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Charter - s.14 Language Interpretation. R. v. Saini
In R. v. Saini (Ont CA, 2023) the Court of Appeal considers an appeal argument that he was not accorded adequate language interpretation under Charter s.14:The Third Ground of Appeal: Breach of a Charter Right to Interpretation
[31] Third, the appellant claims his section 14 Charter right to the assistance of an interpreter was breached.
[32] The appellant brings an application to introduce fresh evidence, which he claims supports his argument that his s. 14 Charter right to the assistance of an interpreter was breached. The evidence consists of an affidavit on behalf of the appellant’s trial counsel, and an affidavit of Muhammad Shafique (who also interpreted at the applicant’s trial), to which two “error reports” are appended.
[33] Given his difficulties with English, the appellant required the services of interpreters throughout the trial and sentencing. He claims the basic standard of interpretation was not met. He claims that he did not appreciate the extent of the problem until an assessment of the evidence was done by an expert translator after his sentence was imposed.
[34] The appellant submits that the admissibility of the proposed fresh evidence be evaluated through the lens of Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. However, the proposed fresh evidence does not purport to address an issue litigated at trial; instead, it seeks to shed light on the validity of the trial process. I would admit the evidence on this more limited basis, which does not inevitably result in the ordering of a new trial: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at para. 17.
[35] Section 14 of the Charter confers upon all accused a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court. The right to obtain the assistance of an interpreter 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: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951.
[36] A person alleging a violation must show that (i) they needed an interpreter, (ii) there was a departure from the basic, constitutionally guaranteed standard of interpretation, and (iii) the alleged lapse in interpretation occurred “in the course of the proceedings themselves when a vital interest of the accused was involved, i.e., while the case was being advanced, rather than at some point or stage which was extrinsic or collateral to the advancement of the case.” In other words, an appellant must demonstrate that there is a real possibility that the appellant either did not understand or was misunderstood: Tran, at pp. 978-991; R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58, at paras. 72-86; Little c. R., 2022 QCCA 1138, at para. 15; R. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at paras. 44-48; R. v. Match, 2015 BCCA 271, 326 C.C.C. (3d) 41, at paras. 8-10.
[37] The onus to establish a breach of s. 14 of the Charter falls on the party asserting the violation and the standard of proof is on a balance of probabilities. Once a court is satisfied that the first three requirements have been met, a violation of s. 14 will have been made out unless the Crown is able to prove, again on a balance of probabilities, that there was a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred. This must be assessed in the overall context of the trial and not on a piecemeal basis. The standard is not perfection given the real time demands of the court room, the possibility of ambiguity in the original phrases, and the fact that there may not always be an exact translation for certain phrases and the standard is lower than it might be for translation of a written document. The number, quality and impact of the errors are all relevant: Little, at paras. 17-19, 51; Tran, at pp. 986-988; and R. v. S.A., 2021 ONCA 434, at paras. 26-32.
[38] In this case, the interpreter at issue did not interpret for the entire trial; six other interpreters, none of whom have been impugned, also assisted the appellant.[2]
[39] The appellant’s expert, Mr. Shafique, reviewed approximately 115 minutes of evidence which the appellant claimed was in issue. In his affidavit, he identified only one error in the translation of the evidence. The alleged error is that the words “You do not normally nap” were interpreted to mean “You do not normally take small sleep”. This is at most an inexact translation and in any event, it is not material.
[40] The other alleged errors relate to a portion of proceedings on June 19, 2018, after the evidence had concluded, during which the trial judge read a ruling relating to the admissibility of hearsay evidence; a portion of the proceedings on June 21, 2018, during which the Crown made closing submissions; and the trial judge’s delivery of his Reasons for Sentence on November 9, 2018.
[41] Much of the June 19 portion is a discussion about scheduling time for submissions. In the Crown’s closing submissions, Crown counsel summarized evidence already adduced by witnesses in the proceeding. Although the audiotape of the translation included some inaudible words, Mr. Shafique characterized the problem as, “the interpreter could not catch up with [the] speed” of the proceedings. The appellant, however, did not indicate that there was anything he did not understand which weighs against his assertion that inadequate interpretation prevented him from meaningfully participating in his trial: see, e.g., R. v. L.C.T., 2012 ONCA 116, 288 O.A.C. 133, at paras. 81-83; R. v. Pham, 2004 CanLII 33346 (ON CA), at para. 6.
[42] The bulk of the alleged interpretation errors occurred during the trial judge’s reading of his lengthy Reasons for Sentence on November 9. The trial judge read his reasons aloud and did not take regular breaks, making it difficult for the interpreter to interpret simultaneously. During the reading of the Reasons for Sentence, the appellant’s trial counsel stated that he did not believe the interpreter was translating all parts of the reasons and the interpreter was not speaking loudly enough. Upon review, some parts of the audiotape with interpretation are inaudible. In his error report, Mr. Shafique identified several specific alleged translation errors but, for the most part, he characterized the interpreter’s translation of various portions of the Reasons for Sentence as “Interpreter summarizes majority of what the judge has said” or “Interpreter summarizes minimum of what the judge has said”.
[43] In sum, the only material errors in interpretation occurred during the reading of the Reasons for Sentence. They did not affect the appellant’s ability to prepare his case, present his case, make submissions to the court, or affect the trial judge’s analysis of the evidence.
[44] Where missing parts of a proceeding can be cured by reading back the missing parts to allow the interpreter to translate them, it may not be necessary to order a new hearing of the issue: Tran, at pp.1010-1011. That is the situation here.
[45] We would order the Crown to obtain a certified translation of the Reasons for Sentence, from English to Punjabi. They will be provided to the appellant so that he has a full and complete appreciation of the reasons for his sentence. A copy of the translated Reasons for Sentence will be filed with the court by providing a copy to the Executive Legal Officer. Consequently, since the appellant has demonstrated no material errors in the translation of the evidence adduced at trial, a new trial is not warranted.
[46] In short, the portions of the interpretation the applicant has impugned do not reveal a real possibility that the interpretation impaired his ability to understand the trial proceedings or make full answer and defence. For these reasons, I would dismiss the third ground of appeal.
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