Court File and Parties
COURT FILE NO.: CR-18-70000061-00AP DATE: 20200121
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – M.R. Appellant
COUNSEL: H. Song, for the Respondent A. Vanderheyden, for the Appellant
HEARD: November 19, 2019.
Reasons for Judgment
On appeal from the convictions entered on June 11, 2018 by the Honourable Justice M. Wong of the Ontario Court of Justice.
SCHRECK J.:
[1] M.R.’s evidence at his trial on four counts of sexual assault was translated from Swahili into English by a partially accredited interpreter whom his counsel had objected to but whom the trial judge had found to be sufficiently competent. After M.R., who had some proficiency in English, corrected several of the interpreter’s translations of his answers to questions, his counsel renewed her objection to the interpreter. The trial judge declined to conduct any further inquiry into the interpreter’s competence because she was satisfied that the appellant would be able to correct any additional errors.
[2] The appellant appeals his convictions on the ground that his right to an interpreter as protected by s. 14 of the Charter was infringed. [1] He submits that the trial judge erred in relying on his own ability to correct the interpreter. The respondent submits that it was within the trial judge’s discretion not to conduct a further inquiry and that any lapses in the interpretation were minor in nature and did not affect the verdict.
[3] For the reasons that follow, the appeal is allowed and a new trial is ordered. [2]
I. FACTS
A. Evidence at Trial
(i) The Complainant’s Testimony
[4] The appellant and the complainant, F.A., were married in Kenya in 2015. The complainant lived in Canada and arrangements were made for the appellant to immigrate with her as his sponsor. He arrived in Canada in July 2016 and resided with the complainant and her family. By then, the couple had a four-month old daughter.
[5] According to the complainant, the appellant had difficulty adjusting to life in Canada and was unable to find work. He began to treat her badly and would make unkind comments about her physical appearance. In her testimony, she described four incidents in which he had engaged in sexual activity with her without her consent.
[6] The complainant testified that on one occasion between September 1 and 15, 2016, she performed fellatio on the appellant. He instructed her on what to do and guided her head with his hands. Afterward, the complainant told the appellant that she did not like doing that and did not want to do it again. There was no other incidence of fellatio after that. The Crown invited the trial judge to dismiss the charge arising from this incident.
[7] The complainant testified that in October 2016, she and the appellant engaged in sex every day and that she “would give it to him” despite being tired. However, when he wanted to have sex on October 13, she suggested that they cuddle instead. The appellant was unhappy about this and said “Don’t you want to be happy? Don’t you love me?” He also said “panua”, which means “spread your legs” in Swahili, and stated that it was his right as her husband to have sex with her. Finally, the complainant “just allowed him” although she did not consent. While having intercourse, the appellant held her arms. At one point, she attempted to push him off because she was in pain, although she did not tell him about the pain until a few days later. He told her that it was going to be painful but that he had to ejaculate. She testified that she “let him continue” despite not consenting because she did not want him to insult her about her appearance or about not being a good wife.
[8] On one occasion between November 17 and December 19, 2016, the appellant came home angry after losing his job. He insisted on having sex with the complainant and ordered her to remove her clothes. She did so, but said that it was not the right time to have sex. The appellant responded by saying “hakuna”, which means “you don’t have a say here.” As he began to have intercourse with her, she started crying. The appellant asked her what was wrong and she replied that she did not want to have sex. He told her that it was his right to do so and continued having intercourse with her.
[9] On January 28 or 29, 2018, the complainant was ill with bronchitis and in bed. The appellant instructed her to remove her panties. She told him that she was coughing and could not have intimate relations with him. He responded by saying “ni haki yangu”, which means “it’s my right.” He began to have intercourse with her and she pushed him because she was having difficulty breathing. He told her to calm down and relax. She pushed him again and told him that she could not breathe and was coughing. He continued to have intercourse with her, so she “gave in.”
(ii) The Appellant’s Testimony
[10] The appellant testified that after he arrived in Canada, the complainant’s family began to complain that he was not contributing financially and this caused conflict between him and the complainant. She would be nice to him in private but cold towards him when in the company of her family members. The complainant’s family would threaten to have him deported.
[11] The appellant could not recall the specific instances of sexual activity the complainant described in her testimony except for the incident in January. According to him, on that occasion he had asked the complainant to make love but that she had refused and went upstairs. He denied ever engaging in any sexual activity with the complainant without her consent. It was his belief that the complainant had fabricated the allegations in order to cause him to be deported.
