R v Gill, 2017 SKCA 76

Restriction onPublication An order has been made in accordance with s. 486.4(1) ofthe Criminal Code directing that any informationidentifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR2658 Citation: R v Gill, 2017 SKCA 76Date: 2017-09-13 Between:Jagdeep Singh GillAppellantAndHer Majesty the QueenRespondentBefore: Jackson, Ottenbreit and Ryan-Froslie JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice Ryan-FroslieIn concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice OttenbreitOn Appeal From: CNJ 19 of 2013, Battleford and 2014 SKQB 176Appeal Heard: April 12, 2017Counsel: Marianna Jasper for the Appellant Beverly Klatt for the Respondent Ryan-Froslie J.A. I.

Introduction [1] The appellant, Jagdeep Singh Gill, whose first language is Punjabi, appeals his convictions for aggravated sexual assault,choking and breach of a non-communication order on the grounds his constitutional right to an interpreter as guaranteed by s. 14 of theCharter of Rights and Freedoms [Charter] was breached, and he was not able to fully participate in his trial as contemplated by s. 650 ofthe Criminal Code, RSC 1985, c C-46. The conviction decision is unreported: R v Gill (4 April 2015) Battleford, CNJ 19 of 2013 (SaskQB). [2] The appellant argues the

interpretation provided at his trial fell short of the required standard set out by the Supreme Courtof Canada in R v Tran, (SCC), [1994] 2 SCR 951 [Tran], in that there were incidents where the

interpretation was notcontinuous, precise, competent and contemporaneous. He further submits there were times when interpreter assistance was not providedand that the requirement for such assistance was not properly waived. In the alternative, the appellant contends the remedy provided bythe trial judge for the uncontroverted breach of s. 14, which occurred during the initial testimony of the appellant’s wife, Sandeep Gill,was inadequate and that a new trial should have been ordered. [3] For the reasons set out herein, I would dismiss the appeal.

II. background [4] A brief resumé setting out the context of the proceedings and the incidents underlying the appellant’s complaints isnecessary to a proper understanding of the appeal. [5] The appellant, who was born and raised in the State of Punjab, India, came to Canada in 2011. His primary language isPunjabi. While the appellant has some facility with the English language, the extent of his knowledge and understanding is not clearfrom the trial record.

Defence counsel advised the trial judge the appellant’s ability to communicate in English was “very basic”, that theappellant’s comprehension was better than his verbal skills and that the appellant could communicate in “broken English”. [6] The appellant was charged with aggravated sexual assault and choking of the complainant and with breach of a non-communication order and obstruction of justice. [7] At the preliminary hearing, the appellant, who at that time was self-represented, had the assistance of a court-appointedinterpreter who provided word-for-word

interpretation. [8] By the time of trial, the appellant was represented by legal counsel.[1] [9] The trial began with a pre-trial conference, the purpose of which was to set “the ground rules” in terms of expectations for

the interpreter. At that time, defence counsel advised the Court the appellant did not require word-for-word

interpretation, but rather only assistance on an as-needed basis: THE COURT: … Now, counsel, what is your expectation here. Have you asked for an interpreter because you want full

interpretation services throughout? MS. SIMIC: No, My Lord. It is only with respect to word for word on a need basis by the accused. THE COURT: Word for word -- MS. SIMIC: Yeah. THE COURT: -- on a need basis? That’s what I was wondering about. MS. SIMIC: Just on a -- yeah, on a need basis, not word for word. The only time when we need word for word is during the actual trial should the accused take the stand , which is anticipated, because then he will require an

interpretation of his evidence, but otherwise he has the capability to do -- to -- I think that we have given him enough of a background of the hearing today that I have -- I will ask that he puts up a hand visible for Mr. -- the interpreter. Mr. Singh, when he requires, and that will give notice to all the parties that we may need to have our -- govern our speed accordingly. THE COURT: Okay. So basically the situation is that Mr. Gill can communicate in basic English? MS. SIMIC: Yes, very basic. THE COURT: Uh huh. Okay. Okay, so since it’s not a full

interpretation, the trial can proceed in the normal course until a need for

interpretation or clarification is required? MS. SIMIC: That is correct. THE COURT: Okay. And what you’re contemplating then is that if at some point the accused requires assistance, he will raise his hand? MS. SIMIC: Yes. THE COURT: Okay. MS. SIMIC: And that will alert the parties in the proceeding, at least for the purposes for today. (T1–T2; emphasis added) [ 10 ] The Crown expressed concern with the change from word-for-word

interpretation used at the preliminary inquiry to

interpretation on an as-needed basis as proposed by defence counsel. Crown counsel felt the change in interpreter assistance might be used as a ground of appeal should the appellant be convicted. In response, the trial judge indicated he accepted defence counsel’s assurance of what interpreter assistance was required. [ 11 ] Manjit Singh was retained and sworn as an interpreter in the Punjabi language. Mr. Singh spoke the same dialect as the appellant and there was no suggestion the appellant and Mr.

Singh had any difficulty communicating with each other in Punjabi. [ 12 ] The appellant was arraigned on the aggravated sexual assault and choking charges with the interpreter reading the charges in Punjabi. Defence counsel then brought an application pursuant to s. 276 of the Criminal Code to cross-examine the complainant on her prior sexual history with the appellant.

Crown and defence counsel came to an agreement on the issue and the proceedings were adjourned to December 16, 2013. [ 13 ] On December 16, 2013, the trial judge began by again raising the issue of the interpreter and seeking clarification of the appellant’s requirements. Defence counsel confirmed the appellant only required interpreter assistance on an as-needed basis: THE INTERPRETER: My Lord, he says that he needs the interpreter. He can’t understand all the words which you are telling to him. MS. SIMIC: Okay.

And this is what I had indicated on the occasion (INDISCERNIBLE), and I wonder if he might be instructed to explain that the procedure we adopted on the last occasion, when he requires assistance that he has to alert the interpreter for the words that he doesn’t understand. THE COURT: And you, as counsel for Mr. Gill, are saying this is an acceptable procedure? MS. SIMIC: That’s what I understood, relying through the interpreter for Mr. Jagdeep (sic) that those were the instructions, sir. THE COURT: Okay. MS.

