Court File and Parties

COURT FILE NO.: 14-00002183 DATE: 20160909 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – K.M. Defendant

Counsel: Ms. J. Lee, for the Crown Ms. Fernandes, for the Defendant

HEARD: August 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 22, 2016

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

Reasons for Decision

EDWARDS J. :

Overview

[1] K.M. is charged with Sexual Assault contrary to s. 271.1 of the Criminal Code, Sexual Interference contrary to s. 151 of the Criminal Code and Invitation to Sexual Touching contrary to s. 152 of the Criminal Code.

[2] K.M. is alleged to have committed these acts between February 1, 2011 and December 31, 2011 against S.L.

[3] On August 2, 2016, K.M.’s trial began with the assistance of a Cantonese interpreter. On August 9, 2016, after Court was adjourned for the day, K.M. advised his counsel that he was experiencing problems following the proceedings in Court when one interpreter, Mr. To, was interpreting for him. Mr. To had interpreted for K.M. on August 8, 2016 and August 9, 2016, along with another interpreter Mr. San.

[4] Counsel for K.M. brought this matter to the Court’s attention when Court resumed the next day, on August 10, 2016. K.M. asserts his Section 7, 11(d), 14 and 15 rights under the Canadian Charter of Rights and Freedoms (“Charter”). He also argues his Section 650(1) and 650(3) rights under the Criminal Code of Canada (“Code”) have been violated. K.M. seeks a mistrial, as he did not have the benefit of hearing the evidence on August 8 and 9, 2016, when Mr. To was supposed to be providing K.M. the assistance of simultaneous translation.

[5] If in fact Mr. To was not providing simultaneous translation for K.M., there would have been a clear violation of his Section 14 Charter rights as well as his Section 650 rights under the Criminal Code, to be present throughout the trial. To be present throughout the trial means to be able to understand and participate in the proceedings as they unfold.

The Evidence on the Voir Dire

[6] K.M. speaks Cantonese and was born in Viet Nam. He has had an interpreter providing simultaneous translation for him since the commencement of the trial. He also had an interpreter during the course of the preliminary inquiry, and apparently also had the assistance of an interpreter whenever there were other proceedings before the Court related to this matter.

[7] In addition to having an interpreter providing simultaneous translation for K.M., another interpreter was available to assist the complainant, who was born in Hong Kong and whose mother-tongue is Cantonese, but who also speaks excellent English. During the course of her evidence, there were occasions when she needed the assistance of an interpreter who provided that assistance. Two interpreters were sworn as Cantonese interpreters; Mr. To and Mr. San. They alternated, providing either simultaneous translation for K.M. or translation for the complainant. It is, on all accounts, a very demanding task for an interpreter to be providing simultaneous translation, hence the need for two interpreters.

[8] With the extent of K.M.’s knowledge of English, one might question why it took him two days to bring to the Court’s attention, through his counsel, his concern that Mr. To was not properly performing his function as a simultaneous translator. K.M. testified that in his culture one does not want to embarrass another person, such as Mr. To, in such a way as to cost him his job. He further testified that if he had interrupted the trial by raising his concerns about Mr. To, it would have been “very impolite” in his culture to do so. K.M. acknowledged if he had in fact immediately interrupted and brought to the Court’s attention his concerns that the Court would not have had to embark on the voir dire and the extensive delay that ensued. K.M. stated that eventually he felt that he did have to say something as, in essence, it was his suggestion that he had missed two days of evidence.

[9] K.M stated that Mr. To was “quite vague in what he was interpreting” and that K.M. could not hear him. When questioned as to what he meant by Mr. To being vague, K.M. stated that there were words that Mr. To did not say clearly. He also stated there were occasions when the lawyers were speaking and Mr. To was not translating. It was K.M.’s evidence that he was able to understand some of the English that the lawyers were using, and that when the translation was occurring Mr. To was not translating at all. K.M. further indicated that there were occasions when the judge was speaking to counsel, that he understood some of the words but that none of them were being interpreted by Mr. To.

[10] When questioned about the evidence of the complainant, K.M. could not remember whether there were occasions when he could understand some of the English but none of it was being interpreted by Mr. To.

[11] In terms of a specific example of something in English that K.M. stated that he could understand he referred to a number, such as the number 13, that might have been used during the course of discussions by the lawyers. K.M. stated that he understood the English word for 13, but that Mr. To interpreted it as 15. This was an example that K.M. gave of an inaccurate interpretation by Mr. To.

[12] When questioned about his concern about the quality of the interpretation services provided by Mr. To, K.M. stated that this case “was of vital importance to my life” and that if the interpreter did not “deliver what I need to understand, then the rest of my life will be affected”.

[13] K.M. further testified that he “needed to understand what everyone was saying”, and that “this is only fair because this case is primarily about me and I need to know everything”.

[14] K.M. completed his evidence in-chief stating that he did not feel that the interpretation services provided to him by Mr. To were concise, and that he needed to know more about the content of the evidence.

[15] During the course of his evidence in-chief and in cross-examination K.M. commented on the interpretation services provided by Mr. San, and made it quite clear that he had no issues with respect to whether or not Mr. San was providing simultaneous translation of what was occurring in the Court. K.M.’s only issues were with respect to Mr. To.

[16] In cross-examination K.M. was confronted with the extent of his English, as demonstrated in the interaction with the investigating police officer at the York Regional Police station at the time when he was arrested. During the course of that interview, a police officer who spoke Cantonese was available to assist K.M. For the most part, K.M. demonstrated an ability to understand and respond to the questions posed to him by the investigating police officer. There were occasions, however, where it appears he required the assistance of the Cantonese police officer.

[17] Mr. To testified during the voir dire with respect to the translation that he was performing for K.M. Mr. To was born in China and immigrated to Canada in 1990. He has an MBA and has been accredited as an interpreter in Cantonese since 2011. Mr. To has been providing interpretation services under the old system of accreditation since 2001.

[18] Mr. To explained the difference between providing translation for the Court of evidence provided by a witness and providing interpretation services for an accused like K.M. In terms of providing translation to an accused as the trial unfolds, Mr. To stated that this is what is known as simultaneous mode. If a witness is testifying in Cantonese and he is translating for the Court, this is known as consecutive translation. Consecutive translation is required to be 100 percent accurate. Simultaneous translation, on the other hand, allows an interpreter to use phrases where necessary. In essence, simultaneous translation is not, nor is it expected to be, a 100 percent perfect translation of what is occurring in Court.

[19] In cross-examination, Mr. To was somewhat defensive with respect to the allegations brought against him by K.M. He stated that K.M. should have brought to his attention any concerns that he had at the time when these concerns were materializing. Mr. To stated that at no time did K.M. raise any concerns with him, either with respect to his Cantonese or with respect to how he was interpreting.

[20] Mr. To was cross-examined with respect to the recording of what was occurring between him and K.M. and, in essence, it was put to him that where there were pauses or nothing was heard on the court recording it should be inferred that Mr. To was not interpreting. In response to that line of enquiry, Mr. To made it quite clear that because simultaneous translation was done in a very soft voice, it would not be fair to assume that just because the court recording could not hear anything occurring that he was not translating what was occurring. Mr. To, in my view, quite correctly pointed out that the simultaneous interpretation between an accused and an interpreter was never intended to be recorded.

[21] Defence counsel obtained a copy of the court recording of the microphone that picked up Mr. To’s voice. The recordings were marked as Exhibit B and Exhibit C. I will refer to Exhibits B and C as “The recordings”. The defence had the recordings analysed by a Mary Lim, who is a fully accredited Cantonese interpreter with the Ministry of the Attorney General. She testified in-chief that she was asked to translate what she heard from Cantonese to English. Filed as part of her evidence on the voir dire were Exhibits E and F, which essentially were Ms. Lim’s analysis of the recordings. Ms. Lim confirmed that she had never been asked to review the work of another interpreter, and that she was not aware of the Ministry of the Attorney General’s policy concerning the review of another interpreter. The Court had previously received information from the Ministry of the Attorney General by way of an email, Exhibit A on the voir dire, that the quality of the recording was not sufficient for the Ministry to perform any analysis about the quality of Mr. To’s translation.