B. The Interpreter
(i) The Appellant’s Need for an Interpreter
[12] The appellant requested the assistance of a Swahili interpreter at his trial. The Crown took the position that he did not require an interpreter and relied on a statement the appellant made to the police at the time of his arrest. In that statement, which was video recorded, the appellant described himself as proficient in English. Defence counsel submitted that there was a significant difference between the making of a statement and formal court proceedings and pointed out that when the appellant was given the option of having an interpreter during the statement, he opted for one.
[13] After hearing submissions, the trial judge ruled that the appellant required and was entitled to the assistance of an interpreter. [3]
(ii) The Interpreter’s Qualifications
(a) The Interpreter’s Background
[14] Joyce Mugisa is one of two Swahili interpreters employed by the Ontario Ministry of the Attorney General. Neither is fully accredited. On the voir dire, Ms. Mugisa testified that she is from Uganda and Swahili is her second language, her first being Luganda. She also speaks English, Runyoro and Haya. Ms. Mugisa learned Swahili in school while growing up in Uganda, although it was “not a major class.” She testified that she also underwent interpreter training with Multilingual Language Services (“MCIS”) in 2007. This training took nine months to a year and resulted in some form of certification. At the time she began the training, Swahili was not a “strong language” for her. However, her instructors encouraged her to study it as there was less need for Luganda interpreters.
[15] Ms. Mugisa was certified by the Immigration and Refugee Board in Luganda, but not in Swahili. She testified that she was certified in Swahili according to the Interpreter Language and Skills Assessment Tool (“ILSAT”), although she did not explain who administers that assessment or what certification entails. Ms. Mugisa had experience doing Swahili interpretation for community agencies and legal clinics. She had also been interpreting in court proceedings, including trials, since 2007.
(b) The Ontario Ministry of the Attorney General Accreditation Process
[16] The Ontario Ministry of the Attorney General tests interpreters in four categories: oral recall (the ability to remember and repeat short utterances), consecutive dialogue (the ability to perform consecutive oral interpretation), shadowing (repeating English sentences in English shortly after hearing them), and sight consecutive (translation of written documents). [4] For an interpreter to be fully accredited, he or she must obtain a result of at least 70% in each category. An interpreter who attains at least 50% in each category is considered to be “partially accredited”.
[17] Ms. Mugisa was tested about two weeks before the appellant’s trial. She attained a score of 52% in oral recall, 60% in consecutive dialogue, 81% in shadowing and 52% in sight consecutive. She was therefore “partially accredited.” Ms. Mugisa testified that she was “disappointed” and “mad” about her results.
(iii) The Trial Judge’s Initial Ruling on Competence
[18] The trial judge ruled that Ms. Mugisa was sufficiently qualified. She noted that the appellant “has already received the benefit of this court’s decision in allowing him to have an interpreter for his trial” despite having “very good” English. [5] The trial judge concluded as follows:
There is no lower standard being settled upon by having Ms. Mugisa interpret for [M.R.]. I am not persuaded by Defence Counsel’s argument that her client will suffer with interpretation by Ms. Mugisa because he will not be able to fully understand or participate in his trial.
This has been a very extensively litigated issue and I am satisfied fully, without reservation that Ms. Mugisa who comes with a depth of experience, a commitment to improving and studying the languages, in particular Swahili and who has recently found herself conditionally accredited, but I accept is eager to improve those scores and will do so, that [M.R.]’s right to a full and fair trial will not be at all compromised by having Ms. Mugisa assist him. [6]
(iv) The Appellant’s Testimony
[19] The appellant testified in Swahili through the interpreter. During his examination-in-chief, he corrected the interpreter on several occasions. The first time was with respect to the spelling of the name of one of his wife’s relatives. [7] The second time was with respect to the appellant’s testimony about why he did not become a firefighter in Canada despite having been one in East Africa:
Q. And did you do – did you do anything to find out about what it would take to be a firefighter in Canada?
A. My parents started putting pressure on that and they were ready to sponsor and educate me in everything, so that is when it was decided that okay, let’s go to Centennial and Seneca and find out about that. Okay, so that one, when we …
INTERPRETER: Sorry, my mistake.
A. When we went to find out about the Centennial and the Seneca, so that’s what made them – they did not feel good about it.
The appellant later clarified that “they” referred to his wife’s relatives. [8]
[20] Another occasion was during the appellant’s testimony about being arrested for the charges before the court:
Q. Can you tell me about that day?
A. They came two police officers at home. I was getting ready to go to work, so I was doing everything possible because it was my first day to go start work at Home Depot. When the officers came we talked – I talked to them.
INTERPRETER: There were – sorry, I don’t know the word.