SIMIC: And I hear his comments that he can get some, just not all, that it would be fruitful to move perhaps at a slower direction, and then he can indicate and give a signal to the interpreter when he needs to know, which would alert all of us. THE INTERPRETER: Yeah, he understood. THE COURT: Now, when we reach the stage of Mr. Gill’s own testimony, if he testifies, I think we need to adopt another procedure.

MS. SIMIC: That is correct, and that is what I had alerted the court to on the previous occasion, that he would be testifying in Punjabi. (T53; emphasis added) [ 14 ] The appellant was then arraigned on a second indictment which alleged breach of an undertaking not to communicate with the complainant and obstruction of justice. The interpreter read the charges to the appellant in Punjabi. The appellant pled not guilty to the breach charge, but indicated he did not understand the obstruction charge. Accordingly, the trial was adjourned to enable defence counsel to explain that charge to the appellant.

The appellant was then arraigned on the obstruction charge and pled not guilty. [ 15 ] The trial judge then spoke to the appellant directly: THE COURT: And I’m going to ask the interpreter to translate this as I speak. Mr. Gill, if at any point you do not understand the testimony that is being presented, please stand up at that point to signal to all in the court that you, at that point, require a translation of the evidence. Do you understand what you need to do if you need translation? I need a verbal answer? THE ACCUSED: Yeah. THE INTERPRETER: He understood, My Lord.

THE COURT: And unless and until you stand up to signal you need

interpretation -- THE INTERPRETER: He understood, My Lord. THE COURT: -- may we proceed on the basis that you do understand until that time? THE INTERPRETER: Yes, My Lord. THE COURT: The accused’s answer was yes? THE INTERPRETER: Yes. (T57–T58; emphasis added) [ 16 ] A disclosure issue then arose necessitating an adjournment of the trial to April 7, 2014. [ 17 ] When the trial resumed on April 7, 2014, the trial judge set out his understanding of the requirement for interpreter assistance: THE COURT: … Mr.

Gill, has a working ability in English, he may, from time to time, during the evidence of others, require the assistance of a translator. (T76) [ 18 ] At that point, the interpreter interjected: THE INTERPRETER: He is asking what you are saying right now. THE COURT: Okay. Well, that is the issue, whether we require full-time translation. Is that what Mr. Gill is requiring?

THE INTERPRETER: Yeah, he just raised his hand, and he was asking me, like, what (INDISCERNIBLE). (T77; emphasis added) [ 19 ] The following discussion then occurred: THE COURT: Formal translation protocol requires that you translate both sides of the conversation, word for word or phrase by phrase as accurately as you can. Stop. You do not have sidebar conversations. If Mr. Gill asks you a question, you stop and you translate, for the record, whatever he says to you. THE INTERPRETER: Okay, I know. He just asked me, like his English is too poor. THE COURT: I’m sorry, what?

THE INTERPRETER: He just asked me, like, he can’t understand. His English is too poor. THE COURT: Your manner of translation requires that you translate as close as possible the words or the phrases and that you not provide summaries or conclusions. THE INTERPRETER: Yes, Your Honour (sic). He understood, Your Honour. THE COURT: Since the evidence will be delivered and recorded in English, the record of the English will be clear. THE INTERPRETER: Yes, Your Honour. THE COURT: The issue will be to ensure Mr. Gill’s understanding. Mr. Singh, you’re reverting to sidebar conversations.

If he asks you a question you need to translate it.

THE INTERPRETER: He is asking, Your Honour, he is not clear. THE COURT: Repeat that. I am not hearing you. THE INTERPRETER: He is asking me, he is not clear. THE COURT: What did he just say? THE INTERPRETER: He just asked me about those briefs (sic), like he doesn’t know. … THE INTERPRETER: All the briefs, like all the -- all his charges and all that stuff, maybe, if I can -- if you can give me like piece of paper, so I can just explain him again. … THE COURT: Okay. You, Mr. Singh, will translate everything said in English into Punjabi, and everything -- for the benefit of Mr.

Gill -- and everything that is said in Punjabi, you will translate into English. THE INTERPRETER: Okay, Your Honour. Actually, should I translate what you just said? THE COURT: Translate what I just said. THE INTERPRETER: He agreed, Your Honour. (T79–T81) [ 20 ] The trial judge requested the appellant be arraigned again. When the appellant expressed confusion, the trial judge adjourned the trial to enable defence counsel to once more explain the charges to the appellant (T82–T84). [ 21 ] When the trial resumed, the trial judge raised concerns regarding the competence of the interpreter.

Defence counsel advised she had engaged the services of an independent interpreter who indicated some of the legal terms had not been accurately interpreted and that English words had been inserted. The trial judge concluded it was appropriate to question Mr. Singh on his qualifications. That examination revealed that while he spoke Punjabi at home, he began learning English at age five when he started school. Mr. Singh attended university in English obtaining an arts and science degree as well as a bachelor’s and master’s degree in physical education.

He was not trained as a court interpreter; had never acted as a court interpreter; and did not know the meaning of certain legal terms such as “arraignment”, “recognizance”, and “onus of proof”. [ 22 ] The trial judge found Mr. Singh to be fluent in both Punjabi and English. Defence counsel accepted Mr. Singh was a “highly intelligent man” whose difficulty in

interpretation stemmed from the legal vernacular being used in the courtroom. She suggested a lexicon of legal terms and their meanings (English on one side and Punjabi on the other) be prepared by her and Crown counsel with the assistance of Mr. Singh. This was done and the lexicon was entered as Exhibit P1 in the proceedings. During the Crown’s case, the appellant brought to defence counsel’s attention the fact the lexicon contained Hindi, not Punjabi translations (T135–T136). [ 23 ] When the trial resumed, the judge set out five basic rules for the interpreter to follow: [2] (

i) To translate what is said in English into Punjabi and what is said in Punjabi into English as fairly and accurately as possible; (ii) If an English word, phrase or concept is difficult to translate, to ask the Court for clarification or assistance immediately; (iii) Not to enter into any conversations with the appellant or any witness, only translate what is said; (iv) If the appellant or a witness says anything to him in Punjabi, such as asking a question or asking for clarification, the interpreter is not to respond. Rather, he is to translate what is said into English for counsel or the Court; and (

