WARNING
The presiding judge directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT FILE NO.: CR-11-40000054-0000
DATE: 20130626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EMMANUEL OLAWALE
Applicant
Peter Van Den Bergh, for the Crown
James J. Grosberg, for the Applicant
DATES HEARD: September 10, 11, 12, 13, 14, 19, October 19, December 7, 10, 2012, January 4, February 6, 15, 25, April 11, May 21, June 17 and 26, 2013.
REASONS ON APPLICATION UNDER s. 11(b) and s. 14 OF THE CHARTER
ORDER FOR PUBLICATION BAN S. 486.4 ON THE IDENTITY OF THE COMPLAINANT
HIMEL J.
[1] Emmanuel Olawale was charged with the offences of sexual assault contrary to s. 271 and sexual interference contrary to s. 151 of the Criminal Code. He elected to be tried by me sitting without a jury. On October 19, 2012, I found him guilty of both charges and adjourned the matter for sentence. I also ordered that a pre-sentence report be prepared. On the return of the sentencing hearing, as detailed below, the interpreter arranged to interpret for Mr. Olawale did not attend. The case was adjourned several times to accommodate the interpreter’s schedule. Each time, another interpreter arranged by the Ministry attended on the return date. The interpreter present today and on a number of prior occasions speaks Yoruba but does not speak the specific dialect that Mr. Olawale says he speaks. Mr. Olawale maintained that he could not understand the interpreter and does not understand mainstream Yoruba or English well enough to follow the proceedings. The Ministry was not able to locate an interpreter who could speak the local dialect that Mr. Olawale speaks.
[2] After a few adjournments of the sentencing hearing, counsel for Mr. Olawale advised that he was bringing an application for a stay under s. 24(1) of the Canadian Charter of Rights and Freedoms alleging that his right to be tried within a reasonable time as protected by s. 11(b) of the Charter has been infringed and that his right to an interpreter as protected by s. 14 of the Charter has been breached. Because these matters are interrelated, the voir dire on the need for an interpreter was conducted at the same time as the application under s. 11(b) and argument was made on both applications. I provide my reasons for decision in this single ruling.
FACTUAL BACKGROUND:
[3] On February 10, 2010, L.M.G., born on […], 1984, went to Covenant House, a Toronto youth shelter located at 20 Gerrard Street in downtown Toronto, Ontario. She had hoped to stay there overnight. L.M.G. had been in group homes since she was 11 years old. When she was 15, she was sent from Nova Scotia to Youthdale Treatment Centre, a locked facility for youth located in downtown Toronto. However, she did not want to remain there and was on the run from Youthdale on the night she went to Covenant House.
[4] On her arrival, L.M.G. was told that she could not stay at the hostel as she was too young and that there is a minimum age of 16. L.M.G. was upset and went outside with a friend to have a cigarette. That is where she met Emmanuel Olawale as she stood out back smoking a cigarette and talking to her friend.
[5] Mr. Olawale had come to Canada from Nigeria as a refugee claimant in 2009. When he first arrived, he stayed at Covenant House for approximately six months. Mr. Olawale’s date of birth is June 25, 1984. When Mr. Olawale turned 25, he had to leave Covenant House as it serves youth between the ages of 16 and 25. He moved to his own apartment and had been told to stay in touch with his worker because of other services provided. Mr. Olawale was at Covenant House that day to see his worker. He ran into an acquaintance and was having a conversation out back when he met L.M.G.. He did not speak to his worker that night.
[6] After hearing that L.M.G. was unable to stay at Covenant House and had no place to sleep, Mr. Olawale offered to take her to his residence. She said that he seemed like a nice person who wanted to help. Mr. Olawale and L.M.G. travelled by subway to the Finch Avenue station. L.M.G. was wearing a hoodie and sweat pants and was carrying a bag with clothes, make-up and personal things. Then they took a bus along Finch Avenue. During the bus ride, L.M.G. listened to music from Mr. Olawale’s Ipod. When they got off the bus, she asked for cigarettes but Mr. Olawale did not have any and said he did not have any money. They stopped at a hair salon where he borrowed $20 from a friend. Then they went to a convenience store. Although he wanted her to go in the store and buy them, she said she did not have identification so he went in and bought the cigarettes.
[7] Mr. Olawale and L.M.G. walked to his basement apartment where he lived with a roommate. L.M.G. thought she heard the roommate leave the apartment approximately 20 minutes after they arrived. She said that Mr. Olawale said “it was hard to have a sexy girl sitting on the couch”. She thought that was weird and got scared at that point so she said she had a boyfriend. She said she did not want any funny business. He let her use his phone to text a friend and they sat on the couch. At some point, they were watching television and each of them was sitting on the bed. Then she said that she was tired.
[8] Mr. Olawale offered L.M.G. his bed. She lay on the bed wearing her hoodie and sweatpants with her bag near the couch. She pulled the covers over her to try and fall asleep. At that point, Mr. Olawale began watching a pornographic video. Then he got into bed beside her. He began to touch her breasts and pulled her pants down and inserted his penis into her vagina. She said she told him to stop but he did not. She said she tried to push him off and said no but he did not stop. He was holding her wrists down. Finally, she told him she had AIDS so that he would get out of her. Mr. Olawale pulled out from her and became upset. He started to cry and said he should go to the hospital. L.M.G. agreed and they got dressed.
[9] Mr. Olawale and L.M.G. took a bus to Humber River Regional Hospital. When they arrived at the emergency department, he checked in but asked L.M.G. to wait outside. After she saw him go through the doors, she spoke to a woman sitting in the hospital and said she needed to find a security guard. Then she approached a security guard and said she had been sexually assaulted. Police were called to the hospital. After they heard her complaint, Mr. Olawale was arrested and charged with sexual assault and sexual interference. L.M.G. was taken to Women’s College Hospital to provide samples for the sexual assault kit. L.M.G. had no physical injuries as a result of the incident.
[10] On these facts, I found Mr. Olawale guilty of sexual assault and sexual interference.
THE HISTORY OF THE PROCEEDINGS:
The following is a history of the proceedings in this case:
[11] February 10, 2010: Mr. Olawale was arrested and charged with sexual assault and sexual interference. He was held for a show cause hearing and taken before the justice of the peace. He was represented at court by duty counsel who requested that the matter be put over one day for a surety to attend. The court inquired whether he required an interpreter and duty counsel said he needed a Yoruba interpreter. The Crown was asking for a detention order on the secondary grounds and requested an order under s. 516.2 prohibiting Mr. Olawale from communicating with the complainant. That order was made. Then the court asked “So Mr. Olawale, is he comfortable speaking in English now, for this part of that process” and duty counsel replied yes. The court later asked if there is another language he speaks besides Yoruba and Mr. Olawale replied: “English, I do, Ma’am”.
[12] February 12, 2010: The justice of the peace remanded the case to February 16, 2010 for a bail hearing and requested a Yoruba interpreter. Mr. Olawale was asked questions and responded in English.
[13] February 16, 2010: The case was remanded to February 17, 2010 for a show cause hearing. The court spoke to Mr. Olawale in English.
[14] February 17, 2010: The case was adjourned at the request of duty counsel to February 18, 2010 for another surety to attend. The court spoke to Mr. Olawale in English.
[15] February 18, 2010: Mr. Olawale appeared with duty counsel. The court set a date for a show cause hearing to take place on February 22, 2010.
[16] February 22, 2010: Mr. Olawale appeared with duty counsel who requested that the case be adjourned to February 26, 2010 so that a Yoruba interpreter and the surety could be present.
[17] February 26, 2010: The bail hearing began and Ayodeji Otiti was present to interpret in the Yoruba language for the sureties. The issue came up at the outset as to whether Mr. Olawale required an interpreter. Mr. Olawale was asked Do you—are you good at English, Mr. Olawale and he replied: yeah. It was agreed that the interpreter would be present for the sureties. Mr. Olawales mother testified through a Yoruba interpreter. Then a second witness was called as a proposed surety but he was not a Canadian citizen. The presiding justice, with the consent of the parties, struck out the proceedings and adjourned the case to March 1, 2010 for a bail hearing.
[18] March 1, 2010: Mr. Olawale appeared with duty counsel. He was ordered released on a recognizance with two named sureties in the amount of $1,000 with conditions that he reside with his mother and abstain from communicating with the complainant and not be within 500 metres of where she lives, works, attends school or happens to be. Mr. Olawale was permitted to work and attend school but was placed on a curfew that he was not to be outside of his residence between the hours of 12:00 a.m. and 6:00 a.m. except to go directly to or from work or in the direct company of one of his sureties. He was ordered not to possess any weapons. The case was adjourned to March 30, 2010 to set a date and to permit further disclosure to take place. A Yoruba interpreter was ordered.
[19] March 30, 2010: Some disclosure had been provided. Mr. Olawale appeared and a Yoruba interpreter was present. Defence counsel Mr. J.J. Grosberg had sent a message to confirm his retainer, requesting further disclosure and that the case be adjourned for a few weeks. Matter was adjourned to April 20, 2010. A Yoruba interpreter was ordered.
[20] April 20, 2010: Mr. Olawale appeared with duty counsel as Mr. Grosberg had sent a message that he was in Barrie, Ontario on a matter, that he had received disclosure which he had to review with his client and that he requested the case be adjourned. The case was adjourned to May 4, 2010 for a Crown pre-trial. The clerk of the court asked: “Do you need an interpreter for next time, sir? No, you’re good? Okay.”
[21] May 4, 2010: Mr. Olawale appeared with duty counsel who received a message from Mr. Grosberg that he is retained, that he received disclosure and has made an appointment for a pre-trial. He requested the case be adjourned to June 1, 2010.
