R. v. Moo, 2014 ONCJ 127

Citation: R. v. Moo, 2014 ONCJ 127 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Ku Nay Htee Moo Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision to Qualify Mie-Tha Lah as an Interpreter Released March 13, 2014 Mr. M. Boyce ……………..………………………………………………….....…..for the Crown Ms. N. Chugh……………………………………………………………... for Ku Nay Htee Moo Paciocco J. I. Introduction [1] In a trial to be conducted before me on March 8, 2014, Mr. Ku Nay Htee Moo was charged with impaired driving contrary tosection 253(1)(a), and operating a motor vehicle with more than the legal limit of alcohol in his blood, contrary to section 253(1)(

b) ofthe Criminal Code of Canada. I found that Mr. Moo speaks the Karen language and requires

interpretation services in order to have a fairtrial. The Ministry of the Attorney-General provided Mr. Mie-Tha Lah (Mr. Tha), the only Karen interpreter in the province, to act asMr. Moo’s interpreter. At the end of a voir dire I conducted into Mr. Tha’s competence, Mr. Moo, through his counsel, objected to Mr.Tha’s qualifications. I ruled to the contrary that Mr. Tha was competent to act as an interpreter, with reasons to follow. Mr. Moo wasarraigned and opted to plead guilty to the section 253(1)(

b) offence, for which he was found guilty and sentenced. These are my reasonsfor finding Mr. Tha to be competent to provide translation between the English language and the Karen language for the purposes of thistrial on the evidence before me. II. The Voir Dire [2]

Section 14 of the Charter provides a constitutional right to

interpretation services. The obligation of a judge to ensure that aninterpreter meets the required constitutional standards of competence does not depend on a Charter application being taken. “As part oftheir control over their own proceedings, courts have an independent responsibility to ensure that those who are not conversant in thelanguage being used in court understand and are understood”: R. v. Tran, (SCC), [1994] 2 S.C.R. 951 at paras. 41, 48. This is to be achieved, of course, by requiring the provision of legally adequate

interpretation services. [3] Naturally, the responsibility to conduct an inquiry into the need for

interpretation does not arise in every case and for allwitnesses. There must be a factual foundation suggesting that

interpretation may realistically be required before the judicial responsibilityarises to ensure that competent and required

interpretation services are provided. “A court [should therefore] conduct, on its own motion,an inquiry into the need for an interpreter when it appears that an accused is having language difficulty” or a party has requested theservices of an interpreter in circumstances where the judge is of the opinion that the request is justified: R. v. Tran, para. 48. This caneffectively put an evidential burden on the party who seeks

interpretation to provide the requisite factual foundation for the need for aninterpreter, and in its absence a demonstrated need a request for

interpretation can be denied: R. v. Wangchuk 2012 ONCJ 338. In Mr.Moo’s case an interpreter was requested before trial and Mr. Tha’s attendance was arranged. Both parties proceeded before me on thebasis that Mr. Moo does require the assistance of an interpreter to understand or be understood generally. The sole issue before me wastherefore whether Mr. Tha is competent to provide the required

interpretation services. [4] The decision whether an interpreter is competent to provide

interpretation services is for the trial judge to make, not the Ministryof the Attorney-General: R. v. Blair 2012 ONCJ 235. Still, current standards for Ministry Accreditation are sufficiently high that if an

interpreter is fully-accredited by the Ministry, a less intense inquiry may suffice. Since Mr. Tha is only conditionally accredited to provide

interpretation services I conducted a fulsome inquiry into Mr. Tha’s competence before permitting Mr. Tha to act as an interpreter. [ 5 ] Since Mr. Tha’s competence to interpret had to be determined before Mr. Moo could effectively be arraigned, I conducted this voir dire as a pre-trial motion before Mr. Moo was asked to enter his plea. The voir dire was conducted in a non-adversarial fashion, as this was a judicial “own motion” voir dire , and not a Charter application. [1] I commenced the voir dire by asking Mr.