[22] During the course of Ms. Lim’s evidence it became apparent that the review that she performed was done - at least in part, with the assistance of K.M.’s brother. It was apparent to me from her evidence that the assistance that she did receive may have impacted on the quality and objectivity of the work that she was asked to perform. She readily acknowledged that there were occasions when she was listening to the recording of August 9, 2016 that “I got lost”.

[23] Ms. Lim confirmed that her ability to provide assistance to the Court was entirely dependent on what she was able to hear on the recordings. She acknowledged that it was possible that when there was - what she described as something inaudible or no interpretation, that in fact Mr. To was interpreting and it was not being picked up on the recordings.

[24] Ms. Lim was entirely candid in cross-examination in acknowledging that she could not say that Mr. To was or was not properly interpreting. She further acknowledged that because of the low quality of the recordings, that it would not be fair to comment on the quality or lack thereof of another interpreter’s work.

[25] Ms. Lim confirmed in cross-examination that where she said in Exhibits E and F that there was no interpretation, the Court could really not know if in fact there was no interpretation – again because of the quality of the recordings. She further confirmed that the Court could not safely rely on Exhibits E and F when she was saying that there was no interpretation.

Defence Position Regarding Mistrial Motion

[26] The written argument of defence counsel followed the analysis mandated by the Supreme Court in R. v. Tran, [1994] 2 S.C.R. 951, to determine whether K.M.’s rights under Section 14 of the Charter had been violated. The first part of the analysis dealt with whether K.M required the services of an interpreter. The focus of defence counsel’s written submissions then moved to whether Mr. To met the standards mandated by Tran.

[27] Defence counsel noted in her written argument that K.M. has used an interpreter at every juncture of the various Court proceedings he has been involved in since his arrest.

[28] Counsel for K.M., in her written argument, appears to have done her own analysis of the recordings and suggests that while the complainant was being cross examined, Mr. To failed to provide any interpretation for the complainant’s answers or counsel’s questions in excess of 150 times.

[29] It is also argued by the defence that her analysis does not include all instances in Exhibits E and F where Mr. To failed to provide any interpretation for the Applicant. The 150 count referred to in paragraph 28 above, also does not include the entire portions of either August 8, 2016 or August 9, 2016 when Mr. To was acting as an interpreter for K.M., due to time constraints imposed by the Court in the hearing of the voir dire and K.M.’s lack of funds.

[30] In her written argument counsel for K.M. argues that Mr. To’s explanation for why no interpretation was provided to the Applicant, based on the evidence of Ms. Lim, is neither credible nor reliable. It is argued that Ms. Lim provided reliable and credible evidence that establishes Mr. To’s translation was not continuous, precise or contemporaneous, and fell impermissibly below the standard set out by the Supreme Court of Canada in Tran, supra.

[31] Counsel for the Applicant, in her written submissions, dealt in part with issues relating to whether the lack of translation occurred while the case was being advanced; whether there was prejudice to K.M.; and whether K.M. had waived his constitutional right to an interpreter. I do not intend to deal with these issues, because in my view if I were to find that Mr. To had not met the standard of interpretation expected of him, there would be no doubt that this occurred during the trial - and at a critical point for that matter, as the Complainant was in cross-examination.

[32] As to the issue of prejudice, that again is an easy question to answer. Failure to translate for an accused results in an accused, for all intents and purposes, being outside the court room and being unable to participate in his trial. An accused who cannot understand English and who is not provided with proper interpretation of the Court proceedings may just as well not be in attendance in the courtroom. In such a situation an accused’s constitutional right under Section 14, and his right under Section 650 of the Criminal Code to be present throughout his trial would have been violated from which prejudice can be inferred.

[33] As for the suggestion that K.M. waived his rights, the comments of the Supreme Court in Tran at para. 76 are apropos. There was no waiver in this case.

