R. v. Keffle, 2011 ONCJ 201

Citation: R. v. Keffle, 2011 ONCJ 201 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN against HAGOS KEFFLE R U L I N G Old City Hall April 13, 2011 Appearances: Mr. K.R. Davidson Counsel for the Crown Mr. R. Tomovski Counsel for Hagos Keffle This is a preliminary inquiry that has not begun because the Court is inquiring into the competence of the Amharic interpreter that CourtServices has provided for Mr. Keffle. The interpreter, Mr. Ebba, was an accredited interpreter from 2003 until a new interpreteraccreditation system was introduced in Ontario in 2009. Mr. Ebba has not yet been tested under the new system.

Although absence ofaccreditation is not dispositive of the issue of competence, an unaccredited interpreter is presumptively incompetent: R. v. Sidhu, (ON SC), 203 C.C.C. (3d) 17. Therefore, I am required to hold an inquiry into whether Mr. Ebba meets the guaranteedstandard of constitutional

interpretation: R. v. Tran (SCC), 92 C.C.C. (3d) 218. This is a standard of

interpretation shortof perfection but “of continuity, precision, impartiality, competency and contemporaneousness.” R. v. Tran at p. 256 c. Althoughcompetency is just one factor in the Supreme Court’s standard, it has come to mean the standard itself. Whenever I use competence orcompetency, it is in the sense of the guaranteed constitutional standard. Mr. Ebba testified. On consent and with an informed waiver, Mr. Keffle waived his right under s.14 of the Charter to have theproceedings interpreted to him while Mr. Ebba testified because it was not possible for Mr. Ebba to testify and interpret at the same time.

Amharic is the national language of Ethiopia. Mr. Ebba was educated in Amharic which he has been speaking since the age of 6. He has a Master’s degree in economics that he obtained at an Amharic speaking university. He was accredited as an Amharic interpreter under the Ministry of the Attorney General’s accreditation system in place prior to the introduction of the new system. He testified that he interpreted at trials, bail hearings and preliminary hearings although he demonstrated some confusion as to the terms pre-trial hearing and preliminary hearing at one point. Mr.

Ebba also speaks and has acted as an interpreter in his native tongue, Oromiffa, but he is not now accredited to interpret in Oromiffa as he did not meet the criteria for accreditation in oral recall, consecutive dialogue and shadowing and sight consecutive translation in that language. His English, which the Court can observe and understand, is accented but clear, almost entirely grammatically correct and at a high level. Mr. Ebba testified that he understood both Amharic and English and was able to interpret from one to the other.

Indeed he affirmed that he would do so accurately and that if he did not understand something, he would ask. By agreement, the testimony of Lynn Norris, director of the corporate planning branch with Court Services Division in the Ministry of the Attorney General, given before Justice Bovard in R. v. Peng Chen on April 10, 2010 is evidence on this voir dire. Her evidence establishes the following. The present accreditation system results from a move by the Ministry to a system of court interpreting tests that are specific to the environment of the justice system. The previous system, the one under which Mr.

Ebba received accreditation as an Amharic interpreter, was a more standard language

interpretation test. The new test that the Ministry ordered from and purchased from Vancouver Community College uses court transcripts taken from Ontario courts as the scripts used for testing. This is the big distinction from the previous test: the new test is specific to the court environment. When Ms. Norris testified in 2010, the Ministry had acquired the new test for only 25 of the 110 languages that are used in Ontario. Mr. Ebba testified that he has applied to take the test and it is an agreed fact that there is one Amharic interpreter in Ontario accredited under the new system but that he no longer provides

interpretation services for the courts. Ms. Norris testified in Peng that all of the existing staff and free lance interpreters used in Ontario already demonstrated a high level of proficiency by passing the then existing test, that is the one that Mr. Ebba passed many years ago. According to Ms. Norris, passing the old test demonstrated proficiency. The new test demonstrates a very high skill level. The standard for passing the new test and obtaining accreditation under it is 70% in all areas of the test which are simultaneous

interpretation, consecutive

interpretation and sight translation component. Ms. Norris explained that an interpreter, including those previously accredited, would be conditionally accredited if they received 70% on two of the areas but not all three. She characterized the standard established by the test as a high bar. Only accredited interpreters would be assigned to complex matters including trials and preliminary hearings. In Peng , the judge asked Ms. Norris outright if failure on the new test meant that a person was incompetent to interpret.

