ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: CR-25-142-00AP (Brantford)

DATE: 2026/02/10

BETWEEN:

HIS MAJESTY THE KING Appellant – and – SUNIL DUGGAL Respondent

Warren S. Gilmore, Counsel for the Appellant

No-one appearing for the Respondent

HEARD: February 5, 2026

THE HONOURABLE JUSTICE I.R. SMITH

reasons for judgment

Introduction

[ 1 ] The respondent was to be tried before G.B. Edward J. (the “trial judge”) in the Ontario Court of Justice in Brantford. However, when an accredited Punjabi interpreter was not available to translate the proceedings for the respondent, the trial judge refused the Crown’s request for an adjournment, found that the failure to provide an accredited interpreter constituted a breach of the respondent’s rights under s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”), and entered a stay of proceedings pursuant to s. 24(1) of the Charter.

[ 2 ] The Crown appeals, arguing that there was no breach of the respondent’s rights, that the stay ought to be set aside, and that a new trial should be ordered.

[ 3 ] For the reasons which follow, the appeal is allowed.

Background

The allegations

[ 4 ] The respondent was charged with three counts of assault, four counts uttering threats to cause bodily harm or death, one count of assault with a weapon, and one count of choking. The complainant in each case was the respondent’s wife, who reported to the police years of abuse at the hands of the respondent in the context of their domestic relationship.

[ 5 ] The Crown elected to proceed summarily, and counsel estimated that three days would be required for trial. It was therefore scheduled for March 5, 7 and 11, 2025.

March 5, 2025: adjournment

[ 6 ] On March 5, 2025, the parties appeared and were ready for trial. There were two accredited interpreters present, one for the consecutive translation of the complainant’s evidence which was expected to be given in Hindi, and one for the simultaneous translation of the proceedings into Punjabi for the respondent. Unfortunately, the trial judge was ill and had not attended court. The case was therefore spoken to before another judge of the Ontario Court.

[ 7 ] Counsel for the respondent was under the understanding that all three dates set for trial were to be vacated due to the trial judge’s illness, but Crown counsel proposed adjourning to March 11, 2025, the third day set for trial, and securing two new dates from the trial coordinator in the meantime so that the trial could be completed. Counsel for the respondent agreed with this proposal and the presiding judge adjourned the matter to March 11, indicating that “the expectation is the trial will proceed on that date.”

March 11, 2025: one interpreter appears for trial

[ 8 ] On March 11, 2025, the parties appeared before the trial judge. At the outset, Crown counsel addressed the court and said that he had been advised by Court Services that morning that although two accredited interpreters had been ordered for the trial on that day, the interpreter secured for the simultaneous translation for the respondent was unaccredited and that no interpreter was available for the translation of the complainant’s evidence. Crown counsel continued:

For whatever reason, Court Services has indicated that all other interpreters are either otherwise assigned, or unwilling to attend in person. I had them clarify whether or not we could get some, even this afternoon and, and that was indicated that it would not be possible for today, so.

[ 9 ] After hearing briefly from counsel for the respondent, the trial judge addressed Crown counsel as follows:

THE COURT: It’s very easy. Are you asking for an adjournment?

MR. GILMORE: The complainant has, has indicated ....

THE COURT: Just answer the question. Are you asking for an adjournment?

MR. GILMORE: No, I could proceed with the other witnesses and not have the, the complainant testify today and, and secure an interpreter for a future date.

[ 10 ] Counsel for the respondent said that he was content to proceed in that fashion as long as the unaccredited interpreter’s competence was explored on a voir dire .

The voir dire respecting the interpreter’s qualifications

[ 11 ] A voir dire ensued, during which the interpreter, Ms. Meera Sharma, testified that she was born and raised in India, where she had her primary and secondary education in Hindi, Punjabi and English. She was then educated at the college level in English in both England and Canada. She worked in the securities industry in Canada the 1980’s and started interpreting in the 1990’s. She speaks Punjabi at home and writes poetry and prose in Punjabi, Hindi and English.

