)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 1917

CITATION: R. v. Baquiano, 2013 ONSC 1917 COURT FILE NO.: 12-10000250-0000 DATE: 20130402 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – VIRGINCITA BAQUIANO )))))))) ) ) S. Patterson, for the Crown B. Funston, for the Defendant HEARD: March 21, 2013 HAINEY J. RULING: COURT INTERPRETERS’ QUALIFICATIONS Overview [1] Ms. Baquiano is charged with theft over $5,000. Her trial is scheduled to commence on April 22, 2013. She was born in thePhilippines and at the time of the alleged offence she was working as a live-in caregiver for the complainant.

Although she has worked inCanada since 2008, English is not her first language, and the Crown concedes that she requires the assistance of a Tagalog languageinterpreter for her trial. [2] This is my ruling on the voir dire into the competency of the interpreter proposed by the Crown, Ms. R-L, for Ms.Baquiano’s trial. [3]

Section 14 of the Charter guarantees an accused person who does not understand or speak the language in which theproceedings are conducted the right to be assisted by an interpreter. The Supreme Court of Canada in R. v. Tran, (SCC),[1994] S.C.J. No. 16 set a high threshold to satisfy this right which guarantees that an accused person is able to be fully present duringhis or her trial in the sense of understanding the evidence and having an opportunity to answer it. [4] Ms. Baquiano requires a competent Tagalog language interpreter. Although Ms.

R-L is fluent in the Tagalog language shehas not been fully accredited as a Tagalog language interpreter by the Ministry of the Attorney General (“MAG”). She is classified as aconditionally accredited Tagalog language interpreter by MAG. Apparently there are no fully accredited Tagalog language interpreters inOntario. [5] In R. v. Dutt, 2011 ONSC 3329, Hill J. thoroughly reviewed the history of interpreter accreditation in Ontario and the issuesraised by the shortage of accredited court interpreters.

He set out a number of factors the court should consider in determining thecompetence of a proposed court interpreter. These factors include the nature of the accreditation and the validity of the test upon which itis based, the test results attained, the mode of

interpretation required, the expected length of the proceedings and the technical nature ofthe subject matters in the proceeding. [6] At paragraphs 98 and 99 of his decision in Dutt, Hill J. had the following to say about conditionally accredited interpreters: The stated policy of the Court is for competent court interpreters to assist in criminal trials and that Ministry fully accredited interpretersor equivalent, not conditionally accredited interpreters, ought to be provided to discharge that function … As a general rule then, judgesof this Court, exercising their authority under s. 76(2) of the Courts of Justice Act, require fully accredited interpreters for trials.

On occasion, where fully accredited interpreters or equivalent are not made available, a presiding judge is asked to risk permitting a trialto go ahead with interpreters who are only conditionally accredited. The failure to produce court interpreters of a level of competenceexceeding that associated with conditional accreditation status may or may not be a justifiable government action. In the instance of ararer language with less diffusion in the community and the absence of a competent remote

interpretation option, the failure may beunderstandable. On the other hand, for other languages, the failure to produce such interpreter assistance is likely to carry constitutionalimplications under any of ss. 7, 11(b), 14 and 27 of the Charter. [7] In the earlier case of R. v. Sidhu, (ON SC), [2005] O.J. No. 4881, Hill J. commented upon the

constitutionally guaranteed standard of court

interpretation at paragraphs 280, 283 and 298 as follows:

Section 14 of the Charter ‘guarantees the right to interpreter assistance without qualification’ … The ‘constitutionally guaranteed standard of

interpretation must be high and allowable departures from that standard limited’ … There is no constitutional right to an accredited interpreter--there is however a right to a competent interpreter. Accordingly, the essential issue is not whether the court interpreter has been ‘formally trained’ but whether the interpreter is ‘qualified to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous

interpretation’ … Where the court is presented with an accredited interpreter, the interpreter is presumptively qualified having met the objectively set external standards of a presumptively valid certification process. Position of the Parties [ 8 ] Crown counsel submits that Ms. R-L is sufficiently qualified to interpret at Ms. Baquiano’s trial, particularly in light of Ms. Baquiano’s apparent ability to understand and communicate in English at a more than basic level. Defence counsel submits that Ms. R-L is presumptively unqualified having failed MAG’s accreditation test on two previous occasions and that she should not be qualified to provide

interpretation services at Ms. Baquiano’s criminal trial, which will be complex and include Charter issues and other significant applications. Analysis [ 9 ] I agreed with Crown counsel’s submission that I should proceed with a voir dire to determine the competency of Ms. R-L to interpret at Ms. Baquiano’s criminal trial notwithstanding Defence counsel’s position that I should not do so.

