R. v. Wong, 2011 ONCJ 264

Citation: R. v. Wong , 2011 ONCJ 264 ONTARIO COURT OF JUSTICE (TORONTO REGION) HER MAJESTY THE QUEEN V. VINCENT WONG ********** R U L I N G O N V O I R D I R E BEFORE HIS HONOUR JUSTICE W. HORKINS on April 19, 2011, at TORONTO, Ontario ********** CHARGE: Abduction ********* APPEARANCES : J. Smith-Joy Counsel for the Crown J. Malmazada Counsel for the accused ONTARIO COURT OF JUSTICE (TORONTO REGION) T A B L E O F C O N T E N T S WITNESSES : Exam. in-Ch . Cr- exam . Re- exam . ********** E X H I B I T S

EXHIBIT NUMBER ENTERED ON PAGE ********** RULING Page 3 ********** Transcript Ordered: April 19, 2011 Transcript Completed: Ordering Party Notified: Tuesday, April 19, 2011 R U L I N G HORKINS, J : (Orally) This is my ruling on the voir dire into the competency of an interpreter provided by the Ministry of the Attorney General for the trial of Mr. Vincent Wong. I am referring to a draft of reasons prepared last evening. These preliminary reasons should be sufficient to explain the essentials of my decision and to permit us to move to the next step of these proceedings.

The issues raised on this voir dire are important issues with respect to this case and at the present time, generally, in the criminal courts of this jurisdiction. The difficulties with there being sufficient qualified court interpreters has resulted in this sort of issue arising on a weekly basis in this jurisdiction, which is one reason why it may be beneficial for me to, subsequently, formalize these reasons. I intend to do that in written form within the next two weeks for the benefit of counsel and others. I want to commence by apologizing to Ms. Shao, the Cantonese staff-interpreter assigned to this matter.

I apologize because it is clear that this entire process is stressful, perhaps embarrassing, and perhaps entirely unnecessary in the sense of putting her through what has had to be done in the last day. She spent most of yesterday in the witness stand being examined as to her personal antecedents as they related to her facility in both the English and Cantonese languages. She was cross-examined as to her professional abilities, and as to her performance on exams testing her competency, and on her efforts to upgrade her abilities in order to rewrite the accreditation exams.

It is clear to me that this experience was emotionally stressful, as well as physically exhausting for her. She gave her evidence consecutively in both languages, which included repeating the questions put to her and the answers that she gave. She has my sympathy.

The necessity of engaging in a competency voir dire arises from the troubled implementation of the interpreter-competency accreditationprogram instituted by the Ministry of the Attorney General in or around 2009 and put into the courts about a year ago. It is myimpression that this program was precipitated by the 2005 decision of Justice Hill in a case called R.V. Sidhu, (ONSC), [2005] O.J. 4881. Justice Hill’s judgment in that case went beyond the strict confines of the case before him and examined the court interpreter programs inthe Province.

The judgment explored and revealed a number of deficiencies in that program. That judgment inspired a closer look beingtaken at the regulation of the competency of court interpreters in the Province generally. What resulted was the growing awareness ofthe difficulties with the quality of court interpreters in this jurisdiction. One of the identified problems was the vast discrepancy in the capabilities of court interpreters and the lack in consistency of thecompetency of court interpreters. The government engaged the Vancouver Community College, an internationally recognized authority in court

interpretation services. Itis my understanding from the Ministry’s publications that this is the only institution in Canada with a court interpreter certificateprogram. The government of Ontario engaged this institution to design and implement an accreditation program. That was done. Theimplementation of that program over the last two years has been difficult, primarily because of the significant failure rate, which has inturn resulted in an extreme shortage of fully accredited court interpreters. This shortage has been described as a crisis.

That does not strike me as too much of an exaggeration in a community that is oftenreferenced as the most multicultural urban centre in the world. Certainly, in this courthouse, the College Park courthouse, we have witnesses and parties every day who speak every language thatwould be heard in the lobby of the United Nations. There is a real and pressing need for fully qualified court interpreters in thisjurisdiction. That need is not being met.

As the local Administrative Judge in this courthouse, every week I see reports of criminal prosecutions terminated, abandoned, delayedor settled on questionable terms because of the unavailability of fully qualified court interpreters These comments are only made to set the context in which this issue arises in this particular case. I remind myself that it is for the government to make the difficult decisions as to the priorities in allocating limited resources. This is notthe appropriate forum for what may appear to be a grievance in that regard.

The mandate of the court is to protect the fundamental rights of those appearing before the courts. That is the focus of this issue. Theissue before me is the competency of this particular interpreter with respect to this particular case. The Law The law as it relates to court interpreter in the criminal trial context can be easily stated.

Section 14 of the Canadian Charter of Rightsand Freedoms guarantees every party or witness to a proceeding, who does not understand or speak the language in which theproceedings are conducted, the right to the assistance of an interpreter. In addition to

Section 14 of the Charter,

Section 7 of the Charter guarantees fundamental justice.

