COURT FILE NO.: CR-20-00000014-00AP
DATE: 20201214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
YARED MENGISTU
H. Song, for the Crown
M. Bavaro, for the Defence
HEARD: 26 November 2020
s.a.Q. akhtar j.
On appeal from the acquittal entered on 13 February 2020 by Justice John Moore of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
[1] The respondent was charged with four counts of assault contrary to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46, and his trial was held on 13 February 2020.
[2] The respondent speaks Amharic and a conditionally accredited Amharic interpreter attended court to interpret for both the respondent and a Crown witness. At trial, the defence contested the interpreter’s ability to properly interpret the trial.
[3] As a result, the Crown and defence both agreed that a voir-dire was required in these circumstances.
[4] However, the trial judge took a different view captured in the following exchange:
THE COURT: Okay. We’ll [sic] let’s step back a bit. First of all, I understand Mister Interpreter who's here today is conditionally accredited, is that correct?
MR. COX: Correct, Your Honour.
THE COURT: I'm not quite sure when this trial date was set, but appear [sic] from the information, that it was set some time ago.
MR. COX: Correct.
MR. HETHERINGTON: I believe in May of 2019.
THE COURT: Okay and that - well long before that and certainly since then the Crown's office has been aware of the fact that an interpreter would be required.
MR. COX: That is correct.
THE COURT: And I'm told now that the interpreter is required for both the alleged complainant and the defendant.
MR. HETHERINGTON: I would consider that, Your Honour, a mischaracterization, she never makes a complaint and, in fact, denies the allegations but the alleged, the alleged victim, I suppose...
THE COURT: All right.
MR. HETHERINGTON: ...and, and yes Mr. Mengistu.
THE COURT: So I’m not going to get into the factual situation here. However, I’m not going to have a voir dire. I'm just, I'm not going to make the decision one way or the other in the sense that a fully accredited interpreter is required. Period. And that’s it. And the Crown’s office has had months to ensure that one is here. So I'm not going to enter a voir dire. I'm just ordering that the trial proceed but it must be with an accredited interpreter and if you can’t provide one now then you got to decide what to do with the charges, because I’m not, we’re not proceeding today.
MR. COX: Okay. Would Your Honour consider some of the background because I think there's....
THE COURT: No.
MR. COX: Okay. No. Then I will ask him to be arraigned and I will call no evidence and invite an [indiscernible].
THE COURT: Okay. So if he could be arraigned, please.
[5] Following these comments, the respondent was arraigned, the Crown told the court that it was calling no evidence and the judge entered an acquittal.
[6] The Crown appeals the trial judge’s decision.
[7] At the end of oral argument, I indicated that the appeal would be allowed with reasons to follow. These are those reasons.
LEGAL PRINCIPLES
[8] An accused’s constitutional right to the assistance of an interpreter derives from s. 14 of the Charter of Rights and Freedoms which provides:
A party or a 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.
[9] In R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at pp. 978-80, the Court set out the framework to determine if the accused’s s. 14 rights had been respected at trial.
[10] First, it must be established that the accused is in need of interpreter assistance. Even if an accused fails to raise the issue, the presiding court has the right to ensure that those not conversant in the language being used (a) understand the proceedings and (b) are themselves understood.
[11] Secondly, the accused must show there has been a departure from the constitutionally guaranteed standard of interpretation.
[12] Third, the accused must establish that any lapse in interpretation that has occurred did so when a vital interest of the accused was at stake rather than a point collateral to the advancement of the case.
[13] As the right to an interpreter is enshrined within the Charter, the onus to establish the breach falls on the accused.
[14] In R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, at paras. 81-82, the Court of Appeal for Ontario re-affirmed the Tran criteria, noting that the Supreme Court of Canada had identified continuity, precision, impartiality, competency and contemporaneity as significant criteria establishing the proper standard of interpretation. However, the court also emphasised that precision does not require perfection.
[15] At para. 83 of Rybak, Watt J.A., writing for the court, explained that competence inquiries, “are mandated where there are legitimate reasons to doubt an interpreter's competence”, and, at paras. 89, reiterated that the right of proficient interpretation originated from the Charter:
A party who claims an infringement of a Charter right or freedom must establish the infringement, along with entitlement to any consequential relief sought, on a balance of probabilities. Where the claim asserts an infringement of s. 14, it falls to the applicant to demonstrate, on a balance of probabilities, not only that she or he needed interpreter assistance, and that the assistance received fell below the constitutionally guaranteed standard, but also that this shortfall occurred as the case was being advanced Tran [citation omitted]. It is worth reminder that, despite the rigour of the constitutional standard it erects, Tran itself acknowledges limited allowable departures, and recognizes that not every deviation from the standard constitutes a Charter violation Tran, at 250 [C.C.C.].