In proceeding with a voir dire I relied upon Hill J.’s decision in Dutt at paragraph 55 where he stated as follows: As a general rule, a trial court will conduct a qualification voir dire relating to the expertise of any court interpreter presented by the Ministry of the Attorney General… [ 10 ] I also relied upon other decisions of this court in R. v. Pecson , [2012] O.J. No. 4406 and R. v. Keffle , [2012] O.J. No. 2193 . [ 11 ] During the voir dire the Crown played an audio recording of Ms. Baquiano’s 40 minute interview with the police on October 2, 2010 that was conducted in English.

While it is apparent from her recorded interview that she speaks and understands some English, it is unclear how much she understood of what the police officers were saying to her. Further, her ability to express herself in English is clearly limited. Having listened to her police interview I have no doubt that Ms. Baquiano requires the assistance of a qualified interpreter at her criminal trial to ensure that her Charter rights under

section 14 are protected. I disagree that she does not require the full assistance of a qualified Tagalog interpreter at her criminal trial because she has some limited ability to understand and to express herself in the English language. She has a fundamental right to fully participate in and to fully understand her criminal trial. In my view, this can only be accomplished by providing her with competent interpreter assistance as defined by the Supreme Court of Canada in Tran at paragraph 78 as follows: The scope of the right to interpreter assistance guaranteed by s. 14 of the Charter may be stated in the following broad terms. The constitutionally guaranteed standard of

interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency, and contemporaneousness. An accused who does not understand and/or speak the language of the proceedings, be it English or French, has a right at every point in the proceedings in which the case is being advanced to receive

interpretation which meets this basic standard … [ 12 ] The Crown also called Ms. R-L as a witness on the voir dire . She was born in the Philippines. Tagalog is her first language and she is fluent in it. She has a Bachelor of Arts degree in journalism from the University of the Philippines and moved to Canada in 1992. She was employed as an outreach and program coordinator with the Cornwall and District Immigrant Services Agency from 1993 to 1999. During the same period she was also a freelance writer and columnist with a local daily newspaper in Cornwall.

From 2000 to 2010 she was the Executive Director of the same agency in Cornwall. Since 1994 she has also worked as a freelance Tagalog interpreter for MAG and for the Immigration and Refugee Board. She was a certified court interpreter under MAG’s earlier accreditation system, and has been a certified interpreter/translator with the Immigration and Refugee Board since 1997. She is currently a conditionally accredited Tagalog interpreter with MAG and has failed to achieve fully accredited status.

The last time she took the MAG tests she received the following marks: • Overall 56.82 • Sight 70.00 • Consecutive 56.66 • Simultaneous 50.62 [ 13 ] In order to obtain accredited status an interpreter must receive a minimum mark of 70 in each of the four categories. She took the MAG tests again in February, 2013 but has not yet received her marks. [ 14 ] Ms. R-L testified that she assisted Ms. Baquiano with interpreter services at her preliminary inquiry and has interpreted discussions Ms. Baquiano has had with her counsel during the course of these proceedings.

She also provided interpreter services for her during the voir dire before me. She testified that she understands Ms. Baquiano and Ms. Baquiano seems to understand her. In fact, while she was testifying during the voir dire Ms. R-L translated counsels’ questions to her into Tagalog, answered the questions in English and

then translated her own answers into Tagalog. Although I was impressed with Ms. R-L’s diligence and concentration in doing so, I have no way of assessing the quality of her

interpretation since I do not speak or understand the Tagalog language. [ 15 ] Ms. R-L testified that although she did some freelance interpreting from 1993 until 2010 when she was employed full-time by the agency in Cornwall, she has been actively interpreting since 2010. She has provided interpreter services at preliminary inquiries and at a number of multi-day criminal trials. She has never been rejected as an interpreter in any other proceedings. Most of the trials in which she has offered interpreter services have been in the Ontario Court of Justice although she was the interpreter in the case of R. v.