Tha questions about his certification, his experience as an interpreter including in court proceedings, and his familiarity with both the Karen and English language. Mr. Moo’s counsel and the Crown were given an opportunity to question him. [ 6 ] During this procedure I did not require Mr. Tha to translate into Karen the questions he was asked or the answers he gave. This improved the efficiency of the hearing without, in my view, violating Mr. Moo’s rights. Specifically, I am persuaded that proceeding in this way did not violate Mr.

Moo’s rights since it is functionally impossible for the law to confer a right to

interpretation during an “interpreter competence” voir dire . I say this for two reasons. First is the admittedly formalistic “chicken and egg” problem; an interpreter cannot formally be qualified by a court to interpret the competence voir dire until after that person’s competence voir dire has been held. Second, typically, the only person available to interpret the competency voir dire is the person whose competence as an interpreter is at issue.

In every such case where that person was ultimately found to be incompetent after purporting to interpret their own competence voir dire , the “right to have a competence voir dire interpreted would necessarily be breached. There is therefore no right to have the competency voir dire interpreted. Such a right is impossible. As a courtesy and to provide Mr. Moo with an opportunity personally to observe Mr. Tha’s efforts at translation before a ruling was made [2] I nonetheless instructed Mr.

Tha to translate while I summarized what had transpired during the evidentiary phase of the voir dire before inviting submissions. I also asked Mr. Tha to translate the submissions of the parties so that in the event he proved to be competent, Mr. Moo could enjoy a sense of participation in the proceedings and appreciate the issues for consideration. III. The Analysis [ 7 ] Even though this was an “own motion” voir dire , the standards of competent

interpretation provided for by the Charter necessarily apply. This is because

section 14 of the Canadian Charter of Rights and Freedoms has established minimally required constitutional standards of

interpretation that are derived from previous common law and statutory authority, identified in R. v. Tran , at paras. 14-35 .This constitutional standard ensures that “the person with language difficulties [will] have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings. These criteria include but are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness” R. v. Tran , para. 55 . [ 8 ] “Continuity” [that there are no material breaks in the provision of

interpretation] and “contemporaneity” [that the

interpretation must take place contemporaneously with the proceedings] have more to do with the manner in which

interpretation is provided than with the competence of the interpreter. Had the trial proceeded I would have been obliged to ensure that all matters in which Mr. Moo had a “vital interest” – “while the case was being advanced” were interpreted ( R. v. Tran , para. 44 ) and that this was done as the case was unfolding: [3] [ 9 ] “Impartiality” requires, of course, that the

interpretation this is provided must be “objective and unbiased.” No issues of partiality or bias on Mr. Tha’s part were raised before me. [ 10 ] Three issues did arise for consideration during the voir dire , namely the overlapping questions of precision and competency (which I will return to), as well as Mr. Tha’s credibility. [ 11 ] I will address the credibility issue first. It arose because of the defence position that Mr. Tha has, on occasion, exaggerated his competency as an interpreter. Specifically, two human interest articles published after Mr.

Tha was interviewed about his experiences in the Canadian-Karen community represent that Mr. Tha is an “accredited court interpreter” (Ex. 1, “From there to here: Burmese refugee loves Canada’s respect for human rights”), and “passed a test with the Ontario Ministry of Attorney General’s to become an accredited interpreter for the Karen language in Ontario” (Ex 2 “New Canadian’s Tell Their Stories”). As indicated, Mr. Tha is actually only a conditionally accredited interpreter who, on the evidence before me, has achieved accreditation standards in only one of three tests administered by the Ministry.

Moreover, in his testimony before me Mr. Tha described himself as an “excellent” interpreter, even though he has not achieved Ministry standards for full accreditation. He explained, “I am excellent to myself.” He also testified that it is his habit to describe himself not as an accredited interpreter, but as someone “certified” to provide

interpretation in court. He proudly displayed his Ministry-issued identification to illustrate that he is indeed “certified” to act as a court interpreter, albeit in non-trial matters. [ 12 ] I do accept that Mr. Tha may have an exaggerated sense of his own competence as an interpreter and of the import of his formal credentials, and I agree that he should be more guarded in how he describes his accreditation. I do not, however, have concerns about his credibility. I am not prepared to infer that he intentionally misled the authors of the two articles I mentioned, without more. What I am confident of is that Mr.

