ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-13-40000552-0000
Date: 20141216
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Alexander, for the Crown
Respondent
- and -
A.A. and A.D.
David Adanja, for the Defendant/Applicant, A.A.
Defendants/Applicants
Heard: December 8-9, 2014,
at Toronto, Ontario
Before: Michael G. Quigley J.
WARNING
An order has been made restricting publication in this proceeding under ss. 486.4(1), 486.4(2), 486.4(3) or 486.4(4) or 486.6(1) or 486.6(2) of the Criminal Code. 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Amended Reasons for Ruling
Re: Voir Dire #1: Request for Interpreter
Overview
[1] A.A. is charged with two counts of sexual assault, one on J.C. and the other on C.L. His co-accused, A.D., faces the same charges. A.A. and A.D. have elected to be tried by judge and jury.
[2] On this first of four pre-trial applications, A.A. seeks an order granting him the support of an interpreter for the balance of the pre-trial motions and for his trial. A.A. is Nigerian. He claims to require an interpreter to translate these proceedings from the English language into a Nigerian language/dialect known as Yoruba.
[3] A.A.'s co-accused, A.D., is also Nigerian, but he acknowledged to me that he has no difficulty understanding the English language or expressing himself in English. He does not require an interpreter. He takes no position relative to A.A.’s application.
[4] The need for the accused to have linguistic understanding is a core tenet of our criminal justice system. An accused has the right to be present for his trial, and it is a central element of that system that an accused has the right to make full answer and defence to the case that is brought against him or her. It is difficult to conceive how that right can find meaningful expression if the accused is in the same room as the trial that is proceeding against him, but is effectively absent owing to either an absence of linguistic understanding of what is being said or an inability to present a defense by speaking in the language of the trial.
[5] The right of the accused to have the assistance of an interpreter where they do not understand or speak the language of the proceedings ensures that they hear the case that is presented against them and are given a full opportunity to answer it. The decision of the Supreme Court of Canada in R. v. Tran, 1994 56 (SCC), [1994] S.C.J. No. 16, explains that the right to an interpreter where need is shown is a right closely tied to our societal conceptions of justice, fairness and multiculturalism, as expressed in part through s. 27 of the Charter. As such, s. 14 of the Charter favours a liberal and purposive interpretation, but also one that is provided within a principled context. Tran also makes clear, however, that the right to interpreter assistance is neither automatic nor absolute, and the burden of proof to establish entitlement rests on the applicant to a balance of probabilities standard. At para. 47, Lamer C.J.C. succinctly states the test that is to be applied:
The first step in the analysis as to whether a breach of section 14 of the Charter has in fact occurred requires consideration of the need for interpreter assistance. That is, the claimant of the right must demonstrate that he or she satisfies (or satisfied) the conditions precedent to entitlement to the right. Section 14 of the Charter speaks clearly that to benefit from the right, an accused must "not understand or speak the language in which the proceedings are conducted".
[6] So, the question that arises is whether the accused, A.A., requires and is entitled to the right that is guaranteed by section 14 of the Charter. Before an order for an interpreter can be made, I must be satisfied on balance that A.A. requires an interpreter in order to be able to understand these proceedings that are brought against him and/or to have a voice at his trial because he does not “speak the language in which the proceedings are conducted”.
[7] The request for an interpreter must also be made in good faith. That is not surprising since it calls upon the good faith foundations and intentions that underlie the s. 14 Charter right itself, and thus should only be brought where the evidence supports a likely or probable need, honestly and reasonably asserted. The request must not be the product of an effort to delay or derail or complicate the proceedings by alleging that an interpreter is required where one is not, or where it is known either that no translation support is available, or that if available, it is not to the required level of accreditation in a specific but obscure dialect: see R. v. Tran, above; R. v Olawale, [2013] O.J. No. 3077 (S.C.J.); R. v. Rybak, 2008 ONCA 354, [2008] O.J. No. 1715 (C.A.).