Position of the Crown

[34] The Crown argues that contrary to the position asserted by K.M., he is in fact bilingual and does not require an interpreter. As such, it is argued that he has been present for the entirety of his trial and there is no breach of Section 650 of the Criminal Code.

[35] Quite properly, Crown counsel begins her analysis by reference to the first step of the Tran inquiry, which is a determination as to whether the accused requires interpretive assistance. At the outset of the trial, the Crown did not take issue with the defence request for an interpreter. However, given this Application, the Crown asserts that a determination must now be made as to whether K.M. requires a Cantonese interpreter.

[36] The Crown argues that K.M initially testified that he could barely speak English. When examples of sentences were put to him by the Crown, K.M. could only understand certain words. The Crown notes that K.M. initially testified that his level of English did not go beyond the knowledge of certain vocabulary and simple, often-repeated phrases (such as “how are you”).

[37] He testified that without an interpreter he would not be able to understand any of the questions that counsel was asking him in the voir dire.

[38] However, when confronted with his police statement, the Crown suggests that K.M.’s evidence began to change. He testified that he could speak some simple English, and that he was able to understand parts of the questions being put to him by counsel during the voir dire.

[39] In support of the Crown position that K.M. does not need an interpreter, it was argued that K.M. demonstrated a more than adequate knowledge of the English language, as demonstrated by his ability to deal with the questioning of the police during his video interview. The Crown also points to the fact that K.M. has lived most of his life in Canada, and was educated from Grade 6 in Canada in the English language. Rhetorically, it is suggested, that it is inconceivable someone living in Canada as long as K.M. would not understand English.

[40] As for the second branch of the Tran enquiry, the Crown argues that K.M. has not met his onus of establishing on a balance of probabilities that Mr. To did not properly interpret the proceedings for K.M. In that regard reliance is placed on the evidence of Mr. To, who the Crown argues provided credible evidence at the voir dire that none of the concerns suggested to the Court by K.M. had any merit. As for the evidence of Ms. Lim, the Crown argues there are compelling reasons to place no reliance on her evidence. In that regard, the Crown properly notes that the ability to assess the adequacy of Mr. To’s interpretation and to provide a review is completely dependent on the quality of the recordings.

[41] Crown counsel suggests in her written argument that the circumstances in which Ms. Lim was asked to review the recording detract from the impartiality of the report provided to the Court. Specifically, it is noted that the report provided was not wholly authored by Ms. Lim.

[42] The August 8, 2016 report was initially reviewed by K.M.’s brother, and he directed Ms. Lim to certain portions of the recording. The brother instructed Ms. Lim to disregard portions of Mr. To’s interpretation. The brother controlled the playback of the recording.

[43] The Crown points to that part of Ms. Lim’s evidence, where Ms. Lim fairly agreed that her report could not be used as a tool to assess Mr. To’s interpretation. She agreed that a review or evaluation of an interpreter’s skill based on such a poor-quality audio would not be fair to the interpreter. Ms. Lim also agreed that the quality of the audio was poor and that as the quality of the audio decreases, so does the accuracy of any report on an interpretation.

[44] The Crown argues that Ms. Lim’s reports (Exhibits E and F) are of no value to this voir dire and the issue before this Court. This is because the audio from the recordings is of such poor quality that Ms. Lim cannot say, with any certainty, whether Mr. To was silent or whether he was in fact interpreting.

[45] The Crown points out in her written submissions that Ms. Lim could only hear words, and not the entire sentence spoken by Mr. To. It is also noted in her written argument that Ms. Lim agreed, in cross-examination, that many words in the Cantonese language require context to determine the correct interpretation. It is therefore argued, for all these reasons, that Ms. Lim’s report (Exhibits E and F) cannot be relied upon to determine the accuracy of Mr. To’s interpretation.

[46] The Crown argues that the only evidence that suggests Mr. To’s interpretation was deficient is that of K.M. It is argued by the Crown that the evidence of K.M is so contradictory and implausible that it ought to be rejected as a whole.

