ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1574/11
DATE: 2012-12-13
B E T W E E N:
HER MAJESTY THE QUEEN
P. Larmondin, for the Crown
and
MAUREEN AKAEZE and NATHAN ANYIAM
S. Wickramasinghe for the accused, Nathan Anyiam and L. Cohen for the accused, Maureen Akaeze
Accused
HEARD: December 4, 2012
ENDORSEMENT ON VOIR DIRE REGARDING INTERPRETER COMPETENCE
Justice Thomas A. Bielby
[ 1 ] The accused, Nathan Anyiam, has requested that he be provided with interpreters for his trial. He was born in Nigeria and his first language is Ibo. He has some basic English skills and his counsel described English as his client’s second language.
[ 2 ] The Crown Attorney takes no issue with respect to the need for an interpreter.
[ 3 ] The two accused are charged with the possession of heroin for the purpose of trafficking as well as conspiracy to commit the offence of possession for the purpose of trafficking. Their jury trial is to be heard in January 2013.
[ 4 ] The co accused, Maureen Akaeze, has no need for an interpreter and, while present with counsel during the voir dire , took no position in regards to this interpretation issue.
[ 5 ] Court Services has submitted to the court two interpreters for consideration. A voir dire was conducted to determine the competency of the two candidates.
[ 6 ] After the conclusion of the evidence, counsel for Anyiam took the position the competency of neither candidate had been made out. Crown counsel submitted that both candidates were proven to be competent and ought to be allowed to interpret in the trial.
[ 7 ] I will review the evidence of the two candidates.
Blessing Omere
[ 8 ] Ms. Omere (Omere) was born in Nigeria and came to Canada in 2009.
[ 9 ] As a student in Nigeria, she was taught English and spoke Ibo at home. Since she has been in Canada in 2009, she, for the most part, has spoken English but speaks Ibo weekly when she comes into contact with other persons whose first language is Ibo. She has been working as an interpreter since March 2010.
[ 10 ] Omere testified that she works as an interpreter weekly but that she is also a student. She testified that she acts as an interpreter sometimes for a full week and others just for a few hours. She could not provided an average of the number of hours in a week she provides her services as an interpreter.
[ 11 ] Her experience in the criminal courts, generally, and in the Superior Court is limited. She acted as an interpreter in a Charter application that was before me the week before this hearing. In those proceedings, while a voir dire was held, for the purposes of the application very little issue was made with respect to her competence. She worked as one of two interpreters and I would describe the type of interpretation as simultaneous.
[ 12 ] Omere also testified that she had interpreted in a robbery trial in the Ontario Court of Justice held last year and which lasted three days. On another occasion, she had interpreted at what was to be an assault trial.
[ 13 ] Omere has not been accredited by the Ministry of the Attorney General (MAG) as an interpreter in the Ibo language.
[ 14 ] Omere has done a few trials in the Provincial Offences Court but could not provide an approximation as to the number of trials. Her primary work as an interpreter has been before the Immigration and Refugee Board (IRB) where, I understand, she is accredited.
[ 15 ] Other than the training provided by the IRB, which may have included an exam, an orientation week and a period of observation, Omere has no formal training as an interpreter and was only recently made aware of the MAG accreditation procedure.
[ 16 ] When asked as to whom or what she owes a duty to when interpreting, she correctly answered that her duty was to the Court.
[ 17 ] Omere was asked whether she would take the MAG test and testified that she was not sure if she would. She described herself as very busy and is currently taking post graduate university courses in human resources. She has a Masters in Business Administration from the University of Lagos. All her university courses were in English.
[ 18 ] This candidate indicated that she was more comfortable with consecutive interpretation and that in her previous criminal matters she did not do simultaneous interpretation. It is noted that in this matter, when the other candidate was being questioned, she was providing simultaneous interpretation to the accused, Anyiam.
[ 19 ] Omere testified that in her previous matters her competency has never been questioned. Her studies have not included any courses or training with respect to interpreting.
[ 20 ] Omere advised that, if she were selected to interpret, she would raise her hand if she were having difficulty with anything such as legal phrasing or if someone were speaking too quickly. She testified that in the past she has asked if the testimony could be given at a slower pace.
