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Charter - s.14 Language Interpretation. R. v. Chen
In R. v. Chen (Ont CA, 2025) the Ontario Court of Appeal considered Charter s.14 ['language interpretation']:[1] Section 14 of the Canadian Charter of Rights and Freedoms states that “[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.”
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(3) Applicable Legal Principles
[57] The leading case in Canada on s. 14 of the Charter is Tran. In that decision, Lamer C.J. noted at pp. 960-61 that s. 14 confers on an accused “a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court”.
[58] He also described at p. 977 the purposes served by s. 14: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. [59] A party must have the same opportunity to understand and be understood as if they were conversant in the language being used in the proceedings: at pp. 977-78. That said, the Chief Justice cautioned that the principle of linguistic understanding should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings are given or seen to be given unfair advantage. “Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others” (emphasis in original): at p. 978. This principle was emphasized by Wagner C.J. in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, a case dealing with official language rights and s. 530 of the Criminal Code, R.S.C., 1985, c. C-46, where he stated, at para. 6, that instrumentalizing language rights on appeal is a highly objectionable practice that must be sanctioned to the greatest extent possible. Language rights should not be raised for the first time on appeal for an ulterior motive or for purely strategic reasons.
[60] To establish a breach of s. 14, first it must be clear that the accused was in need of interpreter assistance – they did not understand or speak the language used in court. In this regard, courts have an independent responsibility to ensure the accused understands the language and is understood. Establishing need is not normally an onerous step unless the issue of interpretation is being raised for the first time on appeal and/or there is some question as to whether it is being raised in bad faith: Tran, at p. 979.
[61] Second, the accused must show a departure from the standard of interpretation that is required to ensure that they have the same opportunity to understand and be understood as if they were conversant in the language used in court. This standard can be helpfully defined by reference to a number of criteria, including continuity, precision, impartiality, competency, and contemporaneousness: Tran, at p. 985; Rybak, at paras. 80-81. Precision and competency, which are the principal elements engaged on this appeal, must ensure that the interpretation is of a high enough quality to ensure that justice is done and seen to be done.
[62] Third, the accused must establish that the alleged lapse in interpretation occurred in the course of the proceeding itself when a vital interest of the accused was involved – i.e., when the case was being advanced: Tran, at pp. 979-80; Rybak, at para. 86.
[63] According to Tran, the question is whether there is a possibility that accused parties may not have understood a part of the proceedings by virtue of their difficulty with the language used in court: at pp. 990-91. That said, the standard of interpretation under s. 14 is not perfection. The burden of proof is on the accused and the standard of proof is balance of probabilities.
[64] Chief Justice Lamer described the question to be answered at pp. 990-91 of Tran:Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right – namely, that of linguistic understanding – should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court. [65] A court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case: Tran, at p. 994.
[66] Chief Justice Lamer summarized at p. 998:The scope of the right to interpreter assistance guaranteed by s. 14 of the Charter may be stated in the following broad terms. The constitutionally guaranteed standard of interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency and contemporaneousness. An accused who does not understand and/or speak the language of the proceedings, be it English or French, has the right at every point in the proceedings in which the case is being advanced to receive interpretation which meets this basic standard. To establish a violation of s. 14, the claimant of the right must prove on a balance of probabilities not only that he or she was in need of assistance, but also that the interpretation received fell below the basic, guaranteed standard and did so in the course of the case being advanced. Unless the Crown is able to show on a balance of probabilities that there was a valid and effective waiver of the right which accounts for the lack of or lapse in interpretation, a violation of the right to interpreter assistance guaranteed by s. 14 of the Charter will have been made out. While there will be circumstances in which waiver of the right to interpreter assistance will not be permitted for reasons of public policy, in situations where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant. [67] The absence of a timely objection does not constitute a waiver of the s. 14 right. Nor is it determinative of a s. 14 claim on appeal: R. v. Mitroi, 2018 BCCA 236, 362 C.C.C. (3d) 374, at para. 31. It can, however, be a very serious consideration in determining whether the accused has satisfied the burden of proving that interpreter assistance was required and that the interpretation provided fell short of the requisite standard. This is particularly relevant in situations where the accused needs only limited assistance from the interpreter and is able to follow the court’s direction that they speak up about interpretation problems, but fails to do so: Rybak, at paras. 94-96 and 101; L.C.T., at paras. 82-85.
