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.
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.
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