COURT FILE NO.: CR-19-10000061-00AP DATE: 20210222

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Van Den Bergh, for the Crown HER MAJESTY THE QUEEN – and – IBRAHIM TSHIBOLA Appellant/Applicant Sarah Weinberger, for the Appellant/Applicant

HEARD: January 11, 2021

ALLEN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

(Appeal Based on Fresh Evidence Application Raising Breach of s. 14 Charter of Rights)

NATURE OF PROCEEDING

[1] This Appeal was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It has been decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or video-conference. This matter proceeded by video conference.

[2] The Appellant, Ibrahim Tshibola, appeals against the October 20, 2017 guilty verdict made by Justice McLeod of the Ontario Court of Justice on the charge of sexual assault under s. 271 of the Criminal Code. The trial proceeded over four days in September 2017. The Appellant received the assistance of two French interpreters.

[3] The Appellant brought the Appeal on three grounds. One of the grounds asserts that his right under s. 14 of the Charter of Rights to have the assistance of a competent interpreter was violated during the trial. To support that ground the Appellant brought a fresh evidence application (“the Application”) in which he relied on the expert opinions of two independent French interpreters. The Respondent opposed the admission of the fresh evidence.

[4] I heard the arguments on the fresh evidence application. I opted to bifurcate my decision and determine the s. 14 Charter issue first since a determination on that ground would be dispositive of the appeal. I indicated to the parties that I would inform them of my decision in advance of a scheduled return date so they would know whether the further date would be necessary.

BRIEF OVERVIEW OF TRIAL FACTS

[5] The Appellant was convicted of sexual assault on the Complainant, a 25-year-old woman, after they had been dancing and drinking at a bar in the Entertainment District in Toronto. They did not know each other before they met at the bar. They left the bar around 2:45 a.m.

[6] Shortly afterward, the Complainant and the Appellant were inside the vestibule of a bank at the corner of King St. West and Simcoe St. Passersby, who became trial witnesses, testified that they observed through the glass windows of the vestibule the Complainant lying prone on her back on the floor of the vestibule with her naked body fully exposed and the Appellant on top of her having vaginal intercourse with her. When the Appellant saw the witnesses, he rolled off of the Complainant and moved to another spot in the vestibule. Bank video surveillance captured the entirety of the incident. The Appellant did not deny he was depicted and alleged the sex was consensual.

[7] The Complainant had no recollection of leaving the bar, entering the bank, or of being sexually assaulted. The Complainant had been drinking before she arrived at the bar and had several drinks at the bar. Consent is the issue, specifically, whether the Complainant had the capacity to form consent.

ISSUES ON APPEAL

[8] The grounds of the Appeal are:

a) The Appellant’s rights under s. 14 of the Charter were infringed by receiving inadequate French-English language interpretation at trial;

b) The learned trial judge erred by failing to consider whether the Appellant had the requisite mens rea for the offence;

c) The trial judge erred in his assessment of the Appellant’s testimony, i) by misapprehending the evidence, and ii) by failing to apply the principles set out in R. v. W. (D.).

[9] The Appellant relies on fresh affidavit evidence prepared by two independent interpretation auditors to establish that he received inadequate interpretation during the two days of his testimony.

RIGHT TO ASSISTANCE OF AN INTERPRETER

Background to the Issue

[10] The Appellant is a francophone from the Democratic Republic of Congo (the DRC) who immigrated to Canada in 2011. He testified that he grew up speaking French. After arrival in Canada, he studied English and completed a certificate for language and one year at an anglophone college. At the time of the trial, he was attending a business program at a community college in Toronto.

[11] The Appellant testified on September 20 and 21, 2017, and was assisted by a different interpreter each day. An interpreter sat with him and assisted him at the defence table and he also received assistance when he testified from the witness stand. The Appellant elected to have the trial conducted in English. He asked that he be assisted by a French interpreter only if he needed interpretation with particular English words. Despite the Appellant’s wishes, and as it turns out a wise decision in retrospect, the trial judge required the interpreter to interpret the testimony of the Appellant, all testimony of other witnesses, and all English verbal exchanges between trial participants during the proceeding. The trial judge intervened on some occasions during the trial to remind the Appellant to speak only in French.