[22] June 1, 2010: Mr. Olawale appeared with Mr. Grosberg who advised that he is retained and had received some further disclosure. He had a pre-trial with the Crown and wished to set a date for the preliminary hearing. The earliest date was December 14, 2010. The matter was adjourned to September 21, 2010 to file a statement of issues and provide any outstanding disclosure.
[23] September 21, 2010: Mr. Olawale appeared to file a statement of issues and the date for the preliminary hearing was confirmed for December 14, 2010. During this attendance, the presiding justice of the peace asked whether he required an interpreter and Mr. Olawale said at p. 6 of the transcript: “No, I don’t need an interpreter”. Crown counsel said, “Why don’t we order it just out of an abundance of caution?” and the justice of the peace ordered a Yoruba speaking interpreter.
[24] December 14, 2010: Before the preliminary hearing commenced, and the interpreter arrived, Mr. Grosberg made the following comments: “There was the issue of the interpreter that Your Honour inquired about. Mr. Anderson had sent me a fax and I, I reviewed the, the curriculum of the –and I, I didn’t feel there was a problem with it. My client tells me that he doesn’t think he needs an interpreter but there was an Yoruba, he’s from Nigeria originally, interpreter.” The interpreter arrived shortly after and the presiding judge gave the interpreter and Mr. Olawale an opportunity to converse. Then Mr. Grosberg said: “Your Honour, they understand each other. There’s not a problem there”. Then the presiding justice canvassed whether Mr. Olawale required the interpreter to interpret everything or to only interpret on an as needed basis. Mr. Grosberg said that his client required interpreting only if he had a problem. The court told Mr. Olawale that he should raise his hand if he doesn’t understand what Ms. Fatola is saying. Ms. Fatola was present throughout the preliminary hearing to provide interpreting services on an as needed basis. Mr. Olawale was committed for trial.
[25] January 27, 2011: Mr. Olawale appeared in the Superior Court of Justice and set a date for a judicial pre-trial for February 15, 2011 at 11:00 a.m.
[26] February 15, 2011: A judicial pre-trial was held in the Superior Court. Mr. Olawale did not attend and a bench warrant was issued. The matter was adjourned to February 18, 2011 to be spoken to.
[27] February 18, 2011: Mr. Olawale appeared in the Superior Court and re-elected judge alone. Counsel set the trial date of January 16, 2012. Counsel for Mr. Olawale advised the court that an earlier date of December 12, 2011 was offered but the defence had another trial that day. A trial readiness date was set for December 5, 2011.
[28] December 5, 2011: On this trial readiness date, Crown counsel advised the court that Mr. Olawale may not show up and that his counsel is still involved in a trial. The case was adjourned to December 8, 2011 to confirm trial readiness.
[29] December 8, 2011: Although no transcript was filed, this was the trial readiness date and the trial date was confirmed.
[30] January 16, 2012: The case did not proceed on January 16 because the witness had not arrived. It was adjourned to January 17, 2012.
[31] January 17, 2012: At the commencement of trial, the defence raised the issue of the qualification of the interpreter which he said that he had raised at the pre-trial. Justice Allen conducted a voir dire on the qualifications of the interpreter. Evidence was called from Mr. Olawale and from the Yoruba interpreter who advised that there were no accredited interpreters in the Yoruba language in Toronto. He said that he was fluent in both English and Yoruba and had interpreted in the Yoruba language for over ten years in various court proceedings at the Superior Court of Justice and the Ontario Court of Justice. He said that there are over 50 Yoruba dialects spoken by various clans and subgroups in Nigeria and that while he speaks certain dialects, he also speaks the main Yoruba language that every Yoruba-speaking person understands. He also said that “almost every Nigerian speaks the English language”. He also advised that he provided interpretation for Mr. Olawale at his judicial interim release hearing. At that hearing, neither Mr. Olawale nor his mother who was his surety had any problem understanding him. However, Mr. Olawale testified at the voir dire that he did not understand the interpreter when he spoke Yoruba. Mr. Olawale answered some questions in English, testified that he studied in Nigeria in the English language which is the language of instruction. Mr. Olawale maintained that he was not able to understand the interpreter because of the difference in dialects. At the conclusion of the hearing, Justice Allen adjourned to provide her ruling on January 18, 2012.
[32] January 18, 2012: Justice Allen ruled that the interpreter provided at trial was not qualified to interpret in the Yoruba language for Mr. Olawale at trial. The case was adjourned to February 3, 2012 to set a new date for trial.
[33] February 3, 2012: Counsel and Mr. Olawale appeared to set a new date for trial following the adjournment of the trial because of the problem with the qualification of the interpreter. The date set for trial was September 10, 2012. An earlier date of June 25, 2012 was offered but counsel for the accused was not available that week. He requested July or August dates which were not available. The issue of an interpreter was discussed as follows:
Mr. Grosberg: September the 10th was suggested for the five days and I think the interpreter’s here and she’s available on that date.
The Court: what type of interpreter?
Mr. Grosberg: It’s Yoruba. It’s Yoruba Y-O-R-U-B-A, and this lady was the interpreter at the preliminary hearing.
[34] August 3, 2012: The Crown and defence counsel appeared on a trial readiness date. Mr. Olawale did not appear. Counsel confirmed the trial date of September 10, 2012. Counsel also mentioned that the interpreter Ms. Fatola who was the interpreter at the preliminary hearing was present and that she is available on that date.
[35] August 23, 2012: Counsel brought a motion under s. 276.1 returnable on August 23, 2012. Justice Code adjourned the application to September 10, 2012 before the trial judge.
[36] September 10, 2012: The trial commenced before me and continued on September 11, 12, 13, and 14, 2012. The same interpreter as at the preliminary hearing, Ms. Fatola, was the interpreter at trial. On September 14, I asked counsel to set a date for judgment. The interpreter advised that she was no longer doing interpreting work and would not be available. I adjourned the case to September 19 at 9:45 a.m. to set a date for judgment and asked counsel and the Registrar to advise the interpreter’s office of the need for a suitable interpreter for that date.
[37] September 19, 2012: The case was adjourned to October 19, 2012 for judgment because of an issue with the interpreter. I asked counsel to ensure that the interpreter appearing was able to translate for Mr. Olawale and was available on the remand date. Defence counsel spoke with the interpreter and was satisfied with his credentials. Counsel advised that they were available on October 19 and 25, 2012. The case was adjourned to October 19, 2012 for judgment.
[38] October 19, 2012: Reasons for judgment were delivered by me. The Yoruba interpreter, Stephen Akimbile, was available to translate. At the conclusion of my reasons, I found Mr. Olawale guilty of sexual assault and sexual interference. The Crown was content with the terms of his release but I varied certain terms. At the request of the parties, I ordered a pre-sentence report and adjourned the sentencing hearing to December 7, 2012. This date was arranged and confirmed with the interpreter.
[39] December 7, 2012: The interpreter from the earlier attendance did not appear in court although the date had been cleared with him. The matter was held down to see if another interpreter could be located. The interpreter who attended could not communicate with Mr. Olawale in his local dialect. Mr. Olawale maintained that he could not understand her. The case was adjourned to December 10, 2012 to set a date for the sentencing hearing. An interpreter was requested.
[40] December 10, 2012: Counsel attended to set a date for the sentencing hearing. The Yoruba interpreter who had previously interpreted was not present but was expected to arrive. During this attendance, Mr. Olawale said:
Accused: I have something to say.
The Court: Sure
The Accused: Last year 2011 when the trial started it wasn’t my fault `that the interpreter wasn’t certified and I had to wait for another one. We were here last week, again, the interpreter that was supposed to be here wasn’t here. It wasn’t my fault and now we are here again and the interpreter is not here. It is not my fault, like am I going to go on with this case all my life? I want to get this case done. I want you think about my life too. It is not my fault this has been going on.
The Court: I understand, sir. It sounds like you understand English perfectly the way you are speaking.
The Accused: I understand some English but I don’t know everything. There is a lot of things I don’t know about. I am trying, I am taking English class.
[41] Mr. Olawale decided to wait for the interpreter who was late to arrive. When he arrived at court, the case was called and adjourned to January 4, 2013 for a sentencing hearing. I requested that Mr. Olawale review with counsel and the interpreter present the pre-sentence report. Mr. Olawale was also told to bring his witnesses for the sentencing hearing and I reviewed his bail conditions with him.
[42] January 4, 2013: Counsel and Mr. Olawale attended court. The interpreter did not attend the sentencing hearing although the date had been arranged to accommodate his schedule. The sentencing hearing was adjourned to January 16, 2013.
[43] January 16, 2013: Counsel and Mr. Olawale attended court. Two interpreters had been arranged by the Ministry’s co-ordinator to attend. One interpreter was present and he advised the court as follows: “Oh I tried to speak with him, like, the communication. We’re not really connecting well because I am from Ondo town in Ondo State. And I think he’s from Kariakoko in Ondo State.” When I asked Mr. Olawale if he understood the interpreter, he replied: “Not very well. Like, I don’t know how to explain it but maybe one or two words but it’s not fluently.” The interpreter also said that “We don’t speak the same language.” As the other interpreter did not show up and had not attended on three occasions although requested to do so, the case was adjourned for a sentencing hearing to February 6, 2013. The manager responsible for the interpreter co-ordination for the courts outlined what efforts had been made to arrange an interpreter and was asked to attempt to find an appropriate interpreter for the next date. The case was held down and the manager returned to advise that he spoke to the interpreter who was to be at court and he said he would make himself available and gave two dates. The earlier date of February 6, 2013 was set for the sentencing hearing.