[8] The court must first be satisfied that the need for an interpreter has been proven. That need must be assessed on the basis of the evidence presented on the voir dire. Only then does the court move to the second stage and decide whether the interpreter that is provided is competent to conduct the interpretation for the purposes of the trial to the standard articulated in Tran, or indeed whether there is any fully qualified and accredited interpreter available.
Evidence on the Voir Dire
[9] Counsel for the defendant A.A. did not so much call evidence in support of the right claimed by his client as to effectively provide his own evidence relative to the need for an interpreter. He noted, fairly in my view, that prior requests had been made for an interpreter and observed that no resistance was forthcoming from the Crown, a person different from this Crown attorney, to interpreter assistance being provided to A.A. until June 2014. That was just before this matter was intended to proceed to trial for the first time but was instead adjourned until now because the trial was not reached on the list. That was evidently when the Crown first indicated its position that it would oppose A.A.’s request for an interpreter.
[10] The Materials and Book of Authorities of A.A. submitted by his counsel on this interpreter voir dire make a number of things apparent. First, there is no question that the original report to the trial coordinator prepared by Kelly J., dated November 12, 2013, recorded that one interpreter in the Yoruba language was required for trial. Under heading 31, “Interpreters”, the report records that the accused A.A. does require an interpreter for the Yoruba language. The Form 17 prepared by both counsel also records that requirement.
[11] On June 9, 2014, the day on which this trial was originally meant to commence before being adjourned, the scheduled interpreter did not attend. Another interpreter, Mr. Henry Lanlokun, did attend. He was the gentleman who translated during this application. He is a translator in the Yoruba language, but is only conditionally accredited in accordance with the Ministry of the Attorney General (MAG) interpreter requirements. However, the analytical framework only requires an inquiry to be made into an interpreter’s accreditation and skills if the applicant has first demonstrated that he does not understand or speak the English language in which these proceedings are to be conducted.
[12] The defence brief also included a copy of a facsimile transmission sent on October 29, 2014 from the Criminal Intake Office, Room 241 at 361 University Ave., attaching a copy of the interpreter request information.
[13] Finally, Mr. Adanja represented that A.A. did have the assistance of a Yoruba interpreter at the preliminary inquiry and that “he would not receive instructions from A.A. on any important issue without the assistance of an interpreter”. He represented before me on that basis that an interpreter was required. I later learned, however, that did not mean that he would only communicate with his client when an interpreter was present, or that an interpreter was always present to translate when A.A. came to meet with him in his office. Instead, he freely acknowledged the plain fact that A.A. does speak and understand “at least some English,” as he stated it. Mr. Adanja meant that he only received “formal instructions” when appearing in court and when a Yoruba interpreter was present and provided by the court.
[14] While he bears the burden of persuasion, there was no other evidence presented by the applicant. There was no testimony or affidavit evidence that he needed an interpreter in order to understand and be understood as he seeks to make full answer and defence to the charges that are laid against him. There was no evidence advanced by the applicant apart from the representations of counsel made to me and the request for an interpreter in the court documentation.
[15] On the other hand, Crown counsel advanced a considerable amount of evidence in support of his position that the threshold test of need was not satisfied on a balance of probabilities. Mr. Alexander called one witness and he presented several important pieces of documentary evidence to support his position that A.A. does indeed understand and speak the English language, and thus cannot succeed on this application.
[16] In Crown counsel’s submission, the evidence establishes definitively that the applicant speaks and understands English, was educated in English to the end of the secondary school level, has dealt for a period of two years with Ontario corrections officials in the English language, has not required English translation in other important legal proceedings, and gave a statement to the police at the time that these charges were laid, all in English, without ever showing the slightest bit of reluctance or lack of comprehension, or ever asking for assistance. Most importantly, there was no evidence before this court of A.A. ever indicating that he did not understand when he was communicating or being spoken to in English, or expressing any concern that he needed the assistance of an interpreter to permit himself to be understood.
