R. v. Blair, 2012 ONCJ 235

Citation: R. v. Blair , 2012 ONCJ 235 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ERIC PATRICK BLAIR ********** R U L I N G O N V O I R D I R E BEFORE THE HONOURABLE MR. JUSTICE G. CAMPBELL on April 2, 2012, at WINDSOR, Ontario ********** CHARGES: s.343(

d) C.C.C.- robbery (2 cts) s.733.1(1)C.C.C. breach of probation s.267(

a) C.C.C.- assault bodily harm (2cts) **********

APPEARANCES : B. Manarin Counsel for the Crown G. Goulin Counsel for the accused ********** Monday, April 2, 2012. COURTROOM CLERK: Calling the matter of Eric Patrick Blair. ... R U L I N G O N V O I R D I R E CAMPBELL, J. O.C.J. (orally) Mr. Blair is charged with robbery of a convenience store with a weapon, namely a knife two counts, and assault with a weapon, namely a knife two counts and a breach of probation. Mr. Blair elected to be tried by judge alone in the Superior Court. A preliminary hearing began on March 27th, 2012 and I heard from Mr.

Blair’s sister, a witness called by the prosecution who identified Mr. Blair in a convenience store video, which took images of the robbery in progress. I heard from police witnesses with respect to clothing that was seized and identified the videotape and some still photographs. On day two of that preliminary hearing the Crown indicated that it intended to call the complainants from that robbery, two individuals that I understand are Chinese and their first language is Mandarin. The Crown intended to lead that evidence through the aid of a Mandarin interpreter, Mr. Edward Liu. Mr.

Liu is a freelance translator and interpreter. He is accredited “conditionally” by the Ministry of the Attorney General to work as a court appointed Mandarin interpreter. Counsel agreed that we should move into a voir dire to address the issue as to whether Edward Liu is qualified, or in this case should be qualified as having sufficient ability to serve as an interpreter for the two complainant witnesses.

Although the need for an independent interpreter was addressed at the focus hearing and a formal request was made by the Crown to Court Services to provide a qualified interpreter of Mandarin dialect, it was not until the morning of the preliminary hearing when both counsel became aware Mr. Liu’s accreditation was qualified by the Ministry of the Attorney General as being “conditional”. Mr. Liu confirmed during the voir dire that he is designated by the Ministry of the Attorney General as “conditionally accredited”.

He said that the designation arose as a result of test scores he received in June 2011 following his January test that same year to become accredited by the Ministry of the Attorney General. Mr. Liu described the testing procedure generally, and reported that he scored better than 70 percent on the written test, but somewhere between 50 and 70 percent on the other two components, namely consecutive

interpretation and simultaneous

interpretation. My understanding that the nature of

interpretation Mr. Liu would be called upon to perform in this case is consecutive communication, that is, to translate the words as they are spoken. I am sorry, translate the words after they are spoken. Mr. Liu was unable to explain with certainty just what a “conditionally accredited” interpreter is or is not allowed to do, although he believed that the Ministry of the Attorney General had a policy, directive or guideline that addresses this issue. Mr.

Liu went on to indicate that he has been called upon to interpret for the court in Ontario on a variety of matters, including bail, sentencing and trials and that to date he has never been rejected by the court as being unqualified to interpret. As recent as February 17th, Mr. Liu interpreted for two witnesses over two days at a murder trial, and on February 24th, he interpreted for an accused charged with uttering a threat and breach. Erwin Novac is the Manager of Court Services. Because of the amount of uncertainty about Mr.

Liu’s credentials he was asked about the Ministry of the Attorney General’s scheduling policy for court interpreters. Mr. Novac stated that essentially the government

practice is to make best efforts to provide the best candidates available and where a fully accredited interpreter is not available then a conditionally accredited interpreter will be scheduled. If the court determines that the conditionally accredited interpreter is not suitable or sufficiently qualified, further efforts will be made to meet the needs of the court. I was informed by counsel during submissions there is a total of only five fully accredited Mandarin interpreters in the province. Mr.

Novac produced a copy of the Ministry of the Attorney General’s policy on scheduling court interpreters entitled “Revised Scheduling Policy for Freelance Court Interpreters, updated June, 2010.” The policy provides that “accredited interpreters are those who scored 70 percent and above overall and in each category on the Ministry’s new court

interpretation test.” A review of the policy document reveals that accredited interpreters may be scheduled for all matters without restrictions, and should be assigned to more complex and/or lengthy matters. Conditionally accredited interpreters are described as those who didn’t score 70 percent overall and on each category, but their test scores show potential for achieving this high level of proficiency.