[44] February 6, 2013: Counsel and Mr. Olawale attended court. The interpreter did not attend although the date had been cleared with him. Counsel advised that he wished to bring an application under s. 14 and s. 11(b) of the Charter. Counsel for Mr. Olawale served the notice of application on February 11, 2013 seeking an order staying the charges because of a breach of s. 11(b) of the Charter. Counsel set out in the grounds for the application that the interpreter is required to speak the Yoruba dialect of Akare-Ikoko spoken in a small area in Ondo State, Nigeria.
[45] February 15, 2013: The voir dire on the Charter application was commenced but was not completed.. The Ministry provided Luche Ntinu who is an interpreter in the language of Yoruba. He said that he understood Mr. Olawale but Mr. Olawale claimed he did not understand the interpreter. Mr. Olawale testified and was cross-examined. The interpreter remained throughout to be available to interpret in general Yoruba. The case was adjourned to February 25, 2013
[46] February 25, 2013: The voir dire on the issue of the need for an interpreter continued before me. The Crown called evidence. The defence had not filed all the transcripts of various proceedings before the court. The hearing was not completed. The earliest date available for counsel to attend was April 11, 2013. A Yoruba interpreter was available to interpret these proceedings.
[47] April 11, 2013: The voir dire continued and further evidence was called. Defence counsel had still not filed all the transcripts. The case was adjourned for argument on the application. Counsel were not available until May 21, 2013.
[48] May 21, 2013: The voir dire continued. Counsel did not have all the transcripts filed so argument was not concluded. The case was adjourned to June 17, 2013.
[49] June 17, 2013: The voir dire continued. The final transcripts were filed with the court. Counsel completed their argument on the application. The case was adjourned to June 26, 2013 for a decision.
EVIDENCE AT THIS APPLICATION:
[50] In addition to the transcripts filed for the various court attendances, defence counsel filed an affidavit from Mr. Olawale and an affidavit from counsel’s paralegal. During the voir dire, the defence called Mr. Olawale to give evidence. Mr. Olawale testified that he was born in a village in Nigeria and grew up in Ondo State in Nigeria. He said that while English was the language of instruction in school, he did not speak English well and did not speak it when he left school. Mr. Olawale testified that he only speaks the Akare-Ikoko dialect and does not understand mainstream Yoruba nor does he understand everything in English. When he came to Canada in 2009, he lived at Covenant House for six months where he spoke English with his counsellor and others. It was submitted that he was able to manage by asking others to repeat themselves several times. When he applied to work at UPS, he says he had someone help him prepare his resume. Mr. Olawale enrolled at Emery Adult Learning Centre to improve his English skills. He said he did was not able to pass his Grade 12 English examination. He claims that he speaks to friends in either his dialect or in broken or “Pigeon” English.
[51] He said that his birth name in Nigeria was Ojo Tajadeen but he took the name of Emmanuel Olawale after his baptism to a new religion as his first name was of Muslim origin and he thought he should use a different name for his Canadian passport. He said that while he no longer is an employee of UPS, he continues to work for an agency which has assigned work there.
[52] Mr. Olawale says that he was able to speak to his lawyer by using simple words and repeating questions. He said that he could not understand certain questions put to him by the Crown during cross-examination and that he understood 15% of what counsel asked him in English. He said he could not understand the Yoruba interpreter provided to him who speaks general Yoruba and that he understood 30% of what the interpreter said to him. During cross-examination, Mr. Olawale agreed that he drove to court, parked at the subway, has a driver’s licence, passed his written exam for the licence in which the questions were in English, and provided information to counsel and swore an affidavit written in English in support of this application although he had a friend attend the lawyer’s office with him. During his testimony, as the questions became more specific concerning his training and studies in English both in Nigeria and in Canada at Emery Adult Learning Centre, his meetings with the probation officer in preparation of the report, Mr. Olawale kept saying, “I don’t understand”.
[53] The Crown called the interpreter who had translated for Mr. Olawale during the preliminary hearing and during the trial before me up until the date of judgment. Aderia Ola Fatola testified that she grew up in Nigeria, was educated there in English and moved to Germany to complete her Master of Arts program in the German language. She said she spoke English and general Yoruba in her family home and in school. She said that English is the language of instruction in the schools in Nigeria. She also said that, generally, the people all understand and communicate through mainstream Yoruba.
[54] She speaks the general Yoruba language which is understood by almost every Nigerian all over the world. She does not speak any dialects of Yoruba including the dialect of Akare-Ikoko. Ms. Fatola moved to Canada in 2003,became accredited as an interpreter with the Immigration Refugee Board in 2005 and worked as an interpreter translating in the Yoruba and German languages.
[55] When she was asked to interpret for Mr. Olawale at his preliminary hearing, she spoke to him in the general Yoruba language before the hearing and he had no difficulty understanding her and she had no difficulty understanding him. Mr. Olawale accepted her interpretation and made no objection. At the preliminary hearing, she was “stand by” and her recollection was that she did not translate at all. She would ask if he understood and Mr. Olawale would say yes. She was then asked to be available at Mr. Olawale`s trial commencing on September 10, 2012 and she was present until the evidence and argument were completed. At the conclusion of the trial, she indicated that she was taking on new employment and that she knew someone who was able to translate for Mr. Olawale on the date set for judgment.
[56] The interpreter said that she does not speak the local dialect of Akare-Ikoko which Mr. Olawale speaks. Rather, she said that she speaks general Yoruba and that is the language she used when she spoke to Mr. Olawale at the preliminary hearing and at trial. Her translation was only on an as needed basis. She sat beside Mr. Olawale at the preliminary hearing and if he said he did not understand something, she translated in Yoruba. She did not do simultaneous translation for him and did not recall having to translate for him.
[57] The Crown called the probation officer Nadia Ghanny who interviewed Mr. Olawale for the purpose of preparing the pre-sentence report. She had contacted Mr. Olawale to come in to meet her and they spoke in English. As with all clients whose first language is not English, she arranged an interpreter. She arranged for Mr. Olawale to attend at her office with the interpreter who was present during the date that the judgment was given by me at trial. The probation officer said that she and Mr. Olawale communicated in English during the two hour meeting. Mr. Olawale told her that his language spoken was English, that he completed grade 12 in Nigeria, that he had no behavioural or learning problems and that he had three months left to complete his studies in English. He also mentioned that he hoped to attend law school. She said that the interpreter’s services were only used when they discussed an area with which he was not comfortable and was technical. This had to do with “Character and Behaviour” and included very personal questions involving mental health. When she contacted persons whose names were provided by Mr. Olawale as significant people in his life including his mother and two friends, she spoke to them in English. A former employer said that she had no problem communicating with Mr. Olawale.
[58] During the preparation of the pre-sentence report, Mr. Olawale had told the probation officer that he attended Emery College in Toronto for upgrading. The Crown called Frankie Halls who is the Vice Principal of the Emery Adult Learning Centre. He described the program as a high school which provides adult education through the Toronto District School Board to enable adults to complete their secondary education and upgrade in order to gain admission to college or university programs. It has a number of English as a second language classes (ESL) and high school level courses in English for admission to college or to the workplace. Mr. Halls testified that to be admitted to Emery, an applicant has to file a recent transcript and be 21 years of age or older.
[59] Mr. Halls recognized Mr. Olawale as a student at the school although when he first checked the records after being subpoenaed, he did not have a record of him attending. However, he said: “I remember him quite well”. It was thought that he may have been attending the separate English as a Second Language program located within Emery but which is not part of the school or that he may have attended under a different name. Mr. Halls recalls having met with Mr. Olawale in his office and having spoken to him in the hallway. They conversed in English and Mr. Olawale had no problem understanding him. Mr. Halls was recalled to court on another occasion to advise the court that he located some records on Mr. Olawale but that they were filed under the name of Ojo, Tajudeen. He said that he began at Emery Adult Learning Centre on February 4, 2010, left in March 2010 for employment, returned in April 2010 and left in February 2012 for employment, returning in September 2012.
[60] Mr. Halls provided the court with his transcript of marks which showed that he completed Grade 9 mathematics (his mark was 51%), Grade 11 English (56%), a Grade 10 computer course (76%), Grade 12 English which he failed (44%) and a Grade 11 computer course (he received 55%). These courses were not English as a second language courses but were English courses taught for the workplace. The language of instruction was English. His last English course ended in November 2012.
[61] In the Emery Adult Education registration form, Mr. Olawale noted that he graduated from high school, was admitted to business college, that his first language was Yoruba and English and that he was a refugee claimant. In addition to filling out this form in the English language, Mr. Olawale had to write at the school and while supervised, a four to five paragraph essay in English which is filed as an exhibit at this hearing. He was assessed on admission as functioning at Grade 10 applied English level. When he was asked about Mr. Olawale`s failure of Grade 12 English, Mr. Halls said that he missed many classes and assignments.
[62] Julie Roberts is a supervisor of Human Resources at UPS. Crown counsel called her as a witness as Mr. Olawale had advised the probation officer that he was currently employed at UPS. She brought her records to court and testified that he is no longer an employee at UPS but had worked there from November 2009 until April 2010 as a package handler. She said that, in order to be employed at UPS, a person must to able to speak and read and write in English. Mr. Olawale was required to complete an application which included both a written and an oral test, human resources training, and roads safety training, all of which are conducted in English. The applicant is required to watch a video and complete an assignment answering thirteen questions in English. This is done on site and independently.
