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.

You Don't 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.

III

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.  Tel.(905)783-8908

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



   

 

   

Province's Invocation of Notwithstanding Clause Troubling

   The Province's decision to invoke the Charter's "notwithstanding clause" to usurp the unconstitutional finding by the Superior Court of Bill 5 puts a particular gloss on the new government which will likely be imprinted in the consciousness of Ontario's voters for years to come.  Both the manner in which the Ontario Government passed the law and the manner in which they responded to the Superior Court's finding of unconstituionality conveys to Ontario residents that public consultation, due process and The Rule of Law are not high on this government's agenda.

   What is clear to this writer is that this government does not seem to appreciate the substance of the Superior Court's decision.  This is problematic.  Reading between the lines from the Premier's comments about the judge who authored the decision, it is clear to this writer that parliamentary supremacy is his thing.  The judge is appointed and not elected by the people he raged.

   If I was a betting man I would bet that this will not be the last time this government turns to the notwithstanding clause during their tenure.  Fasten your seat-belts !

Bromley Armstrong: My Thoughts on a Great Canadian.

   When I arrived in Toronto from Montreal in and around 1987, I was directed to meet  two gentlemen in order to get myself "settled" and "involved" in Toronto's African-Canadian community.  Those two men were Charles Roach and Bromley Armstrong.  I first met Mr. Roach.  He too directed me to meet Mr. Armstrong and so I did.

   At the time, Mr. Armstrong was a union representative on the Ontario Labour Relations Board(the Board). The Board sits in a tripartite format with a chair, a union sides person and a management sides person. I called him and provided him with a little introduction about myself and my ambitions. Mr. Armstrong was beyond himself that I had studied Industrial Relations at McGill University and that I intended to practice in that area of law. Mr. Armstrong was a very firm believer that the trade union movement could play a much more significant role in the areas of racial discrimination and the quest for equality and that greater involvement by members of those impacted groups was a key to change in the workplace.

   While a student-at-law, I worked as both a Summer Student and Articling Student with the Ontario Labour Relations Board where Mr. Armstrong worked.  It is primarily through my tenure at the Ontario Labour Relations Board as a law student that I got to work with and get a very unique perspective on the man and his ideas.

   Bromley Armstrong was by no means a one issue man.  His contributions in the areas of immigration policy and racial intolerance and inequality are well documented. He was fearless and uncompromising in his commitment to change what ever he saw as unjust.

   This quality in Mr. Armstrong was an understandable by-product of two of the
corner-stones of what made him what he was; his love and respect for The Rule of Law
- coupled with his unwavering conviction that social change and advancement is only
attainable through organizing and political action.  Mr. Armstrong understood that
change does not happen unless one makes it happen. This guiding principle was a
constant in both his work at the Ontario Labour Relations Board and his community work.

   At the OLRB, Mr. Armstrong and I spent many hours debating labour relations history and policy and how it could be improved.  He embraced his role as a union sides person on the Board and saw it as an opportunity to advocate the union perspective on an issue at any opportunity that presented itself. To the best of my recollection he may well have employed his right to dissent more than any other sides persons - management or union. Mr. Armstrong understood the value of the right to dissent. It is a hard fought for right that many policy-makers and the like appear dedicated to eradicating - ever so slowly - if men like Mr. Armstrong are not there to challenge them.

   I always marveled at Mr. Armstrong's level of community involvement.  It seemed that every week he was giving a speech or participating on a panel at some conference or another.  Preparation and organization were a constant in anything he did.  Before he spoke or participated on any panel he prepared an outline or his written speech.  As he got to know me better he would ask me to review and critique his drafts.  I can not begin to put into words the pride that I felt in being asked by him to do that. I will never forget one occasion when he was to give a talk on section 15 of the Charter and how it could be a vehicle to social change in the area of racial discrimination and inequality.  We  thoroughly discussed the issue and in so doing I came to formulate much of my current thinking on how racial profiling by police officers is in fact a violation of section 15 of the Charter.

   Mr. Armstrong is gone in the flesh.  However, his passion for justice and his conviction in The Rule of Law combined with his unwavering commitment to social change through social and political action has left us a clear blue-print for us to follow on our quest for social change and justice. Rest in Peace Sir !  You did well and I am proud to have spent the time that I did with you at the Ontario Labour Relations Board ! I learned much and I thank you !