[ 12 ] Ms. Sharma said she has been accredited by the Immigration and Refugee Board for the past 26 years in both Hindi and Punjabi. She now administers and marks the accreditation test given to new interpreters for the board. She has also been interpreting in the courts throughout southern Ontario for 25 years and she is always “on-call” when needed by the court. Ms. Sharma testified that she has “lost count” of the number of criminal trials at which she has translated. She has also worked as an interpreter at discoveries in civil cases, in hospitals and doctors’ offices, and for Children’s Aid Societies.

[ 13 ] Ms. Sharma testified that she has been repeatedly complimented by judges about the quality of her work and offered to show the trial judge an email she had recently received from a judge. The trial judge declined, saying “I take your word for it.” She testified that she had never been made aware of any criticism of her translation work and said that she had never previously been rejected as an interpreter by a judge following any of the “many” voir dires into her credentials. She said that the only times she has been rejected as an interpreter have been on occasions where there had been no voir dire , but counsel had objected simply on the basis of the fact that she is not accredited by the Ministry of the Attorney General (the “Ministry” or “MAG”) .

[ 14 ] Ms. Sharma was asked about her duties as an interpreter during examination-in-chief:

Q. When interpreting on a criminal trial, can you tell us to what, or to whom you owe a duty?

A. I owe duty to everybody, to the court, first of all, then to everybody else that is involved in the case.

Q. Okay.

A. In the court, everybody.

Q. Okay. What would be your, your practice if a Crown Attorney, if the accused or their counsel, or a defence witness asks you to interpret during a break, or when court is not in session?

A. I do, I, I go ahead because I’m here to do that job.

Q. Okay.

A. It’s my responsibility to provide services.

[ 15 ] In response to a question from Crown counsel, Ms. Sharma said that she had applied to take the accreditation test administered on behalf of the Ministry and that she was waiting to be called in to take the test. She did not say when she had submitted her application. In cross-examination, Ms. Sharma said that she had taken the test once before, some 15 years ago, and had failed. She explained that when she took the test, the candidate for accreditation either passed or failed whereas, since that time, conditional accreditation is available for candidates who pass some but not all parts of the test. In any case, Ms. Sharma testified that it is difficult to get an appointment to take the test, even with the recommendation the court has made to the Ministry on her behalf that she get tested.

[ 16 ] After Ms. Sharma testified, in very brief submissions, both counsel expressed concern that Ms. Sharma had failed the Ministry test some 15 years ago. No other criticism was made of her abilities.

[ 17 ] The trial judge then immediately ruled as follows:

I really respect the fact that Madam interpreter has appeared before the court and participated in the voir dire.

The Crown and defence share a concern that some 15 years ago she did the test to be an accredited interpreter and was not successful in that testing and has not since been able to re-take the test, although she is waiting to take the test.

Under the circumstances, until such time as she has been accredited by MAG, I am not prepared to have her translate this case which is no personal slight against her. I’m sure she would be very capable, but the court is very sensitive about accurate transcription.

For that reason, I will not permit her to translate in this case. Thank you.

The request for an adjournment is denied

[ 18 ] The trial judge then addressed Crown counsel, Mr. Gilmore, and the following exchange, which included Mr. Brian Starkman for the respondent, occurred (emphasis added):

THE COURT: And so what are you going to ask for now?

MR. GILMORE: So we’re in the process, Mr. Starkman and I are giving availability for new court dates to substitute the two that were cancelled last week. I don’t imagine we can proceed if the accused doesn’t have an interpreter.

THE COURT: I’m open to hear that the charge should be dismissed. That no adjournment be granted. I’m sick of this, right? And the Crown owns this. If MAG can’t get their act together and get people credited in a more timely fashion, I’m not going to sit there and adjourn cases. Do you oppose the adjournment?

MR. STARKMAN: Yes, I do .

THE COURT: Thank you. The adjournment request is denied .

MR. GILMORE: Thank you, Your Honour.

The stay of proceedings

[ 19 ] The trial judge then asked Crown counsel if he intended to call any evidence, and the following exchange occurred (emphasis added):

MR. GILMORE: I’m not sure that I can without the accused being afforded an interpreter. I, I’m content to proceed with, with witnesses, but I don’t know if that puts the accused in a position to ...

THE COURT: I don’t think he can make full answer and defence under the circumstances. All right. Mr. Starkman, what’s your argument?

MR. STARKMAN: In the circumstances, I’m urging Your Honour, I guess the appropriate thing would be to stay proceedings in light of ...

THE COURT: Under 24(1)?

MR. STARKMAN: Yes .

THE COURT: Because your client can’t make full answer and defence because no interpreter is available?

MR. STARKMAN: Yes, sir .

THE COURT: I agree with you. The charge will be stayed under 24(1) as a result of a breach of the accused’s Section 7 rights to make full answer and defence because the Ministry is not in a position, despite repeated requests, to provide him with an accredited Punjabi interpreter and, as such, the stay will be endorsed on the Information. Thank you. Mr. Duggal, stand. The charge against you will be marked stayed. You’re free to go .

MR. STARKMAN: Thank you, Your Honour.

THE COURT: Thank you.

MR. GILMORE: Thank you, Your Honour.

[ 20 ] The proceedings following the trial judge’s ruling in which he declined to permit Ms. Sharma to interpret – which includes the Crown’s request for an adjournment, the respondent’s opposition to that request, the trial judge’s refusal to grant an adjournment, the Crown’s concession that he was not in a position to call evidence without an interpreter, the respondent’s application for a stay based on a breach of his s. 7 rights, and the ruling finding a Charter breach and granting a stay – consumes about 1 and a half pages of the official transcript.

Efforts to serve the respondent

[ 21 ] After the proceedings against the respondent were stayed, the Crown launched its appeal of the stay to this court. The Crown attempted to serve its notice of appeal on the respondent. The first attempt was made on March 15, 2025. The police officer who attended at the respondent’s residence was told by the respondent’s son that the respondent had departed for India and that he was not sure when the respondent would be returning to Canada. Subsequent attempts to serve the respondent were unsuccessful and the police were advised on several occasions that the respondent was in India. Eventually, it appeared that the respondent’s residence had been abandoned and listed for sale.

[ 22 ] On October 30, 2025, Bale J. granted the Crown’s request for an order for substituted service.

[ 23 ] The respondent has not responded to the appeal and neither he nor counsel on his behalf appeared at the hearing.

The law

[ 24 ] Although – in their haste – neither counsel for the respondent nor the trial judge at any time referred to it in the proceedings below, preferring instead to rest their submissions and conclusions respectively on s. 7 of the Charter, s. 14 of the Charter is the key constitutional provision in this case (although ss. 7 and 11 also have obvious relevance: Regina v. Tran , [1994] 2 S.C.R. 951, at p. 976). Section 14 reads as follows:

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.

[ 25 ] As Lamer C.J.C. explained in Tran , section 14 has three main purposes in criminal proceedings, which he described as follows (at p. 977):

First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter . The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.

[ 26 ] For these important objectives to be achieved, and for the s. 14 right to be effective and meaningful, the interpretation provided during a criminal trial must be competent. To ensure the competence of interpreters, the Ministry has instituted a system for the accreditation of interpreters. Sometimes, however, no accredited interpreter is available and unaccredited interpreters are supplied to the court, as happened in this case on March 11, 2025. In such circumstances, the duties of the trial judge are as described by Pepall J.A. in Rex v. Chen , 2025 ONCA 168 (at paras. 87 – 88 ; citations omitted):

… a trial judge's gatekeeping role includes being satisfied with the qualifications of the interpreter. Where there is legitimate reason to doubt the interpreter's competence, the trial judge should conduct an inquiry into the interpreter's qualifications […].