[17] Ms. Adele Whaul testified about her dealings with A.A. over two years. She is his probation officer for another matter on which he was convicted and sentenced to a conditional sentence and probation by Watson J. of the Ontario Court in St. Catherine’s, Ontario in 2012. She met with A.A. for 10 to 20 minutes every three weeks, initially, during the period of the conditional sentence, and thereafter for the same periods of time every five weeks during probation. They conversed in English on each of those occasions.
[18] Ms. Whaul explained that she knew that A.A. came from Nigeria. Ms. Whaul testified that she also came to Canada from “away”, from Guyana, also a former British Crown colony. Like Nigerians, she acknowledged that Guyanese persons all generally speak English, but she did admit that some, herself included, had an accent to their speech, just as A.A. has a Nigerian accent when he speaks English.
[19] Although Ms. Whaul could not recall its content, the pre-sentence report she prepared from information supplied by the applicant (Ex. 4) reflected his acknowledgement to her that he had been educated at an English school. That document was admitted to permit me to view the information that A.A. provided directly to her, evidently without hesitation, in their meetings relative to that prior offence.
[20] That PSR report contains other relevant information provided by the applicant. A.A. confirmed that he was born in Nigeria in 1973. He was born and raised in Lagos, the capital of Nigeria, which is a large urban city inhabited by many people, not in a remote rural area. His parents were self-employed: they ran a supermarket in Lagos but are now retired. A.A. completed high school at the […] High School in Lagos. Following his immigration to Canada, he obtained a Personal Support Worker (PSW) Certificate from the relevant governmental agency in Ontario, which would have required attendance at a community college here where the language of instruction is English. He then worked here in Canada as a personal support worker with two companies from 2005 to 2007. He has also worked in this country as a general labourer. He told Ms. Whaul that his future plan is to go back to school to pursue a post-secondary business diploma, certainly a laudable objective, but presumably a course that again, would be taught in English.
[21] In addition to the objectively persuasive information in that report, Ms. Whaul confirmed that A.A. had no trouble understanding what was said in any of her dealings with him. He never asked any questions that suggested a questionable understanding of the conditional sentence order to which he was subject. He did not appear to have any difficulty expressing himself to her in the English language as she prepared that pre-sentence report.
[22] This was not surprising since he was educated through primary and secondary school in the English language, obtained further job certification in Canada in the English language, and hopes to pursue college level education in Canada. Ms. Whaul has never had any concern whatsoever that he did not understand English over the year and a half that she dealt with him.
[23] Crown counsel also sought to introduce documents from the Immigration and Refugee Appeal Board (IRBC). Copies of those documents were sent by email to defence counsel on October 22, 2014. However, defence counsel objected to those documents being introduced as evidence on this voir dire because he claimed that the Crown had failed to comply with the notice requirements in s. 28 of the Canada Evidence Act (CEA).
[24] While it seems plain that the purpose for the introduction of that documentation at this pre-trial motion was to undermine A.A.’s claim that he neither understands nor can be understood in English, in fairness to the defence, Crown counsel did acknowledge that he did not specifically state his plan in his October 22 communication to use those documents to challenge A.A.’s request for an interpreter. That formal notice was not provided until last Wednesday, December 3, in another email sent to defence counsel when Mr. Alexander formally notified Mr. Adanja of his intention to introduce and rely on those Immigration and Refuge Board documents at this voir dire.
[25] Even if formal notice was not provided until one week ago, the defence could not have been under any misunderstanding or illusion that the Crown intended to adduce those IRBC documents as further evidence that A.A. does indeed understand and speak freely in English. I am satisfied that the defence had adequate notice of the intent to introduce those documents. I ruled them admissible and they were marked as Exhibits 6 and 7 on the voir dire.
[26] Several further facts emerged from those documents:
(i) That A.A. is the subject of a Removal Order dated April 22, 2014, made under s. 36(1)(a) of the Immigration and Refugee Protection Act;
(ii) That the Removal Order was signed both by the Presiding Member, Ms. Denise Desjarlais, and by the accused as the person subject to that deportation order;
(iii) That A.A. indicated on that date that he fully understood that he was subject to an order that would result in his deportation from Canada;
(iv) That A.A. has appealed that Removal Order by Notice of Appeal signed May 12, 2014 and is represented by counsel;
(v) That the Notice of Appeal against deportation, as signed by the accused, indicates that he chose to have his appeal conducted in the English language;
(vi) That he did not stipulate any need for an interpreter at that appeal proceeding; and
(vii) That when asked, he acknowledged in English that the signature on that appeal form was his.