Tha addressed the questions he was asked during the voir dire honestly. He was quite ready to agree with unflattering suggestions made to him during cross-examination about his credentials, understated the scores he achieved on his Ministry tests, and claimed to have worked as an interpreter in fewer cases (10) than he has in fact done (12). In other words, instead of exaggerating his experience before me he understated it.

To the extent that “credibility” is relevant in assessing the answers furnished on material issues about competence, or as a concern that can on its own otherwise undermine interpreter qualifications, I have no concerns about Mr. Tha. [ 13 ] The real issue before me, then, is Mr. Tha’s competence to provide

interpretation, with the precision required by law. It is a notoriously difficult to make such assessments. Indeed, some judges have questioned their own competence to judge the competence of

interpretation in languages they do not speak. The best that judges can do, and what they are required to do, is draw reasonable inferences from objective criteria: R. v. Dutt [2011] O.J. No. 2502 at para. 54 .

[14] I have already stated the ultimate legal standards that must be met by the objective indicia. “[With the benefit of the

interpretationbeing offered] the person with language difficulties [must] have the same opportunity to understand and be understood as if they wereconversant in the language being employed in the proceedings.” This is a “high” standard assured by the Charter. This high standard isimposed because of the obvious import of ensuring that individuals affected by or participating in the trial process understand and can beunderstood.

As Justice Watt has said, “[t]he right [to an interpreter] touches on the very integrity of the administration of justice in thecountry and is intimately related to our basic notions of justice, including the appearance of fairness” as well as “our claim ofmulticulturalism”: R. v. Rybak (2008), 2008 ONCA 354 , 90 O.R. (3d) 81 para. 67 (Ont.C.A.). [15] On the evidence before me, Mr. Tha is the only Ministry credentialed Karen interpreter. Should I find Mr. Tha incompetent toprovide sufficient

interpretation, this prosecution could therefore fail, contrary to the public interest. In obiter dictum expressed in thecase of R. v. Dutt, at para. 99 it was implied that constitutional standards might apply differently for rarer languages with less diffusion inthe community, no doubt because of the intense public interest in trying cases on their merits and applying the law to all persons,regardless of language. Still, in my view the importance of

section 14 and the need for equality in the application of the law requireotherwise. As I see it the law copes with the challenges of finding sufficient

interpretation services for all communities not by developingstandards of variable intensity but by ensuring that constitutional standards are realistic, sensible and therefore attainable: R. v. Tran.,para. 60. I have therefore endeavoured to apply the same standard in this case as I would with an interpreter offering services in a prolificlanguage, by applying the Tran test in a realistic, sensible and purposive way, and accepting that

interpretation need not be perfect to beconstitutionally sufficient. [16] The reason the law does not require perfection is “because it is well known that court

interpretation between source and targetlanguage is seldom, if ever, perfect”: R. v. Dutt, [2011] O.J. No. 2502 at para. 51.

As Justice Hill explained in Dutt, “that is for manyreasons including the inherent difficulties of language transference and the ever present prospect of natural human error in understandingand concentration.” By applying the law purposively, as Rybak instructs at para. 66, a functional, realistic and attainable standard isachieved. [17] In terms of “comprehension” and “precision,” the live issues before me, the purpose of the provision is to ensure that “a personcharged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it”: R. v.

