COURT FILE NO.: CRIMJ(P) 609/14 DATE: 2016 06 03
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN M. Stevens, for the Crown
- and -
JATINDER SINGH J. McCulligh, for the Defence
HEARD: May 31 and June 1, 2, 2016 at Brampton
MISTRIAL RULING
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complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.
Hill J.
INTRODUCTION
[1] Jatinder Singh pleaded not guilty to charges of sexual assault and threatening death or bodily harm.
[2] At the outset of this judge-alone trial on May 31, 2016, the court was advised that interpreter services would be required for the accused and the complainant (K.M.).
[3] The court conducted a qualification voir dire respecting two Punjabi/English-speaking interpreters to ensure that they were fully competent to assist the court.
[4] The court failed however to make specific inquiries relating to why the proposed beneficiaries of the interpretive services could not be accommodated in one of Canada’s official languages.
[5] This turned out to be a mistake.
[6] By the conclusion of the 3-witness prosecution case on June 1st, it had incrementally become evident that K.M. did understand, and was able to communicate in, English.
HOW THE CASE PROCEEDED
[7] In dealing with counsel at the outset of trial respecting administrative matters, the court ensured that transcripts had been prepared of the respective videotaped interviews by the police of the accused and the complainant. Ms. Stevens also advised the court that there was a transcript for the complainant’s 911 call. Because there was no immediate need for the court to have those transcripts they were not immediately provided. Had I received these English-language transcripts, I would have expected to see some certification of the translator of the accuracy of the conversion from the oral Punjabi language to the written English text.
[8] When called to the witness stand, to be sworn or affirmed, K.M. was asked by the Registrar to spell her name. She did so in English.
[9] In early in-chief questioning, it was established that the complainant came to Canada from India in 2008 and that her first language was Punjabi. An excerpt of this questioning is as follows:
Q. You came to Canada in 2008? A. Yes, 2008. Q. So that’s in English.
[10] Thereafter, the witness continued in Punjabi as directed by Crown counsel. K.M. testified that when she arrived in Canada she spoke English a little bit. There was no evidence as to whether the complainant had schooling in English in India. Further biographical inquiries revealed that K.M. was employed as a Practical Registered Nurse and that she had work shifts in Guelph. The witness was not asked whether her work environment included English as the exclusive or dominant language.
[11] As the complainant testified in-chief, she employed English words from time to time, for example, “immigration” and “PR” (as the short form for Permanent Resident). While describing the alleged sexual assault, the English interpretation of the witness’ Punjabi responses referred to K.M.’s and the accused’s “body parts”. Quite rightly, Ms. Stevens probed for a more precise and detailed description, resulting in an answer from the complainant in which she included the English words “penis” and “vagina”.
[12] During her in-chief evidence, K.M. described a serious threat said to have been made to her leading to her promptly calling 911 for assistance. There is no evidence as to whether the alleged threatening words were spoken in Punjabi or English.
[13] At the conclusion of the complainant’s in-chief testimony, the court inquired of Crown counsel as to whether the 911 call was to be introduced through K.M. or some other witness. Ms. Stevens responded that she was content to rely on K.M.’s evidence that a 911 call was made. Accordingly, the trier of fact did not hear the call or see the transcript of the call.
[14] Because, during her in-chief and cross-examination evidence, the complainant was not referred to specific passages from her videotaped statement to the police, the court did not see any part of the video and the companion transcript was not provided. In at least three significant areas of Mr. McCulligh’s cross-examination, there was a suggestion that the answers given by K.M. at trial, as conveyed to the courtroom in English from the interpreters’ booth, had not been disclosed before, for example in her videotaped statement, or not in the terms now testified to. As said, these areas of questioning proceeded without viewing of the videotaped statement or examination of its companion transcript.
[15] Mr. McCulligh cross-examined K.M. on a short excerpt from the October 14, 2015 preliminary inquiry. Only subsequently did the court determine that the witness testified before the Ontario Court of Justice with the assistance of a Punjabi/English speaking interpreter with the prosecutor’s examination in-chief commencing in this way:
Q. … I understand that you speak English as well as Punjabi, is that right? A. Yes. Q. Okay. And that you will need some assistant with some words in Punjabi, is that right? A. Yes Q. What I’ll ask you to do is wait for the question to be interpreted before you answer in Punjabi and then it will be interpreted into English for us to understand. A. All right. Q. Now, how long have you lived in Canada? K.M. Since 2008. Q. So you answered in English. A. Yes. Q. If you could please answer in Punjabi, okay? A. Yes.