[63] Ms. Roberts also said that English is the language used at UPS facilities and that employees are expected to be able to comprehend and communicate in the English language. Mr.Olawale had described himself on his resume as having “outstanding communication skills” and noted on his application that he was multilingual and spoke English and Yoruba and that he was currently completing his Ontario Secondary School Diploma. Although he was given a job at UPS, his attendance was not good, he was late often and he was either terminated or resigned after his supervisor had discussions with him.
[64] The Ministry of the Attorney General official responsible for interpretation in the courts gave evidence of the Ministry’s efforts to locate a suitable interpreter in this case. Antonella Zavarelli testified that the Ministry provides general Yoruba interpreters to translate in the courts. It does not have, nor is it aware of any interpreters for the Akare-Ikoko dialect. She testified that she was contacted by the Manager of Criminal Intake at the courthouse at 361 University Avenue asking for an interpreter who spoke the Akare-Ikoko dialect of Yoruba. She said that this dialect is not even listed in the languages available. She referred the matter to the Immigration and Refugee Board and learned that there are 520 languages spoken in Nigeria and that English is the official language and those who do not speak English, speak “Pigeon” English. She then contacted the Nigeria High Commission in Ottawa to locate a suitable interpreter for that dialect. She said that English is the language of government, the language of instruction in school and the official language in Nigeria. She was unaware of any interpreters for this dialect in Ontario. She also contacted the U.S. embassy to determine if there was anyone available to speak the specific dialect but the embassy advised it does not utilize interpreters for the dialect from Nigeria.
[65] In cross-examination, Ms. Zavarelli testified that Yoruba is one of the major language groups in Nigeria and that the dialect of Akare-Ikoko is spoken by approximately 50,000 of the 100 million Nigerians and is not even listed in the 520 languages spoken in the country.
[66] Mr. Olawale was permitted to be recalled as a reply witness and was asked why he told the court in the past that he did not need an interpreter. He explained that he said that because he thought his level of proficiency was such that he didnt need one but he did not understand what was being said in court. He said he understood Ms. Fatola because she speaks good Yoruban and shes been hired a long time. As for his application made to UPS, he said that his friend helped him write his resume and wrote “outstanding communication skills”. He said he did not understand what his friend wrote and that he did not know that his friend listed English and Yoruba as the languages he spoke. He said other people helped him with the 13 questions on the test that he had to write at UPS. As for his school attendance at Emery, Mr. Olawale agreed that Ojo Tajudeen was his birth name and he used it when he lived in Nigeria. However, he began to use the name Emmanuel Olawale when he came to Canada because that was the name on his passport. Again, he said that his birth name was a Muslim name and he had to change it when he changed his religion. As for working at UPS, he testified that he worked there in 2010 but was laid off because he made so many mistakes, and he worked as a labourer for an agency and was placed there.
THE POSITIONS OF THE PARTIES ON THIS APPLICATION:
[67] Mr. Olawale brings two related applications for a stay of proceedings under the Canadian Charter of Rights and Freedoms. With reference to s. 14 of the Charter, he submits that he is entitled to have the assistance of an interpreter provided in a language which he understands which is a specific dialect of the Yoruba language spoken in a small community where he was born. He further submits that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter has been infringed by a delay of almost 34 months of Crown or institutional delay. The defence points to the delay from the date of arrest on February 10, 2010 to the conclusion of the trial commencing on October 19, 2012 through to sentencing, as prima facie excessive and that it meets the threshold test of requiring the court to examine whether the delay is unreasonable under s. 11(b) of the Charter. The defence concedes that the delay between April 11, 2013 to the date of June 17, 2013 is delay caused by the defence being unable to obtain and file the transcripts of all the proceedings.
[68] The defence argues that the primary cause of the delay is the failure to provide appropriate interpreter services for the applicant which may be categorized as lack of institutional resources. Counsel submits that the case of R. v. Tran supports the view that in deciding whether there was actually a need for an interpreter, a court should be “generous and open-minded.” Although an accused may speak some English, that basic knowledge may not be sufficient to understand the court proceedings. In the case at bar, counsel argues that Mr. Olawale came to Canada in 2009, spoke some English, barely passed his Grade 11 English and received a mark of 44% in Grade 12 English while at Emery Adult Learning Centre. While he can speak some English, he cannot follow technical English especially while being in a stressful situation.
[69] Counsel concedes that, if the court should find that Mr. Olawale does not need an interpreter in the dialect that he speaks, then the alleged breach of s. 14 fails and the delay would not be the fault of the Crown or institutional delay, but rather would be delay caused by Mr. Olawale. In that case, his application should be dismissed.
[70] However, as the issues are connected, if there was a breach of his right as protected by s. 14, then there was a breach of his s. 11(b) right to a trial within a reasonable time as Crown and institutional delay of 34 months exceeds the guidelines set by the Supreme Court of Canada. The defence argues that there is evidence of actual prejudice concerning Mr. Olawale’s ability to attend college and the effects on his personal life because of these proceedings. He says that he has to finish his English lessons to go to college and he must write a test to do so. He said in his affidavit that “he cannot start college until I know the final outcome as I was told they need a background check.” He submits that prejudice may also be inferred from the delay.
[71] In balancing the factors and given the guidelines set by the Supreme Court of Canada, especially for what is a standard type of case, counsel argues that the delay offends Mr. Olawale’s right to a trial within a reasonable time and asks the court to order a stay of proceedings.
[72] Crown counsel does not dispute the chronology of events described by the defence but disputes the categorization of the delay. Counsel submits that the applicant’s s. 11(b) rights have not been violated, that a stay is not appropriate and that the application should be dismissed. Counsel submits that s. 14 of the Charter is an important constitutional right but that the onus is on the person alleging a violation and it must be proven on a balance of probabilities. He argues that Mr. Olawale’s right to an interpreter has not been breached as Mr. Olawale is able to follow the proceedings in English and he has not established the need for an interpreter. He points out that Mr. Olawale grew up in Nigeria where the national language is English, where government business is conducted in English and the courts operate in English. He graduated with Gr. 12 English from Nigeria. He has taken Grade 10 and 11 English courses in Canada and has sat in court on several occasions and told a court that he speaks English.
[73] Crown counsel submits that, in the alternative, Mr. Olawale understands the Yoruba language and has had a Yoruba interpreter available on each occasion to translate the proceedings for him. He understood the interpreter from his bail hearing and his preliminary hearing and they speak general Yoruba. Crown counsel takes the position that Mr. Olawale has attempted to delay the proceedings and avoid the inevitable consequences of these charges.
[74] The Crown’s position on the stay application is that of the almost forty months that it has taken for the case to reach a conclusion, because Mr. Olawale is unable to establish that he requires an interpreter, the majority of the delay lies at his feet. Crown counsel’s categorization of the delay is as follows: the initial period from the date of arrest of February 10, 2010 to June 1, 2010 which was the earliest date available for a preliminary hearing and at which point the defence was prepared to set a trial date was neutral or intake. Other time that was inherent to the proceedings is the period of intake at the Superior Court until counsel was ready to set a date for trial. The Crown’s position is that Mr. Olawale caused the delay of the first trial date and the delay in sentencing following his trial at the second trial date such that all this delay was caused by the actions of the accused. There is a societal interest in having a serious case like this prosecuted to its conclusion.
ISSUES RAISED ON THIS APPLICATION:
[75] The issues raised on this application may be summarized as follows:
(1) Have the rights of Mr. Olawale as guaranteed under s. 14 of the Charter of Rights and Freedoms, that is, the right to the assistance of an interpreter, been infringed?
(2) Have the rights of Mr. Olawale as guaranteed by s. 11(b) of the Charter of Rights and Freedoms, that is, the right to be tried within a reasonable time, been infringed?
(3) Should an order pursuant to s. 24(1) of the Charter staying the proceedings be granted?
ANALYSIS:
The Right Protected under section 14:
[76] Section 14 of the Charter provides that:
A 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.
[77] The Supreme Court of Canada discussed the importance of the constitutional protection under section 14 in the case of R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, stating at para. 38:
The right of an accused person who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter serves several important purposes. First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.
[78] In Tran, the court held that protecting the right of an accused under section 14 to an interpreter is important in maintaining the fairness of the justice system. An individual must be able to understand the case and have the same opportunity to respond as a person who speaks the language of the court. In Tran, the Supreme Court held that an accused must have the same basic opportunity to understand and be understood as if he or she was conversant in the language the court is using: see Tran at para. 39. The court wrote that ultimately the right to an interpreter’s assistance is concerned with ensuring that there is an even playing field for the accused at trial: see Tran at para. 40.
[79] The right to an interpreter’s assistance is not an automatic or absolute one. However, the “courts should be generous and open-minded when assessing an accused’s need for an interpreter”. A voir dire is to be held in deciding the need for an interpreter: see Roy v. Hackett 1987 4212 (ON CA), [1987] O.J. No. 933, 23 O.A.C. 382. In that case, the court considered the scope of the constitutional guarantee protecting the assistance of an interpreter and wrote at para. 36:
In general, the judge or the chairman of the tribunal must come to a decision regarding the good faith of the witness or the person who has requested an interpreter before granting the request. In coming to his decision, however, he must take into account the legitimate desire of any witness to express himself in the language he knows best, usually his mother tongue. Therefore, he must avoid imputing an ulterior motive to a witness who asks for an interpreter, even if the witness has some familiarity with the language used and could, in a general way, understand the proceedings. The judge must certainly give s. 14 a broad and generous interpretation. That does not mean that the right to an interpreter is an absolute right and that cross-examination as to the linguistic competence of the person who requested such assistance is automatically oppressive and vexatious to the point of making the exercise of that right illusory.
[80] On an application alleging a breach of this right, the onus is on the applicant to prove the breach on a balance of probabilities. The Supreme Court of Canada has set out a framework for determining when there has been a violation of Section 14.
