Michael Chiong
Patricia Garcia, for the Crown
Ryan Clements, for the Defendant
HEARD: April 30 and May 1, 2012
REASONS FOR DECISION REGARDING THE INTERPRETER Benotto, J.
Released: May 17, 2012