Schedule A to the policy document sets out a list of proceedings that the Ministry of the Attorney General believes a conditionally accredited interpreter can be scheduled for. The

preamble to that list reads as follows: “Interpreters at the conditionally accredited level can be assigned to these proceedings because they are shorter and do not typically have difficult vocabulary, are most informal and are easier for the interpreter to control the pace, and to even ask questions if necessary.” It is noteworthy that neither trials nor preliminary hearings are listed in

Schedule A. The position of the parties. The Crown seeks to have Mr. Liu qualified to interpret. Counsel argued that, notwithstanding the Ministry of the Attorney General’s recent undertaking to accredit interpreters for the benefit of court proceedings, the ultimate decision is one for the court to make and to this end, the court should be satisfied that Mr. Liu is sufficiently capable of assisting the court as a Mandarin speaking interpreter.

Counsel for the defence argued that there is more to being an interpreter than simply being able to speak the language and the Ministry of the Attorney General has recognized this by appointing only accredited candidates for certain cases, including trials, and conditionally accredited interpreters on cases for less onerous tasks that may not require the same level of proficiency such as bail hearings, and guilty pleas. Counsel for the accused argued that Mr. Liu’s qualifications are limited as reflected in the Ministry of the Attorney General’s testing.

Moreover, counsel argued that there is good reason for the court to question the quality of Mr. Liu’s ability to interpret and communicate with the court effectively as was apparent during the voir dire when counsel found difficulty on occasion understanding Mr. Liu’s English responses. Let me say from the outset that I found Mr. Liu’s English quite satisfactory. While there were two or three occasions where counsel sought clarification of an answer, for example his reference to Kingston Upon the Thames, misunderstood to be spoken as Kings College, referring to a university he attended in London.

This effort to seek clarification of a response to a question was no different from any other occasion where there may have been an uncertainty with the word spoken by the witness in the witness stand. The only difference was Mr. Lui’s first language is Mandarin, so but for an obvious accent his English was not problematic. Mr. Liu was born and raised in Shaanxi Province, China. He is 46 years old. Chinese Mandarin is his first language. He attended university in China and achieved a BA in technical English in 1987 and a MA in English linguistics in 1990.

He began acting as an English interpreter in 1990 in China. In 2004 Mr. Liu moved to London, England and attended University at Kingston Upon the Thames to secure an MBA. This course of study he took in English. He came to Canada in 2005. Since 2006 he has worked as a freelance interpreter and translator with Kingsley Translation in Toronto. The list of engagements he has been involved with for a variety of large corporations and professional organizations is significant. He is a member of several professional organizations. In addition to Mr.

Liu’s recent involvement with the Ministry of the Attorney General’s accreditation process for court

interpretation, Mr Liu is an accredited interpreter with the Canada Immigration and Refugee Board. As I indicated Mr. Liu has previously been qualified to interpret in Ontario court proceedings, including trials as recent as February 17th, 2012 and February 24th, 2012. Mr. Liu testified that in addition to sitting in and observing the proceeding on day one of this preliminary hearing he also took time to speak with one of the complainants and testified to having no difficulty understanding her.

In my opinion, but for the recent Ministry of the Attorney General’s testing procedure for accreditation as court interpreter, Mr. Liu presented as a suitable candidate for qualification as a court interpreter. The Ministry of the Attorney General’s testing has thrown a bit of a wrinkle into the traditional practice of addressing qualification of

interpreters in court settings. On the one hand the Ministry of the Attorney General taking on the task of testing and accrediting interpreters is a welcome initiative by the Province. To that end some of my colleagues have found comfort in this initiative to such an extent that they have refused to embark upon a voir dire to ascertain the qualification of an interpreter who has not been fully accredited by the Ministry of the Attorney General, see R . v. Thillayamtalam and a series of decisions cited in that ruling to support the court decision not to engage in a qualification voir dire . In R . v .

Wong Justice Horkins entered into an interpreter qualification voir dire . He concluded that he was not prepared to overrule the objective standards for accreditation as developed by the Ministry of the Attorney General. With respect, I do not hold the same opinion as Bourque, J in Thillayamtalam or Horkins, J. in Wong. Without having the benefit of any evidence or procedure or basis for assessment that has been undertaken by the Ministry of the Attorney General with regards to the testing procedures generally or more importantly in regards to Mr.

Liu’s test, which apparently took place in January 2011, it seems to me that as a judge presiding at a preliminary hearing and being asked to determine the suitability of the proposed interpreter I must do so having regard to the evidence available to me on this voir dire , which includes the results of the Ministry of the Attorney General test, but not limited to that result. The Ministry of the Attorney General testing and accreditation initiative has not replaced the role of the court to rule on qualifications.