[ 21 ] It was clear that Omere was unfamiliar with certain legal phrases that would be used in criminal matters. She was unfamiliar with the term voir dire and did not know its legal meaning. When asked what proof beyond a reasonable doubt meant, Omere testified that she understood it to mean proof of what is being alleged, which falls short of the actual meaning.
Bejamin Mbaegbu
[ 22 ] Benjamin Mbaegbu (Mbaegbu) was the second candidate for the job of an interpreter in this matter. He has been conditionally accredited by MAG for English/Ibo interpretation. He testified that he had been fully accredited under the old system of accreditation, a system that was judicially discredited.
[ 23 ] Mbaegbu has only taken the accreditation test once, in July 2011. When first questioned about it, he testified that one mark was very low, being 57%. Counsel for the accused then pointed out to Mbaegbu that his marks in the four areas of testing were between 63.3% and 50%. His lowest mark was 50% and another two of his marks were in the 50s.
[ 24 ] If the marks are between 50 and 70%, a candidate is conditionally accredited and if his marks are over 70%, a candidate is fully accredited.
[ 25 ] This candidate felt that his low marks were as a result of the manner of testing and testified that he was told his weakness was in phonics. He did not attribute any of the low marks his inadequacies as an interpreter. After the test he had a half day training period which he later suggested was more of an orientation session.
[ 26 ] Given his scoring, this candidate was required to complete a Skill Development Form and testified that his plan for skill development was to be better prepared the next time he took the test.
[ 27 ] Mbaegbu has not taken any courses or any further training to upgrade his skills. He testified that he knew there were free test preparation courses available.
[ 28 ] Mbaegbu testified that he is not aware of any complaints regarding his interpretation skills and that he considers himself an excellent simultaneous and consecutive interpreter.
[ 29 ] Mbaegbu testified that from the age of six he learned the English and Ibo languages in school. He earned in Nigeria a degree in legal studies and is currently licenced by the Law Society of Upper Canada as a paralegal. In that regard, this candidate testified that he has completed various courses in criminal justice and that he continues to take continuing education courses as a requirement of his licence.
[ 30 ] Mbaegbu testified that interpretation is a part time job for him and that he averages 10-12 hours per month as an interpreter.
[ 31 ] Mbaegbu testified that his skills as an interpreter have never been challenged. He said that he has been involved in 10 - 15 criminal trials across the province which included at least five Superior Court of Justice trials.
[ 32 ] Mbaegbu has only done one jury trial and that was earlier this year; in that matter he interpreted for a witness over two days. Since July 2011, this candidate has only done one other criminal matter.
[ 33 ] Mbaegbu testified that he has considerable experience in Provincial Offences Court and at the IRB.
[ 34 ] Mbaegbu testified that his proficiency in legal terminology was good. When asked the meaning of a voir dire , to his knowledge it meant fact finding or the determination of qualifications.
[ 35 ] This candidate indicated that if he were having difficulty interpreting, he would advise the Court and ask that the matter be repeated or rephrased or request the Court to instruct the person speaking to slow down.
[ 36 ] Mbaegbu is only aware of four Ibo interpreters in Ontario.
[ 37 ] Mbaegbu testified that when he was married he spoke to his wife in Ibo but that since his divorce he has lived with his sons and speaks English.
SUBMISSIONS
Counsel for Mr. Anyiam
[ 38 ] Counsel for Anyiam submits that both candidates, not being accredited, are presumptively not competent and that their testimony did not rebut the presumption.
[ 39 ] He further noted the candidates’ formal training for the job of interpreter was minimal and that the level of training provided by the IRB was unknown.
[ 40 ] Counsel for the accused submits that it is the policy of MAG that only accredited interpreters are to do criminal trials, certainly at the Superior Court level. It is also submitted that the fact that there are only a few Ibo interpreters in the province of Ontario does not mean that the level of competency required is to be lowered.
[ 41 ] Counsel also pointed out that Mbaegbu has not taken advantage of the free training provided by the MAG and that neither candidate is attempting to upgrade their skills as interpreters outside of the court room.
Crown Attorney
[ 42 ] Counsel asks me to consider R. v. Rybak (2008) 2008 ONCA 354 , 233 C.C.C. (3d) 58 (ONCA) and took me to paragraphs 79 and thereafter. At paragraph 84 it is stated that, “Competence and accreditation are not co-extensive”. Crown counsel argues that the lack of accreditation does not determine the competency of either candidate.