[47] Fundamentally, the Crown argues that the analysis performed by Ms. Lim of the recordings has no evidentiary value, as the accuracy and reliability of her analysis relies on the quality of the audio recording. It is further noted that the audio recording is of such poor quality that the official auditing office in Ontario refused to provide an audit for this proceeding (see Exhibit A).

Analysis

(a) The Right to be Present at Trial and to Make Full Answer and Defence

[48] Sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms protects the rights of every accused to be present at their trial and to make full answer and defence. Sections 650(1) and 650(3) of the Criminal Code of Canada also stipulate the statutory right of an accused to be present at trial extends to the whole of the trial, and to make full answer and defence personally or by counsel.

[49] More than the physical presence of an accused at trial is needed to give effect to these constitutionally and statutorily protected rights. As the Ontario Court of Appeal stated in R. v. Real, [1973] 3 O.R. 905:

We are of the opinion that the accused, by reason of being deprived of the assistance of the interpreter during the trial Judge's charge, was not present for that part of the proceedings within the meaning of s. 577 [now s. 650] of the Criminal Code. We are of the view that he was no more present than if he were unconscious as the result of a heart attack or a stroke, and was as effectively denied any meaningful presence as if he had been physically removed from the court-room during that part of the proceedings.

[50] Section 14 of the Charter provides that any party or witness who does not understand or speak the language in which the proceedings are conducted has the right to interpreter assistance. The importance of the right to the assistance of an interpreter finds support in Sections 15 and 27 of the Charter.

In so far as a multicultural heritage is necessarily a multilingual one, it follows that a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system.

R. v. Tran, [1994] 2 S.C.R. 951, para. 37

[51] The Supreme Court of Canada has provided a detailed framework to determine whether someone has been deprived of their Section 14 rights under the Charter. The standard of proof is on a balance of probabilities and the onus of proof rests upon the Applicant. The framework is accurately set forth in the written submissions by defence counsel as follows:

i. The Need for an Interpreter ii. The Guaranteed Standard of Interpretation I. Continuous II. Precise III. Impartial IV. Competent V. Contemporaneous iii. Whether the Departure Occurred While the Case was Being Advanced iv. Prejudice v. Waiver

R. v. Tran, [1994] 2 S.C.R. 951, supra, at paras. 41-78

[52] The first branch of the test requires the Applicant to show he was in need of interpreter assistance, i.e. that he did not understand the language in which the proceedings were conducted or speak the language. The Supreme Court of Canada in Tran exhorts Courts to be both “generous and open-minded” when assessing an accused’s need for an interpreter. In that regard the Supreme Court of Canada states:

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.

R. v. Tran, [1994] 2 S.C.R. 951, supra, at para. 48

[53] Counsel for K.M. has the onus of establishing on a balance of probabilities that K.M.; a) requires the services of an interpreter, and; b) that Mr. To did not meet the standards laid down by the Supreme Court of Canada in Truong, supra, with respect to the simultaneous translation services that he was providing to K.M.

[54] I agree with the submission of defence counsel that the first branch of the test should not be an onerous one. As the Supreme Court of Canada has stated:

I would stress that courts must, as many have in the past, 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.

[55] In terms of assessing whether an accused needs the assistance of an interpreter, the Ontario Court of Appeal provides the following sound advice in R. v. Petrovic (1984), 13 C.C.C. (3d) 416 at page 423:

It was common ground at the trial that a Serbo-Croatian interpreter was required, and the appellant entered his plea through an interpreter. While both the Bill of Rights and the Canadian Charter of Rights and Freedoms refer to the right to the assistance of an interpreter in any proceedings where the witness does not understand or speak the language in which the proceedings are conducted, it is not for the trial court and much less for an appellate court to conduct a detailed inquiry into the party's or witness' ability to understand or speak the language of the court proceedings. A person may be able to communicate in a language for general purposes while not possessing sufficient comprehension or fluency to face a trial with its ominous consequences without the assistance of a qualified interpreter. Even if that person speaks broken English or French and understands simple communications, the right constitutionally protected by s. 14 of the Charter is not removed.

