R. v. El Kadri, 2011 ONCJ 177

Information No. 10-9661 Citation: R. v. El Kadri , 2011 ONCJ 177 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LOUAY EL KADRI ********** R E A S O N S O N V O I R D I R E (Regarding Conditionally Accredited Court Interpreter) BEFORE THE HONOURABLE MADAM JUSTICE E. SCHNALL on March 22, 2011, at LONDON, Ontario ********** APPEARANCES : F.M. Kelly Counsel for the Crown L. Afolabi Counsel for the accused TUESDAY, MARCH 22, 2011 R E A S O N S O N V O I R D I R E

SCHNALL, J . (Orally): Before I make a ruling specific to this gentleman, Mr. Nazer Marar, who is the court interpreter here today I want to make some other comments. They might be obiter in this case, but hopefully will assist all of us who are involved in these kinds of matters of scheduling and trying to get trials on expeditiously and moving things along in the court process. Hopefully, these comments would be of some help. I have the benefit of a copy – of reading a copy of what’s called “Appendix B.” It’s called “Scheduling Conditionally Accredited Interpreters.” And that is a list which I believe Mr.

Marar referred to, though not specifically, about the kinds of proceedings where conditionally accredited interpreters can be assigned. It says that, “...these proceedings” and there’s a list which is included, are included “because they are shorter and do not typically have difficult vocabulary; are more informal, and are easier for the interpreter to control the pace, and to even ask questions if necessary.” The list includes bail hearings, for example. I don’t know where the information – from where the information came that resulted in the drafting of this Appendix B or indeed the Court

Interpretation Manual which is being used by Court Services to

schedule interpreters. I simply don’t know who prepared that manual. But on a practical basis, the fact that a conditionally accredited interpreter can appear on a bail hearing and yet not be assigned to interpret for an accused, to me, makes no sense at all. We know that bail hearings can be just as lengthy or longer than trials and indeed, in this jurisdiction, we have ones that go three even four days. They are certainly not informal in nature and are, to all intents and purposes, look just like a trial with a judicial officer who has to make a very significant decision.

If the distinction between what a conditionally accredited interpreter can do and one who is fully accredited is the finding that a court makes between guilt and acquittal, that, to me, is an arbitrary measure because a bail hearing should be seen as equally important as a trial. Why? Because at the end of the day the judicial officer determines the liberty of the accused.

The liberty of the accused, if he or she is remanded in custody, may have catastrophic consequences for that person such as: loss of employment; loss therefore of housing; the difficulty of preparing for trial; the difficulty of retaining counsel; the difficulty of looking at Crown disclosure while in a jail cell. I don’t need to go on. My point simply is that bail hearings can have far more significant consequences than, for example, a shoplifting trial where the accused’s liberty may not even be an issue and may simply result even in a discharge.

So, to suggest that an interpreter being assigned to one type of case or another based on these criteria which are found in Appendix B is inappropriate, not practical and does not appear to have any practical or legal foundation. As another example, the interpreter, conditionally accredited, can be assigned to guilty pleas in the Ontario Court of Justice and by implication not in the Superior Court. And we know very well that the Ontario Court of Justice might be dealing with a far more serious charge with more onerous consequences in sentence than the Superior Court.

For example, the Ontario Court of Justice, if the defendant elects, might be dealing with an aggravated assault charge, – a crime of significant violence - whereas the Superior Court may be dealing with a fraud over $5,000 without violence. These are artificial criteria and I am hopeful that whoever drafted these requirements will revisit the issue as quickly as possible.

There are other examples which I don’t need to refer to today, which would simply lead me to conclude that these criteria as found in Appendix B are of no assistance to trial courts like this or to the Superior Court in terms of having competent court interpreters. I also want to comment on the practice here which only came to my attention this morning. And I thank Mr. Kelly because he raised it and I thank Ms. Weaver because she was of assistance to me in how this works on a practical level.

And that is, the E-mail that was sent to the Crown and to the defence which indicated and notified the Crown and defence that the court interpreter who was going to be scheduled was conditionally accredited and seeking the approval of the Crown and the defence . I’ve had the benefit of looking at that Manual to which I referred earlier and find nothing in the Manual which mandates the Court Services to obtain the approval of the Crown or the defence .

Indeed, paragraph 3.1.4, which talks about use of conditionally accredited interpreters mandates, and this is the second sentence – sorry, I’ll read the whole thing, “If a matter requires an Accredited Interpreter, and an Accredited Interpreter cannot be scheduled, a Conditionally Accredited Interpreter may be scheduled. The Supervisor or Manager of Court Operations must approve the use of a Conditionally Accredited interpreter for

that assignment,” operational words, “and ensure that the following individuals have been informed.” Nowhere does it say the supervisor must seek approval. So, from a practical perspective, the scheduler will notify the Crown and the defence. I t gives them a heads up because then the issue will be before the court and the decision and the ruling rests solely with the judicial officer. And that ruling, as counsel this morning have very clearly identified, is a question of competence. If an inquiry has to be held, then that is what should happen.