v) That the interpreter should stop counsel, witnesses or the Court when they are speaking too fast and he needs more time to accurately translate. [ 24 ] The appellant was arraigned again on the breach and obstruction charges, and the trial proceeded with Mr. Singh as the appellant’s interpreter. While it is not clearly stated on the record, after April 7, 2014, the appellant received word-for-word

interpretation. This is evident from a reading of the trial transcripts, which contained a number of references to the fact word-for-word

interpretation was being provided: see, for example, T81; T175; T186–T187; and T209. It is also evident from the June 13, 2014, judgment, wherein the trial judge confirmed that was the case: [9] On resumption of the trial on April 7, defence counsel advised she had concerns with respect to the “authenticity” of the e-mail exchange and also regarding the

interpretation thereof provided by the complainant. Further, the expectations of the accused regarding the role of the interpreter had changed. Defence counsel asked for full

interpretation of the evidence and proceedings for the accused. The defence did not lead evidence to establish the accused’s need for

interpretation. Rather the matter was dealt with on the basis of the accused’s request and the Crown taking no opposition thereto. (Emphasis added) [ 25 ] The Crown’s theory was that the appellant had sexually assaulted the complainant and, in the course of that assault, had used

physical force. The appellant, on the other hand, contended he and the complainant had an affair and any sexual relations between them were consensual. According to the appellant, when he had advised the complainant he was going to tell his wife about the affair, the complainant had physically attacked him. The appellant submitted he then slapped the complainant in self-defence.

Key to determining the case was the credibility of the witnesses who testified. [ 26 ] The Crown called five witnesses, all of whom testified in English: Constable Kirzinger (the investigation officer), the complainant, Katrina Bender, Annica Tauro, and Laurie Chichak (Katrina, Annica and Laurie worked with the complainant and saw her on the day of the alleged sexual assault). [ 27 ] The appellant called three witnesses – himself, Sandeep Gill (his wife), and Parmjit Gill (his aunt). These witnesses all testified in Punjabi. [ 28 ] Sandeep Gill was the first defence witness.

She testified on April 10, 2014, via video conference from India, and the questions and comments of the Court were interpreted for the benefit of Sandeep Gill and the appellant. In addition, Sandeep Gill’s evidence was interpreted from Punjabi to English for the benefit of the court and legal counsel. [ 29 ] Defence counsel raised a number of concerns with the adequacy of the

interpretation during Sandeep Gill’s cross-examination. In particular, defence counsel was concerned because objections made during that cross-examination and the ensuing submissions by legal counsel had not been interpreted for the appellant, and some of Sandeep Gill’s responses were “lost” due to interruptions by counsel.

The trial judge granted an adjournment so counsel could listen to the tape of the proceedings and assess how to proceed. [ 30 ] After listening to the tape, defence counsel made a Charter application requesting a stay of proceedings or that a mistrial be directed on the basis the appellant’s s. 14 Charter right to interpreter assistance had been violated. [3] [ 31 ] Two affidavits were filed in support of the s. 14 application – one by Raj Gill, an articling student with defence counsel’s firm who attested to concerns with the

interpretation provided during the testimony of Sandeep Gill on April 10, 2014, and the second by Ijaz Ahmed, a Punjabi-speaking businessman who, in addition to confirming

interpretation problems with respect to Sandeep Gill’s testimony, also attested to

interpretation problems on April 8, 2014, during the complainant’s re-examination. [4] [ 32 ] In a judgment rendered June 13, 2014 ( R v Gill , 2014 SKQB 176 , 448 Sask R 182), the trial judge refused to consider submissions with respect to the April 8, 2014,

interpretation concerns raised by Mr. Ahmed’s affidavit because defence counsel had indicated she was limiting the s. 14 application to

interpretation issues that arose on April 10, 2014, during the testimony of Sandeep Gill. The trial judge stated: [28] In his affidavit Mr. Ahmed goes beyond the subject of the amended notice of motion of May 5, 2014, and also purports to identify an

interpretation problem that occurred after 5:30 p.m. on April 8, 2014. I have concluded it is not appropriate to consider paras. 4 and 5 of Mr. Ahmed’s affidavit. The motion restricted itself to the

interpretation issues that arose on April 10, 2014 and defence is not entitled to go beyond the parameters of that motion. Neither the Crown nor the Attorneys General of Canada or Saskatchewan had notice of an application that related to April 8

interpretations. In addition, on May 5, 2014 defence counsel expressly confirmed to the Court that the defence’s

interpretation concerns were limited to April 10, 2014 and that the defence did not take issue with the adequacy of the

interpretation previous to April 10, 2014. [ 33 ] The trial judge concluded, based on what he observed and the affidavit of Raj Gill, that the

interpretation relating to the testimony of Sandeep Gill did not meet the constitutionally guaranteed standard. He summarized the deficiencies in the

interpretation at paras 26 and 39 of his June 13, 2014, judgment as follows: [26] The affidavit of Raj Gill does not set out his qualifications to interpret Punjabi into English or English into Punjabi other than a conclusionary statement on his part that he is proficient in the Punjabi language. However taking his affidavit evidence at face value it establishes that on reviewing the audio recordings of April 10, 2014 that:

i) there were instances where Raj Gill could not recapture what was being said due to interruptions; ii) there were instances where things said during the course of the proceedings including objections, counsel submissions and Court comments were not translated; and iii) there were a number of what Raj Gill describes as inaccuracies in the

interpretation of questions posed to and responses of the witness Sandeep Gill. … [39] Apart from the affidavit evidence of Raj Gill, I observed and find that the following occurred during the evidence of Sandeep Gill:

a) Participants were speaking at the same time and it was not possible for the interpreter to absorb both statements and provide

interpretations;

b) Attempts by the interpreter to stop speakers so he could provide

interpretations in manageable segments often failed or when successful in stopping the interruption masked part of what was being said and lost it for

interpretation;

c) Requests or demands by defence counsel for yes or no answers, while the witness was testifying, caused what was being said by the witness to be lost in the exchange and translations were not made of such statements;

d) Submissions made by counsel and questions, comments or direction from me as the judge were not all translated.