Rybak at para. 67.Section 14 is intended to ensure that accused persons have “first-hand knowledge of the proceedings leading to the eventual result of thetrial”: R. v. Hietrich (1982), (ON CA), 67 C.C.C. (2d) 510 at 537 (Ont.C.A.), cited with approval in R. v. Tran, atpara. 29. This requires that the

interpretation be sufficiently comprehensive and precise to enable the accused person to acquire anunderstanding “in full detail” of the meaning of the evidence furnished, and the arguments made such that their understanding isfunctionally equivalent to the understanding available to someone who comprehends the language of the trial: R. v. Tran, para. 34. [18] The

interpretation must also be capable of permitting the accused person to have the full opportunity to answer the case,including by instructing counsel and communicating effectively with the court, if providing evidence: R. v. Tran, para. 38. This does notmean that the evidence communicated must be as articulate after translation as that furnished by strong native speakers. What is requiredultimately is that the information held by the accused person can be communicated as effectively after

interpretation as it could havebeen if the accused person spoke the language of the trial. [19] There are a number of considerations that assist in making this determination. First, the language ability of the person requiringinterpretation can have an impact on the level of ability required of the interpreter. The more extensive the needs of the subject are themore able the

interpretation must be: R. v. Rybak, paras.76-78. In this case, the parties proceeded on the assumption that Mr. Moorequired full

interpretation to understand and be understood. This is therefore an instance where no remittance is possible in the standardsof

interpretation because of the language abilities of the subject entitled to an interpreter. [20] In addition, the length and complexity of the trial is relevant in determining the required competence of the interpreter: R. v.Baquiano 2013 ONSC 1917 at para. 5. The trial I was to conduct was not expected to be long. Nor, in my view, was this expected to be asufficiently complex trial to require heightened interpretive skills. While legal concepts were going to arise and alcohol driving law istechnically complex, I accept what Justice Watt said in R. v.

Rybak, para. 74, that “each participation in a criminal trial – prosecutor,judge and defence counsel – has an obligation to be vigilant about an accused’s need for interpreter assistance.” In my view thisobligation of vigilance extends beyond recognizing when an interpreter is required. It includes an obligation on the participants to useplain language and to assist in explaining legal concepts and procedures using plain language. It would be folly to pour too muchsignificance into the familiarity of interpreters with the legalese and technicality that can arise in a case.

After all, languages derived fromcultures that do not have comparable legal systems are not even apt to have precise words for everything that arises during a Canadiantrial. In my view, where the substance of the matter can be communicated using ordinary language, challenges by the interpreter incoping with legalese or technical inquiries should not bar qualification. The question should not be whether the interpreter will becompetent to interpret legal concepts without assistance.

It should be whether the interpreter will be competent to interpret those legalconcepts necessary to a full understanding of what is transpiring with the benefit of required legal assistance.

Ultimately there is nothingin the circumstances of this case, even with its proposed Charter motions, that elevates the required standard of competence because ofcomplexity. [21] Beyond this it is helpful, in my view, to examine the objective evidence about interpreter competence from three perspectives,(1) the abilities of the interpreter in the language of the trial (English), (2) the abilities of the interpreter in the language understood bythe subject (Karen), and (3) the demonstrated abilities of the interpreter to provide

interpretation services. While the last inquiry is at theheart of the matter, the stronger the demonstrated language abilities of the interpreter is in the two languages at issue, the more likely itwill be that the interpreter can communicate the evidence and the accused’s information effectively. [22] Dealing first with Mr. Tha’s abilities in the English language, I have no material concerns. The objective evidence in this caseshows that Mr. Tha is competent enough in English to understand the evidence in the case and to comprehend the trial process.

To besure he speaks English with a pronounced accent and does not always speak grammatically or grab the most felicitous English phraseavailable. Still, I judge his comprehension of the language to be strong. He clearly comprehended the instructions I furnished him andthe questions asked of him. He has a Bachelor’s degree in the English language and has been employed in Canada for many years. Hehas also taken and completed continuing education course in English in conflict mediation and workplace safety.

