DATE: 20160413 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Soula Olver, for the Crown
- and -
SRINIVASAN VENKATA GADAM Baqa Rashdi, for the Defendant
Ruling #2 The Qualifications of the Interpreter
Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.
A. Introduction
In November 2013, A.D. complained to the TPS about an alleged series of sexual assaults on her by Srinivasam Venkata Gadam between April 2013 and August 2013. As a result of the investigation of the complaint by Detective Constable Sawyer, Gadam was arrested in December 2013. Kelly J. ordered the defendant to stand trial on a charge of sexual assault after a preliminary hearing in June 2015. The trial by judge alone in this court began on April 11, 2016.
The complainant and the defendant are from India. Both of them are fluent in Telugu, one of the many languages spoken there. The defendant is fluent in English, but the complainant is not. Her videorecorded interview by the TPS was conducted with the assistance of an interpreter; the accuracy of that translation is seriously contested by the defence, I am told, in several material respects. She testified at the preliminary hearing with the assistance of a second interpreter, whose qualifications were proven to the satisfaction of Kelly J. The trial was originally scheduled in November 2015. A third interpreter was brought forward by the Crown. However, B. O'Marra J. ruled that he was not qualified. As no other qualified interpreter of Telugu was available to the court, the trial was adjourned to permit suitable arrangements for such an interpreter. The trial was rescheduled for April 11, 2016.
This a voir dire to determine whether or not Arum Narayan is qualified in the Telugu language and the English language to act as an interpreter for the complainant in this trial. He was the interpreter at the preliminary hearing.
The application is dismissed. Having considered the evidence on the voir dire and the applicable legal framework, I am not satisfied on a balance of probabilities that he is qualified to act as such an interpreter in the circumstances of this case.
B. The Circumstances of the Case
B.1 Introduction
Let me begin with a summary of the circumstances of the case, including the circumstances of the alleged sexual assault and the evidence of Arum Narayan on the voir dire concerning his qualifications to act as an interpreter from the Telugu language to the English language.
B.2 The Circumstances of the Alleged Sexual Assault
The complainant is the principal witness for the Crown on the charge of sexual assault. The assessment of her credibility and the reliability of her testimony, in the context of the evidence as a whole, including any testimony of the defendant under R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (SCC) will lead to the verdict in this trial. The defence is consent.
It is alleged by the Crown that the complainant and the defendant met at a social event in Toronto in late 2012. Both of them are married. The event was attended by several people from southern India. The complainant and her husband, K.R.K., subsequently learned the defendant was employed as a software engineer with a telecommunications company, and was assisting people who wanted employment in that area. The complainant's education was related to that area. She wanted to be employed in this field. For that reason, she agreed to go to the defendant's condominium for training. She went for such training two times per week. Originally, the defendant's wife was present during the sessions but by April 2013 she had obtained employment elsewhere. In April 2013 the defendant sexually assaulted the complainant violently. He threw her onto the bed, pulled her hair, forcibly removed her pants and attempted to penetrate her vagina with his penis. She felt some ejaculate on her legs. She did not open her legs. The defendant said he loved her. He also threatened her and her family with harm if she disclosed this incident to anyone, and said he would deny the incident and otherwise bring shame to her if she made such disclosure. The complainant feared for her family and marriage. Initially, she did not return to any more training sessions but, eventually, she did return, apparently after the defendant spoke to her husband about those sessions. The complainant had not disclosed the alleged offence to her husband. In those subsequent sessions, she regularly consented to sexual intercourse because of his earlier threats. Such intercourse continued into August 2013, with the exception of July 2013 when she returned to India for a visit. Ultimately, she disclosed these incidents to her husband. They went to the TPS in November 2013. The defendant was arrested in December 2013 and charged in January 2014. He was committed for trial in June 2015.
That is the alleged factual matrix of the case. As I said, it is denied by the defence.
B.3 The Evidence on the Voir Dire
Arum Narayan testified on the voir dire. He was born in India in 1939. His elementary and high school education, over a period of about 7 years, was in Telugu. He subsequently attended a college or university where he had some sessions in Telugu; those sessions were about 4 hours per week. Although India is a country where about 14 languages are spoken, Mr. Narayan spoke principally in Telugu for about 20 years. He is fluent in English, Malayalam, Tamil and Hindi. He came to Canada in 1992. Since then, he has spoken Telugu with some friends, occasionally, maybe one or two times per week in various social contexts. He has not had any formal training in Telugu since he left school/college/university in India. He has not been involved in any continuing education pertaining to Telugu or, I infer, any other language. Although he returned to India on several occasions, he did not improve his fluency in Telugu while there, formally or otherwise. He has not watched any television programs in Telugu. Nor has he accessed any websites that use, or train people in, Telugu. He cannot read Telugu. He cannot write in Telugu. Aside from the preliminary hearing in this case, his qualifications to act as a Telugu interpreter have never been challenged or otherwise formally ruled upon by a court. Kelly J. ruled in the Crown's favor at the preliminary hearing, but a transcript of the evidence called on that voir dire and the reasons of Kelly J. have not been provided to me. There were no problems at the preliminary hearing. He has acted as such an interpreter in some other proceedings. Those proceedings included a trial in the SCJ in Brampton on a charge of child abuse, where he assisted the defendant for about 7 days, and several pleas of guilty, about four of them, in the OCJ in Scarborough and at College Park. Each of them lasted for about 1 to 1½ hours. He was also used during a civil trial in the SCJ in Toronto, for about 2 hours. As I said, his qualifications were not challenged or formally ruled upon by any of those courts. At the end of the preliminary hearing, Kelly J. complemented Mr. Narayan for the work he did throughout the proceeding. He has not been accredited by the Ministry of the Attorney General for Ontario or any other organization. He is not a friend of, or otherwise associated with, the complainant or the defendant. When asked by me, he described his responsibility as an interpreter to faithfully translate the witness' evidence, verbatim. The evidence on the voir dire is no more precise than these findings of fact in my view.
B.4 Conclusion
These, then, are the circumstances of the case.
C. The Legal Framework of the Application
Let me next summarize the legal framework of the application.
Section 14 of the Charter provides a right to the assistance of an interpreter to 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. It is to be interpreted and applied with regard for the defendant's right to a fair trial under s. 11(d) and the need to preserve and enhance the multicultural heritage of Canadians under s. 27. The right to a fair trial includes a right to a precise interpretation of the complainant's testimony so that the case the defendant is to meet is clear, thereby facilitating, in consultation with counsel, the nature of the defence and its presentation to the court. A witness who is not fluent in French or English is, through s. 14, provided with real access to the administration of justice, thereby giving practical effect to the multicultural and multilingual character of Canada. The inter-relationship of s. 11(d), s. 14 and s. 27 is important to the determination of this application. The result must be compatible with the access of the complainant to justice, the fairness of the defendant's trial, the potency of the adversarial system, the integrity of the administration of justice and the appearances of justice. The decision of the court on this and other like applications has significant consequences for the complainant, whose sense of worth and status in the community is at risk, the defendant, who is liable to a period of incarceration of 10 years if he is convicted, and everyone else who is affected by or interested in this case.
What is the guaranteed standard of interpretation? It is high, but it does not require a perfect performance by the interpreter. In R. v. Tran (1995), 92 C.C.C. (3d) 218 (SCC) at para. 57 the Court described the standard as follows:
While the standard of interpretation under s. 14 will be high, it should not be one of perfection. In my view, 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, impartiality, competency and contemporaneousness. I shall consider each one in turn.
It is the obligation of the court to apply that test to the circumstances of this case, in its letter and spirit. The evidence called on a voir dire must address each component of the test, having regard for the circumstances of case.
Pursuant to that test, continuity is necessary. Breaks in interpretation and/or summarizes of the proceedings are not acceptable. They are not to be allowed at any stage of the proceedings, whether it be the trial for a defendant who requires interpretative assistance throughout the trial or the testimony of a witness during the trial.
The interpretation must be precise. A verbatim interpretation is required except where the literal interpretation in English or French would distort the evidence of the witness. The interpretation must be accurate. It must be complete. It must not be an approximation, or a summary. The interpretation must be as good as, not better or worse, than the witness' language. The interpreted testimony must not be sanitized, to meet the interpreter's preference relating to the idea expressed by the witness or to correct the witness' grammatical or linguistic errors. Yet, we must appreciate that interpretation is a human endeavour of real complexity that is performed in the crucible of the trial with all of its time and other pressures. The tone, tenor and nuances of the testimony, emotional or otherwise, should be captured by the interpreter, if it is feasible. How the testimony is given is as important as, or more important than, what is said. The work of the interpreter is the evidentiary foundation of the trial, the case to meet, the basis for the formulation and presentation of the defence and the determination of the verdict by the court. Cross-linguistic and cross-cultural equivalence is the goal of the interpreter, who is an officer of the court and effectively an expert witness.
Impartiality is an aspect of the role of the interpreter of critical significance to the administration of justice, its integrity, its appearances and the public confidence in it. This is so because of the constitutional underpinnings of the standard to be met, s. 11(d), s. 14 and s. 27 of the Charter. Qualified interpreters must be objective and independent from the case and all of its participants, in fact and by way of appearances, in cases like this one. Sometimes the community of people who are fluent in the language to be interpreted is small and closely knit so that the affected witness or defendant and the interpreter may know of one another, directly or indirectly. The shortage of accredited interpreters is not a factor to be considered in the court's determination of the sufficiency of the proferred interpreter's qualifications. Less is not sufficient because what is required is not available through the accreditation of the Ministry of the Attorney General. It is the obligation of the Crown to meet the standard of s. 14 of the Charter. That standard should not be lowered through a casual and unprincipled application of the standard to any case. To do so would be to inject into the trial a degree of unreliability and unfairness that may not be apparent to the witness, the defendant, the counsel or the court. Miscarriages of justice could result from an unqualified interpreter. The risks of such miscarriages must be reduced to an insignificant possibility.