She answered that failure to meet accreditation standards means that the interpreter has not met the standards of the Ministry’s tests. She noted that an unaccredited interpreter may have demonstrated competence in a number of other ways. She noted that one of the reasons for non- accreditation may be that the interpreter has not taken the test. With respect to persons who were previously on the Ministry’s accredited list who are not accredited under the higher standard of the new test, Ms. Norris testified that they may still demonstrate a level of proficiency with certain types of proceedings that the Court and

the parties would feel comfortable with. Ms. Norris further explained that for many years the Ministry used unaccredited interpreters on an urgent or extreme basis. It was notentirely clear whether this has continued, but I infer from her evidence that interpreters who are not accredited under the new rigorousstandard are still provided on an urgent or extreme basis. Further legal principles governing the determination of Mr. Ebba’s competency In determining whether the Tran standard has been met, certain other principles are relevant to this voir dire. Mr.

Keffle has an absoluteright to an interpreter under s.14 of the Charter. There is no onus on him to demonstrate this his right is being violated and no onus onthe Crown to show that Mr. Ebba is competent, apart from his presumptive incompetence flowing from his not being accredited. TheCourt must determine competence on this voir dire. There is no question that the Court is not in a position to evaluate Mr. Ebba’s

interpretation by observing it, a point that Mr. Keffle mademuch of in argument. This is obvious and as such beyond dispute. Even if a judge does speak the language of the accused, he has nobusiness using it in court. A judge should not become an interpreter: Regina v. Turkiewicz, Barrow and MacNamara (ON CA), 26 O.R. (2d) 570 103 D.L.R. (3d) 332. No one other than a person fluent in the Amharic and English languages and qualifiedas an expert could evaluate Mr. Ebba’s translation but if such a person were available then they could interpret, unless their skill wasquestioned. Further, as stated, there was no

interpretation of Mr. Ebba’s testimony on this voir dire, but as this was with the explicit consent of Mr.Keffle, it is acceptable: R.v.Petrovic 47 O.R. (2d) 9. Evaluation of Mr. Ebba’s competence Unable to evaluate the accuracy or proficiency of Mr. Ebba’s Amharic to English and English to Amharic

interpretation myself, andfaced with his being unaccredited, I must determine his competence within the meaning of Tran based on the evidence that I have. Thismust be the case, for if accreditation were the sole criteria and its absence meant incompetence, then that would end the matter. Thepresumptive incompetence in Sidhu would prevail and no inquiry would serve any purpose. There is evidence that Mr. Ebba was accredited under the old system of testing and has interpreted in criminal proceedings for manyyears.

He was challenged only once and was disqualified because he knew one of the parties and not on the basis of competence. He isfluent in Amharic and has affirmed to both faithfully translate everything to the best of his ability and bring to the Court’s attention anyconcerns that he has about his or Mr. Keffle’s understanding. Mr. Keffle submits that Mr. Ebba’s commitment to interpret to the best of his ability cannot be used to demonstrate his competencebecause his ability to evaluate that is the very issue. He also stresses that Mr. Ebba has little recent experience.

Since the introduction ofthe new system, under which he has not been tested, he has only interpreted at a bail hearing, a pre-trial and set date appearances, but nopreliminary hearings or trials. Mr. Keffle also relies strongly on Mr. Ebba’s failure to meet the new standards when he was tested in Oromiffa. As the test is the samein all languages and tests

interpretation skills as well as language skills, Mr. Keffle argues that his failure in Oromiffa raises concernsabout his oral recall, consecutive dialogue and shadowing and sight consecutive

interpretation skills in Amharic in which he has not beentested, as well as Oromiffa. He further submits that there is no extremity or urgency, and these are the two criteria that the Ministry usesfor assigning unaccredited interpreters to certain proceedings other than preliminaries or trials. There is relevant evidence to assist me in determining competency. Ms. Norris’ evidence that interpreters accredited under the previoussystem demonstrate a high degree of competency is relevant, particularly since the presumption of incompetence was originallyestablished when the old test, that Mr. Ebba passed, was in place.

In R. v. Sidhu, supra, Justice Hill wrote: There is no constitutional right to an accredited interpreter-there is however a right to a competent interpreter. Accordingly, the essentialissue is not whether the court interpreter has been “formally trained” but whether the interpreter is “qualified” to proficiently dischargethe duties of providing continuous, precise, impartial, competent and contemporaneous

interpretation: R.v.R.(A.L.), supra, at pp. 155-6.Where the court is presented with an accredited interpreter, the interpreter is presumptively qualified having met the objectively setexternal standards of a presumptively valid certification process. Sidhu started and was decided before the period that Ms. Norris testified in Peng was the period during which the Ministry has beenimplementing a series of continuous improvements. So Mr. Ebba, who was presumptively competent before the introduction of the newstandard, automatically became presumptively incompetent when the new standard was introduced. Presumably his

interpretation skillshave not decreased. Mr. Keffle submitted that Justice Watt, in R. v. Rybak 2008 ONCA 354 , 233 C.C.C. (3d) 58, held that in a criminal trial,interpreter coordinators are to assign an accredited interpreter to the task and the only exception that the Court of Appeal allows arecases of extreme urgency, that is, last minute calls. He relies on paragraph 53 of R. v. Rybak. But Justice Watt said no such thing inparagraph 53. He was reviewing the fresh evidence on appeal.