THE LAW ON SECTION 14 AND FRESH EVIDENCE

Section 14

[12] Section 14 of the Charter of Rights protects the right of a witness to have the assistance of an interpreter in proceedings in which the witness does not understand the language in which the proceedings are being conducted.

[13] The Appellant seeks to admit the following as fresh evidence.

• an affidavit by Sandra Frydman de Helfant, a freelance interpreter contracted by the Ministry of the Attorney General to evaluate the quality of courtroom interpretation during the trial, attaching as exhibits her evaluation sheets of the two courtroom interpreters and her curriculum vitae; and
• an affidavit by Jimmy Kansela, a French-English interpreter with special knowledge in the regional dialect of the French spoken in the DRC, attaching as exhibits a Table of Errors setting out the findings of his assessment and his curriculum vitae.
• transcripts of the cross-examinations on affidavits sworn by the two interpreters.

[14] Courts have established standards for the quality of interpretation needed to protect the witness’s Charter rights. The Ontario Court of Appeal cited and elucidated the criteria set down by the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R. 951 (S.C.C.). The criteria are:

a) “continuity” which ensures continuous interpretation without breaks or summaries of the evidence;

b) “precision” which requires quality interpretation that need not be perfect;

c) “impartiality” which requires an unbiased and objective approach; and

d) “competency” which requires interpretation of a sufficiently high quality to ensure justice will be done and appear to be done.

[R. v. Rybak (2008), 233 C.C.C. (3d), at paras. 81 - 85, (Ont. C.A.)].

Fresh Evidence

[15] The Appellant submits that during the trial he was not provided adequate French interpretation. The burden of establishing this is on the Appellant. He relies on the expert opinions of the two independent interpreters one of whom audited the transcript and the other who opined on the differences between the French used in Canada and the French used in the DRC.

[16] The Ontario Court of Appeal in R. v. Abbey sets out the inquiries pertinent to an appellate court’s discretion to admit fresh evidence as expounded by the Supreme Court of Canada in R. v. Palmer.

a) Is the evidence admissible under the operative rules of evidence? (admissibility criterion);

b) Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? (cogency criterion); and

c) What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? (due diligence criterion).

[R. v. Palmer, 1980 1 S.C.R. (S.C.C.)]

[17] It is the Appellant’s position that the proposed fresh evidence is admissible as consisting of compelling, cogent, and reliable evidence of inadequate courtroom interpretation.

The Admissibility Criterion

[18] The two independent interpreters’ affidavits were helpful in determining the adequacy of the interpretation at trial.

[19] In response to the Appellant’s claim the Ministry of the Attorney General Court Services Division, Court Interpretation Unit, Program Management Branch retained Ms. Frydman de Helfant to review the courtroom audio and transcripts. Counsel for the Appellant contacted her to swear in an affidavit to the contents of her assessment after the completion of her assessment.

[20] I am satisfied that this establishes the independence and impartiality of Ms. Frydman de Helfant’s evidence.

[21] The Respondent did not challenge the two interpreters’ expertise. It is not uncommon for the expert opinion of an independent and impartial witness to be admitted for their special knowledge or skill on the matter at issue: [R. v. Abbey, at p. 42 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 8, 40 and 46, (S.C.C.)].

[22] In this vein, evidence in the form of an independent assessment of courtroom interpretation has been accepted in mistrial applications at first instance and as fresh evidence on appeal in several cases where inadequate interpretation has been alleged: [R. v. Sidhu, at paras. 41-44 (ON SC); R. v. Jesuthasan, 2013 ONCA 779, at para. 5, (Ont. C.A.); R. v. Dutt, 2011 ONSC 5358, at para. 10, (Ont. S.C.J.); R. v. Match, 2015 BCCA 271, at paras. 5 - 6; R. v. Douglas and Bryan, 2014 ONSC 2573 (Ont. S.C.J.)].

[23] Ms. Frydman de Helfant has over 18 years’ experience as an interpreter in multiple languages including French. She has conducted six courtroom interpretation audits for the Ministry of the Attorney General offering her specialized knowledge in assessing the quality of courtroom interpretation.

