R. v. Chang, 2013 ONCJ 379

COURT FILE No.: Brampton DATE: May 30, 2013 Citation: R. v. Chang, 2013 ONCJ 379 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — TAIHOON CHang Before Justice Richard H.K. Schwarzl Heard on May 30, 2013 Ruling re Interpreter Voir Dire Ms. K. Slate.............................................................................................................. for the Crown Mr. J. Dos Santos................................................................................................ for both Accused SCHWARZL, J.: 1.0: INTRODUCTION [1.] Mr.

Taihoon Chang is charged with two driving related offences. He requires a Korean interpreter. Mr. Hu-Kal Kim is aconditionally accredited Korean interpreter. Mr. Kim is one of three Korean interpreters in Ontario, none of whom is fully accredited. [2.] Prior to arraignment the defence challenged the competency of Mr. Kim to translate for Mr. Chang in this trial so a voir direwas held on the matter. The defence objected to Mr. Kim providing Korean interpretive service to the Accused because Mr. Kim is onlypartially accredited by a rigorous, independent, and government-maintained process.

His marks were below the passing grade of 70% ontwo of three tests of that accreditation assessment. The defence submits that being bilingual, having prior court experience, or neverhave been disqualified are not equivalent to being competent in a forensic setting. [3.] The crown submits that while accreditation is significant it is not determinative. They submit one must look at all theevidence taken at the voir dire to assess Mr. Kim’s competency. [4.] The leading case regarding the competency of court translators is R. v. Tran, (SCC), [1994] 2 S.C.R. 951(S.C.C.) which sets out the standard of

interpretation in legal proceedings as being very high, but not perfect. [5.] According to Tran, the Court must consider five questions: (1) is the interpreter competent? (2) is the interpreter impartial? (3) can the interpreter provide contemporaneous

interpretation? (4) can the interpreter provide continuous

interpretation? and (5) canthe interpreter interpret with accuracy? [6.] It is important to point out that there is no constitutional right to an accredited interpreter. The central issue is competency andwhether the interpreter is “qualified” to proficiently discharge the duties of providing continuous, precise, impartial, competent and

contemporaneous

interpretation: R. v. Rybak (2008), 2008 ONCA 354 , 233 C.C.C. (3d) 58 (O.C.A.). [7.] In this case, no issue was taken with Mr. Kim’s impartiality or his ability to provide contemporaneous, continuous, andaccurate

interpretation. The focus of the voir dire was whether Mr. Kim is otherwise competent to provide forensic

interpretation. [8.] Mr. Kim testified during the voir dire. This case was thus not simply a matter of self-proclaimed competence by aninterpreter but is one in which his partial accreditation and other aspects of his purported competence were subjected to a full inquiry bythe parties in open court. [9.] In making my ruling, I have carefully considered the evidence, all of the cases provided by counsel and considered their ableand helpful submissions. I conclude that that Mr. Ha-Kul Kim is competent to provide effective

interpretation for Mr. Chang. [10.] Accreditation, whether full, partial, or absent, is a very significant factor in determining competency. While all accreditedinterpreters may be deemed to be competent, the converse is not necessarily true. That is, not all unaccredited or partially accreditedinterpreters are necessarily incompetent. Here, notwithstanding only partial government accreditation, Mr. Kim’s competence wasestablished by the evidence taken on the voir dire. [11.] Mr. Kim whose first language is Korean, has been providing forensic

interpretation for various governmental tribunals inCanada on a continuous basis since 1981. Mr. Kim’s competence has been challenged in court before. He has been the subject ofqualification voir dires on approximately ten prior occasions and each time he was found to be competent. Significantly, he was foundcompetent by Currie, J on a voir dire held on this very case in January of this year. [12.] Although Mr.

Kim has not reached a passing score in two of three testing areas on two prior occasions, he has neverthelessbecome intimately acquainted with court phraseology in many kinds of criminal cases at both the provincial and superior court levels. He has a great deal of experience in providing forensic

interpretation in many drink/drive trials on behalf of accused persons. [13.] I am satisfied that despite being only conditionally or partially accredited, Mr. Kim is an expert in speaking both English andKorean in a forensic setting and that he is someone with substantial familiarity with not only criminal trial processes in general, but alsowith the specific process of drinking/driving trials. I find that he is competent to provide sufficient

interpretation to ensure that Mr.Chang receives a fair trial in the Korean language. [14.] Hul-ka Kim will be given the interpreter’s oath and he will assist Mr. Chang throughout this trial so as it provide consistentand competent

interpretation of the proceedings. ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice