Monday, October 8, 2018

Right to an Interpreter at Trial Constitutionally Protected

   Individuals facing trial in a criminal or quasi-criminal proceeding have the right to an interpreter if they are unable to understand or speak the language in which the proceeding are conducted.  This right is so fundamental in our system of justice that it actually constitutionally protected under section 14 of the Canadian Charter of Rights and Freedoms.

   s.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.

Application in Criminal Trials:

   A person charged with a criminal offence who does not speak either of Canada's two official languages, French or English, is entitled to the use of an interpreter to provide simultaneous translation during the entire trial at no personal cost.

   My experience in the courts in Peel Region lead me to believe that we are not doing enough to bring this particular constitutional right to fruition.  Many, many individuals in Peel Region and indeed elsewhere are simply unaware of this right.  Trial judges and Crown counsel need to do more to make persons in the community with translation needs aware of this right.

Interpreter Inquiry by
Trial Judge would Help:

   One way to ensure that this right is protected is for trial judges to conduct an inquiry to ensure that persons facing criminal or quasi-criminal prosecution who may need translation services are fully informed and aware of their rights in this regard by way of the following inquiry:

1.   Sir or Madam - s.14 of the Canadian Charter of Rights and Freedoms provides
      that if you do not understand or speak the language in which the proceedings
      are conducted or if you are deaf - then you have the right to the assistance of an
      interpreter ;

2.   This interpreter is provided to you free of  personal cost to you;

3.   If you elect not to use an interpreter - this may be found to constitute a waiver
      of this right and may impact your appeal rights should you be found guilty.

4.   Having said that - do you wish to have an interpreter to interpret the proceedings ?

Impact of Absence of Translation
On Fair Trial Rights:

   The Court of Appeal for Ontario has had opportunity to rule on the impact of the absence of interpretation on a Defendant's fair trial rights.  In R  v. Reale [1973] 3 O.R. 905 (ONCA) the court had this to say about the impact of the absence of translation during the trial judge's charge to the jury on a defendant's fair trial rights:

"We are of the opinion that the accused, by reason of being deprived of the assistance of the interpreter during the trial judge's charge, was not present for that part of the proceedings within the meaning of s. 277 (now 650(1)) of the Criminal Code.  We are of the view that he was no more present than if he were unconscious as the result of a heart attack or  stroke, and was effectively denied any meaningful presence as if he had been physically removed from the court-room during that part of the proceedings.(emphasis added)

Advice to Defendants

1.   Being able to converse in English or French does not translate into being able to fully understand the trial proceedings in a criminal or quasi-criminal trial if neither is your first language;

2.  No one will punish you for asserting your bona fide right to interpretation;

3.  Consulting a lawyer who is knowledgeable regarding these rights is a good first step.

About the author:

E.J. Guiste is a trial and appeal lawyer based in Brampton. He represents clients in
criminal, civil and administrative and constitutional law matters. This piece was
inspired by my representation of an Urdu speaking Defendant who sought my counsel
late in his trial. The Crown's response to his application for a mistrial on account of the
absence of simultaneous interpretation at his trial both shocked and inspired me to
make other similarly situated persons in the community aware of this right.

Tuesday, October 2, 2018

No Speak English !: Right to Interpreter on Arrest Part of Right to Counsel

     Today's Greater Toronto Area population is increasingly non-english speaking.  Indeed, in Brampton languages like Urdu, Hindi and Punjabi are spoken by a significant portion of the population.  In Scarborough and Richmond Hill languages
like Cantonese, Mandarin and Tagalog are increasingly prevalent. 

     This growth and change in the linguistic composition in the GTA has dramatically changed the way police interview persons in their custody on criminal matters.  Police Services Boards must ensure that their services are well equipped with the necessary translation services in order to respect the rights of those residents whose language is neither English or French.

Right To Counsel:

    At the arrest stage, the obligation on the police to acknowledge a person's linguistic rights when communicating with them stems from that person's right to counsel under s.10(b) of the Canadian Charter of Rights and Freedoms.  That provision provides all individuals with the right to "retain and instruct counsel without delay and to be informed of that right".