- First, it must be clear the accused is actually in need of interpreter assistance. In Tran, the Supreme Court held at para. 48 that “As a general rule, courts should appoint an interpreter when either of the following occurs:
(1) It becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or
(2) An accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.
The Supreme Court wrote that, while a court should approach the need for an interpreter with a spirit of sensitivity and understanding (Tran at para. 52), the assistance of an interpreter should be denied if there is cogent and compelling evidence that an accused’s request for an interpreter is not made in good faith, but rather is for “an oblique motive.”: see Tran at para. 53.
If there is a claim that the interpretation was deficient, the court should analyze whether there has been a departure from the constitutionally guaranteed standard of interpretation. The standard of interpretation under s. 14 is high but is not one of perfection: see para. 55. Interpretation should be continuous, precise, impartial, competent and contemporaneous: see Tran at para. 43.
Finally, the claimant has to establish that the alleged lapse in interpretation occurred during the course of the proceedings when a vital interest of the accused was involved: see Tran at para. 44.
[81] The onus for establishing a breach of s. 14 of the Charter falls on the party asserting the violation as stated. The standard of proof is on a balance of probabilities: see Tran at para. 45. Finally, the accused can waive this right: see Tran at para. 45.
The Need for an Interpreter:
[82] Where a person claims the right to interpreter assistance, the person must demonstrate that he or she requires an interpreter to understand the court proceedings and that the request is made in good faith. A claimant must demonstrate that they do “not understand or speak the language in which the proceedings are conducted” : see R. v. Rybak, 2008 ONCA 354, [2008] O.J. No. 1715, leave to appeal refused, S.C.C.A. No. 311, at para. 72. As set out above, the right to an interpreter is neither automatic nor absolute.
[83] In Rybak, the appellant came to Canada from Poland five or six years before the incident. He spoke both English and Polish at work, spoke English with an accent at the accident scene, requested an interpreter once when he was arrested and was questioned for seven hours. His counsel said that his English was solid and he did not seek to have the entire preliminary inquiry translated. During pre-trial motions, his new counsel requested a Polish interpreter. Mr. Rybak said that the interpreter was doing a good job and made no complaints about the interpreter during the trial.
[84] On appeal, the appellant introduced fresh evidence that the interpreter was not accredited and had failed Ministry tests. The court held that the appellant had been offered and accepted a method of interpretation that serviced his language deficiency and did not complain about it. The court discussed the elements of the constitutional guarantee under s. 14. The court wrote at para. 67 about the purpose of the right under s. 14:
The guarantee in s. 14 serves several important 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…
[85] The object is to provide linguistic understanding in order to create a level and fair playing field: see Rybak at para. 71 citing Tran at para. 241. The primary source of information about whether or not the accused has a language deficiency will, practically speaking, be the accused: see Rybak at para. 91. However, in the Rybak decision, the Court of Appeal considered other pieces of evidence, including the trial transcripts and police interviews in assessing the accused’s language faculties. The court determined that the accused did not raise this issue during the trial, did not complain about the interpreter to the court or to counsel and was not able to demonstrate that he did not have the required understanding of the evidence adduced or proceedings conducted that he sought and to which he was constitutionally entitled.
[86] In the case of R. v. Freeman [2006] O.J. No. 1021; 2006 8027 (ON CA), 208 O.A.C. 245, an accused asserted that his section 14 rights had been breached by the failure of the trial court to provide a Patois interpreter. The Court of Appeal held at para. 5 that, from the trial record, the appellant could understand the proceedings and make himself understood. The trial judge was able to understand the accused’s evidence; he simply did not believe it: see Freeman at para. 4. This is an example of a case where an accused failed to provide the evidential basis for the assertion of a section 14 right.
[87] In R. v. Popal [2007] O.J. No. 1755 (Sup. Ct.), the court determined that the appellant could speak English well enough that he did not require an interpreter based upon the fact that he had completed four years of high school in English at a high school in Toronto, the appellant wanted to become a police officer and foresaw no issues in that field due to his skill in English, there was no request in the court below for an interpreter, and during the course of the evidence, the appellant often answered questions before they were translated for him.
[88] In R. v. Wangchuk, 2012 ONCJ 338, [2012] O.J. No. 2515, a Tibetan interpreter was scheduled to be in court to assist the accused. The interpreter arrived but the accused questioned the interpreter’s competence. The Crown then raised the issue about the need for an interpreter. The court held a voir dire on the issue at which the accused and the investigating officer testified. The Crown filed in evidence a DVD tape which was used to record the booking process and the dealings between the accused and the police officers. The judge applied the test set out in R. v. Tran, supra and, after viewing the videotape and considering the evidence which included that the accused was a mailman and had lived in Canada for twelve years, she held that while the accused might prefer to have a Tibetan interpreter, he was able to converse in English at a level that he could understand the proceedings. She held that he did not have the right under s, 14 to the assistance of a Tibetan interpreter for the trial.
The Standard of Interpretation Assistance:
[89] The Court of Appeal stated in Rybak that the interpretation provided to the accused must be “sufficient to ensure that the language deficient have the same opportunity as the language proficient to understand and be understood in the proceedings”: see para. 100. The court acknowledged that there are no universally accepted standards for assessing the competency of an interpreter and that a certified or accredited interpreter is not required in every case: see Rybak at para. 83. The requirement is that the interpretation provided is competent to ensure that justice is and appears to be done.
[90] In R. v. Akaeze, 2012 ONSC 7046, [2012] O.J. No. 5934. the accused was born in Nigeria and his first language was Ibo. He possessed some basic English skills. There were no accredited interpreters available in Ibo, and the two unofficial interpreters the Crown produced were determined not to be competent. Bielby J. wrote at paragraph 65:
I accept that the pool of Ibo/English interpreters is extremely shallow but that practical set of circumstance is, for the purposes of my considerations, irrelevant. As referenced earlier, the constitutional requirement is not tempered by the availability of interpreters.
[91] The court was not satisfied that the two interpreters were qualified and required the Crown to find new competent interpreters before the trial could proceed.
[92] In R. v. Sidhu, 2005 42491 (ON SC), [2005] O.J. No. 4881 (Sup.Ct.), Hill J. considered the testing of competence of interpreters by the Ministry of the Attorney General. In R. v. Dutt, [2011] O.J. No. 2502, Hill J. noted that dialects within a language can become important in ensuring complete linguistic understanding: see Dutt at para. 58. He also emphasized the importance of the section 14 right, stating at paragraph 116 that it is:
…essential that non-English speaking defendants in criminal trials not be relegated to the status of constitutional disposables where the interpreting assistance they received is limited to whatever quality is available as opposed to compliance with the minimum standards which the Charter requires.
The Right to be tried within a reasonable time:
[93] Section 11(b) provides that:
Any person charged with an offence has the right
(b) to be tried within a reasonable time;
[94] The relevant time frame is from the point when the information is sworn alleging an offence until the final resolution of the case.
[95] The purpose of s. 11(b) is to protect the accused’s right to liberty, security of the person and the right to a fair trial as protected by s. 7: see R. v. Askov 1990 45 (SCC), [1990] 2 S.C.R. 1199 and R. v. Morin 1992 89 (SCC), [1992] 1 S.C.R. 771. Those aspects of fairness are to minimize anxiety, concern and stigma of exposure to criminal proceedings, minimize exposure to restrictions of liberty prior to trial and ensure that proceedings take place while evidence is available and fresh. There is also a community or societal interest in having a speedy trial.
[96] In these leading decisions, the Supreme Court outlined four factors which are to be considered on an application for stay based upon unreasonable delay. The court is to balance interests when analyzing the issue of delay. The factors are:
(1) The length of delay: where there is a s. 24(1) application, an inquiry into unreasonable delay is triggered if the period is sufficiently long to raise an issue of reasonableness: see Askov at p. 1223 and Morin at p. 789.
(2) Whether there was waiver: waiver must be clear and unequivocal. It can be express or implied. The Crown must prove the actions of the accused are such that a specific waiver can be inferred if the Crown is relying on the accused’s actions. In certain circumstances, consent to a trial date can give rise to an inference of waiver: Morin at p. 790. Any waived periods of delay are to be deducted from the total time period under consideration.
(3) The reasons for the delay which include:
(a) the inherent time requirements of the case;
(b) the actions of the accused;
(c) the actions of the Crown;
(d) limits on institutional resources;
(e) other reasons for the delay.
[97] Under the category of explanation for the delay, the court must consider all of the factors which cause delay including those which flow from the nature of the case, the actions of the Crown and inherent time requirements. Complex cases are recognized as requiring more time to prepare. The aspects of inherent delay include time spent on retaining counsel, bail hearings, disclosure, the preliminary inquiry and pre-trial conferences. Inherent time requirements are viewed as neutral and are not attributed to the Crown or the defence.
[98] What will constitute reasonable or unreasonable delay will depend on the complexity of the case and local practices and conditions. The delays attributed to the Crown or its officers including judicial resources weigh in favour of the accused. Systemic or institutional delays which refer to when the parties are ready for trial but the system cannot accommodate them because of limited resources are attributed to the Crown who is responsible for bringing the accused to trial: see R. v. Morin, supra. The conduct of the accused is also a factor. Waiver may be inferred from the record if it appears that the accused’s actions were a deliberate attempt to delay.
