ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-30000318-0000
DATE: 20151119
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SRINIVASAN VENKATA GADAM
Defendant
Scott Rogers, for the Crown
Baqa Rashdi, for the Defendant
HEARD: November 9 & 10, 2015
RULING ON QUALIFICATIONS OF AN INTERPRETER FOR THE COMPLAINANT
B. P. O’Marra, J.
OVERVIEW
[1] Mr. Gadam stands charged with a sexual assault alleged to have occurred in 2013. The trial was to commence on November 9, 2015. The complainant is an adult woman who requires the assistance of a Telugu interpreter. Before arraignment, the crown sought a ruling as to the qualifications of a Telugu interpreter. The proposed interpreter is neither accredited nor conditionally accredited by the Ministry of the Attorney General. A voir dire was held that included testimony from the proposed interpreter and the submissions of counsel. In brief oral reasons delivered on November 10, 2015, I ruled that the proposed interpreter was not properly qualified. These are my more complete reasons.
THE EVIDENCE
[2] The proposed interpreter is Tsewang Norvu. Mr. Norvu was born in India in 1959 near Nepal. He was educated in southern India where the local languages included Telugu. The language of instruction at his schools was English as well as Hindi. Some of his fellow students spoke Telugu. He successfully completed a four year course after high school that qualified him as a pharmacist. Eighty percent of his customers spoke Telugu. He worked as a pharmacist in India until he came to Canada in 2007.
[3] Mr. Norvu is multilingual. In addition to English, he understands and speaks six other languages, being:
(i) Tibetan;
(ii) Nepali;
(iii) Hindi;
(iv) Urdu;
(v) Kannada;
(vi) Telugu.
[4] In Ontario, he has been conditionally accredited by the Ministry of the Attorney General in Tibetan and Nepali. He has not sought accreditation in Telugu since he does not read or write in that language.
[5] Mr. Norvu has provided some assistance as a Telugu interpreter in other matters as follows:
(i) two traffic cases in Provincial Offences Court as well as related work for insurance companies;
(ii) assisted a refugee claimant in processing an application. He did not provide assistance at an actual hearing to determine status;
(iii) assisted some clients related to a bail program. This did not include appearing to assist in court.
[6] Mr. Norvu has met twice with the complainant for a total of approximately ten minutes. They communicated in Telugu even though she spoke in a different dialect than his. He testified that he is “comfortable” conversing with the complainant and that he and the complainant can accurately communicate with each other.
[7] The crown advised that there are no accredited interpreters in Ontario in the Telugu language.
QUALIFICATIONS OF INTERPRETERS
[8] Accreditation is a significant factor favouring qualification where the proffered interpreter has attained the relevant standards because the testing methodology for accredited contemporaneous translation has objective standards established by independent and qualified persons. See R. v. Dutt, 2011 ONSC 3329 at para. 54.
[9] S. 14 of the Charter does not guarantee an accredited interpreter for an accused or a witness in a criminal proceeding. The constitutional assurance of a competent and qualified interpreter is not restricted to a certified or accredited interpreter. See R. v. Sidhu, 2005 () 42491 (ONSC) at para. 298.
[10] Where a proposed court interpreter is not accredited or conditionally accredited, the court should conduct a voir dire to determine whether the interpreter is competent and qualified. See R. v. Pecson, 2012 ONSC 5343, R. v. Baquiano, 2013 ONSC 1917, R. v. Dutt (supra).
[11] The court should consider whether there is some other independent and objective basis to qualify the proffered interpreter as a competent and qualified interpreter. See R. v. Pecson, para. 11.
[12] The test for qualification of an interpreter is whether the proposed interpreter is qualified to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous interpretation. The standard is high but it is not perfection. See R. v. Tran, 2 S.C.R. 951 (1994), at para. 55.
ANALYSIS
[13] The vast majority of judicial precedents related to interpreters deal with cases where the accused requires that assistance. In the case before me it is a witness, rather than the accused, who requires an interpreter. S. 14 of the Charter provides that a party or a witness to any proceeding who does not understand or speak the language in which the proceedings are conducted has the right to the assistance of an interpreter.
[14] The right of the witness/complainant to the assistance of a properly qualified interpreter directly impacts the fair trial interests of the accused.
[15] Counsel have advised that the critical issue in this case will be the credibility of the complainant. The police conducted an extensive interview of her with the assistance of a Telugu interpreter (who is not the proposed interpreter at trial). Counsel for the accused advises that there are significant concerns about the quality of interpretation at the police interview. It can be reasonably anticipated that cross-examination of the complainant at trial will include reference to her video statement to the police. It is essential that a properly qualified interpreter be involved at trial for the following purposes:
(1) to allow the complainant the opportunity to fully and accurately describe what happened;
(2) to allow counsel for the defence to fully and fairly challenge that evidence; and
(3) to provide an accurate basis for the court to assess the credibility of the complainant.
[16] Counsel for the crown submitted that the court should have less concern for the qualifications of the proposed interpreter since it is related to a witness rather than the accused. I disagree. The assistance of a properly qualified interpreter for the complainant in this case is essential to ensure the right of the accused to make full answer and defence. It is also essential to permit the court to make a proper and just assessment of the merits of the case.
CONCLUSION
[17] The proposed Telugu interpreter in this case is multilingual and well intentioned. I am satisfied that he is likely fluent in both English and Telugu. However, that does not qualify him, without much more, to provide the quality of interpretation mandated by the Charter. As Justice Hill observed in Dutt, the courtroom is not a “linguistics laboratory”. The proposed interpreter is not accredited and I have no objective basis to find that he is qualified to provide interpreter assistance in Telugu. Someday he may well be so qualified. On the evidence before me, I am unable to conclude that he is qualified to provide interpretation services for the complainant.
B. P. O’Marra, J.
Released: November 19, 2015
COURT FILE NO.: CR-15-30000318-0000
DATE: 20151119
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SRINIVASAN VENKATA GADAM
Defendant
RULING ON qUALIFICATIONS OF AN INTERPRETER FOR THE COMPLAINANT
B. P. O’Marra, J.
Released: November 19, 2015