Section 15 guarantees an equality oftreatment in the application of the law.

Section 27 deals with multiculturalism. These are all Charter values that support the importanceof the right to the assistance of an interpreter in a criminal case. In addition, an accused has a right to consult with counsel. This is aright which continues throughout the trial process and is impossible without the assistance of a competent interpreter. Providing a

competent interpreter is, therefore, not some charity provided to the accused. It is an essential constitutional right. The purpose of

section 14 is to ensure a fair hearing. The court has an independent responsibility to ensure that this purpose is fulfilled. An accused has a fundamental right to be present during the proceedings before the court. In a very real sense, and in a legal sense, an accused with no ability to understand the proceedings is not legally present before the court. In addition to the rights of the accused, the court has a right to a competent interpreter. The absence of a competent interpreter directly undermines the integrity of the fact-finding process. The required standard of

interpretation is not set out in

Section 14 of the Charter . However, it is clear from the case law that the required standard, although high, is not one of perfection. The minimum standard is competence.

Interpretation must be continuous, precise, impartial and contemporaneous. Summaries and partial

interpretations are insufficient. It is the Crown’s responsibility to ensure that an appropriate interpreter is available in criminal proceedings. When I say the Crown, I do not mean the particular Crown counsel assigned to the case, but the Crown in the sense of the State bringing the prosecution against the accused. A fully accredited interpreter is, according to the case law, presumptively competent and there is no general obligation on the court to conduct any further inquiry into the interpreter’s ability, absent some cause arising to do so.

The corollary of this has been stated that an interpreter who is not fully accredited is then presumptively incompetent and competency either has to be established or the proceedings cannot continue. In the case R.V. Rybak , at paragraph 84, our Court of Appeal commented that, “Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competency, neither presence nor absence of accreditation can be considered dispositive of the issue of competence.” That was in 2008. Since then the government’s accreditation program has come into effect.

The Ministry of the Attorney General has introduced a testing process for all court interpreters, and has developed a new accreditation model. This accreditation model was introduced to the courts almost exactly a year ago with the claim that it would make Ontario a leader in interpreter training and testing. On the voir dire, I heard evidence concerning this testing and accreditation model. The testing developed by the Vancouver Community College is specific to court

interpretation and based on actual court documents and trial transcripts. The testing targets proficiency in three express categories: sight translation, consecutive

interpretation of witness testimony, and simultaneous

interpretation from one language to the other. The tests are conducted by representatives trained by the Vancouver Community College and marked by instructors from that institution. It is my conclusion that the government has in fact established objective standards against which to measure the competency of court interpreters. Valid skills tests are clearly the only reliable way to determine if an apparently competent individual is in fact qualified.

The only way to assess objectively whether a person is competent and actually able to meet a high standard of interpreting ability, is to apply objective standards as a test for competence. This would seem to me the only practical way that anyone could ever predict with any degree of certainty whether the tested individual will actually be able to perform the function that they are undertaking to perform. The new accreditation model identifies three levels of interpreters: fully accredited, conditionally accredited and unaccredited. Unaccredited interpreters have either failed the tests or not taken the tests.

Fully accredited interpreters have achieved a score of 70 percent or better, both overall and in each of the three identified areas of testing. A candidate who fails to achieve this score, but

achieves a score of greater than 50 percent overall will be classified as conditionally accredited. The Ministry’s program provides that conditionally accredited interpreters must retake the test and achieve full accreditation within two years. So long as they provide proof that they are undertaking further training, they will continue to be scheduled for certain specific proceedings.

The Ministry’s published policy for scheduling conditionally accredited interpreters provides that such interpreters will be scheduled for proceedings that are “Shorter and do not typically have difficult vocabulary, are more informal and are easier for the interpreter to control the pace and ask questions if necessary.” The published list of eligible proceedings, as they relate to the criminal courts, includes bail hearings, guilty pleas and interpreting for a witness other than the accused.

This list is certainly not binding on the courts, but it illustrates, and is an acknowledgment from the Ministry, that conditionally accredited interpreters are not acceptable for criminal trials and certainly not for trials that are longer and involve sophisticated vocabulary or complex legal issues. Application To This Case I will now turn to this case and the application of these comments to this case.

The accused before me has been arraigned on charges that include a charge of abduction, abduction of a person under the age of 14 years, depriving the lawful parent of that child and taking them out of the country. That alone should suffice to illustrate the seriousness of the charge. The trial was scheduled for three days. The accused speaks Cantonese. I have been advised that at least one of the witnesses also speaks Cantonese. They both require, and are entitled to, an interpreter. Several months ago, when this matter was scheduled for trial, the necessity of an interpreter was noted.