[24] Mr. Kansela is a francophone and native of the DRC. Mr. Kansela has specific knowledge of the French dialect common to the region. Mr. Kansela’s affidavit provided expert opinion evidence on his knowledge of the French dialect. He acquired specialized skills as an interpreter working for many years as an interpreter for the United Nations in Kinshasa in the DRC and as a courtroom interpreter for the International Criminal Court in the Hague. Mr. Kansela presently works as a freelance interpreter and translator.

[25] Mr. Kansela has no connection to the Appellant and no interest in this case and for this reason I find he is independent, impartial, and objective.

[26] I find the Appellant has succeeded in satisfying the admissibility criterion.

The Cogency Criterion

[27] The right under s. 14 of the Charter is jeopardized by a departure from the constitutionally-guaranteed standards of interpretation when there is a lapse occurring at a time in the proceeding where the Appellant’s vital interests were at stake. The guaranteed standard of interpretation is required to be assessed on the criteria of continuity, precision, impartiality, competency, and contemporaneity: [R. v. Tran, at pp. 979 and 985 – 86].

[28] The trial court recognized and provided for the need for interpretation services. The Appellant’s position is that the fresh evidence provided by the two interpreters establishes that the interpretation services at trial fell below the constitutionally guaranteed standard. Both experts cite various types of errors - omissions, additions, and distortions in the French translations on both days the Appellant testified.

[29] Ms. Frydman de Helfant cited many errors including more than a dozen instances of the interpreter engaging in exchanges with the judge or counsel that were spoken to directly by the interpreter and not translated into French for the Appellant. In Tran, the Supreme Court held that the failure to translate the interpreter’s exchanges with the judge resulted in a failure to meet the requirements of continuity of interpretation: [R. v. Tran, p. 1002].

[30] I cite below some but not all of the errors Ms. Frydman de Helfant highlights in her affidavit which she drew directly from aspects of the audio recording of the trial proceeding.

Original Language: She was very good. We talked with each other. We had a conversation there how much money do you want so we can have sex. She told me: OK, you pay me 100 dollars. Incorrect Version: She was very well, she was very good. We talked. We even had a discussion. She said: “How much would you pay, how much would you pay me to have sex with me, like a hundred dollars? That I would pay her.

Original Language: I didn’t hear. She was what towards you? Incorrect Version: [Interpreter does not interpret the question and instead responds herself]: She was very nice]

Court: Sorry, I wasn’t anticipating this. What was that? The first one [hotel] we went to was too expensive Incorrect Version: [Interpreter does NOT interpret what Court has said and proceeds to say: I didn’t like that. The $360. And we had to make a deposit. I didn’t like it. It was too expensive

Original Language: How did you know that this is what she wanted? Incorrect Version: What did she tell you?

Original Language: That’s the… I couldn’t walk. That’s the [incomprehensible]. I was just there because I felt just because I like felt bad Incorrect Version: [Interpreter did not interpret this, she omitted it, after which in line 22 she says: “I couldn’t walk. And then I was interrupted”. It is not clear whether accused or Interpreter were interrupted]

Original Language: What’s that? A girl what? Incorrect Version: [Interpreter does not interpret into English and instead says in French: You think this girl is completely sober]

Original Language: Court: The witness is professing not to know what the word “sober” is. Is that right, Mr. Tshivola [sic]? Incorrect Version: The witness doesn’t seem to know what the word “sober” is. Is that right, Mr. Tshivola [sic]? You don’t know the meaning of the word “sober”

Original Language: Court: The question was – or the suggestion was, in a somewhat incredulous tone, you thought this girl was completely sober, sobre, had not been drinking Incorrect Version: The question that was asked of you… [Court continues and Interpreter does not finish interpretation – goes instead to simultaneous mode while Court continues]

Original Language: And during this next time when you were dancing, after the four shots, did you think that she was still completely sober? Incorrect Version: And after that, after having danced, and after those four shots, did you still think she was sober?

Original Language: They’re still serving and everyone is dancing Incorrect Version: And everybody is dancing and we are having fun

Original Language: I said that she loves me. EN: She likes me. She used love but she likes me Incorrect Version: I said, I said “aime”. Aime, like, love, and like. [Interpreter proceeds to explain in line 12 what the different interpretations of the word “aimer” are. The interpreter does NOT interpret into FRE what she just said in EN]

Original Language: This, this is a moment where she is suggesting sex to you, right? Incorrect Version: This is a moment where she suggests she wants sex with you, right?