[27] One other important piece of information came to light. After making inquiries, defence counsel advised me that he has been in contact with counsel who represented A.A., not only at the St. Catherine’s criminal proceedings, but also at the initial immigration admissibility hearing held on April 22, 2014, which gave rise to the issuance of the Removal Order against A.A.. A.A. did not have an interpreter at that hearing and indicated no need for such assistance. However, an interpreter was present for the St. Catherine’s criminal matter. The remand record that was attached to the IRBC documentation shows at least two appearance dates where an interpreter was present or requested.
[28] Finally, the Crown played a portion of the videotape statement given by A.A. at the time of his arrest on these charges. I was shown that footage in order to permit me to assess the interaction between the accused and the police detectives from watching him speak and listen as he was giving his statement. The purpose of viewing that statement was to assist me in determining whether A.A. might not understand English, or have difficulty expressing himself in English, and therefore require the assistance of an interpreter.
[29] I note for the record that while that video statement was itself the subject of another pre-trial application relative to voluntariness that has now been abandoned, I did not initially see or hear any of the interaction between A.A. and the police officers dealing with any of the substantive issues or facts relative to these sexual assault charges. I initially heard and saw only lines 1- 475 of the transcript of that video.
[30] Later, however, both counsel impressed me that it was important to review the entire statement to assess A.A.’s ability to understand and to be understood in English. It was their original common intent that I should review the entire statement to assist my assessment of A.A.’s linguistic competence. Recognizing that I would be seeing it in its entirety in any event on the voluntariness voir dire, and in fairness to the request of the defence counsel concurred by the Crown, I did view the entire statement and read the transcript to permit me to have a full appreciation of the linguistic comprehension issue claimed by defence counsel to be present here.
[31] There is no question that A.A. speaks English with an accent, and it is a strong accent, one that is associated with his background and ethnicity, being brought up in Nigeria. But in my view it was also plain and obvious from that excerpt and the full playback of that video statement that A.A. had a full understanding of what it was that was being discussed with the police officers.
[32] Indeed, the forcefulness and manner with which he corrected some of the initial propositions that they put to him during his statement showed that he understood from the outset that their allegations implicated him in the alleged sexual assaults complained of by these two complainants. Initially, he distanced himself from those allegations pointing the finger at his co-accused, A.D.. His linguistic ability extends to spelling out the letters of A.D.’s name, using English words to ensure that the officers understood the correct spelling of that name. That evidence reflects an understanding of English and the English alphabet. It reflects A.A.’s ability to spell words in English. When he was asked who the friend was that he was telling police was implicated, he said: “[name spelling omitted]”
[33] Other examples that stuck out to my observation included him reciting his telephone number for D.C. Stone. He said “[phone number omitted],” but what struck me forcefully as I heard it was the speed with which he rattled off those numbers. He was speaking very quickly, not displaying any of the hesitation one might expect to hear from a person who did not have facility with the words in English for those numbers. As well, close to the end of the interview, when the officers asked him for consent to go and search the hotel room where he was arrested and where the sexual assaults are alleged to have occurred, the form of consent was read to him, a statement that took nineteen lines of the transcript for D.C. Stone to read to him and describe. However, he took the form from the officer, and said “No, let me read through all [crosstalk]--,” reads it to himself taking 46 seconds to do so, and then says “Okay. I have nothing to hide,” as he gives the consent to the officers. A moment later, he says, “Yeah, search it.” In addition, during the course of that interview, when asked by the officers if he understands, he refers to understanding and tells them 8-10 separate times in the early stages of that interview that he understands whatever it was that was being said to him at that moment.