The requirement of competence is not to be equated with perfection. Competence is difficult to define. It may be difficult to prove by way of evidence that can be objectively assessed by the court. The obligation of the court cannot, in effect, be delegated to the proferred interpreter who in good faith describes his qualifications in terms he believes are accurate and sufficient. It is not for the court to conduct a detailed inquiry into the qualifications of the interpreter. See R. v. Petrovic (1984), 13 C.C.C. (3d) 416 (Ont. C.A.) at 423. The integral parts of the qualifications, whether they be formal training, experience or accreditation, should be thoroughly canvassed by counsel and reviewed by the court, in accordance with the test in Tran. This is not a matter of form. It is a matter of substance that lies at the foundation of the trial, as we know and value it in Canada. Bilingualism is not enough. The complexity of interpretation, as I described it above, includes sound judgement by the interpreter, given all of the problems arising from dialects, cultural factors and the pace of the court's procedures.
Lastly, the requirement of contemporaneity is also important. "Contemporaneity" embraces consecutive interpretation and simultaneous interpretation. The capability of the proferred interpreter to meet this requirement should be expressly addressed on the voir dire.
This text was elaborated upon by SCC in Tran, as well as the jurisprudential and academic authorities referred to in the judgement of the court delivered by Lamer C.J.C. By way of summary to its observations about the guaranteed standard, the Court said at para. 68:
In sum, the purpose of furthering understanding of the proceedings which underpins the right to interpreter assistance is most likely to be fulfilled if the standard for interpretation under s. 14 of the Charter is defined as one of continuity, precision, impartiality, competency and contemporaneousness. Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right -- namely, that of linguistic understanding -- should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.
See also Re Roy et. al. and Hackett et. al (1987), 62 O.R. (2d) 365 (C.A.) at 373-376, R. v. Beaulac (1999), 134 C.C.C. (3d) 481 (SCC) and U.S. v. Negron, 434 F. 2 d. 386 at 390.
D. The Legal Analysis of the Case
Looking at the case as a whole, I am not satisfied on a balance of probabilities that Arum Narayan is qualified to act as an interpreter of the testimony of the complainant in Telugu to English. The evidence on the voir dire is too vague. That vagueness plus the absence of other pertinent evidence have led me to this conclusion.
Although Narayan was educated in elementary school and high school in Telugu, and although that education was complemented by some further formal education in Telugu in India at the college/university level, there is no evidence about the substance of such training. The witness could have given some description of the curricula to provide the court with some basis to determine the value of that formal training today. I am not prepared to assume the educational system in India approximates the system here, or is superior, or inferior, to it. It must be appreciated that he came to Canada in 1992 and since then has only spoken Telugu with some friends, occasionally, in a social context, likely on a weekly basis. He cannot read Telugu. He cannot write Telugu. He has not participated in any pertinent continuing education relating to the language or the role of the interpreter in the administration of criminal justice. His return visits to India, however frequent they may have been, did not in his opinion augment his fluency in Telugu. He is, at most, bilingual, in English and Telugu, and likely multilingual. That is not enough. Whether his ability is no more than what is sufficient for a casual conversation as opposed to what is sufficient under s. 14 of the Charter has not been proven to my satisfaction. His experience in the administration of criminal justice, as described earlier in these reasons, was referred to summarily. It was not elaborated upon by counsel in this voir dire. Aside from the preliminary hearing in this case, his qualifications have never been proven to the satisfaction of a judge. Everyone assumed he was qualified to interpret in those proceedings, perhaps correctly, perhaps incorrectly. The reasons by Kelly J. at the preliminary hearing have not been given to me -- the evidence before him may have been more complete than the evidence on this voir dire. The transcript of that evidence also is not part of the voir dire. Counsel did not address the issue of impartiality -- I did. Counsel did not address his understanding of the role of the interpreter, as an officer of the court, akin to that of an expert -- I did. See White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23 at para. 10 where Cromwell J. said:
In my view, expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out.
Nor did counsel expressly address his capability to interpret consecutively or simultaneously, or his understanding of the values lying at the foundation of s. 14 and the related sections of the Charter. A proper evidentiary foundation for a successful voir dire will expressly and thoroughly address each component of the Tran test -- continuity, precision, impartiality, competency and contemporaneousness, as I have summarized them earlier. That was not done in this voir dire to my satisfaction.
All of that said, I would be remiss if did not compliment Arum Narayan for what he is, for what he has done in the administration of justice in Ontario and for his willingness to participate in it. Whether he is bilingual or not, he appears to have the ability to improve to the point of sufficiency under s. 14 of the Charter. My ruling is based upon the evidence in this voir dire. Otherwise, it is not to be regarded as a negative comment by me on him at all.
E. Conclusion
In conclusion, having considered the evidence on the voir dire, the applicable legal framework and the importance of the interpretation of the complainant's testimony to the fairness of the defendant's trial, the assessment of the complainant's credibility, the reliability of the fact-finding processes of the trial and the determination of the verdict under W.(D.), I am not satisfied on a balance of probabilities that Arum Narayan is qualified to be an interpreter for the complainant in the circumstances of this case.
The application is dismissed.
April 13, 2016 Trafford J.