That note appears on the Information before the Court. The government’s obligation to provide an interpreter was triggered at that point. It is in evidence before me that at least a week ago the Ministry was aware that no fully accredited Cantonese interpreter would be available for this trial. A conditionally accredited staff-interpreter was assigned. On the morning of the trial, Crown counsel requested that I conduct a voir dire to establish the competency of this particular interpreter.

I required Crown counsel to articulate an “offer of proof”, that the evidence on such a voir dire could result in a finding of competency by the Court. In similar cases, recently, I have refused to embark on such a voir dire when the “offer of proof” did not satisfy me that the evidence would be capable of supporting a conclusion of competency. In this case, I was persuaded to embark on the hearing. The hearing consisted of some agreed stipulations made in submissions, but primarily was based on the evidence of Ms. Shao, the staff- interpreter assigned to the case. As I have already mentioned, Ms.

Shao is bilingual in English and Cantonese. Cantonese is her mother tongue, having grown up in Hong Kong. She has been educated in both languages. She completed her high school in English, in Canada. She is a graduate of the University of Toronto with a four-year BA in music. Cantonese was at one time commonly spoken in her home, when she resided with her late parents and her sister. More recently, she has indicated that she speaks Cantonese only for the purposes of her work.

She does watch the available Cantonese language television and does this in an effort to prevent the deterioration of her facility in that language. On the basis of this evidence, I have no hesitation in concluding that she is bilingual in English and Cantonese. Ms. Shao has been employed by the Ministry of the Attorney General and has been a court interpreter for about six years. She works

part-time, but exclusively for the Ministry. She works 30 hours a week and has appeared in all levels of court; but primarily in the provincial court and primarily with respect to bail hearings, scheduling hearings, assisting sureties with respect to bail orders, and interpreting for witnesses and victims. With respect to experience in interpreting in criminal trials, the evidence is unclear. Prior to the new accreditation program, she indicated she interpreted in criminal trials and, in particular, for one lengthy, I think, six-week trial.

In the past two years, however, and since classified as conditionally accredited, she is unable to recall interpreting for any criminal trials. She did reference that perhaps she had interpreted for a witness in a criminal trial during that period of time. In fairness, I note that this limited experience over the last period of time may well be because the Ministry’s own guidelines would not include assigning her to do trial work. Prior to the new accreditation program Ms.

Shao, of course, was classified as “Ministry accredited.” She described that accreditation process as amounting to having to translate a tape recording for her employer. Ms. Shao was tested in the new accreditation model sometime in 2009. Upon receiving her scores, she destroyed them “in a fit.” Questioned about this, she indicated that she was insulted that in the views of the assessors she was not sufficiently competent to be fully accredited. She was offended when told that she had failed to achieve full accreditation.

Her recollection is that she received scores of over 70 percent, overall and in two of three categories. Her recollection is that she achieved a score in the range of high 60 percent in the category of simultaneous

interpretation. She did not appeal her scores. She is confident that the only area that she needs to improve to satisfy the testing criteria is the speed of her simultaneous

interpretation. Although she has received no additional training from the Ministry, on her own, she has located training materials and works with them, in her own time, in preparation for re-writing the exams. When questioned, she indicated that the Ministry, in fact, relaxed the two-year timeframe within which conditionally accredited interpreters must re-write, and become fully accredited. She anticipates being able to re-write the accreditation exams in June of this year and achieve full accreditation. Conclusions In conclusion, I accept, as I have already indicated, that Ms.

Shao is bilingual both in English and in Cantonese. She is highly educated, articulate and insightful. She was a careful and balanced witness under extremely difficult circumstances. Ms. Shao has achieved conditional accreditation in the new accreditation program. She has made it clear that she personally feels that the testing is unfair, that there has been an extremely high failure rate and that the testing is biased against interpreters in Asian languages. It is entirely possible that this testing regime sets an unrealistically high standard. That is certainly not a conclusion that I am equipped to judge.

What I am equipped to determine is that there needs to be an objective standard. Valid skills testing is the only reliable way to determine if an apparently competent individual is, in fact, qualified for court interpreting. The Ministry recognizes this as well and established objective standards. I am not prepared to overrule the assessment based on those carefully developed objective standards.

I am not prepared to overrule the determination that this interpreter has failed to achieve the standard set by the Ministry, or the Ministry’s public expression that conditionally accredited interpreters are unsuitable for trial proceedings. With all due respect to Ms. Shao, and I mean that sincerely, I am forced to reject her as an interpreter in this case. It is implicit in my ruling that this trial cannot continue further until a fully accredited Cantonese interpreter is available. On the voir dire , I was advised that there are five freelance, fully accredited Cantonese interpreters in the Toronto region.

With respect to this case, Court Services has simply noted them as all unavailable. That is my ruling and those are my reasons.

********** THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from recordings made herein, to the best of my skill and ability. Monika E. Potsos Official Court Reporter