[34] Defence counsel sought to characterize certain aspects of that video statement as indicative of an absence of ability on the part of A.A. to understand English, but there is no air of reality to that assertion and I find the contrary to be the more accurate characterization.
Argument
[35] Defence counsel’s position that A.A. needs an interpreter because he does “not understand or speak the language in which the proceedings are conducted,” relies upon three pieces of evidence:
(i) the presence of requests noted back at least a year’s time in the judicial pre-trial form for A.A. to have the assistance of an interpreter at this trial,
(ii) defence counsel’s own claimed insistence on having an interpreter present whenever he gave advice to or received instructions from his client, A.A., and
(iii) from the fact that an interpreter was provided to A.A. at the preliminary inquiry.
[36] Defence counsel relies upon portions of Tran and Rybak, Trotter J.'s decision in R. v. Gnamuththu, [2012] O.J. No. 1028 and Hainey J.’s decision in R. v. Baquiano, [2013] O.J. No. 1463. In the former case, Trotter J. was sitting as a summary convictions appeal judge where the Crown challenged Horkins J. of the Ontario Court’s exercise of discretion relative to the competence of a court interpreter. The subtext, however, bore similarities to this case. A year before the trial date, as in this case, the accused had requested a Tamil interpreter. However, on the morning of the trial the Crown advised that an interpreter who had been conditionally accredited by the province was present, but could not stay for the entire proceedings. It soon became plain that there was no accredited Tamil interpreter available for the duration of the trial.
[37] Crown counsel also challenged whether the accused there was really in need of an interpreter, given his alleged proficiency in English, and based on the Crown’s discussion with the officers involved in the case who expressed their view that the accused did not require an interpreter to understand English.
[38] Justice Trotter rejected outright the Crown’s challenge to the accused’s need for an interpreter in the first place, on the simple basis that the trial judge, Horkins J., “was entitled to accept the representations of the accused counsel, Mr. Connelly, that an interpreter was required.” In that case, as in this case, Mr. Connelly had told the trial judge that he would not receive instructions from the accused on any important issue without the assistance of an interpreter. Justice Trotter concluded as well that the trial judge’s conclusion that an interpreter was required was amply supported on the record before him, and he relied on R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 (Ont. C.A.). (My emphasis.)
[39] In R. v. Baquiano, as in this case, Crown counsel played a recording of the accused’s interview with police that was conducted in English. At paragraph 11, however, Hainey J. stated as follows:
While it is apparent from her recorded interview that she speaks and understands some English, it is unclear how much she understood of what the police officers were saying to her. Further, her ability to express herself in English is clearly limited. Having listened to her police interview I have no doubt that Ms. Baquaino requires the assistance of a qualified interpreter at her criminal trial to ensure that her Charter rights under section 14 are protected. I disagree that she does not require the full assistance of a qualified Tagalog interpreter at her criminal trial because she has some limited ability to understand and to express herself in the English language. She has a fundamental right to fully participate in and to fully understand her criminal trial. In my view, this can only be accomplished by providing her with competent interpreter assistance as defined by the Supreme Court of Canada in Tran at paragraph 78 as follows:
The scope of the right to interpreter assistance guaranteed by s. 14 of the Charter may be stated in the following broad terms. The constitutionally guaranteed standard of interpretation is not one of perfection; however it is one of continuity, precision, impartiality, competency and contemporaneousness. An accused who does not understand and/or speak the language of the proceedings, be it in English or French, has a right at every point in the proceedings in which the case is being advanced to receive interpretation which meets this basic standard…
[40] And at paragraph 20, Hainey J. concluded as follows:
As Hill J. observed in Dutt, the courtroom is not a "linguistics laboratory" and since I am not fluent in Tagalog, I am unable to assess the proficiency with which Ms. R-L interpreted the proceedings on this voir dire from English into Tagalong. I have no doubt that she takes her job seriously and conducts herself professionally. However, I am unable on the evidence before me to conclude that she is qualified to provide interpretation services to Ms. Baquiano through her criminal trial so as to ensure that Ms. Baquiano’s Charter rights under s. 14 are protected. The only objective evidence I have before me are her test results and the fact that MAG has not fully accredited her to interpret at criminal trials. I am not prepared on this evidence to risk proceeding with Ms. Baquiano’s criminal trial on this serious charge under circumstances where her Charter rights could very well be violated.