     The provision provides two distinct rights - 1. right to retain and instruct counsel and 2. the right to be informed of that right.  For those whose language is not English or French in Canada the second part of the right to counsel is the paramount part.  The right to be informed of that right is not satisfied by simply reading out a statement on the back of a memobook. 

     The right to counsel is a right which  places an affirmative obligation on the police discharging that right to ensure that the receiver actually understands the right. The following excerpts from a recent case I argued on this point makes the point well*.

21.   The most significant aspect of the statement, at least for present purposes, occurred at the end, when the following exchange took place:

                Officer:   Okay, But is it fair to say you're - you don't wanna - you don't
                                wanna go into the details about it ?

                Soares:    Please.

                Officer:   Why ?  Because it's too hard to talk about ?

                Soares:    Is hard is like talking you know, is hard for me. Plus my English
                                not right - is no - no - no good - good - good enough.

                Officer:    Well, I think we're - we're talking okay, here.  You - you've
                                 understood everything this morning that's happened.  But I
                                 understand if you don't wanna uh, discuss, it any forther too.
                                 So are we done, are we -- ?

                Soares:     Yeah.

The interview ended immediately after this exchange.


Position of the Parties

22.      On behalf of Mr. Soares, Mr. Guiste submitted that s.10(b) was infringed because it was clear (or it should have been) that Mr. Soares's language abilities were insufficient for the purposes of an interrgoation.  The officer should have taken steps to ensure that Mr. Soares was able to properly exercise his right to counsel and to meaningfully participate in the interview.  On behalf of the Crown, Ms. Garcia argued that, while Mr. Soares's English is far from perfect, his comprehension and expression abilities were adequate for constitutional purposes.

23.     In all of the circumstances, I found that Mr. Soares's rights under s.10(b) of the Charter were infringed by the manner in which Ms. Peters conducted the interview.  It should have been clear from the outset, when the police first encountered Mr. Soares, that ther was a language issue.  This should have prompted the arresting officer to inquire into Mr. Soares's faccility with the English language: R  v. Vanstceghem (1987), C.C.C. (3d) 142 (ONCA), a pp. 147-149.  If it was not apparent at the outset, it became crystal clear during the interview.  There were a number of times that language presented itself as an issue.  When Mr. Soares finally raised the issue himself, saying that his English was not good enough, instead of asking him if he would like n interpreter, Ms. Peters simply asserted that there was no problem, and then brought the interview to a speedy conclusion.

24.     This state of affairs lead me to conclude that Mr. Soares's rights under s.10(b) were infringed.  Further inquires were required to ensure that his rights under s.10(b) were protected: see R  v. Doan [2012] O.J. No. 3066 (S.C.J.), at para 72, R  v. Chan [2012] O.J. No. 2456 (S.C.J.) at para 79 and R  v.  Liew [2012] O.J. No. 1365 (S.C.J. ), at para 83.

27.     In all of the circumstances, the interview of Mr. Soares was unfair and required that the language issue be addressed directly in the context of the right to counsel. For this reason, I found s.10(b) was infringed.

32.   On the facts of this case, each of the Grant factors points in the direction of exclusion.  Accordingly, I find that the admission of the statement would bring the administration of justice into disrepute, within the meaning of s.24(2) of the Charter.

Lesson to be Learned:

1.   If English is not your first language and you are unable to fully understand and express yourself in English do not hesitate to say so and to request the use of an interpreter.  Make this point crystal clear before you are given the opportunity to speak to duty counsel. In fact, if it gets to that point, make this point to duty counsel.

2.   Do not under any circumstances try to or feel obligated to impress anyone with your knowledge of English.  You may only makes matter worst for yourself.  My name is X.  My English is not good enough to answer. Please provide an interpreter for me.

About the author:

E.J. Guiste is a trial and appeal lawyer in the areas of Criminal, Administrative law and Civil Litigation and is based in Brampton.

* R  v. Soares [2013] O.J. No. 72; 275 C.R.R. (2d) 33.