[ 34 ] By way of remedy, the trial judge ordered Sandeep Gill’s testimony be redone with the assistance of a new interpreter (paras 41 and 78). [ 35 ] A new interpreter was enlisted – Satinder Bains – but he was not prepared to perform the role due to differences with the appellant. [ 36 ] A third interpreter was qualified – Jazit Couer Bir and she acted throughout the balance of the trial interpreting the testimony of the appellant, his aunt, and the rehearing of the evidence of Sandeep Gill. During the trial, no issues were raised with respect to Ms.

Bir’s interpreter assistance. [ 37 ] Throughout the trial, there were numerous occasions when defence counsel indicated the appellant was waiving his right to interpreter assistance. These waivers generally applied to submissions made by legal counsel with respect to various matters or the examination or swearing of the interpreters. [ 38 ] The trial judge reserved his decision. On April 1, 2015, he provided a written unreported judgment wherein he convicted the appellant of aggravated sexual assault, choking and breach of recognizance, but acquitted him of the charge of obstruction of justice.

The trial judge did not believe the appellant or his witnesses and determined the evidence as a whole proved the appellant’s guilt beyond a reasonable doubt. A judicial stay was entered with respect to the choking conviction and the appellant was sentenced to five years for aggravated sexual assault (less pre-sentence credit) and three months consecutive for breach of the recognizance. [ 39 ] The appellant appealed both his conviction and his sentence, but abandoned his sentence appeal in his factum. III. issues [ 40 ] The following issues arise in this appeal: (

i) Did the interpreter assistance provided meet the standard set out in Tran ? (ii) Did the appellant waive his s. 14 right to interpreter assistance? (iii) In the alternative, was the remedy granted by the trial judge for the s. 14 breach pertaining to the testimony of Sandeep Gill appropriate? IV. The Charter right to interpreter assistance:

section 14 [ 41 ]

Section 14 of the Charter states: 14 A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. [ 42 ] Section 650(1) of the Criminal Code provides that an accused “shall be present in court during the whole of his or her trial” while s. 650(3) entitles an accused to “make full answer and defence”.

Those subsections have been interpreted as extending to situations where an accused cannot understand the proceedings because of linguistic deficiencies: Tran at 967 and 971; R v Rybak , 2008 ONCA 354 at para 69 , 233 CCC (3d) 58, leave to appeal refused [2009] 1 SCR xii [ Rybak ]. [ 43 ]

Section 650 plays a subordinate role to s. 14 of the Charter ( Tran at 960) and, as such, the focus of this appeal is s. 14. [ 44 ] The leading judicial authority with respect to s. 14 is the Supreme Court of Canada’s decision in Tran . [ 45 ] In the criminal context, s. 14 serves several purposes: it safeguards an accused person’s right to know the case against him or her and to have a full opportunity to answer it; it assures trial proceedings are fair (and appear fair), which underpins the notion of justice and upholds the integrity of the administration of criminal justice; and it supports Canada’s claim to be a multicultural society ( Tran at 977). [ 46 ] The overarching principle underpinning s. 14 is trial fairness.

For a trial process to be fair or, indeed, to have the appearance of fairness, individuals involved in the process, whether as witnesses, litigants or an accused person, must be able to understand the proceedings and, in turn, be understood. [ 47 ] The principle of linguistic understanding enshrined in s. 14 was described by Lamer C.J. writing for the Supreme Court of Canada in Tran as “the same basic opportunity to understand and be understood as if [the accused] were conversant in the language of the court” ( Tran at 977–78).

The principle, however, is not a guarantee of perfect understanding: At the same time, however, the principle of linguistic understanding which underpins the right to interpreter assistance should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings, be it English or French, are given or seen to be given unfair advantages over those who are fluent in the court’s language.

Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others. (Emphasis in original)

[ 48 ] There is no bright line beyond which a breach of s. 14 can be said to be established ( Rybak at paras 99–100 ). This is so because linguistic competency encompasses a wide spectrum of varying abilities to both comprehend and communicate in the language of the proceedings.

For some, the entire proceedings will be incomprehensible without interpreter assistance; others may comprehend what is said but struggle with putting their own thoughts into words; others may speak well but have difficulty comprehending and still others may have considerable facility with the language but struggle with certain words or phrases.

Thus, what is necessary to bring a person with linguistic deficits up to the standard set by s. 14 – that is, the same basic opportunity to understand and be understood as if the individual were conversant in the language of the proceedings – will of necessity vary with the deficits the assistance is meant to remedy.

In Rybak , Watt J.A., writing for the Ontario Court of Appeal, stated: [78] Variances in the nature and extent of understanding of the language of trial proceedings bespeak corresponding variances in the nature and extent of interpreter assistance required to fulfill the purpose that underlies the guarantee of s. 14. Said in another way, what it takes in individual cases to restore a language-deficient accused to the standard set by s. 14, the same basic opportunity to understand and be understood as if she or he were conversant in the language of trial proceedings, is also variable, not fixed.

