COURT FILE NO.: CR-15-30000039-0000
DATE: 20151117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ZOHAIB HAFEEZ
Applicant
Jonathan Smith, for the Crown
Dumoluhle Siziba, for the Applicant
HEARD: October 29, 2015
RULING ON AN APPLICATION FOR AN INTERPRETER AT TRIAL
B. P. O’Marra, J.
overview
[1] The applicant faces three counts of robbery with a firearm and three counts of forcible confinement. He speaks and understands English but claims he is more fluent in Urdu. He seeks an order that an Urdu interpreter be provided for him at trial. The crown opposes the application.
[2] The Supreme Court of Canada dealt with the right to an interpreter in R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951. The Charter confers upon all accused irrespective of the gravity of the offence charged and its classification a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court. See Tran at para. 9.
[3] In determining the scope of the right to interpreter assistance under s. 14 of the Charter, care must be taken in defining what constitutes an appropriate standard of interpretation, what the consideration should be in deciding whether a particular departure from this standard is constitutionally permissible, where the burden of persuasion (and, therefore, the risk of non-persuasion) lies, whether the right can be waived, and what the remedy for a violation of the right should be. The following principles were set out in Tran at paras. 41-55:
(i) It must be clear that the accused was actually in need of interpreter assistance i.e., that he or she did not understand or speak the language being used in court. Although the ultimate burden of proof in establishing the required level of need rests on the party asserting that he or she has suffered a violation of his or her s.14 rights, it is important to appreciate that the right to interpreter assistance is not one which must necessarily have been invoked or asserted in order to be enjoyed. Unless the issue of interpretation is only being raised for the first time on appeal and/or there is some question as to whether the right is being asserted in bad faith, establishing “need” will not normally be an onerous step.
(ii) The claimant of the right must show, assuming that it is not a case of a complete denial of an interpreter but one involving some alleged deficiency in the interpretation actually provided, that there has been a departure from the basic, constitutionally guaranteed standard of interpretation. That standard is one of continuity, precision, impartiality, competency and contemporaneousness.
(iii) The onus with respect to these steps for establishing a breach of s.14 of the Charter falls on the party asserting the violation and the standard of proof is one of balance of probabilities.
(iv) The claimant of the right must demonstrate that he or she satisfies the conditions precedent to entitlement to the right. S. 14 of the Charter states clearly that, to benefit from the right, an accused must “not understand or speak the language in which the proceedings are conducted”.
(v) While the right to interpreter assistance is not an automatic or absolute one, it stands to reason, particularly with the elevation of the right to the level of a constitutional norm, that courts should be generous and open minded when assessing an accused’s need for an interpreter. 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 or 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.
(vi) There is no absolute requirement on an accused that the right be formally asserted or invoked as a pre-condition to enjoying it.
(vii) It should be borne in mind by defence counsel that the safer course will always be to request an interpreter when one is required, rather than to rely on a court to appoint one entirely on its own motion. Indeed, as officers of the court, there is an obligation on both crown and the defence counsel to draw a court’s attention to the need of an interpreter where counsel became aware that such a need exists. (emphasis added) While courts must be alert to signs which suggest that an accused has language difficulties, they are not nor can they be expected to be mind readers. Where there are no outward indications which point to a lack of understanding on the accused’s part and where the right has not been invoked by the accused or by counsel (in the case of represented accused) (emphasis added) these may be factors which are weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is suddenly raised for the first time on appeal.
(viii) Courts must approach the question of the need for an interpreter with a spirit of sensitivity and understanding, particularly now that the right to interpreter assistance has been entrenched in our constitution.
(ix) Once claimed, the s.14 Charter right to interpreter assistance should not be denied unless there is “cogent and compelling evidence” that an accused’s request for an interpreter is not made in good faith, but rather for an oblique motive. Courts must not be too quick to draw adverse inferences where the claimant of the right has some facility with the language being used in the court. ‘
(x) While the standard of interpretation under s.14 will be high, it should not be one of perfection. It can be defined by reference to a number of criteria aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings. These criteria include, and are not necessarily limited to, continuity, precision, partiality, competency and contemporaneousness.
[4] It is defence counsel who is most likely to have the greatest contact with the accused, and who is thus the person that is in a preferred position to offer assistance on the issue of the nature and extent of the accused’s need of interpreter assistance. (emphasis added) What is required to restore a language-deficient accused to the standard set by s. 14 of the Charter is variable, not fixed. Many persons charged with crimes whose first language is not the language of trial do not require continuous interpretation of every syllable uttered during proceedings that affect their vital interests. Some require more than others. See R. v. Ryback, 2008 ONCA 354 at paras. 75, 78 and 92.