 



   

Have You Been Constructively Dismissed ?

   The traditional firing where the employee is marched into a meeting with his or her supervisor and a human resources manager and then handed a letter informing them of the termination of their employment is not the only way that one can be terminated. Our law now firmly recognizes the legal concept of constructive dismissal.

   Constructive Dismissal is a dismissal which arises not by an affirmative act by the employer as described above but through acts and omissions on their part which may entitle an employee in law to consider their employment to have been terminated by those acts and to walk away from the employment relationship.

Unreasonable Demotion:

    Typical fact-scenarios for a constructive dismissal include the unreasonable demotion of an employee.  For example, the employee is employed as the Vice President, Marketing. He or she receives an annual salary of $250,000 plus a bonus based on company performance which historically has placed them in the range of $300,000 to $375,000 of annual monetary compensation.  One day management decides that this employee will now report to his subordinate, the Director of Local Marketing and will be denied the bonus portion of their compensation. Courts have consistently found this fact-scenario to constitute constructive dismissal.  As such, the employee is entitled in law to refuse the demotion and to commence legal action against their employer based on a theory of recovery of constructive dismissal.  The damages available to the employee are the same as if the employer conducted the traditional dismissal.

Changes in Compensation
and Benefits:

   Another change to the employment relationship which our court's have recognized as constituting constructive dismissal is where the employer makes significant and unreasonable changes to the employees compensation or benefits.  Typically speaking an employee whose contract of employment provided them with an annual salary of $150,000 a year would be entitled to consider his or her contract of employment at an end were the employer to unilaterally decide to decrease the employee's compensation.

Failure to Provide a Safe
Work Environment and to
Follow Published Policies:

   At common law an employer has a duty to provide its employees with a safe work environment.  Under our human rights statutes employers have a duty to provide workplaces free of discrimination and harassment.  The two sources of legal obligations are the rationale why many employers pass workplace polices and manuals delineating the employee's rights and how they are to be enforced and respected in their workplaces.  Many a job seeker places reliance on these published policies and manuals in their decision to both join the employer and to remain in their employment.  These policies provide employees who have traditionally been subject to employment discrimination and harassment with a significant form of security.

   An employee who is the victim of workplace bullying, harassment or other forms of  discrimination who complains, makes reasonable efforts to apply the employer's published policies in these areas and receives no protection from the employer will have a compelling case of constructive dismissal. The strength of that employee's case substantially increases where the bullying, harassment or discrimination adversely impacts the employee's health and well-being.

"Shoddy" Workplace
Investigations:

   The increased importance of the obligation to provide harassment free workplaces in today's workplaces has brought with it a corresponding duty on employers to treat employees accused of such infractions fairly.  Once again the employer's published polices on these issues often provide employees so accused with certain fundamental rights which are articulated in such policies. The right to a fair and impartial investigation is one which comes to mind.  An employee who is so accused and is denied the basic application of the employer's own stated policies with respect to how these matters will be investigated will also have a compelling case of constructive dismissal.  Again, the strength of that employee's case increases substantially where the "shoddy investigation" and the failure to follow the employer's own polices adversely impacts the employee's health and well-being.

Relocation of
Workplace:

   Relocation of the workplace is yet another change in the terms of employment which may entitle an employee to consider their employment to have been constructively terminated.  Of all of the grounds upon which an employee can ground a claim of constructive dismissal this one is easily the most challenging one upon which to base liability.  The court will evaluate the employee's claim to turn down the relocation on all of the facts and circumstances.

Seek legal advice:

   Claims of this nature are not cut and dry.  They involve the consideration and application of laws which are in a state of constant flux.  They also often involve questions of law which may go beyond the scope of employment law.

   Employees who find themselves in situations like any of the one's noted above would be well served to seek out a legal opinion.

About the author:

E.J. Guiste holds a degree in Industrial Relations from Montreal's McGill University.  He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and was employed as an Employment Standards Officer with the Ontario Ministry of Labour.  Employment law and human rights represents a major part of his work as a lawyer. Tel. (416) 364-8908 - E mail: ejguiste@yahoo.com

 


   

When Can Unionized Employees Sue Their Employers ?