[ 43 ] In Rybak , the court discusses the Tran case and notes, at paragraph 81:
The Tran court identified several criteria as inclusive, but not exclusive: continuity, precision, impartiality, competency, and contemporaneity.
[ 44 ] Crown counsel submits that both candidates meet the criteria and that, while not fully accredited, they both have considerable experience before the IRB, traffic court and independent bodies as well as some experience in the criminal courts.
[ 45 ] Crown counsel submits that both candidates knew their duty as interpreters to the Court and that both will immediately advise the Court of any difficulties they experience in interpreting.
[ 46 ] Crown counsel submits that the candidates can provide to the accused the necessary interpretation given their basic skills in English.
ANALYSIS
[ 47 ] Section 14 of the Charter of Rights and Freedoms states:
Any 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.
As stated at paragraph 79 of Rybak :
Section 14 guarantees the right to the assistance of an interpreter. The standard imposed by the unadorned words of the guarantee is high, but does not rise to the unattainable perfection. Tran at 246.
[ 48 ] Sitting as a unilingual judge, I cannot personally determine if a candidate is proficient in the languages required. I must rely on the evidence to determine competency. In that regard, objective evidence as to acceptable standards is most helpful.
[ 49 ] I have had regard to the paper authored by Justice Casey Hill entitled, “Court Interpretation in Ontario’s Criminal Courts Today”, dated November 2010.
[ 50 ] Justice Hill noted that section 14 of the Charter and the Supreme Court in R. v. Tran (1992) 92 C.C.C. (e3d) 218, require “competent interpretation by a qualified interpreter.”
[ 51 ] He then referred to the difficulty of unilingual judges in assessing such competency and how important it is then to determine:
…whether a reputable external agency has subjected the interpreter to objectively valid and adequate testing and classification as to competence to interpret.
[ 52 ] Prior to 2009, MAG administered the Standard Aptitude Test for Court Interpretation but, as noted above, that test was judicially determined not to be valid.
[ 53 ] MAG then retained the Vancouver Community College to create and administer a new testing protocol. The new testing procedure included a graduated system. As indicated earlier, candidates who score above 70% in all tests would be fully accredited. Those who score less than 70% but more than 50% would be conditionally accredited.
[ 54 ] The MAG policy stated that interpreters conditionally accredited should be assigned to proceedings that are shorter and do not typically have difficult vocabulary. A list of such matters was set out and includes such things as pleas and bail hearings. Criminal trials are to use only accredited interpreters.
[ 55 ] Unaccredited interpreters are only to be used in trials that can be described as situations of extreme emergency.
[ 56 ] While I have a great deal of sympathy in regards to the availability of competent interpreters, especially in uncommon languages such as Ibo, I cannot lower the standards to what Justice Hill referred to as, “as good as we can do” default alternative.
[ 57 ] The charges in this matter are alleged to have occurred in September 2010. The indictment includes a note made in January 2012 that Ibo interpreters were needed. I am advised the need was discussed much earlier than that date and that competency was an issue at the preliminary hearing.
[ 58 ] It cannot be said that this jury trial, scheduled to start the week of January 7, 2012, and the need for interpreters can be described as an “extreme emergency.”
[ 59 ] I return to the Rybak case, and quote therefrom, starting at paragraph 83:
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 interpreters’ competence.
Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competency, neither the presence or absence of accreditation can be considered dispositive of the issue of competence.
Interpretation must occur contemporaneously with the proceedings being interpreted. The preferable method of achieving contemporaneity is to have consecutive, rather than simultaneous interpretation.
[ 60 ] Another authority I have had regard to is R. v. Dutt 2011 ONSC 3329 , a decision of Hill J. In his usual thorough manner, Justice Hill, in an interpreter voir dire endorsement, set out in detail the law regarding interpreters.
[ 61 ] At paragraph 52 Hill J. states:
It is well known that court interpretation between source and target languages is seldom, if ever, perfect. That is for many reasons including the inherent difficulties of language transference and the ever present prospect of natural human error in understanding and concentration. Accordingly, a non-speaker of one of Canada’s official languages is generally at some disadvantage respecting linguistic understanding, more or less, when participating in a legal proceeding, even with competent interpretation as required by s. 14 of the Canadian Charter of Rights and Freedoms .