A trial judge should inquire into whether the proposed interpreter has been accredited or conditionally accredited by MAG. Neither the presence nor absence of accreditation can be considered dispositive of whether the interpretation provided is competent […]. If a proposed court interpreter is not accredited or conditionally accredited by MAG, though discretionary, a trial judge should give serious consideration to conducting a voir dire . […] For lengthy and complex proceedings, it may be advisable to err on the side of caution. The greatest degree of confidence will be provided where an interpreter has been tested in both the language used in court and the language of the accused […]. At the same time, a trial judge must always be mindful that court time be used efficiently and may consider a voir dire to be unnecessary.

[ 27 ] An accused person’s s. 14 right to an interpreter will be violated where the interpretation of the proceedings is incompetent, or when the trial goes forward with no interpreter at all. Put another way, there is no breach of the s. 14 right until there have been proceedings in which there has been no interpretation, or incompetent interpretation, for the person entitled to it. This reality is reflected in the fact that the typical remedy for a breach of s. 14 is an order for a new trial. Where an interpreter is unavailable, an adjournment is the appropriate step in order to avoid a breach of s. 14: Regina v. Pan , 2012 ONCA 581 , at para. 23 .

Discussion

The qualifications of Ms. Sharma

[ 28 ] In this case, the Ministry provided to the court the services of one unaccredited interpreter when what had been requested was two accredited interpreters. Given the lack of Ministry accreditation, the trial judge was asked to conduct an inquiry into the qualifications of Ms. Sharma. This was consistent with the direction of the Court of Appeal in Chen . Both counsel expressed concern about the qualifications of Ms. Sharma at the end of the voir dire , and no criticism is made on appeal of either the submissions of counsel or the trial judge’s decision respecting Ms. Sharma’s qualifications.

[ 29 ] However, I note that it was far from clear that the conclusion urged on the trial judge by both counsel was a foregone one. This is especially so given that the “absence of accreditation” is not “dispositive of whether the interpretation provided is competent” and given that the trial was not expected to be especially “lengthy and complex”: Chen , at para. 88 . Ms. Sharma gave impressive evidence about her qualifications and her long experience translating criminal proceedings (and other proceedings). The trial judge’s reasons for rejecting Ms. Sharma expressly recognized this point. He said that “I’m sure she would be very capable…”

[ 30 ] In other words, this is not a case where the interpreter assigned to this case was obviously incompetent or otherwise unsuitable. Counsel might reasonably have argued that the voir dire demonstrated that she was a competent interpreter, and another judge might have permitted her to interpret, as apparently other judges have.

Was there a violation of the respondent’s rights?

[ 31 ] Because there was no trial, there was no violation of the respondent’s s. 14 right in this case. In this respect, the present case bears many similarities to Pan . In Pan , the trial was set for four days. On the first three days, interpreters were available. On the fourth day, however, no interpreter was available. The judge in Pan expressed frustration with the underfunding of the courts, in particular “the province’s decision ‘to allocate inadequate resources to interpreters.’” Of his own motion, he stayed the proceedings, having found them, inter alia ,[^1] an abuse of process: Pan , paras. 4, 9 – 11 .

[ 32 ] It will be recalled that the trial judge in the present case was also frustrated. He said that he was “sick of this” and that “the Crown owns this.” He expressed the view that the Ministry “can’t get their act together [to] get people credited in a more timely fashion.”

[ 33 ] In the similar circumstances at play in Pan , Laskin J.A. wrote as follows (at para. 16):

The trial judge’s complaint that the province chose to allocate inadequate resources to interpreters was entirely unsubstantiated.

[ 34 ] As in Pan , there was no evidence before the trial judge about why an accredited interpreter was unavailable. There was no evidence that the Ministry could not “get its act together.” Indeed, the Ministry had supplied an interpreter of extensive experience. There was no evidence about how long that interpreter had been waiting to re-take the accreditation test. There was no evidence about how many other cases in Brantford or elsewhere in southern Ontario required the services of Hindi and Punjabi interpreters on March 11, 2025. The trial judge’s conclusions were therefore speculative, or as Laskin J.A. put it, “unsubstantiated.”