THE APPELLANT: Generous.
Q. And what ….
INTERPRETER: Sorry, you mind if I indulge in so that I get another word for that because she’s not also sure of what he’s saying?
THE COURT: Sure.
INTERPRETER: I’m not sure of the word but what he means they were cooperative, they were good. [9]
(v) The Second Ruling
[21] After the afternoon recess, counsel for the appellant advised the trial judge that a member of the appellant’s family who had been observing the proceedings had raised concerns about the interpretation, which he said “at times is not word for word interpretation.” Counsel asked the trial judge for guidance as to how to address this concern. The trial judge declined to do anything for the following reasons:
Well, what I have been able to see and observe is that where there has been that difficulty, [M.R.] has corrected the interpreter, that he has pointed out to the interpreter something in Swahili and she’s rephrased it. I think you’ve noted occasionally – on at least one occasion. I’ve sort of been including that in my notes, so [M.R.] has been correcting the interpreter and that’s because he has some facility in language in English. … So I don’t speak Swahili, what I am confident is that we are going at a pace that Ms. Mugisa has been able to keep up. I am satisfied that [M.R.] where he has disagreed with Ms. Mugisa has not been shy to correct her, that there in fact have been most recently, just before the break when [M.R.] began to read in English parts of documents that he was presented which were marked as exhibits, which also gives me some confidence that his ability to read let alone speak English is quite advanced. So that is the best that I can do at this point, Ms. Quenneville. I am not going to re-embark on an interpreter hearing. We’re going to continue at the pace that we are proceeding. Ms. Mugisa will continue to interpret and if [M.R.] disagrees with the interpretation I am confident that he will continue to correct Ms. Mugisa and she will correct, if she needs – if she feels necessary. [10]
[22] Defence counsel then advised the trial judge that according to the appellant’s family member, there had been occasions when the appellant had not corrected mistakes by the interpreter. The trial judge responded as follows:
Well, again, [M.R.] has been an active participant in his trial in terms of correcting Ms. Mugisa. If he has hesitated to correct then he is now certainly free to correct. [11]
(vi) Continuation of the Appellant’s Testimony
[23] The appellant continued with his testimony. On one occasion, he corrected the interpreter when she mistakenly interpreted “she said” to “they said.” [12] Another occasion where he corrected the interpreter was while he was being asked about his work history in Kenya during cross-examination:
Q. Okay. So it sounds like you’re saying that you worked for a while.
A. Yes.
Q. And then you got this diploma, do I understand correctly?
A. I first I got an accounting job.
THE APPELLANT: Mombasa County.
A. Oh, I first worked in Mombasa County …
THE APPELLANT: As a firefighter.
A. So I first worked in Mombasa County as a firefighter. [13]
[24] On another occasion, the appellant was testifying about his wife’s family being short of money. The interpreter translated his answer as “There’s another place we were receiving food and get bread from their place. They would get that bread from there.” The appellant advised the court in English that he had meant to say “Picking up bread from the floor.” [14] Later, when the interpreter translated one of his responses as “think his brain is working perfectly well”, the appellant corrected her, saying that he meant “mental fit”, which Crown counsel took to mean “mentally fit.” [15]
[25] The appellant also corrected the interpreter while being cross-examined about having asked the police “Can a man rape his wife?”:
Q. My question is, I’m going to suggest to you that you were actually asking the police a question because you don’t think that a man can rape his wife, do you?
A. So, yes, a woman – a man cannot rape his wife ….
THE APPELLANT: A man can rape his wife.
THE INTERPRETER: Oh. Yes, a man can rape his wife if he has not consented.
THE APPELLANT: If she has not consented.
THE INTERPRETER: If she has not consented.
CROWN COUNSEL: Well, I appreciate you clarifying in English for us.
THE APPELLANT: Yes, because I have to, because it’s my life. [16]
[Emphasis added].
II. ANALYSIS
A. Overview
[26] Section 14 of the Charter guarantees any party to a court proceeding who does not understand or speak the language in which the proceedings are conducted the right to the assistance of an interpreter. In R. v. Tran , [1994] 2 S.C.R. 951, at paras. 42-44, it was held that to establish a violation of s. 14, an accused must demonstrate the following on a balance of probabilities: (1) that he was actually in need of an interpreter; (2) that there has been a departure from the basic, constitutionally guaranteed standard of interpretation; and (3) the lapse in interpretation occurred at a time in the proceedings where the accused’s vital interests were at stake.