It is, therefore, fundamentally crucial in seeking to avoid risking a miscarriage of justice that the courts not compound any existing disadvantage by working with a process other than fully qualified court interpreters who are competent, rested and have no distractions while working.
[ 62 ] Justice Hill, starting at paragraph 62, discusses the two-interpreter team model. He notes that the Ministry Court Interpreter Coordinators’ Manual states that two interpreters should be assigned in a matter to last more than two days, or if the matter requires simultaneous interpretation of lengthy and complex matters for three or more hours.
[ 63 ] The matter before me meets such criteria. Two interpreters are required. For that reason two candidates were before the Court.
[ 64 ] Returning to the Dutt endorsement of Justice Hill, from paragraph 116, I quote:
Everyone who understands the s. 14 Charter rights believes it essential that non-English speaking defendants in criminal trials not be relegated to the status of constitutional disposables where the interpreting assistance they receive is limited to whatever quality is available as opposed to compliance with the minimum standards which the Charter requires.
[ 65 ] I accept that the pool of Ibo/ English interpreters is extremely shallow but that practical set of circumstances is, for the purposes of my considerations, irrelevant. As referenced earlier, the constitutional requirement is not tempered by the availability of interpreters.
[ 66 ] I am not persuaded that, on a balance of probabilities, the presumption of incompetence has been rebutted with respect to either candidate.
[ 67 ] With respect to Mbaegbu, given his marks, his level of accreditation and the MAG’s own policy, he is not competent to interpret in the trial of this matter. He has not achieved the standard required. His is not actively trying to upgrade his interpretation skills but rather relies on his past experiences. He doesn’t appear to be concerned with the marks he achieved, alleging rather that it was the fault of the testing procedure or equipment. His ability to interpret is based on the childhood upbringing where he spoke Ibo at home and studied English in school.
[ 68 ] I do accept he would have a higher level of competency with respect to legal phrases and concepts than Omere but on the evidence before me his competence has not been established. His experience in criminal proceedings is limited.
[ 69 ] Both interpreters gained most of their experience before the IRB and in Provincial Offences Court. I understand that interpreters in those venues are paid more than they are paid appearing before the Superior Court of Justice. If my understanding is correct, there is little incentive for interpreters to further their skills and become accredited before this Court.
[ 70 ] With respect to Omere, she has not attempted the MAG testing to determine her interpretation skills in that regard. I have no objective standard against which to measure her competency.
[ 71 ] The lack of accreditation does not end the matter. Competence is not dependent on it. Omere is an educated, intelligent woman; however, she didn’t seem overly interested in the current testing procedure. She was unable to provide estimations as to the amount of time in a week or month that she interpreted. Interpretation is something she does part time. She has very little experience in the Superior Court and in that regard has not done a full trial. She testified that she prefers consecutive translation and from this I infer she lacks confidence in her simultaneous interpretation skills.
[ 72 ] While educated, she did not indicate any of her courses related to language and interpretation skills
[ 73 ] Omere would appear to lack the understanding of certain criminal law legal principles, their meaning and effect. On her evidence, I am not persuaded her competence is to the level required.
[ 74 ] Both candidates noted they are unaware of any complaints related to their interpretation skills. I accept that as fact. However, it is unlikely in any forum they appeared there would be someone who had the English/Ibo skills to challenge their respective interpretations.
[ 75 ] For the same reason, it is very difficult for a Court to determine competency without any objective standard.
[ 76 ] It may be that either or both of the candidates are, in fact, competent but on the evidence before me competency has not been established. While the MAG cannot conscript interpreters, it can certainly make the need to qualify via standardized testing more attractive by increasing the remuneration and thereby increasing the incentive.
[ 77 ] Court Services and MAG will likely be required to look further afield to seek competent English/Ibo interpreters in this matter.
[ 78 ] The ruling of this Court is that Ms. Omere and Mr. Mbaegbu are not competent to interpret in this Superior Court trial.
Justice Thomas A. Bielby
Released: December 13, 2012
COURT FILE NO.: 1574/11
DATE: 2012-12-13
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – MAUREEN AKAEZE and NATHAN ANYIAM Accused ENDORSEMENT ON VOIR DIRE REGARDING INTERPRETER COMPETENCE Bielby, J.
Released: December 13, 2012