Pecson in the Superior Court of Justice in Brampton. [ 16 ] Under cross-examination she conceded that she has not interpreted in a trial involving Charter issues or a third party records application. Further, her qualification as an interpreter for the Immigration and Refugee Board was obtained in 1994 and she has not had to take any further tests to maintain her qualification with that board. She also acknowledged that she has taken the MAG tests three times having failed to obtain full accreditation on the first two occasions.

I was not provided with her marks from the first time she took the tests. [ 17 ] Although I have no doubt that Ms. R-L is a hard-working and well-intentioned Tagalog interpreter I am unable to conclude on the evidentiary record before me that she meets the high standard set for competent interpreters by the Supreme Court of Canada in Tran . Although Ms.

R-L was previously accredited by MAG as a Tagalog interpreter and has provided interpreter services in other criminal trials she is not fully accredited under MAG’s current system and her marks in three out of four of the categories under the MAG tests are far below the minimum of 70 required for accreditation. In Sidhu , Hill J. concluded that the earlier test used to accredit interpreters for criminal trials was invalid and unsuitable. Accordingly, the fact that Ms.

R-L was previously accredited does not provide much, if any, support for the Crown’s position that she is properly qualified to act as the interpreter at Ms. Baquiano’s criminal trial. [ 18 ] Further, the fact that she has previously interpreted at Ms. Baquiano’s preliminary hearing and at other criminal trials, in my view, does not assist a great deal in determining whether Ms. R-L is properly qualified. Hill J. referred to the “misinterpretation fallacy” in Dutt , which is sometimes accepted by courts, that the beneficiary of the

interpretation assistance will be able to identify error on the part of interpreters. However, as Hill J. points out, if that were the case the accused would not require an interpreter in the first place. [ 19 ] I agree with the following approach taken by H. A. McArthur J. in R. v. Abrha-Beyene , [2012] O.J. No. 5908 on a similar voir dire to determine the competency of an interpreter, I find then, the best way to assess Mr. A.T.’s qualifications to interpret for the trial is to examine his objective skills test that he took. In this case, Mr. A.T. took an English only test.

This is a less reliable indicator of interpreting skills than bilingual testing. Despite the lower standards of this test, Mr. A.T. only achieved conditional accreditation status. He scored below 70% in every category except ‘shadowing’ … I find that Mr. A.T.’s results on the VCC testing are such that I am not satisfied that he is qualified to interpret for the trial. Conclusion [ 20 ] As Hill J. observed in Dutt , the courtroom is not a “linguistics laboratory” and since I am not fluent in Tagalog I am unable to assess the proficiency with which Ms.

R-L interpreted the proceedings on this voir dire from English into Tagalog. I have no doubt that she takes her job seriously and conducts herself professionally. However, I am unable on the evidence before me to conclude that she is qualified to provide

interpretation services to Ms. Baquiano throughout her criminal trial so as to ensure that Ms. Baquiano’s Charter rights under

section 14 are protected. The only objective evidence I have before me are her test results and the fact that MAG has not fully accredited her to interpret at criminal trials. I am not prepared on this evidence to risk proceeding with Ms. Baquiano’s criminal trial on this serious charge under circumstances where her Charter rights could very well be violated. [ 21 ] Accordingly, I am not satisfied that Ms. R-L is qualified to interpret at Ms. Baquiano’s criminal trial. HAINEY J. Released: April 2, 2013 CITATION : R. v. Baquiano, 2013 ONSC 1917 COURT FILE NO.: 12-10000250-0000 DATE: 20130402 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – VIRGINCITA BAQUIANO RULING: COURT INTERPRETERS’ QUALIFICATIONS HAINEY J. Released: April 2, 2013