But it would be premature, dare I say presumptuous, of anyone to try to approve or not approve a conditionally accredited interpreter without knowing more about that interpreter. Mr. Kelly, in his E-mail, I thought raised excellent points as to why he would not approve a conditionally accredited interpreter, and that goes to adequacy of service and competence. And Mr. Kelly is quite right that in the event the interpreter is not adequate to the job, inadequate

interpretation may well be a ground for appeal. So, I completely agree with Mr. Kelly having taken that position. He was invited to take the position and gave it. And that’s what brought us to the head of what we’re trying to do this morning. Just to be clear, the Crown does not get to approve or not approve ahead of time nor does the defence , but competence is the issue that has to be raised. Unfortunately, it requires time, it delays the commencement of the continuation but that is a very necessary step.

In the event that for some reason the court would not allow the conditionally accredited interpreter, then the matter is postponed, adjourned, delayed again but that is how these things have to work. That will be unfortunate if it were to happen. The fact that an interpreter, speaking fluently in English and a foreign language, might be the only person in the room who can speak both languages poses a problem.

No one will know if that interpreter is fulfilling his or her role accurately and that might happen and not even be identified until the matter is appealed and perhaps a transcript is ordered of both the question and

interpretation and the answers and some other interpreter identifies inaccuracies. I know from personal experience, this has happened, but we don’t know it at the time. So, addressing the competency of the interpreter ahead of time is a very useful and, in fact, necessary exercise. We are in a position this morning where the defendant is fluent in both languages. The witness had the ability to speak to the interpreter ahead of time in the presence of someone who is fluent in both languages and the defence is satisfied as to the competency therefore of Mr. Marar as the interpreter. It has to go beyond that.

The court has to be satisfied. And so we have held this voir dire inquiry. That is the end of my comments about the process, about how these things ought to work and I am going to then deal with the ruling with respect to this particular case. But let me just say I’m grateful that Mr. Lampkin attended and that Ms. Weaver was able to assist me because in the absence of these Court Service Department documents, one is operating in a bit of a vacuum.

So, I’m going to finish those comments by saying that I hope the Ministry addresses this Appendix B and what it considers the criteria for these proceedings sooner rather than later, because we have many proceedings in all levels of court that require interpreters. We are a country that welcomes newcomers. We are a country that has one of the best criminal justice systems in the world, and I’m going to say that out loud. We therefore need to provide, within the context of the criminal justice system and the civil justice system, the appropriate supports for persons who are newcomers to this country.

And that means the Ministry has to provide the training, adequate training, and appropriate testing procedures. I am not going to comment on the efficacy of the tests that Mr. Marar spoke of. That is, I’m hoping, already being addressed from other perspectives. But if we’re going to proceed with criminal proceedings against somebody or a witness who is not fluent in English, then we have to provide the appropriate supports and that includes interpreters who are competent. So, I’m hopeful the Ministry will address this quickly. Dealing then with the case before me. I’ve had the benefit of hearing Mr.

Marar under oath talk about his education background, specifically his training in English, his history and experience of working as a translator, English to Arabic and vice versa, both in

interpretation and translation. He has a lengthy history and vast experience in dealing with translating and interpreting. He has had training through the Ministry and was previously accredited in 1994. He has experience in various levels of court as well as community services in the Arabic/English translation and

interpretation. He has taken, he listed, a number of courses offered by the Crown’s office and the Ministry of the Attorney General specific to different types of categories of persons who require

interpretation. He has been doing this work for 25 years. He has, to his knowledge, never been disqualified nor had any complaints raised as to his competence and to his knowledge. No declarations of mistrial have occurred because of his

interpretation services.

He advises that in 2010, he, among others, took the Ministry test and was qualified conditionally. I take judicial notice of the fact that he would have had a minimum of 50 percent and something to a maximum of 69 or 70 percent in order to be conditionally accredited. Anything over 70 percent or 70 and over would be fully accredited. It’s difficult to understand the competence level between someone who got 68 and 71. So, that ought not to be the criterion but rather some other appropriate evaluation of competence. And again, I leave that to the Ministry to sort out what that test should look like.

In the case before me, especially given that the defence is confident that Mr. Marar can operate and perform his duties competently, accurately and my having now heard of his experience and history, I accept Mr. Marar to assist us with

interpretation in Arabic/English translation and

interpretation in the courtroom. ********* FORM 2 Certificate of Transcript Evidence Act, subsection 5(2) I, Shoshanna Thompson, certify that this document is a true and accurate transcription of the recording of R. v. El Kadri in the Ontario Court of Justice held at 80 Dundas Street, London, Ontario taken from Recording No. 65/11, Courtroom No. 6. March 24, 2011 “Original signed by Court Reporter”

Date Court Reporter Transcript Ordered:..............................March 22, 2011 Transcript Completed:............................March 24, 2011 Ordering Party Notified:.........................March 24, 2011