See also: Rybak at paras 90–93 ; R v Sylvain , 2014 ABCA 153 at para 100 , 310 CCC (3d) 1. [ 49 ] Key to whether s. 14 has been breached and what the appropriate remedy for that breach may be is the claimant’s linguistics skills. For this reason, when ordering interpreter assistance, trial judges would be well advised to describe for the record the deficits in a claimant’s linguistics skills and the scope of interpreter assistance required to address those deficits. For example, if a claimant has virtually no comprehension or ability to communicate in the language of the proceedings, contemporaneous word-for-word

interpretation of the entire proceedings will be required. On the other hand, if the claimant has some facility in the language but struggles only with certain words or phrases, then

interpretation on an as-needed basis may well be sufficient (see, for example: Rybak ). What is important is that both the need and how that need will be met are identified. [ 50 ] In Tran , the Court set out three requirements that must be met in order to establish a breach of s. 14. First, it must be clear the accused was actually in need of interpreter assistance. Second, assuming interpreter assistance was provided, there must have been a departure from the basic, constitutionally guaranteed standard of

interpretation, namely, that the

interpretation be continuous, precise, impartial, competent and contemporaneous. Third, “the claimant must establish that the alleged lapse in

interpretation occurred in the course of the proceedings themselves when a vital interest of the accused was involved” ( Tran at 979). [ 51 ] In this appeal, it is uncontroverted that the appellant has met the first requirement. The appeal hinges on whether the interpreter assistance provided to the appellant met the requirements set out in Tran and, in particular, whether it was continuous, precise, competent and contemporaneous and, if it was not, whether any deficiency was waived by the appellant. [ 52 ] In Tran , the Court dealt with a situation similar to the one that exists in this appeal – an interpreter had been appointed but the quality of the

interpretation provided was being challenged – the interpreter had summarized his own evidence and had failed to interpret exchanges between him and the trial judge. As such, the Court in Tran needed to consider what level of interpreter assistance would satisfy the guarantee provided by s. 14. The Court determined the adequacy of interpreter assistance must be measured by reference to certain criteria, including continuity, precision, impartiality, competence and contemporaneousness: While the standard of

interpretation under s. 14 will be high, it should not be one of perfection. In my view, it can be defined by reference to a number of criteria aimed at helping to ensure that persons with language difficulties 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, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness. … (985) [ 53 ] The Court went on to set out what is meant by each of those criteria. Its conclusions may be summarized as follows: (

i) Continuous

interpretation means breaks in

interpretation and/or summaries of the proceedings are not to be encouraged or allowed ( Tran at 986). (ii) Precise

interpretation requires the

interpretation to be “as close as can be, word-for-word and idea-for-idea”. [5] Summaries are unlikely to meet this standard. Having said that, even the best

interpretation will not be “perfect”. As Lamer C.J. stated in Tran at 987 quoting Steele : Even the best

interpretation is not “perfect”, in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness. It is self-evident that an interpreter in the heat of the moment with little opportunity for reflection cannot perfectly interpret what is being said. Further, there may be conceptual differences between languages, which makes word-for-word

interpretation difficult, if not impossible. (iii) Impartial

interpretation requires the interpreter to be objective and unbiased ( Tran at 988). (iv) Competent

interpretation is

interpretation that is of “high enough quality to ensure that justice is done and seen to be done”. While there are no generally accepted standards for assessing competency, at a bare minimum an interpreter must be sworn and where there is a legitimate reason to doubt an interpreter’s competence, an inquiry should be conducted into his or her qualifications ( Tran at 988). (

v) Contemporaneous

interpretation is concerned with the “timing” of the

interpretation. It is generally preferable that

interpretation be consecutive rather than simultaneous. Having said that, the “overriding consideration” is that it be contemporaneous ( Tran at 989).

[ 54 ] The onus of establishing a breach of s. 14 of the Charter rests with the claimant and the standard of proof is on a balance of probabilities. From an appellate perspective, it is of significance whether a claimant raised the need for interpreter assistance or any alleged deficiency in interpreter assistance with the trial judge: Tran at 979–81; Rybak at paras 94–95 ; R v Chica , 2016 ONCA 252 at para 34 , 348 OAC 12; R v Match , 2015 BCCA 271 at paras 14–15 , 326 CCC (3d) 41 [ Match ]; R v Dunsford , 2013 SKCA 17 at para 11 , 409 Sask R 51.

It is important claimants bring such issues to the attention of the trial judge at the first reasonable opportunity so they can be addressed and a mistrial avoided. Having said that, a claimant who lacks comprehension or the ability to communicate may be totally unaware of deficiencies in the interpreter assistance provided.

Where deficiencies are not clear from a review of the record itself, it will be incumbent on a claimant to present evidence to establish the breach ( Rybak at para 96 ). [ 55 ] Where a claimant establishes that a breach of s. 14 has occurred, it falls to the Crown to prove on a balance of probabilities that the right to interpreter assistance was waived, if waiver is in issue. V. analysis [ 56 ] With the above principles in mind, I turn now to consider the appellant’s contention that the interpreter assistance provided to him did not meet the standard set out by the Supreme Court of Canada in Tran . A.

Did the interpreter assistance provided meet the standard set out in Tran ? 1. The first interpreter [ 57 ] The appellant contends that of the five criteria necessary to establish the guaranteed standard of interpreter assistance provided by s. 14, only that of impartiality was met by the first interpreter, Mr. Singh. I will address the appellant’s concerns with respect to each of the remaining four criteria in turn. a. Competence [ 58 ] The appellant submits Mr. Singh was not competent as he had no training or experience with court

interpretation, and no grasp of the meaning of common courtroom expressions such as “onus of proof”, “examination in chief” or “cross-examination”. [ 59 ] I do not view this as a particularly compelling argument. Mr. Singh was clearly able to communicate with the appellant without difficulty. It was the trial judge who raised Mr. Singh’s competence as a potential issue and, as a result, a voir dire was held. While Mr. Singh had no training or experience as a court interpreter, it is clear he was fluent in both Punjabi and English. As in Tran , Mr.

Singh’s lack of training and experience did not mean he was incompetent to perform the task – there are no standardized qualifications or training for interpreters. As stated by Watt J.A. in Rybak at para 84 : Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competency, neither presence nor absence of accreditation can be considered dispositive of the issue of competence ( Tran , at pp. 987-90 S.C.R., pp. 248-49 C.C.C. See also, State v. Pham , 879 P.2d 321, 75 Wn. App. 626 at 326 (1994), at p. 326 P.2d; R. v. Ungvari , [2003] E.W.J.

No. 4217, [2003] E.W.C.A. Crim. 2346 (C.A. (Crim. Div.)), at para. 23; and Martins v. Texas , 2001 Tex. App. LEXIS 5096, 52 S.W.3d 459 (2001), at pp. 473-74 S.W.3d). [ 60 ] Moreover, counsel for the appellant indicated on the record that Mr. Singh was a “highly intelligent man” whose difficulty appeared to stem from his unfamiliarity with legal terms.