[41] I have no quibble with either of those decisions, but this is an entirely different case from an evidentiary perspective.
[42] Here there is a considerable amount of other conflicting evidence that weighs in the entirely opposite direction in the calculus of whether the defendant has proven on a balance of probabilities that he requires a Yoruba interpreter to ensure that he can participate in and understand these trial proceedings against him.
[43] Neither is this a case like that in R. v. Baquiano. In that case, plainly the accused had been brought up, educated, and had lived a significant portion of her life in a country where the language of communication was Tagalog.
[44] But in Baquiano, there was no evidence comparable to that present here.
[45] These fundamental differences between the circumstances of those two cases relied upon by the defendant and this factual matrix plainly show that the evidential foundation necessary for a defendant to claim the need to be supported by a foreign language interpreter is largely absent in this case.
[46] In circumstances where an accused has the level of self-professed and objectively observable proficiency in English that A.A. has, there is no need for an interpreter to be appointed just because he may speak with an accent.
[47] I would also note that at the outset of this voir dire, and at a number of times during it, I watched for varying periods of time when the interpreter was providing no interpretive assistance to A.A.
[48] Reference can helpfully be made to the thorough and thoughtful decision of Himel J. in R. v. Olawale, above.
[49] Although the central issue in that case was the competency of the interpreter, as in this case, the accused claimed to require the assistance of an interpreter to translate the court proceedings from English into Yoruba in order to permit him to understand and participate in the proceedings.
[50] Justice Himel dismissed that claim.
[51] Let me return to the core principles.
[52] At paragraphs 109-110 of Olawale, Himel J. stated as follows:
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.
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.
[53] At paragraph 53, Tran emphasizes that while a court should approach the need for an interpreter with “a spirit of sensitivity and understanding,” the assistance of an interpreter should be denied if there is cogent and compelling evidence that it is not required.
[54] Finally, this leads to the important need here to address the issue of “good faith.”
[55] Let me speak to the Crown’s conduct first.
[56] Here, given the information that came into Crown counsel’s possession about A.A.’s self-professed ability to speak and understand English, the opposition to the application is understandable.
[57] Turning to the question of whether the request is in good faith, as noted in Tran, the request for an interpreter should be refused if it is not made in good faith or for “an oblique motive.”
[58] Certainly counsel must do more to satisfy the evidential burden that rests on him than to proffer copies of court forms and his representation that he would only take instructions from his client if an interpreter was present.
[59] I do not find that counsel for A.A. made the request for an interpreter in this case in bad faith, but it is a case that is perilously close to that line.
[60] Not only that, but defence counsel argued I should not see the IRBC documentation that is one of the strong pieces of evidence that refutes any reasonable basis for the claimed need.
[61] That actually makes the point relative to good faith.
Conclusion
[62] The application for a Yoruba interpreter is dismissed based on the preponderance of evidence advanced on this application that establishes the accused’s understanding of and ability to communicate in English. The right to an interpreter is not automatic or guaranteed just because a box on a pre-trial form is ticked, or just because a request is made. It is only an entitlement of a person who demonstrates on a balance of probabilities that s. 14 of the Charter is engaged because of their inability to understand or participate meaningfully in proceedings against them that are conducted in English. I have found not only that A.A. has failed in that attempt, but that having regard to the evidence, the application was misguided, had no air of reality, and ought reasonably to have been abandoned rather than consuming two entire court days and risking extending the time it would take to complete this trial when the window of time available was limited from the outset.
Michael G. Quigley J.
Released: December 16, 2014
COURT FILE NO.: CR-13-40000552-0000
DATE: 20141216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
A.A. and
A.D.
Defendants/Applicants
AMENDED REASONS FOR RULING
Re: Voir Dire #1: Request for Interpreter
Michael G. Quigley J.
Released: December 16, 2014