[16] Watt J.A. clarified the onus of proof, at paras. 94 and 96:
It falls to the appellant to demonstrate, on a balance of probabilities, that the interpreter assistance provided here came up short of the constitutionally guaranteed benchmark.
The imposition of an onus on a party who advances constitutional infringement as the foundation for particular relief, here a new trial, carries with it the obligation to discharge the onus by some form of proof. Proof of infringement is a condition precedent to entitlement to a remedy. Said another way, the remedy is not for the asking, only upon the showing.
ANALYSIS
[17] As described in this case, after objecting to the interpreter, trial defence counsel (not Ms. Bavaro) expressed agreement with the Crown’s position that a voir-dire was necessary to determine whether the interpreter was competent.
[18] However, the trial judge explicitly declined to follow this course of action. In his view, a fully accredited interpreter was a mandatory requirement. This conclusion led him to invite the Crown to “decide what to do with the charges” if it could not “provide one now”.
[19] The sole question in this case is whether the trial judge was obliged to conduct a voir-dire to determine whether the conditionally accredited interpreter was competent to act in the accused’s trial as per Tran.
[20] The Crown asks this court to consider R. v. Gadam, 2015 ONSC 7204, where O’Marra J., at para. 10, observed that “[w]here a proposed court interpreter is not accredited or conditionally accredited, the court should conduct a voir dire to determine whether the interpreter is competent and qualified”.
[21] On the other hand, the respondent relies on R. v. Thillayampalam, 2011 ONCJ 800, 248 C.R.R. (2d) 373, and the cases cited therein, at para. 8, as authority that in cases where there is a dispute over the competency of an interpreter, a voir-dire is not mandatory as the court has the jurisdiction to control its own process. There the court relied upon cases that concluded a unilingual judge was unqualified to conduct an inquiry to determine the competency of an interpreter.
[22] I disagree with the decision in Thillayampalam and the authorities relied upon in that case. It is clear that a judge can determine whether an interpreter meets the required standard and there are many cases in which the court has conducted such an inquiry. See, for example: R. v. Pecson, 2012 ONSC 5343, (where the court also rejected the position in Thillayampalam); R. v. Blair, 2012 ONCJ 235; R. v. Moo, 2014 ONCJ 127; R. v. Baquiano, 2013 ONSC 1917; R. v. Dutt, 2011 ONSC 3329.
[23] The obligation to conduct a voir-dire can be found in Rybak. Moreover, contrary to the trial judge’s erroneous assumption, there is no constitutional right to a certified or fully accredited interpreter. The overriding requirement is that of a competent interpreter: Gadam, at para. 9; R. v. Sidhu (2005), 2005 CanLII 42491 (ON SC), 203 C.C.C. (3d) 17 (Ont. S.C.), at para. 298.
[24] When an accused challenges the competency of an interpreter, as was the case here, Rybak applies and the onus falls on the accused to satisfy the trial judge of a constitutional breach on a balance of probabilities. As part of that challenge, a judge is obliged to conduct a voir-dire to determine whether a breach of s. 14 will occur if the challenged interpreter is permitted to take part in the trial.
[25] The respondent seeks to distinguish Rybak on the basis that it pre-dated the interpreter accreditation scheme created by the Ministry of the Attorney General.
[26] I find this argument unpersuasive. As pointed out in Gadam, which post-dated the accreditation scheme, the right to challenge an interpreter derives from s. 14 of the Charter which accords the accused the constitutional protection of a competent interpreter irrespective of accreditation.
[27] Here, the judge dismissed the request to hold a voir-dire even though the respondent’s trial counsel properly agreed one was necessary. Instead, the judge determined that only a fully accredited interpreter could participate.
[28] With respect, this was the wrong approach and a voir-dire had to be held.
[29] For these reasons, the appeal is allowed and a new trial is ordered.
[30] The respondent is ordered to attend Courtroom 505, at the College Park Courthouse in Toronto, at 10:00 a.m. on 19 January 2021.
S.A.Q. Akhtar J.
Released: 14 December 2020
COURT FILE NO.: CR-20-00000014-00AP
DATE: 20201214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
YARED MENGISTU
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.