Original Language: No she didn’t say it, or no you don’t agree that she didn’t say it? Incorrect Version: No she didn’t say it, or no you don’t agree that she said it.

[31] For his part, Mr. Kansela addressed cultural/linguistic differences between Canadian and Congolese French which the Appellant submits resulted in misapprehension in interpretation. Mr. Kansela identified additions, omissions, unnecessary explanations, and distortions of meanings. This, Mr. Kansela explained, resulted from the interpreter’s failure to promptly and fairly understand, process, and render the accurate meaning of the words spoken. He indicated there were other sources of faulty interpretation resulting from the Appellant’s linguistic barriers and the extent of his comprehension of French. Mr. Kansela also drew examples from the audio recording of the trial proceeding.

[32] As Mr. Kansela explained, in the DRC in a singular conversation, French is commonly used alternately with the local DRC Lingala language. Words and expressions that have a general meaning in Canadian French can have a specific meaning in DRC local French. Mr. Kansela posed as an example the question asked at trial, “How is she?”, translated as «Comment est-elle?». In the DRC that question refers to the person’s physical appearance, rather than their state of being, which became problematic when the question of the Complainant’s sobriety was raised.

[33] A further example arose when the Appellant was asked, “How was her speech”? That was translated by the interpreter as « Comment était son language? » which in the DRC local language would refer to her style of speech in terms of such things as sophistication, use of slang. Whereas in Canadian French that question would refer to the quality of speech, such as slurring, speaking softly, stuttering. The words used in the DRC for an inquiry into the style of speech would be, « Comment parle-t-elle?» or «Comment est-ce qu’elle parle?»

[34] The Appellant used the word «base» when asked about the state of the Complainant’s sobriety. Mr. Kansela explained there is no equivalence in English or any other language for that word. It is always used and understood in a cultural context to describe how inebriated or sober someone is. It was Mr. Kansela’s opinion that it would be difficult for someone from a non-DRC context to properly contextualize and translate the word. That difficulty was evident at trial when the interpreter had difficulty interpreting what the Appellant was saying when he used the term «base».

[35] Mr. Kansela also indicated that while the interpreter translated the word “orgasm” correctly as «orgasme», she erroneously added the word “climax” in her interpretation, a word not used in the Respondent’s original question. Then the Respondent went on to use the word “climax” in a follow-up question. Mr. Kansela stated that the word “climax” may have some meaning in some French-speaking regions but has no usage in the DRC. He opined that the word is an anglicism and that the translation to that word was an error because that word was not used by the Appellant.

[36] One of the interpreters at the trial, Linda Rochon, who was relied on by the Respondent on this Application, provided an affidavit and underwent cross-examination by the Respondent. It was apparent from the assessments of the two independent interpreters that, despite their view that Ms. Rochon enjoyed respectable qualifications and experience as an interpreter, in critical areas of the evidence she failed to offer accurate and reliable translation. It was evident from Ms. Frydman de Helfant’s assessment that at various junctures in the trial there were issues with the interpretation, some of which were expressed by the Appellant, the court, and counsel.

[37] Ms. Frydman de Helfant commented that Ms. Rochon “was not precise on many occasions” and that she was not able to maintain control of the interpretation. She further observed “multiple instances when the French speaker, counsel or the court did not let her finish her interpretation and she did not request that the participants wait for her to complete her interpretation.

[38] In conclusion, Ms. Frydman de Helfant found Ms. Rochon’s overall language proficiency in French to be “poor” and Mr. Kansela’s opinion was that the interpreters’ competency to interpret the local dialect of French spoken in the DRC was not competent or reliable.

[39] In response, the Respondent alluded to the fact that the Appellant did not file an affidavit asserting problems with understanding the evidence or that he was unable to communicate his evidence as a result of the interpretation. The Respondent took the view that the court will be acting in a vacuum regarding whether any of the alleged deficiencies in the interpretation had any impact on the Appellant’s ability to understand the evidence at trial.