(4) Prejudice to the accused: prejudice to the accused may be inferred where there is long and unreasonable delay. The accused may argue prejudice arising from restrictions on liberty such as pre-trial custody or restrictive bail conditions. Prejudice to the security interest of the person may arise due to emotional stress of awaiting trial. Finally, prejudice may result from delay where evidence is no longer available due to the passage of time. Two kinds of prejudice are relevant on a s.11(.b) challenge: inferred prejudice from the delay itself and actual prejudice: see Morin and R. v. Kovacs-Tatar (2004) 2004 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont. C.A.) at paras. 34-8.
[99] In Morin, Sopinka J. outlined the process for balancing the interests and explained how the length of delay is calculated and evaluated in light of other factors. The relevant time is from the date of the charge to the end of the trial. Periods which may have been waived are subtracted. The court must decide whether the remaining period is unreasonable having regard to the interests protected under s. 11(b), the reasons for the delay and prejudice to the accused. In the exercise of balancing the interests, the court may look at the seriousness of the offence as a relevant but not determinative factor: see R. v. Kporwodu 2005 11389 (ON CA), [2005] O.J. No. 1405 (C.A.) at para. 193.
[100] The mechanism of a stay of proceedings has been described as “the most powerful remedy available to sanction the infringement of the constitutional rights of an accused under s. 24(1) of the Charter.”: R. v. Bennett (1991) 64 C.C.C. (3d) 462 (Ont. C.A.). As Justice Arbour wrote, “...both at common law and under the Charter, stays of proceedings for abuse of process have been granted sparingly, and only in the “clearest of cases”. A stay is tantamount to an acquittal in that it effectively brings the proceedings to a final conclusion in favour of the accused: R. v. Jewitt (1985), 1985 47 (SCC), 21 C.C.C. (3d) 7 at p. 23, 20 D.L.R. (4th) 651, [1985] 2 S.C.R. 128. By granting a stay, the court in effect stands between the accused and the state to prevent what otherwise would be a just resolution, on the merits of an allegation of criminal conduct.”
[101] In conclusion, whether there is a breach of s. 11(b) and whether a stay of proceedings should be granted involves a careful balancing of the factors set out in Askov and Morin and the exercise of judgment.
[102] The interrelationship of the s. 14 and s. 11(b) issues was considered by the Ontario Court of Appeal in the case of R. v. Satkunananthan 2001 24061 (ON CA), [2001] O.J. No. 1019, 143 O.A.C. 1. In that case, the seven individuals appealed their convictions and sentence for trafficking in a narcotic and possession for the purposes of trafficking. One accused was not arrested until three years after the date of the offence. The preliminary hearing began nine months after the appellants were charged but had to be continued and was not resumed for another seven months. The first trial date was set for 28 months after they were charged. The Crown was unable to obtain a qualified interpreter for the trial and the trial had to be adjourned until over one year later. The second trial date was interrupted frequently by the illness of one of the accused. The trial judge entered a mistrial rather than sever the accused from the trial. The trial finally took place 44 months after the accused were charged and the accused were convicted after a six week jury trial. One of the grounds of appeal before the Ontario Court of Appeal involved the delay caused by the inability to provide a qualified interpreter. The court held that the seven month delay resulting from the Crown’s inability to provide a suitable interpreter is attributable to the Crown.
[103] In R. v. Nyangkegi [2007] O.J. No. 1982 (Sup. Ct.), the accused was charged with the offences of assault, forcible confinement and sexual assault on August 12, 2004 and brought an application for a stay just prior to his trial on April 24, 2007 alleging an infringement of his right to be tried within a reasonable period of time because of a delay of 32 months. Justice Marrocco outlined the history of proceedings and that certain of the court attendances could not proceed because no interpreter was available to speak in the Bari language. The accused spoke to the court in English on occasion. It was also learned that the accused also spoke Juba Arabic which is a dialect spoken by residents of southern Sudan. An interpreter was finally located for the Juba Arabic language. The court conducted a voir dire to determine whether he was qualified to act as there was no Juba Arabic or Bari court-accredited interpreters in the province. The accused appeared to be satisfied with the interpretation provided. The total institutional delay was twenty months.
[104] In his ruling on the application for a stay under s. 11(b), Justice Marrocco commented at para. 43:
The fact that the defendant spoke an obscure dialect of Arabic is simply an aspect of the complexity of this case. Very often the complexity of the matter refers to the complicated nature of the evidence of the crime. This is not always the case. Sometimes a case can be complicated due to factors associated with the defendant.
[105] Marrocco J. distinguished the case of R. v. Satkunananthan and held that the case before him was more akin to the situation in R. v. Tamang (1998), 1998 2324, 169 N.S.R. (2d) 369 (C.A.), where the accused required a Nepalese interpreter and no interpreter could be found. In that case, the trial was delayed and the accused brought a s. 11(b) application. The court held at paras. 36-38 that the reason for the delay could not be attributed to the lack of institutional resources:
This is not a situation where the delay was attributable to the lack of institutional resources--in other words, the government’s unwillingness to commit sufficient resources to prevent unreasonable delay. (Morin, supra, at p. 21).
The information before Judge MacDonald revealed substantial efforts by the Court and by the Crown attorney to arrange interpretation services…
….According to the guidance provided in Morin, supra, it would have been appropriate, as well, for the Court to consider the inherent difficulty presented by the need to obtain the services of a Nepalese interpreter.
[106] In Nyangkegi, the court held that some of the delay should be categorized as neutral rather than institutional delay for the lack of a suitable interpreter and, after considering all of the delay against the guideline provided by the Supreme Court in Morin, dismissed the application Justice Marrocco wrote at para. 47:
…in Tamang, the failure to provide an interpreter stemmed not from a lack of institutional resources but from the rarity of the language itself. There were almost no speakers of Nepalese in Canada who were capable of interpreting at trial and were willing to travel to the court. The Crown and the court made significant efforts to find an interpreter, but were simply unable to do so quickly. In the case at bar, the circumstances are similar: the languages spoken by the accused are obscure. The delay in providing an interpreter arose not from a decision to allocate resources elsewhere, but from the inherent difficulty in finding qualified interpreters capable of speaking Juba Arabic or Bari as well as the mistaken belief that Mr. Kang would be suitable.
CONCLUSIONS:
- Has the right of the applicant to have the assistance of an interpreter been breached?
[107] As outlined above, in order to find a breach of s. 14 of the Charter, the applicant must demonstrate on a balance of probabilities that his right as protected under that section has been breached. The right to the assistance of an interpreter is enshrined in our constitution for a party or witness in any proceeding where the witness or party does not understand or speak the language in which the proceedings are being conducted. The first issue that the applicant must address is whether he has demonstrated on a balance of probabilities that he does “not understand or speak the language in which the proceedings are conducted.”
[108] I am mindful that this court is to apply sensitivity to the purpose of s. 14 of the Charter. I recognize that the right to an interpreter’s assistance is a constitutional safeguard where an accused is unable to understand or speak the language of the proceedings. This right ensures that the accused is given a fair trial. If I am satisfied that the accused requires an interpreter, then it is not relevant to the constitutional inquiry as to how rare or difficult it is to secure an interpreter in the specific language of the accused. The court has a constitutional responsibility to ensure that the trial only proceeds while the accused has a competent interpreter capable of allowing the accused to understand and participate in the proceedings.
[109] However, I must first be satisfied on a balance of probabilities that the accused requires an interpreter in order to follow the proceedings. Tran makes it clear that the right to interpreter assistance is neither automatic nor absolute. Further, the request for an interpreter must be made in good faith and not in an effort to delay or de-rail the proceedings by alleging that an interpreter is required in a specific and obscure dialect. Once the court is satisfied that the need is proven, the court must then decide whether the interpreter provided is competent to conduct the interpretation.
[110] In other words, the onus in this case is on Mr. Olawale to demonstrate on a balance of probabilities that he cannot understand and follow the proceedings in English and that the dialect of Yoruba which he speaks is such that he is unable to converse and understand the proceedings in the general Yoruba language which the court interpreters use.
[111] There has been significant and cogent evidence led at this voir dire. Again, I recognize that I am to approach the question of the need for an interpreter with a measure of sensitivity and understanding. As the court said in Rybak at para. 74:
Judges should not be too quick to draw adverse inferences where the claimant, such as an accused at a criminal trial, has some facility with the language of the proceedings. After all, some persons may be able to communicate in a language for general purposes but not have sufficient comprehension or fluency to face a trial with its onerous consequences without the assistance of a qualified interpreter. Tran at 243-4.
[112] After considering the evidence called at this voir dire, I make the following findings:
Mr. Olawale was born in Nigeria and lived in a small state of approximately 50,000 people where a dialect of Yoruba is spoken. Mr. Olawale grew up in Nigeria where the national language is English and the government operates in the English language. He studied in school through to grade 12 where the language of instruction is English;
Mr. Olawale moved to Canada in 2009. For at least six months, he resided at Covenant House, a youth shelter located at Yonge and Dundas Streets in Toronto.
Mr. Olawale worked at UPS from November 2009 until April 2010. He applied for the job by submitting a resume written in English, had to write answers to questions in English and was interviewed in English.
Mr. Olawale attended Emery Adult Learning Centre where he studied Grade 10 and 11 English. He received a mark of 56% in Grade 11 English, 76% in Grade 10 computer studies, 55% in a Grade 11 computer course and 44% in Grade 12 English. Mr. Halls testified that he missed many classes and did not do his assignments. He wrote an essay in English which I have read.
Mr. Olawale was interviewed by the probation officer in the English language. Only when it came to personal or technical questions, did he turn to an interpreter. He provided names of people for the probation officer to call and she spoke to them in the English language.
During his trial, Mr. Olawale never raised the issue with the complainant or with police that he did not understand the language and was not able to speak in the English language either during the incident or upon his arrest.