Every day courts are called upon to rule on the qualification of experts who are certified or accredited by a variety of institutions and organizations. This includes medical doctors, engineers and accountants to name a few. And, everyday the courts are invited to consider the credentials of persons who have developed sufficient training and experience outside of formal institutions and asked to qualify them as experts, notwithstanding the lack of any notable certification or accreditation.

The court has, in many instances, accepted and or rejected witnesses as qualified experts who had formal credentials because the court was not satisfied as to their qualifications. The fact that the Ministry of the Attorney General has developed a uniform standard for court interpreters has not changed the role of the court to satisfy itself that an individual being proffered as having a particular expertise necessary to assist the court is suitably qualified to do so.

So, notwithstanding the Ministry of the Attorney General’s policy, having been developed in 2010, the law, as it stood prior to that date, has to my mind not changed. To that end I am governed by the Supreme Court of Canada decision in R. v. Tran [1994] 117 DLR (4d) and the Ontario Court of Appeal decision in R. v. Ryvack [2008] 90 O.R. A.1. From those decisions a set of criteria must be considered, including the ability for the interpreter to be able to provide continuous, partial, concise, contemporaneous and competent translation. I reviewed and discussed Mr.

Liu’s credentials above, with particular reference to his education, training and experience. There is nothing in his background to suggest any element of bias. The proceeding he would be asked to assist with requires contemporaneous translation of a consecutive nature; that is, translation after each person has spoken as opposed to simultaneous communication. Mr. Liu indicated that the Ministry of the Attorney General test he took did not afford any opportunity to stop and seek clarification.

He testified during the voir dire that if at any time he required clarification he would take the opportunity to ask the lawyer or seek guidance from the court. That opportunity would be available in this proceeding. I note this opportunity is something recognized as a distinguishing feature in

Schedule A of the Ministry of the Attorney General’s policy for conditionally accredited interpreters as referenced earlier in my decision where I quoted from

Schedule A. In Tran the court interpreted the meaning of precise as requiring the translator to be “as close as can be word for word, idea for idea, but remain mindful that

interpretation is inherently a human endeavour and therefore not one of perfection.” I have no reason to believe that Mr. Liu would not be able to translate precisely and within the meaning of this definition. It seems to me that the ultimate concern is one of confidence, and I suspect that to be the case from counsel’s argument, for an Ontario court approved interpreter or properly accredited through the Ministry of the Attorney General without qualification, as the Ministry has endeavoured to create a provincially acceptable standard for assessing competency. I have heard from Mr. Liu.

His examination was thorough in-chief, and probed effectively in cross-examination. It may be that he had a poor test with the Ministry of the Attorney General on the assigned day. No one would quarrel with Mr. Manarin’s submission that there are a great many successful trial advocates who had lower than average test scores in school and at the bar admission course and conversely, several gold medallists for the bar admission course have struggled to have successful careers in practice. That being said, there can be no doubt that Mr.

Liu has at least satisfied the Ministry’s own criteria for conditional accreditation which by the Ministry’s own guidelines would allow him to interpret for a witness who is not the accused party (see

Schedule A to the policy document). That is precisely what is being asked of Mr. Liu here. Moreover the Ministry of the Attorney General’s own guideline recognized that a conditionally accredited interpreter can perform adequately when the interpreter is able to control the pace, or to put it another way, is allowed to stop or interject, pause, or where necessary seek clarification.

This is a preliminary hearing.

Section 548 of the Criminal Code requires only that I be satisfied there is some evidence upon which the accused should be committed to trial. I am not required to weigh or consider the credibility of the witnesses. To this end, the accused’s sister has already identified him as the person in the video which displayed the convenience store robbery. The Crown need only produce the complainants at this juncture to identify themselves as the victims of that robbery portrayed in the video, and recipients of the violent actions that form the basis of the allegations against the accused.

The Crown would then secure a committal to trial. While it is true that discovery is indeed an ancillary aspect of the preliminary hearing it is secondary and that discovery can be limited. But, again with that, the Ministry of the Attorney General’s own document addressing what a conditionally accredited interpreter can do, would allow for Mr. Liu to interpret at examinations for discovery.

Based on the foregoing I am satisfied that Edward Liu is competent and capable of interpreting from English to Mandarin and Mandarin to English and as such he is so qualified to do so on this preliminary hearing. *********** FORM 2 Certificate of Transcript Evidence Act, subsection 5(2) I, BEVERLY A. SNIDER , certify that this document is a true and accurate transcript of the recording of R. v.

Eric Blair , in the Ontario Court of Justice held at 200 Chatham Street East, Windsor, Ontario, taken from Recording No. 0811-8-49/2012, which has been certified in Form 1. __________________ _______________________ Date Beverly A. Snider, Court Reporter. ********** Transcript Ordered: Transcript Completed:

Ordering Party Notified: **********