[REDACTED]. v. [REDACTED]
Her Majesty the Queen, and
Ontario Court of Justice
Oral judgment: [REDACTED]
[REDACTED], for the Crown.
[REDACTED], for the Accused.
REASONS FOR JUDGMENT
1 Judge: [REDACTED] (orally):-- I have before me [REDACTED], that is [REDACTED]. He is facing several Criminal Code offences. On the face of it, the charges appear to be serious, amongst other things allegations of sexual assault and threatening. First of all, [REDACTED] has not been arraigned, but I am told that the matter is set for trial in front of me today.
2 I have also been told that his first language is Tagalog, and his counsel has indicated that, although his English is satisfactory, it is far from perfect and he does, in fact, require an interpreter for the purposes of the proceedings. I am also told that the complainant requires an interpreter as does another witness for the defence. To my mind that, in and of itself, is not necessarily always good because you have the same interpreter interpreting for the Crown and the defence.
3 I am also told that Madam Interpreter is not accredited and I could be -- correct me if I am wrong, but it is my understanding there are three stages in place at this point and time. It is accredited, conditionally accredited, and non-accredited as far as interpreters are concerned.
4 I am also told that Madam Interpreter relatively recently tried the exam for accreditation and did not pass. I recognize and know Madam Interpreter. She has assisted in the courts for years, I am told 15 years, and that does not surprise me. I believe it is as a result of the Tran,  2 S.C.R. 951,  S.C.J. No. 16, case back in 1994, which is 20 some odd years ago -- no, 16, 18 years ago, the provincial government here in Ontario took it upon itself to create a process whereby persons, who were to act as interpreters in court for defendants and/or witnesses, had to meet certain standards and become qualified, i.e. accredited, in order to perform that function in court. The reasons for that are obvious. It make sense for that to be the situation. It is logical. It instills a sense of fairness in the process, and it is guaranteed by the Charter, s.14.
5 From a practical perspective, as [REDACTED] points out, the consequences are that -- and they are obvious, at least with respect to, at least, the Tagalog language, if this trial does not proceed then the message is, as [REDACTED] points out, and it is obvious, that those who speak the Tagalog language, really, are free to go commit criminal offences because, when it comes to their trial, if there is no accredited interpreter, they do not get prosecuted.
6 It is an absurd situation, to my mind anyway, but it is the government that created this process. It is the government that, some time ago, decided that this is the way it is to be done, and that decision and the process impacts on the Crown. It impacts on the defence. It impacts on the police.
7 I am also told that this is the third trial date. I am also told that -- and I believe it was the trial in February of 2012 that Madam Justice Greene did go through a process whereby, at the end of it, she decided that the interpreter, despite not being accredited, was okay to conduct the trial. I am told that it did not even get beyond the arraignment where it was obvious, despite the voir dire or hearing that was conducted by Madam Justice Greene, I am told it became quite obvious that the interpreter just was not qualified, once in the courtroom, to conduct the proceedings.
8 So, there was a mistrial declared and the matter was adjourned to today's date.
9 Between then and now, nothing has changed, apparently. Whatever it means to be accredited I have no idea, but there are no accredited Tagalog interpreters in the Province of Ontario. So, we are in the same situation here today as Madam Justice Greene was in back in February. Again, I am being asked by [REDACTED] to hold a voir dire, or a hearing, to decide whether or not Madam Interpreter is competent to interpret at this trial despite the fact that Madam Interpreter is not even conditionally accredited, let alone fully accredited. I mean no disrespect to Madam Interpreter, but she just recently tried to pass the qualification testing, or examination, and was not successful.
10 The cases that had been provided -- well, [REDACTED] accepts the fact that it is totally within my discretion, and I have reviewed the cases that have been presented to me. For the most part, the cases involve problems that arose after the fact, after an accused has been convicted, and it comes to light that there were problems with interpretation. This is a situation, obviously, where we are not even there yet, where the trial has not even commenced.
11 I am given the case of Jesuthasan. That matter was decided by Madam -- I am not sure whether it is Madam or Mr. Justice Mullins, and he or she apparently conducted a voir dire and was satisfied, based on that hearing, that the interpreter was competent for the purposes of the trial that he or she was about to conduct.
12 The Rybak,  O.J. No. 1715, decision involved the situation in which, in fact, the defendant indicated, through his counsel, that he could proceed, and did, in fact, proceed by way of a trial, and only complained after the fact.
13 We are all familiar with the Tran decision, and the final decision given to me was a decision by Madam Justice Benotto, Chiong, C-H-I-O-N-G. But in that case, you have to keep in mind that what was required in that case was an interpreter for a witness, not an accused, and the difference is night and day. I mean nothing is going to happen to the witness, but something could certainly happen to an accused if things go wrong.
14 To some extent, judges have to act as gatekeepers and deal with policies that are created that often do not make any sense whatsoever, but everybody is bound by the policy, and this is a perfect example. Even if I were to conduct a voir dire, and I have no idea how that would be done because I do not know one word of Tagalog, and even if I declared at the end of it that, in my opinion, Madam Interpreter was competent to act as an interpreter for the accused and to other people at this trial, what are we left with if, in fact, [REDACTED] is convicted and then he claims that the interpreter was not qualified, in fact, was unaccredited, had recently tried to pass the exam and failed, and there was a mistrial declared in this case several months ago when we went through exactly the same process and, as it turned out, despite the judge's attempt to have a hearing, it was obvious, virtually from the outset, that the interpreter just could not function properly.
15 I have also been apprised that in this case, although we will never know whether the defendant would testify or not, and I acknowledge the fact that it is -- does not have quite the impact on the defendant if he does not testify and, there for, is not subject to cross-examination, the Crown has made it known that, for the purposes of a s.276 application, the Crown wants to cross-examine him on his application. So, he will be in the witness stand and he will be cross-examined. He is a person that, apparently, does not understand, fully, the English language and he would be assisted by somebody who is not accredited.
16 So, to my mind, it is not for me, it is not for the Crown, it is not for the defence to undo this mess that has been created. That is up to the government to come up with a better system, and I am not going to embarrass myself, embarrass Madam Interpreter, by going through a mockery of a hearing and being part of it. So, I decline to hold a voir dire.