[56] Once an accused claims his or her Section 14 Charter right to interpreter assistance, it 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. Just because an accused can demonstrate some proficiency in the English language, should not lead to the conclusion an accused does not need the services of an interpreter.

[57] I had the opportunity to assess K.M. as he gave his evidence both in-chief and in cross-examination during the course of the voir dire. K.M. testified in the voir dire with the assistance of a third interpreter. Unlike many witnesses who testify with the assistance of an interpreter, K.M. did not appear to be anticipating the answer to a question posed to him in English. He waited for the question to be translated from English to Cantonese, and only then responded in Cantonese to the question asked. At no time did he answer in English and revert to Cantonese.

[58] In support of the Crown’s position that K.M. understood English to a level that would establish he did not need an interpreter, reference was made in the Crown’s written argument to the ability of K.M. to interact and speak with his lawyer, who admittedly only speaks English. Reference was made to interactions between K.M. and defence counsel outside the courtroom. Leaving aside the explanation offered by K.M. about his limited ability to speak with his counsel in simple English, it is not appropriate to refer to interactions outside the courtroom which are not part of the voir dire evidentiary record. I place no weight on this submission by the Crown.

[59] Even if I had doubts about K.M.’s knowledge of English and his ability to fully understand the nuances of a criminal trial as it unfolds, it is not the role of a trial judge to seriously question the need for an interpreter. This, to a certain extent, is a matter of common sense. I do not speak, nor do I understand Cantonese. As the Supreme Court noted in Tran: “It is not for the trial court and much less for an appellate court to conduct a detailed inquiry into the party's or witness' ability to understand or speak the language of the court proceedings”. See R. v. Tran, [1994] 2 S.C.R. 951, supra, at para. 53 and R. v. Petrovic (1984), 13 C.C.C. (3d) 416.

[60] While not raised by defence counsel, there never has been a suggestion by the Crown - until the voir dire, that K.M. did not need an interpreter. The Crown had the video statement of K.M., that the Crown now points to as evidence K.M. speaks fluent English. If the Crown believed K.M. did not need the assistance of an interpreter, the Crown should have taken that position at the beginning of the trial.

[61] In my view, if K.M. was not provided with simultaneous translation as the evidence was unfolding, and with consecutive translation in the event he was to testify, that a miscarriage of justice would occur in this case. K.M. does understand considerably more English than he might let on, but fundamentally he does not understand enough English such that he could participate in a criminal trial without the assistance of a Cantonese interpreter.

[62] I am not satisfied, that even with the demonstration provided by K.M. during the course of his police interview, that K.M. would understand sufficient English that he could participate in a criminal trial without the assistance of simultaneous translation. The real question that this Court has to deal with on this voir dire is whether or not Mr. To was in fact performing the simultaneous translation services that would be expected of him to meet the standards required, laid down by the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R. 951, supra.

[63] During the course of the voir dire, questions were directed to K.M. with respect to the extent of his knowledge of English. In cross-examination, he was confronted with the video of his interaction between the investigating police officer and himself after he had attended at the police station in response to a request from the police. I am satisfied having listened to K.M. both in-chief and in cross-examination, and having compared his evidence to how he performed during the course of the video statement, that K.M. understands more English than what he lets on. That said, I am equally of the view that K.M. would not be able to understand the nuances of a criminal trial, and that he would require the services of an interpreter providing him with simultaneous translation.

(b) The Guaranteed Standard of Interpretation

[64] “The constitutionally guaranteed standard of interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency and contemporaneousness.” It is argued by defence counsel that the interpretation provided by Mr. To on August 8, 2016 and August 9, 2016, fell well below the minimum standard set by the Supreme Court of Canada. See R. v. Tran, [1994] 2 S.C.R. 951, supra, at para. 78.