B. Need for an Interpreter
[27] Establishing the need for an interpreter is not an onerous step: Tran, at para. 42. A trial judge should appoint an interpreter if the accused or his or her counsel requests one and the judge is of the opinion that the request is justified: Tran, at para. 48. In this case, the trial judge was satisfied that the request was justified. Her conclusion in this regard was consistent with the required “spirit of sensitivity and understanding”: Tran, at para. 52. Neither party has challenged the correctness of the trial judge’s ruling. As a result, the need for an interpreter has been established.
C. The Constitutionally Guaranteed Standard
(i) Accreditation
[28] An accused requiring an interpreter is “to have the same opportunity to understand and be understood as if they were conversant in the language being used in the proceedings.” The criteria to be applied include, but are not limited to, continuity, precision, impartiality, competency and contemporaneousness: Tran, at para. 55.
[29] The interpreter in this case was “partially accredited.” While full accreditation requires a score of at least 70% in each category of testing, the interpreter scored significantly below that in all of the categories except for “shadowing”, where she scored 81%. “Shadowing” tests one’s ability to speak and listen at the same time by having the subject repeat English words while listening to English. It does not measure one’s ability to accurately interpret: Sidhu, at para. 112; R. v. Abrha-Beyene, 2012 ONCJ 762, at para. 18. In the other three categories, the interpreter scored 52%, 52% and 60%. The minimum score for partial accreditation is 50%. The interpreter’s scores in this case were concerning: R. v. Moo, 2014 ONCJ 127, at paras. 29-30.
[30] The presence or absence of full accreditation is not dispositive on the issue of competence: R. v. Rybak, 2008 ONCA 354 , 90 O.R. (3d) 81, at para. 84. That said, the accreditation system used in Ontario was established precisely for the purpose of ensuring that interpreters are sufficiently competent. It follows that an interpreter who fails to meet the requirements for full accreditation is a cause for concern. As a result, while a fully accredited interpreter may be presumptively competent, a partially accredited interpreter is not and will not be found to be competent unless the court is satisfied that he or she has the requisite skills on some basis other than accreditation: R. v. Dutt, 2011 ONSC 3329 , 236 C.R.R. (2d) 305, at paras. 54-57; R. v. Sidhu (2005) , 203 C.C.C. (3d) 17 (Ont. S.C.J.), at para. 298.
[31] Determining competence in the absence of full accreditation is not without its difficulties, as was explained in Dutt, at para. 54:
…[B]ecause the courtroom is not a linguistics laboratory and a unilingual trial judge is not qualified to administer language or interpretation skills tests, and without simply ceding to an interpreter’s self-promoted claim of competence there necessarily is a dependency upon some objectively balanced standard of competence. Understandably, the default position of the court is often, therefore, significant though not exclusive reliance on what it hopes is a reputable external accreditation of an interpreter.
(ii) The Trial Judge’s First Ruling
[32] In this case, the trial judge’s initial determination that the interpreter was competent was based largely on the interpreter’s own self-assessment and the fact that she had been working as an interpreter for some time. The only objective measures of her competence aside from the Ministry of the Attorney General accreditation process was the fact that she received certification through the ILSAT. There was no evidence with respect to the requirements for that certification.
[33] While the trial judge had little objective information on which to base her assessment of the interpreter’s competence, I am not persuaded that her initial ruling was wrong. As the respondent points out, the appellant had some proficiency in English, which was relevant to the nature of the interpreter assistance he required: Rybak, at para. 78. In my view, it was open to the trial judge to conclude as she did based on the record before her at that time.
(iii) The Appellant’s Testimony
[34] While I am not persuaded that the first ruling was wrong, the nature of the evidence available to the trial judge changed once the appellant began to testify. It became clear that the interpreter was having some difficulty accurately translating the appellant’s evidence into English. There were, in my view, two indications that the competence of the interpreter may have been wanting.
[35] The first was the fact that the appellant corrected the interpreter on several occasions. While some of the errors that were corrected were minor, others appeared to cast serious doubt on her ability to interpret accurately. For example, the interpreter described the appellant as having been an accountant when he had said that he was a firefighter. She confused the appellant’s parents with the complainant’s parents. Of particular concern is the interpretation of the appellant’s testimony about whether a man can rape his wife, where the interpreter’s translation was the opposite of what the appellant had actually said. As it turned out, this evidence played a critical role in the trial judge’s reasons for convicting the appellant. [17]
[36] The second was the fact that defence counsel raised a concern about the interpreter based on information he had received from a member of the appellant’s family who had been observing the proceedings. The relative expressed concerns not only about the accuracy of the interpretation, but also pointed out that some of the interpreter’s errors had not been corrected by the appellant.
