ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO. 13-9000065-0000
DATE: 20130205
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Bari Crackower and Chris Bundy for the Crown
- and -
SAEID CHEGINI, FARDIN AYATI-GHAFFARI and MANSOUR CHEGINI
Applicant
Adam Schulz for Shahin Azhadi, Stacey Nichols for Fardin Ayati-Ghaffari, Susan Adams for Saeid Chegini, Brian Ross for Mansour Chegini and Mr. Henry for Hamid Belmana
HEARD: February 5, 2013
Thorburn J.
R U L I N G
The Issue
[1] The Crown seeks to qualify Kambiz Derakhshan as an expert translator from Farsi to English.
[2] The test for the admission of expert opinion evidence is set out by the Supreme Court of Canada in R. v Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 17. Expert evidence may be tendered only where it is (a) relevant; (b) necessary to assist the trier of fact; (c) there is no rule that would require the evidence to be excluded; and (d) the expert is properly qualified.
[3] The Defence challenges the admissibility of Derakhshan’s expert testimony on the basis that he is not a properly qualified expert in Farsi and there is potential for bias.
Derakhshan’s Role
[4] Derakhshan is a part-time monitor, translator and proof-reader of translations from Farsi to English. He reviewed the parameters of the wiretap authorization and agreed to abide by those terms, listened to conversations in Farsi and did an English language synopsis of the Farsi conversation on the audio tapes. He provided a complete translation of conversations from Farsi to English where the Toronto Police Services investigators requested that he do so. Five or six other part-time translators also performed verbatim translations from Farsi to English in respect of Project Khiar.
[5] In his capacity as proof-reader, Derakhshan listened to the conversations and reviewed the translations several times in order to check that they were correct. Where a word in isolation might be capable of more than one meaning, he listened to the context to determine the appropriate meaning.
Derakhshan’s Proficiency in Farsi and English
[6] Derakhshan was born in Iran and Farsi is his native language. He spoke only Farsi until the age of 10. He has always spoken to his immediate family in Canada and with extended family in Iran, in Farsi. When he speaks Farsi with his family in Iran he never has problems understanding them. Derakhshan speaks with his fellow Farsi translators at the Toronto Police Services in Farsi except when there is an English language speaker present.
[7] When Derakhshan was interviewed for the position with the Toronto Police Services, he was asked to listen to a portion of audio in Farsi and translate it. He was advised that he passed the test and was then offered the job. He is a lead monitor (who trains others) and was selected as a proofreader of the translations conducted by himself and others. Derakhshan has worked with the Toronto Police Services in this capacity since 2007.
[8] He reads and writes Farsi. When completing his translations he consulted a dictionary a few times when he was not entirely sure of the meaning of a word. He also considered the context of the word in the conversation to determine the proper meaning of that word.
[9] Derakhshan testified that Farsi is an Indo European language. Farsi is spoken throughout Iran and although there are different accents depending on the region, if one speaks Farsi, one can understand a person who comes from any region in Iran.
[10] Derakhshan also speaks English with a high degree of proficiency as evidenced during his testimony. He has a Bachelor’s degree in Philosophy from a Canadian university.
[11] Derakhshan’s qualifications are set out in his Will-Say Statement.
Bias
[12] The Defence concedes there is no evidence of actual bias. Moreover, Derakhshan testified that he listened only to conversations he was authorized to listen to according to the wiretap authorization. Thereafter, he only provided full translations of audio recordings of authorized conversations when requested to do so by investigators with the Toronto Police Services.
[13] Derakhshan denies the suggestion by Defence counsel that he was ever asked to use his “common sense” and listen to calls to determine if there was anything incriminating in them.
Conclusion
[14] It is clear from the above that Derakhshan is proficient in Farsi and English and was both trained and experienced in doing audio translations from Farsi to English. Moreover, I am not satisfied on the basis of the evidence before me that there is any reasonable apprehension of bias on the part of Derakhshan.
[15] For these reasons, the Farsi language audio recordings that were intercepted are admissible as is Derakhshan’s proofread English translation of those audio recordings. An English translation of the words is necessary as most of the conversations are in Farsi and the jury would otherwise be incapable of understanding the audio statements made by the accused.
[16] Derakhshan is qualified to provide expert opinion evidence on the interpretation of words spoken in Farsi to English.
[17] Moreover, certain concerns regarding the use of expert testimony such as undue consumption of time, prejudice and confusion are minimal in this case (See R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at para. 47; R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.) leave to appeal refused [2010] S.C.C.A. No. 125 at para. 90). The evidence will not be time-consuming nor is it overly complex. The jury will be able to critically assess his evidence. Cross-examination to expose any weaknesses in the opinion will not be difficult, and the defence can elicit alternate opinions from others who are familiar with the language, if they see fit.
[18] For these reasons, the Crown’s Application to permit Derakhshan to give expert evidence in the form of translation of audio recordings from Farsi to English is granted.
Thorburn J.
Dated: February 5, 2013