[65] Mr. To, by his own admission, has quite a loud voice. During the evidence of the complainant I had an opportunity to watch the interaction between Mr. To and K.M. It was my impression then, and it remains my impression that Mr. To was providing simultaneous translation that I could not hear despite Mr. To’s admitted loud voice, as he was speaking to K.M. in a whisper that was not intended to be heard by anyone other than K.M. His whisper was not intended to be recorded.

[66] While I found Mr. To to be, on occasion, defensive in response to questions posed and at times very repetitive, I have no hesitation in concluding that Mr. To was an honest witness. I accept Mr. To’s evidence that he did provide simultaneous translation to K.M.

[67] With respect to the suggestion that Mr. To was not providing simultaneous translation during the course of the Court proceedings on Monday August ­8, 2016 and Tuesday August 9, 2016, I am not satisfied that K.M. has met that onus. In my view, it would be extremely difficult for K.M. to be listening in one ear to what was occurring in the Court in English, and at the same time to listen to the simultaneous translation services provided to him by Mr. To. K.M. may, in his own mind, have concluded that Mr. To was not performing the services of simultaneous translation. With the evidence of Mr. To, that I have no hesitation in accepting, and the evidence of Ms. Lim, I am not satisfied that the evidence heard during the course of the voir dire would lead to the conclusion that Mr. To was not translating for K.M.

[68] In coming to the conclusion that the defence has not met its onus in establishing that Mr. To was not properly interpreting the court proceedings on August 8, 2016 and August 9, 2016, I have considered the evidence of K.M., Mr. To’s evidence, Ms. Lim’s evidence; the recordings and the evidence from the Ministry of Attorney General, Exhibit A.

[69] I do not accept the evidence of K.M. that the court proceedings either were not being interpreted at all; that only parts were being interpreted, or that there was misinterpretation. I have already concluded K.M. understands more English than what he lets on. While I accept that K.M. requires an interpreter, K.M. was not candid with the Court in terms of the extent of his knowledge and ability to converse in English. His lack of candour in that regard as manifest by his police interview impacts on his overall credibility and the allegations he has directed against Mr. To. As well, I find it very difficult to accept that K.M. could be listening in English to the evidence of S.L. and at the same time be listening to the interpreter and, thereafter, be in a position to conclude that the interpretation was inaccurate.

[70] I have considered the evidence of Ms. Lim and contrary to the suggestions made by defence counsel in her written submissions, I fail to see how her evidence assists K.M. Ms. Lim was entirely candid in her cross-examination in acknowledging that because of the poor quality of the recordings, it would not be fair to say that Mr. To was not interpreting when there was silence on the recordings. If anything Ms. Lim’s evidence reinforces the conclusions reflected in Exhibit A, that the quality of the recordings was such that a proper analysis could not be done.

[71] There are also issues with Exhibits E and F prepared by Ms. Lim. Ms. Lim was not qualified as an expert witness in the manner that the case law requires. Nonetheless, in essence she was being asked to provide a form of expert evidence, in that she was asked to review the recordings and provide the court with her opinion on what she heard or did not hear in terms of the interpretation services provided by Mr. To to K.M.

[72] This was the first and only time Ms. Lim has ever been asked to perform the function she was asked to perform. Ms. Lim very likely would not know of what is expected of an expert. She likely would not have known that she should not have been guided in the way that she was by K.M.’s brother. By accepting the guidance and help that she did from K.M.’s brother, potentially called into question her objectivity. At the end of the day, however, I am satisfied that she understood her role when she fairly conceded the recordings were of such poor quality that it would be unfair to draw any conclusions about the interpretation provided by Mr. To.

[73] The delay in bringing to the Court’s attention the concerns K.M. had with Mr. To is very concerning. This is particularly so, given K.M.’s evidence that the trial was all about him and he needed to know everything that was going on in the trial. While the delay may, in some circumstances be explained by the cultural differences suggested by K.M., I do not accept that someone who is on trial - facing a potentially significant period of incarceration, would stand by and say nothing if they had issues with an interpreter. If an accused or his counsel has concerns that an interpreter is not meeting the standards laid down by the Supreme Court in R. v. Tran, [1994] 2 S.C.R. 951, supra, there is an onus on the accused to raise this issue immediately with the Court so as to avoid the possibility of a mistrial. To delay raising the issue calls into question the bona fides of the purpose of a mistrial application, such as the one before the Court.