[37] The trial judge declined to conduct a further inquiry into the interpreter’s competence. With respect, she erred in failing to do so. I draw this conclusion for three reasons.
[38] First, the trial judge’s decision not to hold a further inquiry was not because she disagreed that there had been inaccuracies in the translation or because she had revisited her conclusion that an interpreter was required. Rather, it was because she was confident that the appellant would be able to notice and correct any inaccuracies. The appellant was entitled to a competent and precise interpreter. After the appellant testified, it became evident that the interpreter may not have met this standard. The fact that the appellant was able to correct her mistakes on at least some occasions does not alter this fact. An accused cannot be expected to be responsible for safeguarding his own constitutional right to an interpreter who meets the minimal standard of competence.
[39] Second, the trial judge’s reasoning discloses what was referred to in Dutt as the “misinterpretation fallacy” (at para. 30):
A misinterpretation fallacy, accepted unfortunately by courts on occasion, is that the beneficiary of the interpretation assistance will be able to identify error. If that were always the case, the accused would, of course, not require an interpreter.
While the appellant was able to notice and correct some of the interpreter’s errors, this does not mean that he was necessarily able to do so for others. Indeed, according to counsel, the appellant’s relative had said as much.
[40] Third, while I am willing to defer to the trial judge’s initial conclusion respecting the interpreter’s competency, the evidence of her competence was far from overwhelming. As noted, she barely met the threshold for partial accreditation and there was little evidence of any other objective measure of her competence. In these circumstances, any new evidence calling the correctness of the determination into question required a fresh inquiry.
[41] The respondent points out that the appellant had some proficiency in English. While that may be, he did not testify in English. He testified in Swahili. The issue is not whether the appellant understood or could speak English, but whether the words he spoke in Swahili were accurately interpreted. In this context, the fact that he had some proficiency in English is only relevant to the extent of his ability to correct the interpreter’s mistakes. However, for the reasons I have outlined, it was inappropriate to rely on the appellant to ensure the accuracy of the interpretation.
D. Vital Interests
[42] The problems with the interpretation occurred during the appellant’s testimony. This was clearly a part of the proceedings that affected his vital interests, and the respondent does not suggest otherwise.
E. Prejudice
[43] The respondent submits that none of the errors in translation affected significant portions of the appellant’s testimony and that the “the verdict was not affected by the quality of the interpretation”. I would not give effect to this submission for two reasons. First, as noted earlier, it is unknown whether there were undetected errors in interpretation. Second, the respondent is in effect inviting the court to dismiss the appeal on the basis that the appellant was not prejudiced. The presence of absence of prejudice is irrelevant. The right guaranteed by s. 14 of the Charter is unqualified and a denial of the right is itself prejudicial: Tran, at paras. 72-74.
[44] What a further inquiry would have revealed and what decision the trial judge would have ultimately made cannot be known. However, in my view, a further inquiry was necessary on this record.
III. DISPOSITION
[45] The appeal is allowed, the convictions are set aside and a new trial is ordered.
Justice P.A. Schreck
Released: January 21, 2020
Footnotes
[1] The appellant has also raised a ground of appeal related to the trial judge’s treatment of the complainant’s evidence of a lack of consent. I did not call on the respondent with respect to that ground.
[2] The appellant has also applied to admit fresh evidence. Given my conclusions, it is not necessary for me to consider it.
[3] The trial judge’s ruling on this issue have not been transcribed. Counsel agreed that since the correctness of that ruling is not in issue, the hearing of the appeal could proceed without the transcript.
[4] https://www.attorneygeneral.jus.gov.on.ca/english/courts/interpreters/english_test/
[5] Transcript, Vol. 1, p.8, ll.19-23.
[6] Transcript, Vol. 1, p.10, l.18-p.11, l.4.
[7] Transcript, Vol. 5, p.10, ll.23-27.
[8] Transcript, Vol. 5, p.19, l.30-p.20, l.27.
[9] Transcript, Vol. 5, p.39, ll.9-24.
[10] Transcript, Vol. 5, p.47, l.8-p.48, l.23.
[11] Transcript, vol. 5, p.48, l.32-p.49, l. 2.
[12] Transcript, vol. 5, p.51, ll.20-23
[13] Transcript, vol. 5, p.57, ll.5-15.
[14] Transcript, vol. 5, p.68, l.21-p.69, l.4.
[15] Transcript, vol. 5, p.73, ll.1-8.
[16] Transcript, vol. 5, p.73, l.23-p.74, l.4.