During the initial proceedings before the Ontario Court of Justice, Mr. Olawale stated that he spoke English and did not require an interpreter on February 26, 2010. At the suggestion of Crown counsel, a Yoruba interpreter was ordered to attend. The interpreter who was present at his bail hearing was Mr. Otiti who was there to assist the sureties. No issue was taken with his interpreting during the bail hearing on March 1, 2010. In fact, Mr. Otiti stood between Mr. Olawale and his sureties to interpret for all of them. On April 20, 2010, Mr. Olawale told the court he does not need an interpreter. On May 4, 2010, he had no interpreter and on June 1, 2010, he set a date for his preliminary hearing and nothing was said about an interpreter. In the form completed for assignment court, the Crown and defence both indicated that an interpreter was not required. On September 21, 2010, Mr. Olawale said “No I don’t need an interpreter”. However, an interpreter was ordered out of an abundance of caution.
At the preliminary hearing, counsel for Mr. Olawale said to Justice O’Donnell, “My client tells me he doesn’t think he needs an interpreter” (see Dec. 14, 2010 at p. 2, line 30). However, during the hearing, Ms. Fatola was available to sit beside Mr. Olawale and interpret on an “as needed” basis. She testified that she does not know the specific dialect he speaks and that she is trained to interpret in general Yoruba. She believes that Mr. Olawale was able to follow the proceedings in English but she was available to translate into Yoruba. She does not recall translating at the preliminary hearing.
When Mr. Olawale attended court on his first trial date, his counsel raised the issue about the interpreter’s competence. Justice Allen conducted a voir dire and determined that Mr. Otiti was not qualified to interpret at the trial. Justice Allen was presented with the submission that Mr. Olawale required an interpreter and did not go behind that. The voir dire was about the competence of the interpreter but did not determine the issue of need. At that hearing, Mr. Otiti testified that every Nigerian speaks English and that he is not busy with translating in Canada because Nigerians speak English. He said that Mr. Olawale had no difficulty understanding him. He was the interpreter used at the bail hearing as well and no concerns were raised by Mr. Olawale during that proceeding. The issue before Justice Allen was the qualification of the interpreter.
At the second trial date before me, Ms. Fatola was arranged to be the interpreter and Mr. Olawale’s counsel said at the outset that he was content with her. She was available throughout the week long trial but was leaving her employment for a new position and was not able to provide court interpreting on the date set for judgment. However, she arranged for another interpreter to attend and Mr. Olawale was content with him. He was available to provide interpreting assistance when I delivered my reasons for judgment and convicted Mr. Olawale of the offences of sexual assault and sexual interference. At the conclusion of the judgment, at the request of counsel, I ordered a pre-sentence report and adjourned the sentencing hearing. The date was cleared with counsel and the interpreter.
The sentencing hearing was adjourned on the next three occasions because, although the date had been cleared with the interpreter who was present when reasons for judgment were delivered, he did not attend and other interpreters were present. The interpreters who attended were unable to speak the specific dialect spoken by Mr. Olawale. They spoke general Yoruba and Mr. Olawale said he did not understand them. On one occasion, Mr. Olawale addressed the court in English without any difficulty to speak about the effect of the delay on him. He later said that he had rehearsed that speech to the court and that is why he was able to say it in English.
Mr. Olawale gave evidence during this voir dire that he is able to speak limited English and does not speak the general Yoruba language. He said that when he is in a stressful situation, he has difficulty conversing in English. He testified that while he communicates with his counsel in English, he is not nervous when he meets with him. He agrees that he had to submit an application in English and write an examination to work at UPS but that someone helped him with that. He says he failed one course at Emery Adult Learning Centre and barely passed another in English. He was given an interpreter through the proceedings who spoke general Yoruba but he said on several occasions that he did not understand.
Mr. Olawale demonstrated on at least three occasions that he is not truthful. First, he did not tell the probation officer about two fail to comply convictions which pre-dated the pre-sentence report. He simply said that he was charged with fail to comply. Crown counsel submits that Mr. Olawale was convicted of fail to comply for a curfew violation on July 29, 2010 and sentenced on August 4, 2010 to pre-trial custody of seven days and on October 25, 2010, he was arrested in St. Thomas, Ontario for a violation of his curfew and pleaded guilty on October 26, 2010 and received seven days in addition to two days of pre-sentence custody. In the affidavit sworn and filed in support of this application, he said he was convicted of one fail to comply offence. Second, he told the probation officer that he “was currently employed at UPS” and worked there since 2012. According to the Human Resources person called from UPS, he worked there from November 2009 to February 2010. He had done some work as a general labourer for an agency after he left there in 2010 and had been sent to UPS on occasion. Third, he said he was a student at Emery Adult Learning Center and “had three more months to complete his studies.” Mr. Halls recognized him as a student and after checking records under another name, located records of his attendance. Mr. Olawale says he spoke English in the school environment. I find he conversed with Mr. Halls and wrote in the English language.
[113] My assessment of Mr. Olawale is that when it is convenient to raise the issue of his competency to understand and converse in English, he will use it. His assertion that he only speaks a dialect of Yoruba from Ondo State is, in my view, an effort to obstruct the continuation of this trial. First, he has not established that he has a need for an interpreter because the evidence is that he understands and speaks English. He says he has limited capacity to speak in the English language but I am not satisfied that he is unable to understand the court proceedings in light of all the evidence before me. Second, if he requires an interpreter which I find he does not, an interpreter who speaks general Yoruba language which is what was made available at his bail hearing, his preliminary hearing and his trial would be more than adequate to meet the requirement under the Charter.
[114] The right protected under s. 14 of the Charter is for a party or witness who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter. This right does not provide for a standard of perfection. Many people who are parties or witnesses in original proceedings do not understand every single word spoken in the courtroom. There are often legal and medical and other terms used which may be complex or foreign to the average person. The object of s. 14 is to put the accused on a level playing field that he may follow and understand the proceedings. Mr. Olawale has competent and experienced counsel with him. He has failed to prove on a balance of probabilities that he requires an interpreter at all.
[115] Frankly, this case bears a striking similarity to the case of R. v. Siguencia, 2010 ONSC 1911, [2010] O.J. No. 1438 where Ducharme J. considered a summary conviction appeal where the appellant alleged that he was denied an interpreter at trial and upheld the trial judge’s conclusion that the accused did not require an interpreter, although an interpreter was present throughout the trial. Justice Ducharme held that he was not satisfied that the appellant’s right pursuant to s. 14 was infringed.
[116] I reach the same conclusion. Mr. Olawale has not established on a balance of probabilities that he requires an interpreter in order to understand the proceedings. I find that this is a case where he has raised this issue in order to delay and obstruct the proceedings. Any delay between the first trial date and the second trial date and between the date of judgment and today’s date lies at his feet.
- Has the right of the applicant to be tried within a reasonable time been infringed in this case?
(1) The length of the delay:
[117] The time from the swearing of the information on February 10, 2010 to the conclusion of the trial will be almost 40 months. This amount of time raises an issue as to its reasonableness and calls for an examination of the reasons for the delay. The defence argues that it is the inability of the system to find a suitable interpreter that has resulted in the delay.
(2) Whether there was waiver:
[118] There was no clear and unequivocal waiver by the defence.
(3) The Reasons for the Delay:
[119] In every criminal case, there are inherent time requirements during which counsel must be retained and disclosure must take place. The inherent time requirements of this case include the time spent for initial intake which would include addressing the question of bail and receiving disclosure. There are also delays caused because of limits on institutional resources due to limited space in courtrooms, court staff and judicial resources. Delay may also be categorized as neutral where there are other reasons for it which are not caused by the Crown or institutional delay.
[120] Cases which are more complex may require longer time frames. Based on the information before me, I view this case as not complex. The interpreter issue raised the complexity, however. This is not a case involving wiretap evidence or evidence secured on a search warrant. There is no extensive documentation. The disclosure is mainly in the nature of police notes and occurrence reports.
[121] Some of the delay may be related to disclosure. Disclosure is a tool that enables the defence to evaluate the case it must meet and to assist the defence in making decisions such as the election or plea for trial: see R. v. Stinchcombe (1991) 1991 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.).
[122] Other delay in this case may be categorized as institutional delay between the conclusion of the judicial pre-trial conferences, the conduct of the preliminary hearing, and the time from the judicial pre-trial in the Superior court until the trial and ultimately the sentencing. However, within those periods of time, certain periods are deemed neutral or inherent. In Regina v. Tran, 2012 ONCA 18, the court wrote at para. 32:
…Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin at pp. 791-2, 794-5, 804-806. See also Lahiry at paras. 25-37, citing Morin, R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814, R. v. M. (N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (C.A.), Schertzer, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.) and R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165.
(4) Explanation for Delay
[123] From the evidence adduced at this application, I analyze the reasons for delay and the explanations for delay and categorize the delay as follows:
(1) February 10, 2010 to June 1, 2010: This is the period from the point of arrest including the conduct of a bail hearing, normal intake period, retaining of counsel, disclosure and other preliminary matters in the Ontario Court of Justice to the setting of the date for the preliminary inquiry and the conduct of the Crown and judicial pre-trials. This period of time may be categorized as inherent or neutral time requirement (approximately five months).