[68] Courts must not be too quick to draw adverse inferences where the accused has some facility with the language used in the proceeding: Tran, at p. 985. Judges must avoid falling into the trap of the “misinterpretation fallacy” by always expecting the accused to identify errors when they have limited understanding of the language being interpreted to or from: M.R., at para. 39; Dutt, at para. 30, citing R. v. Koaha, 2008 NUCA 1, 432 A.R. 343, at para. 29. As the Saskatchewan Court of Appeal noted in R. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at para. 54: “a claimant who lacks comprehension or the ability to communicate may be totally unaware of deficiencies in the interpreter assistance provided.” This is one of the challenges associated with a lack of complaint. If the accused do not understand or speak English, how are they always to know whether something has been improperly interpreted?
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[75] The Tran criteria of continuity, precision, impartiality, competency and contemporaneousness are not exhaustive but help in assessing the interpretation that was provided.
[76] As Tran instructed, prejudice is not required to establish a breach of s. 14 although Saini, at para. 37 suggests that the number, quality and impact of the interpretation errors are relevant. See also S.A., at paras. 26-32.
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[85] It remains to address whether, as the appellant submits, a voir dire into the qualifications of Ms. Auyang ought to have been conducted as suggested in Dutt.
[86] Courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and therefore to protect an accused’s right to interpreter assistance, irrespective of whether the right has been formally asserted: Tran, at pp. 979 and 981.
[87] By the time a criminal case is called for trial, the need for interpreter assistance has generally already been established. Nonetheless, 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: Tran, at p. 988; Rybak, at para. 83; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at para. 108.
[88] 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: Rybak, at para. 84; Singh, at para. 109. 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. See R. v. Gadam, 2015 ONSC 7204, at para. 10. 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: Dutt, at para. 97. 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.
[89] At the outset of the proceedings, the trial judge should establish a system for the accused to advise the court if any difficulty with the interpretation arises: R. v. Sidhu (2005), 2005 CanLII 42491 (ON SC), 203 C.C.C. (3d) 17 (Ont. S.C.), at para. 335(8). It is advisable to use the interpreter to ensure that the accused understands the importance of alerting the court about any deficiency in interpretation at the earliest opportunity. This is particularly important if the defence counsel does not understand the accused’s language and is not in a position to notice any problem with the interpretation.
[90] After the proceeding has begun, the trial judge and both counsel should remain alert to any interpretation problem that appears to arise. Some interpretation errors or lapses can be adequately cured by having the court reporter read back the relevant parts so that they can be re-interpreted: Tran, at p. 1010. The presiding judge may also offer to re-commence the hearing of an issue to cure the absence of an interpreter or any interpretation issue that has occurred: Rybak, at para. 45. At times, it may even be necessary to conduct a further inquiry into the interpreter’s competence: M.R., at paras. 34-40.
[91] That said, as noted by the Manitoba Court of Appeal in R. v. Gebru, 2019 MBCA 73, 378 C.C.C. (3d) 468, at para. 63, there is no magic formula as to what a trial judge should say and do. The key is to ensure that there is compliance with the principles described in Tran and reflected in the wording of s. 14. I would also add that defence counsel has a role to play: Rybak, at para. 75. The need for a competent interpreter should be raised at the earliest opportunity so as to ensure that no difficulties subsequently arise.
[92] No voir dire was conducted into the competency of Ms. Auyang. At a minimum, it would have revealed that she was conditionally accredited and might have revealed that she was never tested in Taishanese. The appellant requested a Taishanese interpreter and a voir dire could have revealed that this was not Ms. Auyang. I acknowledge that in this case, the judge was in a difficult position as Ms. Auyang provided an oath that she would translate English into the Taishanese dialect of the Cantonese language yet did not. In addition, she mistranslated the appellant as saying that the interpretation was okay when he had not said that.
[93] To close, as Lamer C.J. observed in Tran, at pp. 976-77, “a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system.” As I have concluded that the appellant’s s. 14 Charter right was breached, I would order a new trial. Under the circumstances, there is no need to address the remaining grounds of appeal. . 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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