COURT FILE NO.: CR-11-40000054-0000

DATE: 20120118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent -and- Emmanuel Olawale Applicant

Peter Van Den Bergh for the Crown

J. Grosberg for the Applicant

HEARD: January 16 and 17, 2012

VOIR DIRE ON COMPETENCY OF INTERPRETER

R E A S O N S F O R D E C I S I O N

allen j. ( Orally)

PROCEDURAL ISSUE

[ 1 ] As a preliminary matter, the defence has raised the question of the qualification of the interpreter to provide interpretation for this trial.

[ 2 ] Most commonly, it is not known until the start of the first day of trial that the defence is challenging the qualifications of the interpreter. On the voir dire before me, both the interpreter, Mr. Ayodeji Otiti, and the defendant, Mr. Emmanuel Olawale, testified. It is more common place, of course, to hear evidence only from the interpreter about their qualifications as an interpreter. I believe it is less common for the defendant to also testify.

[ 3 ] There are problems inherent in both situations. It would probably be rare that a second interpreter would be available on such short notice, so in circumstances where the interpreter is the sole witness, while the interpreter is testifying, the defendant is left without the advantage of an interpreter. The problem is compounded if the defendant also testifies. The only interpreter available to interpret during the defendant’s testimony is the interpreter whose qualifications are being challenged.

[ 4 ] The latter situation, and I suppose the more pressing of the two for this voir dire, was canvassed by the parties and the court. As discussed below, the issue around Mr. Otiti’s qualifications is his non-accreditation by the Ministry of the Attorney General. The added problem is there are in fact no accredited interpreters in the Nigerian Yoruba language. So even if there were another interpreter available on short notice, we would face the likely prospect of the circular problem of the second interpreter also being challenged as not being accredited.

[ 5 ] The court was therefore faced with the unenviable circumstance of two unsatisfactory choices, either to proceed without the interpreter, with Mr. Olawale using his limited English skills, or to utilize the interpreter available to us. The first choice is clearly not acceptable as Mr. Olawale has asserted his right to an interpreter on the basis of his deficient English skills. Critical concerns also arise with the second choice. There is an undeniable conflict on both sides: for the interpreter interpreting for a witness who is challenging his qualifications in a proceeding convened for that sole purpose and for the witness receiving interpretation assistance from an interpreter whose skills he questions.

[ 6 ] I opted to proceed with what I consider to be the more satisfactory of two unsatisfactory options. There is no doubt Mr. Olawale is entitled to give evidence on this critical matter. In the circumstances, I concluded he would have a better and fairer opportunity to express his concerns about the interpreter’s qualifications with the assistance of the interpreter than through an attempt to accomplish this with limited English skills.

THE EVIDENCE

[ 7 ] Mr. Olawale’s native country is Nigeria. He is Yoruba-speaking. The Ministry of the Attorney General over the last few years has instituted an interpreter accreditation process with the purpose of raising the quality of interpretation services in Ontario. This was in response to the poor quality of interpretation that has been demonstrated over the years in Ontario courts and in recognition of the concerns expressed by Hill, J. of this court in R. v. Sidhu, [2005] O.J. No. 4882 (Ont. S.C.J.). It is a known fact that the failure rate of interpreter examinees has been substantial. This has resulted in a dearth, and even with some languages, an absence of accredited interpreters for criminal proceedings. Crown counsel has advised this is the case with Yoruba interpreters and I accept it to be the case that there are no Yoruba interpreters who meet the Ministry’s accreditation standards.

[ 8 ] Mr. Otiti is one such person who did not pass the accreditation exam. The defence argues the accused is entitled to have an accredited interpreter for his trial and had made this view clear from the time of the judicial pre-trial in February 2010.

[ 9 ] Mr. Otiti testified he wrote the accreditation exams about three years ago. He acknowledged the test was comprised of a three-part assessment, being a test of consecutive interpretation, simultaneous interpretation and sight interpretation. He was questioned about individual scores on the three parts of the test. He stated that his test results from the Ministry did not provide a break down on his performance in any of the three areas or provide a total score. He says he was simply told he failed. Mr. Otiti said he did not bother to re-write the test or take suggested courses in interpretation because he was attending law school at the time and his priority was to pursue his academic goals.

[ 10 ] Mr. Otiti testified as to certain education, language skills and experience he says make him qualified to interpret for this trial.

[ 11 ] Mr. Otiti was born in Nigeria and is fluent in both English and Yoruba. English is the official language and the language of instruction in Nigeria. His first language was Yoruba and he began to speak English at about age 6. He uses Yoruba daily in social discourse with friends and family and in communications from Canada with people in Nigeria.