[23] During questioning by Mr. Moo’s counsel, Mr. Tha was challenged with his comprehension of legal terms of art. He provided asterling description of a voir dire but was unable to define the legal term “arraignment” and could not accurately describe what an“election” is as a criminal procedure concept. Frankly, this line of questioning did not concern me. It is unlikely that many native-speaking accused persons who appear in court could have done better. How many accused persons hearing the stock phrase that theCrown has elected to proceed summarily would have any idea of what that means? As Chief Justice Lamer was quick to point out inTran, the objective of

section 14 is to create a level playing field, not to give those who have difficulty with the language of trial an“unfair advantage over those who are fluent in the court’s language”: R. v. Tran, para. 40; that would be the net effect of requiringproposed interpreters to pass a legal quiz were it to be used as the measure of their competence. I have no doubt that while Mr.

Tha doesnot have complete resort to the lawyer’s lexicon, he is more than capable of understanding in context that a charge is about to be read tothe accused, or that an electing Crown has made a choice, particularly with the assistance of the court and counsel that I have referred toabove. I am satisfied that Mr. Tha is capable of capturing the English evidence, and if necessary, finding the required English words tobe able to communicate Mr. Moo’s information to the Court or to Mr. Moo’s counsel. [24] I am also satisfied that Mr. Tha has a full understanding of the Karen language.

He testified that Karen is his native tongue.Indeed, Mr. Tha has worked extensively for many years with the Karen community. He provides counselling to Karen refugees, and hasdeveloped and delivered community education materials to refugees, and Karenni youth on an ongoing basis. [25] I have also considered whether there are dialect issues of concern. The evidence before me is that dialect does not pose achallenge. When asked about problems of dialect Mr. Tha explained that Karen is a simple language. He was not challenged on this andcounsel for Mr.

Moo, in spite of asserting in an unrelated Charter application that Karen dialect varies with geopolitical territory, offeredno evidence on this and did not challenge Mr. Tha’s testimony on this issue. [26] I also had the ability to observe Mr. Moo’s reaction when Mr. Tha was interpreting the legal argument during the voir dire. Hewas nodding as Mr. Tha spoke, clearly signalling his comprehension. On the evidence before me I am therefore satisfied that Mr. Thahas sufficient expertise in Karen to be able to communicate effectively with Mr. Moo and to understand Mr.

Moo. [27] What then of the most important inquiry, which is Mr. Tha’s competence to interpret between the two languages? [28] I will begin with the status of Mr. Tha’s accreditation, the most material weakness in Mr. Tha’s qualifications. As indicated, Mr.Tha is not fully accredited. He is only conditionally accredited, meaning the Ministry has not certified Mr. Tha to provide

interpretationservices at criminal trials. Unfortunately, I was not provided by anyone with formal ministry documentation setting out Mr. Tha’s officialcredentials but the parties proceeded on the basis that Ex.4, an email authored by Mr. Tha by way of disclosure, is a truthfulrepresentation of his relevant test scores and experience. [29] Of course, the results on Ministry accreditation tests are apt to be the most comforting, objective information available to a trialjudge since they purport to provide a formal evaluation of competence applying standards developed by persons with expertise ininterpretation.

Ultimately, I agree however with Justice Campbell that while Ministry standards are important, they are not determinative:R. v. Blair 2012 ONCJ 235. As Justice Hill has recognized in R. v. Sidhu (ON SC), [2005] O.J. No. 4881, “theessential issue is not whether the court interpreter has been formally trained but whether the interpreter is qualified to proficientlydischarge the duties of providing continuous, precise, impartial, competent and contemporaneous

interpretation.” Still, where anindividual is not fully accredited, the Ministry is signalling its opinion that there is a material or “significant deficiency” to be expectedin the interpreter’s performance: R. v. Dutt at para. 105. At the same time, however, conditional accreditation can be taken as anindication of some competence in providing

interpretation services. After all, someone completely incompetent would have received noaccreditation, conditional or otherwise. The relevance of conditional accreditation cannot therefore be used in a blunt, conclusoryfashion, and I disagree with authorities holding otherwise. It requires a more nuanced examination of the particular facts in the entirecontext of all of the evidence. [30] In Mr. Tha’s case, his scores related to consecutive

interpretation tests are discouraging, “53” and “63” respectively, when full-accreditation requires a score of 70. However Mr. Tha performed well above the required level in “oral recall,” (“83”) a criticalcomponent of providing consecutive translation, and his overall score of 65.25 is less than 4 points shy of the standard required for fullaccreditation. His test scores signal that a court should be guarded in accepting him as an interpreter, but that he is not irredeemablyunqualified.