Defence counsel, Crown counsel and the trial judge were all satisfied that deficiency could be remedied by the preparation of a lexicon. [ 61 ] The appellant is not entitled to a greater understanding than that of an accused conversant in the language of the proceedings. Most ordinary people of average intelligence do not know the meaning of many common legal terms. Moreover, indictments, which are not worded in plain English, are not easily amenable to translation. This is especially true where the interpreter performing the translation is not conversant with legal jargon.

In the circumstances, the preparation of a lexicon – the remedy suggested by defence counsel and agreed to by Crown counsel and the Court – was a creative solution to the problem. [ 62 ] Finally, the fact Mr. Singh’s written translation of the legal phrases in the lexicon was in Hindi, as opposed to Punjabi, is irrelevant. The onus rests with the appellant to establish a breach of his s. 14 Charter rights. The appellant failed to provide any link between alleged deficiencies in his interpreter assistance and the fact Mr. Singh wrote the

definitions of the legal terms for the lexicon in Hindi. [ 63 ] In my view, the trial judge did not err in concluding Mr. Singh was competent to provide interpreter assistance. b. Contemporaneous, continuous and precise

interpretation [ 64 ] The appellant contends Mr. Singh’s interpreter assistance was deficient as it was not contemporaneous, continuous or precise. [ 65 ] Defence counsel raised the quality of Mr. Singh’s

interpretation with respect to three aspects of the trial: (

i) the testimony of Constable Kirzinger; (ii) the testimony of Sandeep Gill; and (iii) the re-examination of the complainant. i. Testimony of Constable Kirzinger

[ 66 ] During the testimony of Constable Kirzinger, defence counsel became aware through discussions with the appellant that an error may have occurred in interpreting Constable Kirzinger’s evidence of what the appellant had said when arrested. Constable Kirzinger testified the appellant had said, “No English, and Brother coming”. The taped record revealed that was interpreted as “No English, brother came”. In my view, the trial judge appropriately dealt with this issue. He had the tape replayed and he clarified the matter for the record. The trial judge then provided a further rule for the assistance of Mr.

Singh, namely, that he adhere to the correct verb tenses. ii. Testimony of Sandeep Gill [ 67 ] Defence counsel next raised concerns with the quality of Mr. Singh’s interpreter assistance during the cross-examination of Sandeep Gill. The trial was adjourned so that defence counsel could listen to the tape of the proceedings and determine how she wished to proceed. In the end, defence counsel brought a Charter application alleging the appellant’s s. 14 Charter right to interpreter assistance had been breached.

The problems identified by defence counsel included instances where the proceedings were not interpreted, including objections, counsel submissions, and court comments, as well as inaccuracies in the

interpretation of some of the questions posed and some of Sandeep Gill’s responses. The trial judge concluded the appellant’s s. 14 Charter right had been breached and the Crown does not take issue with that conclusion on this appeal. Rather than ordering a mistrial, the trial judge directed Sandeep Gill to give her evidence again, utilizing a new interpreter. [ 68 ] In oral argument before this Court, appellant’s counsel asserted Sandeep Gill’s second testimony was “bungled” even worse than her first. However, the trial transcript does not support that assertion. The appellant did not raise any concerns with respect to the

interpretation of Sandeep Gill’s second testimony during the trial, nor was the appellant able to point to anything that suggested the

interpretation of that testimony was not continuous, precise, impartial, competent and contemporaneous. iii. Re-examination of the complainant [ 69 ] The appellant contends the trial judge erred by refusing to consider other alleged problems with the quality of the

interpretation when the s. 14 application came before him for argument. Those problems only came to light when an independent interpreter was reviewing the tape of the proceedings relating to Sandeep Gill’s testimony. Defence counsel had provided an affidavit by Mr. Ahmed who had attested to another

interpretation issue, which arose during re-examination of the complainant. The trial judge refused to consider that evidence as defence counsel had earlier indicated she was limiting her s. 14 argument to Sandeep Gill’s testimony of April 10, 2014.

In my view, the trial judge did not err in reaching that conclusion. [ 70 ] I begin by noting a review of the trial transcript confirms defence counsel had unequivocally stated that the s. 14 application would be limited to the April 10, 2014, testimony of Sandeep Gill and neither the Attorneys General of Canada or Saskatchewan were advised of any change in that position, until May 6, 2014, when the application was being argued.

While the trial judge refused, for the reasons stated, to extend the scope of the May 6, 2014, application beyond the testimony of Sandeep Gill, there was nothing in the trial judge’s comments or his written judgment that would have forestalled defence counsel from bringing a further s. 14 application relating to any additional

interpretation issues with proper notice. No such applications were made, nor did defence counsel raise any

interpretation issues in final argument before the court. [ 71 ] The error allegedly identified by Mr. Ahmed arose during discussions between defence counsel and the court with respect to an objection made by defence counsel to a question posed by Crown counsel during the re-examination of the complainant. For clarity, it is useful to reproduce the relevant portions of Mr. Ahmed’s affidavit here: 4. Ms. Dunford asked to listen to a sampling of the proceedings conducted on April 8, 2014. I reviewed an excepts following the time stamp of 5:30:11 p.m. The following is an except [ sic ] and

summary of that portion of the audio recording: JUSTICE SHERMAN: Well, the fact of the matter is Ms. Simic, I know because of a previous application before me precisely when that affidavit was sworn. Now, it is not a record in this trial.… M. PICHE: But it is part of the court proceeding. JUSTICE SCHERMAN: But it is part of the proceeding and what is your position A. SIMIC: No, my position simply is that this is now, yes it is re-examination, I am just wondering about suggesting when we have a witness who is not statements like well after and added that just ..that’s … JUSTICE SCHERMAN: But .… 5. My translation of the

interpretation at 5:30:57 is as follows: She is saying what about affidavit what is the story before and afterward. There is story that is not in their record also there is another witness and his name is Sucha Singh and the judge stop it. [ 72 ] Prima facie there appears to be deficiencies with respect to the

interpretation in that there was an imprecise

summary of what was said. In my view, however, the context in which the alleged misinterpretation arose is important. From a review of the trial transcript, it is evident defence counsel’s objection was poorly stated and confusing. Indeed, the trial judge did not initially understand what defence counsel was saying. A lengthy discussion between defence counsel and the trial judge followed and is set out at T251– T254 of the transcript. While there appears to be imprecision in the

interpretation of defence counsel’s objection, there is no evidence the lengthy discussion that followed failed to clarify matters for the appellant as it did for the trial judge. [ 73 ] As stated earlier in these reasons, perfection in

interpretation is not the test. An interpreter is presumed to have provided an accurate

interpretation, unless the contrary is demonstrated: R v Titchener , 2013 BCCA 64 at para 30 , 333 BCAC 234; Match at para 13 .