[5] In R. v. Ajiboye, 2014 ONSC 7280, Justice Quigley dismissed a similar application to the case at bar for an interpreter by the accused. A significant basis for that decision was the video record of the police interview of the accused. At para. 31, Justice Quigley found that:
“it was also plain and obvious from the excerpt and the full play back of that video statement that Mr. Ajiboye had a full understanding of what it was that was being discussed with the police officers.”
That ruling continued at paras. 45 and 46 as follows:
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. He may have an accent. Many people who face criminal trials before our courts may fully understand English as a language, and be fully able to speak it, albeit with an accent that reflects their country or ethnicity of origin. Like Mr. Ajiboye before me, they may not have a perfect understanding of all words used, and they may not be able to express themselves with high technical proficiency, but his perfect understanding of all words used is not guaranteed, and he is not entitled to a perfect trial, but rather a fair one.
46 In circumstances where an accused has the level of self-professed and objectively observable proficiency in English that Mr. Ajiboye has, there is no need for an interpreter to be appointed just because he may speak with an accent that calls on the listener to concentrate to hear what is being said. We all do that every day in this multicultural society that we have built in this nation. The constitutional right to an interpreter only arises where the applicant demonstrates a real need, a need founded in an absence of comprehension.
In R. v. Olawale, 2013 ONSC 4399, Justice Himel dismissed an application by the accused for appointment of an interpreter. She found that the accused had not satisfied the burden of proof that lay upon him to establish that he did not understand English sufficiently well to follow the proceedings.
THE EVIDENCE
[6] The applicant chose to testify on the application. A preliminary concern was raised by the crown as to whether the applicant should be permitted to testify with the assistance of an Urdu interpreter since that was the very issue to be decided. After submissions from both counsel, I ruled that the interpreter would be involved on the understanding that this obviously did not establish that in fact an interpreter was required at trial. It was interesting to note that the applicant responded to some questions in chief and in cross-examination in English before the question had been relayed to him by the interpreter in Urdu. The responses or comments by the applicant in English appeared to be without a trace of an accent.
[7] The applicant is now 26 years old. He was born in Pakistan. He and his family moved to the United States when he was 3 or 4 years old. The family moved to Canada in 2003. He has attended schools where English was the language of instruction at the elementary and high school level. He also attended one year of college where he learned a trade in auto body work. The language of instruction was English. The applicant claimed that his academic marks in English were poor. He does not read or write English very well.
[8] The applicant is married. The language used within his family and close friends has been Urdu. He has worked for some 2 years as a labourer. His current position is as a crew leader. That involves training and directing other workers. Communication on the job is in English.
[9] The police conducted a post-arrest interview with the applicant that lasted approximately 51 minutes. The video record of this interview was filed in response to the application. It is clear that the applicant comprehended English very well and replied to the questions and issues raised by the police in English. He spoke without any apparent accent.
[10] The applicant has been represented by Mr. Siziba from the bail hearing through the two-day preliminary hearing and on to the Superior Court of Justice. There was no request by or on behalf of the applicant for an interpreter at the bail hearing or preliminary hearing stages. If there had been a request for an interpreter at the outset of proceedings in the Ontario Court of Justice, there may well have been no issue. Counsel who has represented the applicant from the early bail stage was in the best position to assess whether an interpreter was required. The failure of counsel to request an interpreter may not be a waiver of s.14 rights, but it is a significant factor on such an application at this stage.
CONCLUSION
[11] From a very young age and for some 22 years, the applicant has attended school and worked in the United States and Canada where the predominant language is English. There were no concerns raised by him or on his behalf as to language comprehension at his bail hearing or at the two-day preliminary hearing. After his arrest on very serious charges, he engaged in an extended interview with police in English. The exchanges as recorded on video were fast-paced and at times relatively complex. His answers and comments to the police were clearly responsive and are easily understood. The applicant claims there were unrecorded portions of the police interview that reflect his need for an interpreter. The best and objective evidence I have is what is on the video.
[12] I am not satisfied that the applicant requires an interpreter to understand and speak English in the course of his upcoming trial.
RESULT
[13] The application is dismissed.
B. P. O’Marra, J.
Released: November 17, 2015
COURT FILE NO.: CR-15-30000039-0000
DATE: 20151117
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
ZOHAIB HAFEEZ
Applicant
RULING ON AN APPLICATION FOR AN INTERPRETER AT TRIAL
B. P. O’Marra, J.
Released: November 17, 2015