Indeed, there are, in his case, other objective indicia of competence that, in my judgement, make the grade. [31] First, there is Mr. Tha’s work as a translator. Specifically, he has in the past decade or so translated a significant amount ofUnited Nations literature relating to immigration issues for the Karen community. This is the kind of information that is apt to be reliedupon by members of the Karen community, and Mr. Tha has provided this service repeatedly, suggesting the translation was done withacceptable accuracy.

In evaluating this information I am mindful that translating written language is a qualitatively different exercisethan interpreting spoken words – that translation does not require intonation and can be accomplished in a more leisurely fashion - butboth enterprises require understanding one language and converting it into another. Mr. Tha’s translation work is relevant as an objectiveindication of his ability to understand information in English and convert and convey that information accurately into Karen. [32] Second, and more importantly, Mr. Tha has worked as an interpreter in a number of capacities.

As part of his work he assistsKaren families in matters of business with governments, relating to immigration, health and welfare matters. He has also interpreted forgovernment delegates. And he has interpreted for international organizations. I do not agree with those who hold that the ability tointerpret in the community as Mr. Tha has done is irrelevant to an ability to provide in court

interpretation. Mr. Tha has been trusted toprovide

interpretation services on an ongoing basis in business matters of great importance to those involved. Their welfare is affected bythe quality of the work he does. Bearing in mind that in-court

interpretation frequently requires a higher degree of accuracy thaninterpretation in less exacting environments, Mr. Tha’s ongoing work in the community is nonetheless relevant objective evidence thathe has an ability to provide sufficient

interpretation services to enable persons to understand what is being communicated, as it is beingcommunicated. [33] Third, on the evidence before me Mr. Tha has in fact provided

interpretation services in a dozen matters in Ontario courts,including bail hearings where the liberty of the accused is at stake, and on at least five occasions in contested criminal trials. There is no

evidence before me that his work was problematic, and the fact that he continues to be used in courts suggests otherwise. I appreciate that I am not bound by the decisions of other jurists to permit Mr. Tha to act as an interpreter, but I can take from this that Mr. Tha has functioned as an in-court interpreter on a number of occasions and that his work has not been discredited, for there is nothing in the evidence before me to suggest otherwise. [ 34 ] Simply put, we are dealing in this case with a gentleman who has demonstrated strong English capabilities; has clear competence in the language of translation, Karen; who has provided significant translation and

interpretation services in matters of importance to members of the Karen community; and who has worked on multiple occasions as a court interpreter. To be sure, he is not a professionally educated interpreter with impeccable credentials and his proficiency as an interpreter is not solid enough to achieve full Ministry accreditation. Nonetheless, after conducting the voir dire I was satisfied on the balance of probabilities on the objective evidence before me that Mr. Tha is competent to provide Mr. Moo with interpretive services of sufficient quality to enable Mr.

Moo to acquire “first-hand knowledge of the proceedings leading to the eventual result of a trial,” on an ongoing basis. I was also satisfied that he is capable of providing Mr. Moo with the interpretive services necessary to enable Mr. Moo to answer the Crown case. I was therefore satisfied that, with Mr. Tha’s assistance, Mr. Moo would be afforded “the same opportunity to understand and be understood as if [he was] conversant in the language being employed in the proceedings.” Neither justice nor its appearance would be compromised by permitting Mr. Tha to work this case. I therefore found Mr.

Tha to be a competent interpreter. Released March 13, 2014 ____________________________________ The Honourable Justice David M. Paciocco