It is not evident from the trial record, nor was any evidence presented to the trial judge or any request for fresh evidence advanced beforethis Court, that the discussion that followed defence counsel’s objection was not accurately interpreted. As Watt J.A. stated in Rybak: [96] The imposition of an onus on a party who advances constitutional infringement as the foundation for particular relief, here a newtrial, carries with it the obligation to discharge the onus by some form of proof. Proof of infringement is a condition precedent toentitlement to a remedy.

Said another way, the remedy is not for the asking, only upon the showing. [74] Finally, matters of a de minimus nature do not result in a breach of s. 14. As stated in Tran at 979–80: Third, the claimant must establish that the alleged lapse in

interpretation occurred in the course of the proceedings themselves when avital interest of the accused was involved–i.e., while the case was being advanced–rather than at some point or stage which was extrinsicor collateral to the advancement of the case. [75] In the appeal under consideration here, the alleged misinterpretation identified by Mr. Ahmed relates solely to an objection bydefence counsel that a question posed by Crown counsel to the complainant in re-examination was leading in nature.

In Match, BennetJ.A. of the British Columbia Court of Appeal had occasion to consider whether a failure to interpret procedural arguments dealing withthe phrasing of questions constituted a breach of s. 14. She held they did not, as the passages involved were not vital to the proceedings(see Match at paras 35–36). In my view this same rationale applies to the alleged misinterpretation of April 8, 2014. [76] For the reasons set out, in my view, the trial judge did not err in refusing to hear argument with respect to the allegeddeficiency in

interpretation that occurred on April 8, 2014, nor has the appellant established a breach of his s. 14 right with respect towhat occurred on that date. 2. The court’s use of the interpreter [77] The appellant raises one final point that bears consideration. He contends at para 50 of his factum that the Court “borrowed”his interpreter, Ms. Bir, when the Court required

interpretation or translation services, presumably leaving the appellant withoutinterpreter assistance. [78] The trial record shows Ms. Bir was called upon to interpret the testimony of the defendants’ witnesses from Punjabi to Englishfor the benefit of the Court and counsel. Having said that,

interpretation was also provided by Ms. Bir for the witnesses and the appellantwith respect to the questions posed and comments made by both counsel and the Court. That translation was from English to Punjabi.The appellant did not raise any objection to the process implemented. In fact, a review of the trial record indicates defence counsel hadinitiated that process: MS.

SIMIC: Sir, what I propose first is to give instruction to this witness that there will be ongoing translation from Punjabi toEnglish, and that the witness needs to be mindful and attentive to the interpreter because the interpreter will let her know that herevidence will be translated from Punjabi to English for the court. Mr. [sic] Interpreter, could you advise Mrs. Gill – (T321) [79] Importantly, the appellant has not identified any specific deficiencies with respect to the

interpretation provided by Ms. Bir,nor has he identified any instances where the

interpretation was not continuous, precise, impartial, competent, or contemporaneous. Therecord itself does not reflect any deficiencies in

interpretation. In the circumstances, the appellant has not met the burden of establishing aCharter breach with respect to the interpreter assistance provided by Ms. Bir. 3. Conclusion [80] The appellant has failed to establish that the incidents identified by him, other than those associated with the testimony ofSandeep Gill on April 10, 2014, resulted in a breach of his s. 14 right to interpreter assistance. B.

Did the appellant waive his s. 14 right to interpreter assistance? [81] The appellant identified a number of occasions when he received no interpreter assistance, namely, when the interpreters weresworn and being examined to establish their qualifications and when various legal arguments were being presented and rulings made.The Crown contends the appellant waived interpreter assistance during those portions of the trial.

The appellant, on the other hand,maintains his s. 14 right was never properly waived. [82] To address this argument, it is necessary to consider what constitutes a proper waiver of the right to interpreter assistance asguaranteed by s. 14. This question was addressed by the Supreme Court of Canada in Tran at 996.

Chief Justice Lamer, writing for theCourt, began by stating: … In other words, it is simply beyond the bounds of a civilized society such as ours to permit a person charged with a criminal offenceand facing deprivation of liberty who genuinely cannot speak and/or understand the language of the proceedings to dispense eitherwittingly or unwittingly with the services of an interpreter. [83] Where waiver is possible, the Court in Tran indicated the threshold to achieve it is “very high”.

Chief Justice Lamerdescribed what is necessary in the following terms at 996–97: Where waiver of the right to interpreter assistance is possible, the threshold will be very high. In Korponay v. Attorney General ofCanada, (SCC), [1982] 1 S.C.R. 41, this Court made it clear per Lamer J. (as he then was) that to be valid, waiver of astatutory procedural right has to be clear and unequivocal and must be done with full knowledge of the rights the procedure wasenacted to protect and the effect that waiver will have on those rights. This standard for a valid waiver has subsequently been

adopted in the context of the Charter, specifically with respect to s. 10(b), which guarantees the right to retain and instruct counsel uponarrest or detention: see, e.g., R. v. Evans, (SCC), [1991] 1 S.C.R. 869, per McLachlin J., at pp. 892-94. In the specificcase of waiver of the s. 14 right to interpreter assistance, I would add to existing safeguards the following condition.