[40] In the absence of an affidavit, the Respondent submits, there is no way to evaluate whether any problems with the interpretation could reasonably have been expected to affect the verdict. The Respondent relied on a Manitoba Court of Appeal case where an affidavit was filed, but in a different situation and for a different purpose than exists with the case before this Court: [R. v. Gebru, 2019 MBCA 19, at para. 19, (M.B.C.A.)].

[41] I do not find an affidavit by the Appellant is necessary in this case. During the trial, the Appellant himself raised the issue of being misunderstood during trial. For instance, speaking in English, the Appellant at one point stated: “You’re speaking Canadian French. I speak African French. I just want to clarify the meaning of ‘sobre’ [sober].”

[42] Further, the two experts’ assessments make it apparent, from their direct references to the audio recording, that lapses in interpretation occurred in areas of the evidence that put the Appellant’s valid interests at stake. Imprecision, inaccuracies, omissions, and confusing interpretation occurred in areas describing the Complainant’s and Appellant’s sentiments toward each other, the Complainant’s state of sobriety, her speech, in many of their verbal exchanges as to their intentions before the sexual encounter and on the nature and extent of the sexual encounter.

[43] I find the Appellant succeeded in satisfying the cogency requirement.

The Due Diligence Criterion

[44] Independent assessments of courtroom interpretation have not only been accepted at first instance in mistrial applications they have also been accepted as fresh evidence on appeal where inadequate interpretation has been alleged: [R. v. Sidhu, at paras. 41-44, (Ont. S.C.J.); R. v. Jesuthasan, 2013 ONCA 779, at para. 5, (Ont. C.A.) and; R. v. Dutt, 2011 ONSC 5358, at para. 10, (Ont. S.C.J.)]. Delay in raising interpretation issues until an appeal is not unheard of and is apposite in the right case.

[45] Courts are clear that the due diligence requirement is not a precondition to the admissibility of fresh evidence. That criterion is required to be assessed in light of other circumstances especially with criminal cases. The failure to exercise due diligence “should not be used to deny admission of fresh evidence on appeal if that evidence is compelling and it is in the interests of justice to admit it.” Major J., as he then was, commented in R. v. Warsing, “If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the [due diligence] test should yield to permit its admission.”: [See also, R. v. Abbey, 2009 ONCA 624 at para. 134, (Ont. C.A.); R. v. Lévesque, 2000 SCC 47, at para. 15, (S.C.C.); R. v. Warsing, [1998] 3 S.C.R. 579, at para. 51, S.C.C.)].

[46] The Respondent asserts that defence counsel ought to have raised problems with the interpretation at trial. The Appellant acknowledges that the problems with interpretation ought to have been raised at trial by counsel but qualified this with the fact that the Appellant himself raised the interpretation problem at trial. There is also the further point that defence counsel mentioned during the trial that she did not speak French. She therefore could not reasonably have appreciated at trial the impact on the verdict that the culmination of the interpretation errors might have had. The law requires that if the fresh evidence is compelling and is in the interests of justice to admit it any failure to exercise due diligence should not be used to bar admission of the evidence on appeal.

[47] I find in this case that it is in the interests of justice that any delay should give way to the admission of the independent, impartial, and reliable evidence of the expert interpreters. The Appellant has satisfied the due diligence requirement.

CONCLUSION ON ADMISSIBILITY OF FRESH EVIDENCE APPLICATION

[48] I find the lapses in interpretation occurred at points in the proceeding where the Appellant’s vital interests were at stake. The fresh evidence demonstrates that the interpretation received by the Appellant at trial fell below the constitutionally-guaranteed standard.

[49] I agree with the Appellant that it would only be on an appeal, with the advantage of the full evidentiary record, that it could be realized that failure in due diligence was overwhelmed by the compelling nature of the evidence. For those reasons, I find “the overall integrity of the process is furthered by the reception of the fresh evidence.”: [R. v. Allen, 2018 ONCA 498, at para. 90, (Ont. C.A.)].

DISPOSITION OF APPEAL

[50] The admission of the fresh evidence calls into question the integrity and fairness of the entire trial. Therefore it is not necessary to go on to determine the other issues on appeal.

[51] I would grant the appeal and order a new trial.

B. A. Allen J Released: February 22, 2021