[ 12 ] Mr. Otiti is qualified as a barrister and solicitor in Nigeria where he practised for about 12 years before he moved to Canada. Court proceedings in Nigeria are conducted in English. Mr. Otiti immigrated to Canada in 1989 and has taken up legal studies here. He completed an LLM at Osgoode Hall Law School in 2010 and is currently pursuing a PhD in law. He is also currently completing the accreditation exams to qualify as a member of the Ontario Bar.

[ 13 ] Mr. Otiti has acted as an interpreter in the Yoruba language through the Ministry for over ten years in various court proceedings at the Superior Court of Justice and the Ontario Court of Justice, two to three times per week. Over the ten years, and recently in 2010 and 2011, he has provided services to courts throughout the province. Mr. Otiti testified that his qualifications as an interpreter in Yoruba have never been formally challenged by way of a voir dire and that his services, by his own description, have been much appreciated by the courts.

[ 14 ] Mr. Otiti testified there are over 50 Yoruba dialects spoken by various clans and subgroups in Nigeria. He indicated that he is from the Oyo State where Yoruba-Oyo is spoken. He explained that Yoruba-Oyo, which he speaks, is the main Yoruba language that every Yoruba-speaking person understands. He stated that in ordinary discourse on a social level with Yoruba-speaking people he is always understood and vice versa and the same is true when he has interpreted in court proceedings.

[ 15 ] This is an area of the evidence where Mr. Olawale and Mr. Otiti diverge. Mr. Olawale testified he is from Ondo State about 120 – 200 kilometres from Oyo. Both Mr. Otiti and Mr. Olawale told the court that different dialects are spoken in the two regions. Mr. Olawale testified that he speaks the Ondo dialect and estimated his understanding of Yoruba-Oyo to be about 30 to 35 percent.

[ 16 ] Mr. Otiti provided interpretation for Mr. Olawale’s bail hearing. Their evidence also diverges as to the usefulness to Mr. Olawale of Mr. Otiti’s interpretation at that proceeding.

[ 17 ] Mr. Otiti testified he interpreted the bail documentation for Mr. Olawale and the documentation for the sureties and in this vein spoke to Mr. Olawale’s mother. Mr. Otiti testified that neither Mr. Olawale nor his mother indicated any problem understanding him and he believed they understood his Yoruba interpretation.

[ 18 ] Mr. Olawale on the other hand testified he did not understand Mr. Otiti’s interpretation of the bail conditions. He said he did not understand that he had a curfew from 12:00 a.m. to 6:00 a.m. He stated that in fact he did not understand that condition until after the bail hearing when he was arrested in October 2010 for violating his bail conditions.

[ 19 ] Throughout his testimony, Mr. Olawale indicated through the interpreter that he did not understand the Yoruba Mr. Otiti was speaking. There were times when he seemed to understand the interpretation and times he indicated even a further explanation by the interpreter was not helpful.

[ 20 ] Mr. Olawale also on several occasions answered questions in English before the interpretation and offered to explain in English problems with the Yoruba interpretation. I had to caution him several times to testify in Yoruba because of the confusion created for the court and the court reporter when a witness testifies back and forth between two languages.

[ 21 ] Mr. Olawale progressed through the education system in Nigeria to grade 12 in the English language. At the grade 12 level, he completed courses in English, Chemistry, Biology, Mathematics and Commerce, courses that command somewhat sophisticated English skills. When speaking in Yoruba, Mr. Olawale frequently used English terminology instead of Yoruba. There is also a statement on the record at the preliminary inquiry by Mr. Olawale’s counsel that Mr. Olawale indicated that he did not require an interpreter for that proceeding. Yet Mr. Olawale has testified before this court that he understands very little English.

[ 22 ] What I gather about Mr. Olawale’s English skills is that they are perhaps greater than he admits. However, I do not conclude from this that his skills are sufficient for him to fairly understand the technicalities of a court proceeding conducted in English, particularly given the jeopardy an accused faces in a criminal trial where anxiety and stress are known to impair the language skills especially of those persons for whom English is not their first language. In Mr. Olawale’s case, his exposure to English in Canada has been brief since he left Nigeria for Canada less than three years ago.

[ 23 ] I attach no importance for the purposes of this voir dire to any seeming disparity between his professed and real English skills. Mr. Olawale has asserted his right to a competent interpreter. This proceeding is about the qualifications of the assigned interpreter to provide sufficient interpretation in Yoruba at Mr. Olawale’s trial.

ANALYSIS AND CONCLUSION

[ 24 ] The Charter of Rights and Freedoms at section 14 protects the right of a witness to have the assistance of an interpreter in proceedings in which the witness does not understand the language in which the proceedings are being conducted. The Charter does not provide a right to an accredited interpreter.

[ 25 ] Courts have established standards for the quality of interpretation needed to protect the accused’s Charter rights. Watts, J.A., writing for the Ontario Court of Appeal, cited and elucidated the criteria set down by the Supreme Court of Canada in R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951 (S.C.C.). These criteria are: “continuity” which ensures continuous interpretation without breaks or summaries of the evidence; “precision” which requires quality interpretation that need not be perfect; impartiality which requires an unbiased and objective approach; and “competency” which requires interpretation of sufficiently high quality to ensure justice will be done and appear to be done. [R. v. Rybak (2008), 233 C.C.C. (3d), at paras. 81 - 85, (Ont. C.A.)].

[ 26 ] Mr. Otiti is not accredited by the Ministry. But this is not determinative of competence. The court in R. v. Rybak held that competence and accreditation are not co-existent. Accreditation does not necessarily prove competence, and an absence of accreditation does not necessarily bespeak incompetence. [R. v. Tran, supra, pp. 246-249 and R. v. Rybak, supra, paras. 81-85]. R. v. Rybak established that the quality of interpretation must be assessed on a case-by-case basis. What is required is interpretation that is sufficient to “level the playing field” between a language deficient person and a language proficient person, to ensure that the accused is given the same opportunity to understand and to be understood at his trial. [R. v. Rybak, supra, at paras. 99-100].

[ 27 ] It is clear from Mr. Otiti’s evidence that he comes to the court with relevant interpretation, language and court and legal skills. He has proficiency in English and Yoruba, a familiarity with the court process, experience in interpreting in various criminal court settings, and legal education and practical court experience in both Nigeria and Canada. It is critical however that an interpreter’s skills and qualifications be sufficient for the particular needs of the accused in the particular circumstances of his trial.

[ 28 ] Mr. Otiti’s evidence was that any Yoruba-speaking person understands Yoruba-Oyo since it is the main Yoruba language. Mr. Olawale speaks a different dialect. He says he did not understand much of the interpretation on the voir dire. This raises a problem recognized by Taylor, J. of the Ontario Court of Justice where the court identifies a problem inherent in the court’s inquiry into an interpreter’s qualifications. A judge is unable to objectively assess the ability of the interpreter to speak the language being interpreted, or as in the case before me, to assess contradictory evidence on the nature and interrelation of dialects of the language, unless the judge is also fluent in that language or, as in this case, has the benefit of objective expert evidence on the dialects of the language. [R. v. N.S., [2010] O.J. No. 3255, at para. 12, (Ont. C.J.)].

[ 29 ] I find Mr. Otiti made an honest effort to explain to Mr. Olawale and the court the differences in various words in the two dialects and to attempt to interpret accordingly. Mr. Otiti was not in an enviable position, trying to protect his reputation as an interpreter in a situation in which his competence was being challenged. However, I am not confident that circumstances where an interpreter has to stop repeatedly to explain terminology from one dialect to another, as occurred in this proceeding, will permit the criteria of continuity, precision and competence in interpretation to be satisfied, particularly when, after an explanation, Mr. Olawale has indicated he still does not understand.

[ 30 ] The Ontario Court of Appeal in R. v. Rybak, supra, citing R. v. Tran, supra, put the importance of s. 14 of the Charter succinctly:

The guarantee in s. 14 serves several purposes. It ensures that a person charged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it. The right touches on the very integrity of the administration of justice in the country and is intimately related to our basic notions of justice, including the appearance of fairness. Likewise, the right displays an affinity for our claim of multi-culturalism, partially demonstrated by s. 27 of the Charter. R. v. Tran, (1994), 1994 56 (SCC), 92 C.C.C. (3d) 218, at 240 (S.C.C).

[R. v. Rybac, supra, at para. 67]

[ 31 ] For the reasons cited, I do not qualify Mr. Otiti for this trial as an interpreter in the Yoruba language. The trial is therefore adjourned.

[ 32 ] This decision is not a comment on Mr. Otiti’s ability to interpret in Yoruba in other proceedings.

ALLEN J.

Released: January 18, 2012

COURT FILE NO.: CR-11-40000054-0000

DATE: 20120118

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Applicant -and- Emmanuel Olawale Respondent

VOIR DIRE ON COMPETENCY OF INTERPRETER R E A S O N S F O R D E C I S I O N

Allen J.

Released: January 18, 2012