It is clear from the whole context of the Rybak case, that Justice Watt was no more equating accreditation to competency in Rybak thanJustice Hill was in Sidhu. This is because the interpreter in Rybak was unaccredited.

The Court of Appeal dismissed Rybak’s appeal andin the course of dismissing Rybak’s appeal, Justice Watt stated: What is lacking in the appellant’s fresh evidence materials, is a nexus between the systemic and accreditation flaws identified in thematerials filed, and the interpreter assistance provided in this case: no affidavit or other evidence from the appellant, none from trialcounsel and deafening silence in the trial record. Something supportive of this claim of constitutional infringement is necessary, butlacking. (emphasis in original) citations omitted.

Here, where there is no appeal or review, the constitutional right is absolute and there is no onus on Mr. Keffle as the Court of Appealheld there was on the appellant Rybak to demonstrate a constitutional violation. But, Justice Watt’s reference in Rybak, to the lack of a nexus between the accreditation problem and Mr. Ebba’s

interpretation is apt andimportant here. If Mr. Keffle gave any indication that he did not understand any of what has transpired here, I would accept that. Butwhen I asked counsel directly if that were the case he frankly replied that he was not able to present evidence to be put into the record butthat it was his, counsel’s belief, that there was a language deficiency. A court must act on evidence. Counsel emphasizes that even though it may appear that Mr. Ebba is speaking Amharic and Mr. Keffle islistening, there is no way of knowing if what he is hearing is what is being said in English.

It is correct that watching Mr. Keffle listen toMr. Ebba speak another language as the rest of us speak does not help determine if he is hearing what is being said. But counsel knowswhat is being said and as he must be communicating with his client in some fashion could produce an affidavit of the type that JusticeWatt contemplated if there were a problem. This Court has no right to probe into the inviolable solicitor client privilege, nor draw anyinferences from any failure to waive it, but I must act on the evidence that I have. Similarly, Mr.

Keffle has an absolute right to remain silent, even about what he may or may not understand, but it is common for aperson to testify on a voir dire on a discrete issue and preserve their right to silence. No evidence has been produced that Mr. Keffle hasnot understood any of the proceedings, nor that he is confused or has any difficulty with Mr. Ebba’s Amharic. Mr. Ebba has put forth his experiences and qualifications and taken an affirmation to faithfully translate. He was accredited once at atime when that accreditation was sufficient.

Although he has not been accredited in Oromiffa, he has not yet been tested on the new testin Amharic. It is speculation to relate failure to be accredited in one language to competence in another even if certain

interpretationskills are applicable to all languages. In reaching my determination, I am not considering that there are no accredited Amharic interpreters providing services to the Ministryof the Attorney General. The Ministry must provide a competent interpreter. If there are none to be found, the preliminary inquiry cannotcontinue: see Sunai Leota Faiva (Applicant) v. Minister of Employment and Immigration (FCA), [1983] 2 F.C. 3 perLe Dain J. at paragraph 12 in relation to an immigration officer presiding over a deportation hearing:

If an interpreter was required, which was clearly his opinion, and could not be provided, he no longer had a duty to proceed with the inquiry. He did not have the right to do so. He did not have the right to relax the normal standard or requirement concerning ability to understand and communicate in the language of the inquiry. And as Justice Hill stated in his paper “Court

Interpretation in Ontario Court’s Today”, unpublished, November 2010, an “as good as we can do” default alternative is not acceptable. I find Mr. Ebba to be competent. Following Justice Hill’s suggestion in his unpublished paper, supra , all words spoken by the court interpreter in the source and target languages will be recorded and stored as a permanent court record. Mr. Ebba will advise the Court if there is anything that he is having difficulty interpreting or if Mr. Keffle expresses any indication that he does not understand. Mr.

Keffle may advise the Court if he is having any difficulty understanding the proceedings and raise this issue again. _____________________________ Brent Knazan Ontario Court of Justice April 13, 2011