[ 35 ] In a different context, [^2] in Rex v. S.A. , 2024 ONCA 737 , Fairburn A.C.J.O. criticized this kind of judicial speculation (see para. 42) and observed as follows (at para. 41):

In the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole. It brings to mind what Doherty J.A. wrote more than 25 years ago, “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen (1996) , 92 O.A.C. 345 (C.A.), at para. 27 , aff’d , [1997] 3 S.C.R. 700.

[ 36 ] While the case against the respondent is important, and is especially important to the respondent himself, this case was not the only case with a legitimate demand on interpreters on March 11, 2025, as Crown counsel reported to the court at the outset. And the fact that an interpreter was not available for this case does not mean that the respondent’s s. 14 right was violated. Indeed, the Crown’s proposal that the case be adjourned so that an interpreter could be secured was designed to protect against such a violation, just as Laskin J.A. found in the analogous circumstances in Pan (at para. 23 ):

In this case, a simple adjournment to a date when an interpreter was available would have addressed the prejudice that would have flowed from proceeding without one.

[ 37 ] Accordingly, I agree with the Crown that the trial judge erred in law both by finding that the respondent’s s. 14 Charter right [^3] was breached and by refusing the Crown’s request for an adjournment. [^4]

The stay of proceedings

[ 38 ] Given that I have found that there was no violation of the Charter , it follows that the trial judge erred by fashioning a remedy for such a violation under s. 24(1) of the Charter.

[ 39 ] I add, however, that even if it could be said that there was some violation of the Charter in the circumstances of this case, the appropriate remedy was not a stay, it was an adjournment. Again, this issue was addressed by Laskin J.A. in Pan (at paras. 24 – 26 ):

In addition, the trial judge erred by failing to consider, let alone apply, the proper test for a stay. A stay is a remedy of last resort because it deprives the community of a trial on the merits. It is to be granted only in the “clearest of cases” and usually only if two criteria are met:

• The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

• No other remedy is reasonably capable of removing the prejudice.

See e.g. R. v. Regan, 2002 SCC 12

Had the trial judge applied this test, he could not have stayed the charges against Pan because she could not “access her own trial”. Neither criterion was met. Even if she were prejudiced by the unavailability of an interpreter that day, that prejudice would not be “manifested, perpetuated or aggravated” by continuing the trial with an interpreter on another day. Another remedy – an adjournment to a date when an interpreter was available – was “reasonably capable of removing the prejudice”. The trial judge was, therefore, wrong to stay the charges on the ground Pan could not “access her own trial” that day.

In staying the charges against Pan, the trial judge erred in principle and exercised his discretion unreasonably. I would set aside the stay and order a new trial on the charges against Pan.

[ 40 ] Here, as in Pan , the trial judge failed to advert to the test for a stay, failed to apply it, failed to recognize that no prejudice to the s. 14 right would crystallize if an adjournment were granted, and that, therefore, an adjournment was an available remedy that would have obviated the need to resort to the remedy of last resort. Clearly, this was not one of those “clearest of cases” where a stay was justified.

[ 41 ] Accordingly, I agree with the Crown that the trial judge erred both by crafting a remedy in the absence of proof of a breach of the Charter , and by failing to advert to and properly apply the test for a stay. As in Pan , the trial judge erred in principle and exercised his jurisdiction unreasonably.

Procedural fairness

[ 42 ] I note also that the proceedings before the trial judge stand out as profoundly unfair to the Crown.

[ 43 ] It is difficult to read the very short portion of the transcript of the proceedings following the voir dire without coming to the conclusion that the trial judge had prejudged the issue before he had heard any submissions at all. As Crown counsel argues, the stay appears to have been imposed on the trial judge’s own motion.