[16] During cross-examination, the complainant was asked to prepare a diagram drawing and labelling relevant features of her residence at the time of the alleged offences. As she did so, the court contemplated having one of the court interpreters consult with counsel in an effort to have an agreement as to the proper English words to be placed in parenthesis on the exhibit paired to the relevant Punjabi words written by the witness. When the court asked the preparatory foundation question to confirm that K.M. had written in Punjabi, the court was informed that the witness had written in English. When the court reviewed the diagram at the end of the court day, the correct spelling could be observed of the English words kitchen, bathroom, bed, hallway, bedroom, wall, futon, table and TV.
[17] During the complainant’s 3 hours of testimony, for the unilingual trier of fact, preliminary credibility determinations of K.M.’s testimony were virtually impossible with the original evidence in a foreign language, and the cadence of delayed answers for interpretation to take place together with periodic interpreter interjections. Pauses, witness box demeanour, requests for repetition of repeated questions, apparently non-responsive answers and peculiarities of vocabulary could not be confidently referenced to evaluation of the witness’ veracity.
[18] K.M.’s testimony was followed by the evidence of two short witnesses. H.B. testified in English which is her second language. The Punjabi/English-speaking interpreters were on “stand-by” to assist the witness if called upon. During the witness’ evidence, lasting about 25 minutes, their help was not required.
[19] The final Crown witness, Peel Regional Police Service (PRPS) Constable William Brown, testified that he responded to a dispatch originating with the 911 call of a threat to life. On arrival at the subject residence, he observed the accused and K.M. On the constable’s evidence, which lasted a total of about 10 minutes, he received a complaint of a threat from K.M., took biographical details from her and asked about her relationship with the accused. Given Const. Brown’s testimony that other officers were present, I assumed, it would prove wrongly, that a PRPS officer was present who spoke the Punjabi language. Toward the end of the officer’s in-chief evidence, this exchange transpired:
Q. And I understand you were involved in taking a statement from her [K.M.] on video? A. Yes…that is correct. Q. And that statement was in English? A. Yes, it was …
[20] After Mr. McCulligh asked five or six questions in cross-examination, the witness was released, Crown counsel announced that her case was completed and the trial adjourned to continue on June 2nd.
[21] On June 2nd, the court asked Crown counsel why the complainant had been presented as requiring interpreter assistance in giving her evidence. Ms. Stevens responded that while K.M. had “passable English”, Punjabi “was the better language for her to communicate in” and that her abilities in that language “appeared better than her ability to communicate in English”. With further questioning by the court, it was disclosed that the 911 call made by K.M. was in English and that during her videotaped interview with Const. Brown there was no discussion about her language facility or the use of an interpreter.
[22] Called upon for submissions respecting the court’s concern that K.M. had been permitted to testify in the absence of need for the full-time assistance of an interpreter, counsel informed the court of the following:
(1) a “needs” assessment ought to have been conducted at the outset of trial respecting K.M. testifying through the filter of an interpreter (2) counsel ought to have canvassed the issue putting material facts before the court as to K.M.’s linguistic capabilities (3) if necessary, a voir dire could have been conducted with evidence from K.M. or otherwise to determine whether there was a necessity for interpreted testimony (4) the evidentiary record before the court supports the conclusion that the complainant ought to have testified in English with stand-by interpreter assistance available (5) the appropriate remedy was for K.M. to testify again in English with the help of a stand-by interpreter if required
[23] I agree with these conclusions. As is often the case, counsel were focused on putting their cases in and applying their trial preparation. The court interpretation issue was not raised at the outset of trial for the relevant inquiry as it should have been by the court and the parties.
ANALYSIS
[24] In a multi-cultural venue like Brampton, evidence in criminal trials may be entirely in English, or only partly, or not at all in rarer instances.
[25] Section 14 of the Charter provides that:
- INTERPRETER – 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 has the right to the assistance of an interpreter.
(emphasis added)
[26] Section 16 of the Charter states:
OFFICIAL LANGUAGES OF CANADA
- (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
[27] The right of a witness to choose to testify in one of Canada’s official languages, protected by s. 16 of the Charter (as supported by the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) and ss. 530 and 530.1 of the Criminal Code), is an “absolute right” for the claimant. In this sense, this language right has “a totally distinct origin and role” from the right guaranteed by s. 14 of the Charter: R. v. Beaulac, 1999 SCC 684, [1999] 1 S.C.R. 768, at paras. 32-41. Accordingly, in the instance of English or French, it is for the witness to choose her or his language of testifying, a decision which may subjectively be driven by motives of comfort, convenience or otherwise.