   The general principle in employment and labour law is that unionized employees can not sue their employers for any claims which arise from the interpretation and application of the collective agreement between their bargaining agent and employer.  This point was made clear by the Supreme Court of Canada in Weber  v.  Ontario [1995] 2 S.C.R. 929.

Employer Terminates 
Based on Criminal Act:

   In Piko   v.  Hudsons Bay Company 41 O.R. (3d) 729 the Court of Appeal for
Ontario carved out a significant exception to the general principle prohibiting
unionized employees from suing their employers for civil claims connected to
their employment and dismissal.  In that case the employee was dismissed for
theft and was criminally prosecuted for such.  The employee asserted that the
employer initiated the criminal prosecution.  The charge of theft against the
unionized employee was resolved in her favour and she sued the Hudson's Bay
Company for malicious prosecution.

   Instinctively,  the employer raised the general prohibition asserting that employee could not sue them on account of the collective agreement.  They brought a motion to strike the claim and dismiss the action. The motions judge ruled that the court had no jurisdiction over the subject-matter of the claim as the the essential character of the dispute arose from the employee's employment relationship with the defendant which was covered by a collective agreement.

   J.A. Laskin writing for the majority in Piko held that by taking the dispute out of the collective bargaining forum and bringing it into the criminal law realm the employer effectively stepped outside of the collective agreement and therefore the dispute was no longer one focusing on the interpretation and application of the collective agreement.

   The Court of Appeal for Ontario made it clear that a claim that the employer maliciously prosecuted an employee lay outside the scope of the collective agreement. The Court said:

"And the Bay's actions in instigating criminal proceedings are not directly related to the
dispute over whether Piko was unjustly dismissed.  The Bay's actions are neither a
prerequisite to nor a necessary consequence of its dismissal of Piko.  In short, the
collective agreement does not regulate the Bay's conduct in invoking the criminal
process, which is the conduct at the heart of the present dispute.  The dispute, therefore,
does not arise under the collective agreement."

Seek Legal Advice:

   Civil claims involving high-handed dismissals, malicious prosecution or dismissals contrary to public policy such as the Human Rights Code are not your average wrongful dismissal action.  It is prudent to seek out the advice of a lawyer with knowledge and experience in this area before agreeing to any settlement.

About the author:

   E.J. Guiste handles high-handed wrongful dismissal, malicious prosecution and breach of public policy statutes such as the Human Rights Code.  He represents client  in all facets of the process from providing opinions, investigations, representation at mediation, trials and appeals at all levels of court.

   

Constructive/Wrongful Dismissal: A Covid 19 Update

   Some employers have taken the Covid 19 Pandemic to give them a green light to resort to the freedom of contract mentality of the early industrial revolution to extract major concessions from employees and even put the lives of employees in danger.  This is regrettable but by no means surprising. The following is a list of some of the fundamental rights which employees have secured in our law over the years which are of paramount importance during these trying times:


1.  Employers have a common law duty to provide a safe work environment for their employees. This has been interpreted to mean that where the nature of the work has inherent dangers which can be curtailed by special tools and equipment, the employer is to provide those.

2.   Statutory enactments over the years have also gone so far as to provide employees with the right to refuse to perform work which may expose them to bodily harm or death. In Ontario section 43(3) of the Occupational Health and Safety Act provides employees with the right to refuse work they believe to be dangerous to themselves or other workers. Regrettably, the list of exempted employees is huge and includes persons working in hospitals.  Unions representing hospital employees will need to be vigilant in holding employers to their obligations in providing safety equipment to those employees who must provide services and care to patients in highly contagious settings. 

3.   Unless you are covered by a collective agreement, the common law does not recognize the concept of a temporary layoff.  An employee who is placed on "layoff" by their employer as a result of the Covid 19 Pandemic may consider themselves to have been constructively dismissed and sue their employer for damages.  Of course the employee would be well advised to seek legal advice in order to weigh the pros and cons of asserting this right. Not every employee will be able to assert this right with a degree of success.  In fact, most will not. 



About the author:

E.J.Guiste represents clients in employment and human rights law matters - litigation,
if necessary.  His focus is primarily on high-handed dismissals and those based on the
breach of public statutes like the Human Rights Code of Ontario and other statutory
laws. He is available for remote consultation. Tel(416) 364-8908 for a reasonable fee.