[ 44 ] In addition, however, while the denial of the request for an adjournment was wrong (as I have already described), it was also procedurally unfair. No proper notice was given to the Crown that there was to be an application for a stay. There was a complete failure to comply with Rule 2 of the Criminal Rules of the Ontario Court of Justice (which rule governs applications), adherence to which would have imposed procedural discipline and fairness on the consideration of the request for a stay. And as I have already found, the trial judge proceeded on the basis of his own unsubstantiated speculation, not on actual evidence.

[ 45 ] Finally, on the crucial question – whether a stay should be granted – the trial judge did not even ask Crown counsel for submissions. He simply agreed with counsel for the respondent and entered the stay without hearing from the Crown. Had he paused to do so, or had he given Crown counsel some time to research the question, the trial judge’s attention might have been drawn to the judgment in Pan and he might have avoided all the various errors described in these reasons.

[ 46 ] Moreover, despite his concern that the respondent not have to proceed without an interpreter given that doing so would trample on the respondent’s fair trial rights, the trial judge proceeded to call for, hear, and decide a full Charter application – a matter which engaged the vital trial interests of the respondent and during which the respondent had the right to be meaningfully present [^5] – all without an interpreter for the respondent. Of course, this particular legal error does not benefit the Crown on this appeal, but it does underscore the hurried and generally unsound nature of the proceedings, which, in addition to being important to the respondent (as I have already observed), were important to the complainant and to the public, both of whom had an interest in a trial on the merits.

[ 47 ] None of this was satisfactory. At a minimum, the trial judge erred in law by denying the Crown natural justice and procedural fairness.

Conclusion

[ 48 ] To summarize, the trial judge erred in law as follows:

• by finding a breach of the respondent’s s. 14 Charter right;

• by refusing the Crown’s request for an adjournment;

• by ordering a Charter remedy in the absence of a Charter breach;

• by failing to advert to and properly apply the legal test for a stay of proceedings; and

• by denying the Crown natural justice and procedural fairness.

[ 49 ] For all these reasons, the Crown’s appeal is allowed, the stay of proceedings is set aside, and a new trial is ordered before a different judge of the Ontario Court of Justice.

I.R. Smith J.

Released: February 10, 2026

COURT FILE NO.: CR-25-142-00AP (Brantford)

DATE: 2026/02/10

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT BETWEEN: HIS MAJESTY THE KING Appellant – and – SUNIL DUGGAL Respondent REASONS FOR JUDGMENT I.R. Smith J.

Released: February 10, 2026

[^1]: In Pan , the trial judge also found that the failure to provide an interpreter impacted Ms. Pan’s s. 11(b) right to trial within a reasonable time even though no s. 11(b) application had been brought and even though he failed to conduct a proper analysis of the delay in in that case. Laskin J.A. concluded (at para. 21) that the trial judge had erred in principle in so doing, adding that Ms. Pan could have brought a s. 11(b) application had the trial judge adjourned the case as he ought to have. Of course, this would also have been true in the present case. Had the adjournment to secure an interpreter been granted, and had that adjournment resulted in an alleged violation of the respondent’s right to a trial within a reasonable time, an application for a stay could have been brought and the court could have considered that application in accordance with the principles in Regina v Jordan , 2016 SCC 27 .

[^2]: At issue in S.A. was delay said to have been caused by the Federal government’s failure to fill judicial vacancies promptly.

[^3]: Although the trial judge referred to s. 7 , I am prepared to assume that he meant to refer to s. 14. In any case, the s. 14 right is essentially subsumed in s. 7 : Tran , at p. 976.

[^4]: In this latter respect, the trial judge’s refusal to adjourn the matter is especially difficult to understand given that it was never understood that the trial was going to be complete in one day. In other words, even had an interpreter been available, at the end of that day the trial would necessarily have been adjourned.

[^5]: See s. 650 of the Criminal Code , R.S.C. 1985, c. C-46 and Regina v. Vezina , [1986] 1 S.C.R. 2 .