[74] I do not fault counsel for K.M. for bringing this mistrial motion. After all, counsel does not speak Cantonese and she could not know if there were issues with Mr. To’s interpretation. Only K.M. would be in the position to suggest he had concerns. K.M. had the obligation to raise any concerns he had with Mr. To as soon as those concerns materialized. His delay in raising any concern for two days’ calls into question the bona fides of his complaints.

[75] This trial was scheduled for two weeks. The jury panel was told the trial would take two weeks, and both counsel confirmed this in the presence of the panel before jury selection began. Only after the jury was selected and the remainder of the panel excused, did defence counsel raise with the Court concerns that the trial in fact would last three weeks. This resulted in the Court having to excuse two jurors who had issues sitting for three weeks, and replacing those jurors with the two alternates chosen. The complainant testified in-chief for part of August 4, 2016 and all day August 5, 2016. The cross-examination of the complainant began on August 8, 2016, and was not complete by the end of August 9, 2016. Counsel advised the Court at the end of the day on August 9, 2016, that she probably had another full day of cross-examination to complete the complainant.

[76] As previously noted, defence counsel raised the issue about the interpreter on the morning of August 10, 2016, and the Court then had to excuse the jury while the voir dire took place. The actual calling of evidence on the voir dire did not begin until August 11, 2016, as counsel needed time to consider the law as it related to the interpreter issue. The jury was told to return on August 15, 2016, by which time the voir dire was still not complete.

[77] It was clear by August 15, 2016 that the defence still needed more time to complete the voir dire, and as such I canvassed with the jury their ability to resume the trial on August 24, 2016 for three weeks, as counsel believed three weeks was still needed to complete the trial. Not surprisingly, many of the jurors had problems resuming the trial on August 24, 2016 for a three week period. I then discussed with counsel options about when the trial could be adjourned to and it was agreed that with the schedules of counsel, witnesses and Court availability, that if a mistrial was not granted the trial would resume for three weeks commencing November 13, 2016, or three weeks commencing December 5, 2016. The best option, having canvassed these dates with the jury, was the three weeks in November. It goes without saying, that adjourning a jury trial for three months is a less than ideal solution to the delay caused by the defence mistrial motion, but it was an option counsel agreed to.

[78] The sole reason I am adding these comments to my Reasons, is to make clear that the delay in resuming this trial after the Court embarked on the defence mistrial motion is due to the failed mistrial motion. An accused is entitled to a trial where he has an ability to fully participate in the trial. That participation can only occur if an accused does not speak English, through the services of an interpreter who meets the standards laid down by the Supreme Court in R. v. Tran, [1994] 2 S.C.R. 951, supra. K.M. failed in his mistrial motion. The delay between August 10, 2016 and when this trial is scheduled to resume on November 14, 2016 lies at the feet of K.M.

[79] If either or both counsel seek a mistrial because of the delay and the impact this may have on trial fairness as it relates to the evidence of the complainant being severely truncated, the Court would consider such a request as this issue has already been raised as a possible option. If a mistrial was granted for that reason alone, this Court wants to make it abundantly clear that if the defence then pursues a challenge under Section 11(b) of the Charter, that the delay between August 10, 2016 and when a new trial can be accommodated by the Court (likely the week of November 14, 2016), such delay was caused by the defence and not the Crown.

[80] Since drafting these Reasons over the Labour Day weekend, I have received email communication from the trial coordinator in Newmarket informing me that the defence intends to pursue an 11(b) application. These reasons were completed prior to that notification. I will hear the 11(b) at a time convenient to counsel prior to the resumption of the trial in November.

Justice M.L. Edwards

Released: September 9, 2016

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – K.M. REASONS FOR decision Justice M.L. Edwards

Released: September 9, 2016