[28] This is not the case with the giving of evidence in other languages through the medium of an intermediary. Section 14 of the Charter presumes that testimony will be provided in one of Canada’s official languages absent a showing that the witness “does not understand or speak the language” of the trial proceedings. Two important implications of this regime are that:
(1) there is a necessity criterion to be met before resorting to the acceptance of interpreted evidence (2) the onus is upon the claimant of the right seeking not to testify in the language of the judicial proceeding.
[29] In Regina v. Tran (1994), 1994 SCC 56, 92 C.C.C. (3d) 218 (S.C.C.), at p. 255, the court described the right to an interpreter as belonging to a person “who genuinely cannot speak and/or understand the language of the proceedings”. At pp. 241-2, the court observed that, “it must be clear that the [claimant] was actually in need of interpreter assistance … the right to [an] interpreter … is not an automatic or absolute one” – the claimant “must demonstrate that he or she satisfies … the conditions precedent to entitlement of the right”.
[30] Court interpreters “should only be used if they are actually needed”: R. v. Amaya, 2010 ABCA 398, at para. 22. A claimant for interpreted testimony must be given an “opportunity to prove that he [or she] required an interpreter”: R. v. Dapo, [2013] O.J. No. 5735 (C.A.), at para. 3.
[31] By the point of the judicial pretrial in the Superior Court of Justice, counsel should be in a position, before court interpreters are administratively committed to the case, to explain why court interpretation is required on a full-time or stand-by basis.
[32] As a practical matter, at trial, counsel producing the claimant witness should advise the court why court interpretation is being requested and of the circumstances underlying the necessity for interpreted evidence which will variously include reference to the witness’ first language, length of residency in Canada, education level, English-language training, language of the home, employment and language of the workplace, language used in dealing with the authorities in the case and at any preliminary inquiry/discovery, the witness’ reported reason for seeking assistance, counsel’s opinion on the issue and its foundation, etc. A presiding judge will also require some information as to the general nature of the witness’ anticipated evidence including its estimated duration and whether any technical or complex subject matter will be addressed. Once the court hears submissions from counsel for the other party, the court will determine whether the claimant should be directly questioned, or other evidence led, respecting the use of court interpretation on a full-time or stand-by basis.
[33] Courts should, however, be “generous and open-minded” when assessing a witness’ constitutionally protected “need for an interpreter” (Tran, at paras. 48, 52), and recognize that a general or limited facility with the language of the proceeding may not amount to a sufficient level of comprehension: Tran, at para. 53; R. v. Petrovic (1984), 1984 ONCA 2003, 13 C.C.C. (3d) 416 (Ont. C.A.), at p. 423 (leave to appeal refused [1985] 1 S.C.R. xi); Roy v. Hackett (1987), 1987 ONCA 4212, 62 O.R. (2d) 365 (C.A.), at p. 377.
[34] In adopting this approach, other contextual features of the system must be kept in mind including:
(1) court interpreter services are not unlimited and competent interpreters remain scarce (2) court interpretation prolongs the length of a trial: R. v. Sidhu (2005), 2005 ONSC 42491, 203 C.C.C. (3d) 17 (Ont. S.C.J.), at para. 311; R. v. Jisl, [2004] EWCA Crim 696, at para. 27 (3) quite apart from the reality of the impossibility of perfect word-for-word, meaning-for-meaning court interpretation, credibility determinations through the filter of a court interpreter, including the impact of cross-examination, are universally recognized to be notoriously difficult: Tran, at p. 248 (witness testifying with interpreter to be given “benefit of the doubt” respecting some inconsistencies); R. v. X.(J.), 2012 ABCA 69, at para. 13 (use of an interpreter makes “[s]ome confusion … inevitable” and the record “is often unclear”); Attorney General for the Sovereign Base Areas of Akrotivi and Dhekelia v. Steinhoff, [2005] UKPC 30, at para. 23 (some confusion inevitable with interpreted evidence); R. v. R.R. and Anor, [2007] SASC 71, at para. 33 (“Bearing in mind these difficulties in assessing credibility” with interpreted testimony); R. v. Zewari, [2005] O.J. No. 1953 (C.A.), at para. 4 (trial judge properly averted to difficulty in evaluating credibility when an interpreter is required); D.P.P. v. Yu Jie, [2005] IECCA 95 (court accepting that “certain omissions in the translation … [are] … bound to occur in any situation involving an interpreter”); Serrurier v. City of Ottawa (1983), 1983 ONCA 1628, 42 O.R. (2d) 321 (C.A.), at pp. 322-23 (“Cross examination becomes more difficult, and often less effective, when each question and answer must be interpreted”); J.H. Wigmore, Evidence in Trials at Common Law (Chadbourn Rev.) (Toronto: Little Brown and Co., 1979), Vol. 3, §811 (quoting: “ARTHUR TRAIN, The Prisoner at the Bar 239 (1908) … It is also practically impossible to cross examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply”); Filios v. Morland (1963), 63 SR (NSW) 331 (S.C.) quoted at para. 23 of De La Espriellavelasco v. The Queen, [2006] WASCA 31 (evidence given through an interpreter “loses much of its impact”) and also per Roberts-Smith J.A. at paras. 58-59:
“… her Honour agreed with the observations of Gray J. in Kathiresan v. Minister for Immigration and Multicultural Affairs, unreported, FCA No FCA; No VG 305 of 1997; 4 March 1998 at 6: “In an area in which cross-cultural communications occur, there is danger in giving too much rein to the "subtle influence of demeanour". The work of tribunals operating under the Act is such an area. The dangers of attempting to assess the truthfulness of witnesses by reference to their body language, where different cultural backgrounds are involved, are well known ... The problem is exacerbated even more when evidence is given by way of an interpreter. Judging the demeanour of the witness from the tone of the interpreter's answers is obviously impossible. Judging the demeanour of the witness from the witness's own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the "subtle influence of demeanour" to become a cloak, which conceals an unintended, but nonetheless decisive bias ...
A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation."
I agree with these observations.
(4) the compromise of a stand-by interpreter is available whereby the witness testifies in English and, when need arises for interpretive aid, it is requested and provided: see R. v. Sylvain, 2014 ABCA 153, at para. 100 (witness with fluency in English may require an interpreter “from time to time for comfort or clarity”); R. v. Gedi, [1997] EWCA Crim 1809 (“halfway house” of stand-by interpreter is a practice “commonly adopted” at trial); see also: R. v. Singh (2010), 2010 ONCA 11, 250 C.C.C. (3d) 187 (Ont. C.A.), at paras. 9-11; R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 (Ont. C.A.), at paras. 77, 91-2 (leave to appeal refused, 237 C.C.C. (3d) vi); R. v. M.(T.D.) (2008), 2008 YKCA 16, 236 C.C.C. (3d) 458 (Y.T.C.A.), at para. 10.
[35] Where a trial court proceeds with a witness testifying in English, not his or her first language, the trial judge should generally instruct counsel to avoid lengthy, run-on questions or unnecessarily complex or unusual vocabulary. As well, in assessing credibility, the trier of fact should remain sensitive to the fact that the witness may be formulating concepts and responses in their first language before transferring to a formulated English-language answer. Indeed, the trier of fact may, at times, properly interpret the witness’ misuses of language: R. v. McLeod, 2014 SKCA 17, at para. 25. Where proceeding with a stand-by interpreter proves unworkable, resort may be necessary to full-time interpreter assistance.
[36] Not every proceeding involving a revelation that a witness who has testified through an interpreter actually did not meet the s. 14 Charter threshold of necessity requires a rehearing of the witness’ testimony in English or a mistrial.
[37] A mistrial is a discretionary remedy: R. v. Stevens, 2016 ONCA 292, at para. 13. It is an exceptional remedy used in the clearest of cases to prevent an injustice to the prosecution or the defence.
[38] A trial court’s broad common law powers to declare a mistrial are exercisable to prevent a miscarriage of justice: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 74-75; R. v. Khairi, 2015 ONCA 279, at para. 11; R. v. Downes, 2015 ONCA 674, at paras. 6-8; R. v. J.A., 2015 ONCA 754, at paras. 24-25.
[39] In the present case, where it became evidence that K.M. ought to have testified in English with a stand-by interpreter, thereby reducing significant impediments to credibility determination, these factors contributed to the mistrial decision:
(1) the trial testimony had only consumed about 3 ½ hours (2) the complainant did not visibly experience disintegration or discomfort while testifying (3) the complainant indicated preparedness to the investigating officer to return to testify in English (4) with the trial very much about the credibility of the principal witnesses, and not involving technical or complex subjects, the interpretation filter materially interfered with the trier of fact’s ability to make credibility determinations.
[40] At the re-trial, the court will be required to inquire into Mr. Singh’s need for interpreter assistance, a subject not specifically addressed in these reasons.
CONCLUSION
[41] Ruling accordingly.