(2) June 1, 2010 to December 14, 2010: This is the period of time from the setting of the date to the preliminary hearing. Crown counsel argues that the defence did not file the statement of issues and there was no assertion from the defence that it was available on any earlier dates. Counsel did not address the question of his availability between June and December. There was some minor disclosure that remained outstanding. There are some cases where defence counsel is unable to proceed to a preliminary hearing without having full disclosure. However, as Justice Code said in R. v. Richards 2010 ONSC 6202 at para. 22:
It must also be remembered that the Ontario Court of Appeal has repeatedly stated that the Crown’s obligation to provide full and complete disclosure by the time of trial does not justify the defence in refusing to take preliminary steps, such as attending pre-trials and setting dates for trial or for preliminary inquiry, until “every last bit of evidence” has been disclosed. The Stinchcome obligation is to complete “initial disclosure”, prior to election, and then to provide “continuing” disclosure” when additional information is received” during the period leading up to trial. See: R. v. Kovacs-Tator (2004), 2004 42923 (ON CA), 192 C.C.C. (3d) 91 at para. 47 (Ont. C.A.); R. v. M.(N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 at para. 37 (Ont. C.A.); R. v. Schertzer et al, supra at paras. 93 and 131; R. v. Stinchcombe (1991), 1991 45 (SCC), 68 C.C.C. (3d) 1 at pp. 13-14 (S.C.C.).
In addition to the initial intake period, I find that the period of time from June 1, 2010 to September 2010 when the statement of issues was filed is inherent or neutral as that is the point in time when counsel was ready to try the case: see R. v. Lahiry [2011]2011 ONSC 6780, [2011] O.J. No. 5071 (Sup. Ct.). A period of time from February to September is not unreasonable as neutral or intake time in a case such as this one: see, for example, R. v. G.(C.R.) 2005 32192 (ON CA), [2005] O.J. No. 3764 (C.A.) where a period of seven and one-quarter months of neutral intake period at the Ontario Court of Justice was not considered unreasonable. Therefore, three additional months are inherent.
(3) September 21, 2010 to December 14, 2010: As Justice Code said in Lahiry at para. 34, and the Court of Appeal highlighted in Tran at para. 32, the clock begins to run from the time that counsel is ready to try the case and proceed to trial and the system cannot accommodate them. The period from September to December may be classified as institutional delay.
(4) December 14, 2010 to February 18, 2011: The preliminary hearing was conducted and Mr. Olawale was committed for trial and remanded to appear in assignment court. In my view, this period may be categorized as neutral or inherent (two months);
(5) February 18, 2011 to December 12, 2011: The applicant attended assignment court to set a date, did not appear on February 15 and a discretionary warrant was issued, attended on February 18 and was offered December 12 as a trial date. Counsel had another case on that day; the record is silent on his other availability. The defence re-elected judge alone and set a trial date of January 17, 2012. This period of time following the judicial pre-trial may be categorized as institutional delay for a total of ten months.
(6) January 17, 2012 to September 10, 2012 : The case came before Justice Allen for trial and following a voir dire, she ruled that the interpreter provided was not qualified. The case was adjourned for trial to September 10, 2012. The record is silent on the availability of the defence from February 3, 2012 to June 25, 2012. The court had June 25, 2012 available for trial but the defence was not available. Defence counsel advised that he was available for trial during the summer months. However, the court gives priority in the summer months to persons in custody facing criminal charges and Mr. Olawale was not in custody at that time. The dates suggested by defence counsel could not be accommodated. This period of time of January 17 to September 10, 2012 may be categorized as delay caused by actions of the accused.
(7) September 10, 2012: The trial commenced on September 10 and concluded on September 14, 2012. Mr. Olawale was convicted on both counts on October 19, 2012. The case was adjourned to December 7, 2012 so that a pre-sentence report could be prepared. This period of time is neutral or inherent to the case as the time was required so that the probation officer could conduct interviews and collect information and prepare a report to the court.
(8) December 7, 2012 to June 26, 2013: Mr. Olawale appeared on December 7, 2012 for a sentencing hearing but the interpreter who had been arranged did not attend. The case was adjourned to January 4, 13. The interpreter who had been arranged did not attend but another Yoruba interpreter was available. Mr. Olawale said he did not understand the interpreter provided. The case was adjourned to February 6, February 15, February 25, 2013. Counsel served notice of application for a stay. A voir dire was conducted through to May 21, 2013. Counsel did not obtain and file all the transcripts of proceedings so the argument could not conclude until June 17, 2013. Following counsel’s submissions, the case was adjourned to June 26, 2013 for a decision on the Charter application. This is delay caused by the accused’s actions.
SUMMARY OF DELAY:
The delay in this case may be summarized as follows:
(1) Inherent and neutral delay: 13 ½ months
(2) Institutional delay: 10 months
(3) Delay caused by the accused: 15 ½ months
TOTAL 39 months
(4) Prejudice:
[124] The defence argues that there is actual and inherent prejudice in a delay of almost 40 months from his arrest on February 10, 2010 to conclusion of the trial. Prejudice arising from the charge including the stigmatization, the restrictions of liberty, financial losses and embarrassment, is recognized in cases such as Morin. In addition to inherent prejudice, there is some evidence of actual prejudice. Mr. Olawale swore an affidavit saying that he cannot start college until he knows the final outcome as he requires a background check and he cannot concentrate as he worries and thinks about his case. Mr. Olawale also testified during the application and Crown counsel cross-examined him. Prejudice arising from the charges themselves is not the issue. The issue is the prejudice caused by the delay in reaching the conclusion of the trial within a reasonable time.
[125] Mr. Olawale lived with his mother who was his surety. He had been living on his own when he was arrested but moved back in with her for the purposes of his judicial interim release. The prejudice he has suffered he submits, includes emotional and psychological stress from the delay of the trial, particularly the consequences of the trial not proceeding at the first date scheduled. He claims he has not been able to attend college as they require a background check.
[126] The effect of prejudice on the assessment of the factors and the balancing of interests was considered by the Ontario Court of Appeal in R. v. Querishi 2004 40657 (ON CA), [2004] O.J. No. 4711 (C.A.) where Laskin J.A. held that there was marginal prejudice caused by the delay which was outweighed by the considerable prejudice to society’s interest caused by a stay where there were serious charges.
[127] The Supreme Court of Canada more recently addressed the issue of prejudice in R. v. Godin 2009 SCC 26, [2009] 2 SCR 3. Citing R. v. Morin, 1992 89 (SCC), [1992] 1 SCR 771, the court affirmed at para.30 that prejudice in the context of a s. 11(b) claim is concerned with three interests: liberty, security of the person, and the right to make full answer and defence. The court held that it is reasonable for the court to draw an inference of prejudice from the length of the delay, “even in the absence of specific evidence of prejudice”: at para. 31.
[128] The liberty interest can be engaged by pre-trial custody or bail conditions. In the case before me, the applicant was held for a couple of weeks until he could be released with sureties and conditions. The conditions allowed him to reside with his surety, not communicate with the complainant and not be out during the hours of 12:00 a.m. to 6:00 a.m. unless he was travelling to and from work or with his surety and that he not possess a weapon. Mr. Olawale did not seek any revision of his bail conditions. He has not argued that his bail conditions were so onerous as to constitute an undue infringement of his liberty interest. His bail conditions have not unduly interfered with his mobility or his ability to maintain gainful employment. In all, his liberty interests were not significantly affected by the terms of his release.
[129] The inference of prejudice from unreasonable delay is particularly relevant to the security of the person interest, which can include stress and anxiety awaiting trial: R. v. Richards, 2010 ONSC 6202, [2010] O.J. No.4958 at para. 35. The applicant claims that he has suffered specific prejudice as a result of the delay, which has interfered with the pursuit of his education in a timely way.
[130] I fail to see any evidence of prejudice of Mr. Olawale’s fair trial interests arising from the delay in this case. I find there is some inherent prejudice and minor prejudice arising from the delay in this case which must be considered along with all the factors, in determining whether there has been a violation of s. 11(b) and the appropriate remedy.
RESULT:
[131] Having considered the evidence at this application, I am of the view that Mr. Olawale’s right to the assistance of an interpreter has not been breached as he has failed to demonstrate on a balance of probabilities that he requires an interpreter to understand and follow the proceedings. Further, any delay that could be considered Crown or institutional delay is not unreasonable. There was institutional delay awaiting the preliminary hearing in the Ontario Court of Justice and institutional delay awaiting the trial date in the Superior Court of Justice. However, the majority of the delay was caused by the actions of the accused.
[132] I am mindful of the guidance provided by the Supreme Court of Canada in Morin that a period of institutional delay of between eight and ten months may be a guide to Provincial Courts and after committal for trial, a range of an additional six to eight months would also be a guideline at Superior Courts. The Supreme Court has made it clear that these guidelines are not limitation periods. On all the evidence before me, I am not satisfied on a balance of probabilities that the delay in this case in the Ontario Court of Justice and in the Superior Court of Justice is unreasonable. I am not persuaded on a balance of probabilities that the delay offends the right of the applicant which is constitutionally protected under s. 11(b) of the Charter.
[133] I have applied the factors outlined by the Supreme Court of Canada in Morin and Askov. I have engaged in a balancing exercise involving the various factors in light of the interests of the accused and society including the actions of all the parties, the evidence of prejudice, the guidelines concerning institutional delay and the interests designed to be protected by s. 11(b) of the Charter. I have also considered the relative seriousness of the charges and find that, in the result, the delay in this case is not unreasonable and the rights of the applicant under s. 11(b) have not been violated.
[134] For the reasons outlined, I am not satisfied on a balance of probabilities that the applicant’s right to the assistance of an interpreter under s. 14 or the right to be tried within a reasonable time have been breached. Accordingly, the application for an order for a stay of proceedings under section s. 24(1) is dismissed.
Himel J.
Released: June 26, 2013
COURT FILE NO.: CR-11-40000054-0000
DATE: 20130626
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
EMMANUEL OLAWALE
Applicant
REASONS FOR JUDGMENT
Himel J.
Released: June 26, 2013