The waiver shouldbe made personally by the accused, if necessary following an inquiry by the court through an interpreter to ensure that the accused trulyunderstands what it is he or she is doing, unless counsel for the accused is fluent in the accused’s language or has communicatedwith the accused through an interpreter before coming to court and satisfies the court that the nature of the right and the effecton that right of waiving it have been explained to the accused. (Underline emphasis in original; bold emphasis added) [84] The appellant indicates there were many alleged waivers throughout the trial where, for the most part, the discussionpertaining thereto was “brief and cursory” and where there was no effort to obtain a personal waiver from the appellant.

As such, theappellant contends the alleged waivers did not meet the Tran standard. In his factum the appellant identified the waivers in issue as thosefound at T89–T90, T266, T300, T851, T427–T430 and T519–T521. I will address each of these waivers in turn. a. T89–T90 [85] The waiver at this portion of the transcript related to the cross-examination of the first interpreter, Mr. Singh with respect tohis competence. The exchange relating to the waiver actually begins at T88: THE COURT: -- counsel, do we have the unique situation that Mr.

Singh is translating the very questions put to him and the answersgiven by him? Translate that, please. Please translate this: Counsel, do we have the unique situation that Mr. Singh will both be testifyingand translating the questions and answers put to him, translating them into Punjabi. MS.

SIMIC: I wonder, sir, I have to admit that I -- it’s rare that I’ve run into a situation like this, and I wonder if -- I think what mightbe appropriate if we all stayed down here, I’ll sneak out, get my interpreter on the phone and just for the limited instructions that I mayquestion this witness just as is without word for word

interpretation, so the court and counsel can assess his skill set. THE COURT: So as defence -- sorry, again, translate that. So as defence counsel, you’re prepared to waive translation for this portion? MS. SIMIC: Yes. THE COURT: Is that acceptable to you, Mr. Piché? MR. PICHÉ: Yes, My Lord. THE COURT: Okay. You needed a short adjournment, counsel? MS. SIMIC: Very briefly to sneak out with Mr. Gill out there, and I’ll be short because I have my colleague on standby. [86] When defence counsel returned to the courtroom, she made the following statement: MS. SIMIC: Sir, through my colleague, I have formal instructions to waive the testimony and the live

interpretation of it during thecurrency of my questioning, as well as the Crown or the Court’s questioning. THE COURT: Thank you. [87] In my view, this waiver met the test set out in Tran. Defence counsel had the appellant speak to her colleague who is fluent inPunjabi for the express purpose of obtaining the waiver. From the whole of the trial transcript, it is evident defence counsel was wellaware of Tran and its requirements. In the circumstances, the trial judge did not err in relying on defence counsel’s assertion that theappellant was waiving

interpretation of Mr. Singh’s testimony. b. T266 [88] The waiver at T266 related to the swearing-in of Mr. Singh as the interpreter. That requirement had been overlooked whenMr. Singh was examined with respect to his competence. The relevant exchange was as follows: THE COURT: And Ms. Simic, during this phase, do you, as you previously did, waive translation? MS. SIMIC: Yes, I do, sir. THE COURT: Thank you. MS. SIMIC: And I can confirm that I obtained those instructions yesterday, but I think after the long day that we all forgot about it. THE COURT: Lost track. Then I am going to ask Mr.

Singh to wait and take the witness stand and be sworn or affirm his evidence as hechooses. [89] In my view, the waiver in this instance had already been given by the appellant at T88–T90 of the transcript. c. T300

[ 90 ] This waiver related to defence counsel’s mistaken belief that Mr. Singh had not been sworn before engaging in the

interpretation of the evidence of Annica Tauro. In fact, Mr. Singh had been sworn (T266). The exchange relating to the waiver was as follows: MS. SIMIC: Sir, for the purposes of the record, firstly, I can say that there is a waiver of translation for the purposes of swearing in Mr. Singh. I can advise that I have engaged the services of my back-up interpreter in court to ensure that what is about to happen is conveyed to Mr. Gill. I can advise that during the lunch break Mr.

Singh has had an opportunity to review the oral portion of his evidence, and we can formally tie up the loose end of swearing him in and see whether he still accepts that. THE COURT: Okay. Madam Clerk, would you swear Mr. Singh, or have we done that? Did we do that last – let’s do it again, just to be sure. [ 91 ] In my view, this was a proper waiver. At the time it was given, defence counsel had a “back-up” interpreter who presumably was able to assist her in communicating with the appellant and obtaining his instructions with respect to the waiver. d.

T427–T430 [ 92 ] The waiver at this juncture of the proceedings related to

interpretation of the s. 14 Charter argument. The relevant exchange was as follows: MS. SIMIC: Now, in terms of the proposal here today on the

interpretation issue, given that Your Lordship has previously qualified Mr. Singh, and that now defence takes an issue with the quality of the

interpretation, and mainly whether the

interpretation came up short of constitutionally guaranteed Bench work, it is the defence position that Mr. Singh be excused from that portion of the application because naturally it would be open for either party or the court to elect and examine Mr. Singh on the basis of defence contentions, which would give him another dimension in the proceedings. To that end, and in compliance with the authority of R. v. Tran by the Supreme Court of Canada, defence has taken the necessary steps to familiarize the accused with that portion of the application in the language of his understanding.

However, with respect to the secondary aspect of the application -- THE COURT: Can I stop you there, counsel? Are you suggesting that, in conjunction with Mr. Singh’s excusal on the first part of your application and the fact that you have briefed your client, the accused, that your client is prepared to waive translation during the argument and the proceedings in respect of that aspect? MS. SIMIC: That is correct. And just for the clarity of the record, I have not myself briefed him. I assure that he was briefed through a member of our office as well as an independent or a defence interpreter.

However, defence expressly reserves the protections under

Section 14 of the Charter in the secondary aspect of the application, particularly when evidence is anticipated to be called. … … THE COURT: I direct my questions directly to the accused. Mr. Gill, have you been briefed by counsel in respect of the application under

Section 14 of the Charter regarding alleged inadequacies of translation? MS. SIMIC: The accused is nodding. Could he be given instruction to provide either an affirmative or a negative answer? I see him nodding. We need an actual answer. THE INTERPRETER: He is asking me to repeat it again. THE COURT: Do you see a need to repeat it again? THE INTERPRETER: Not to me, so I would like you to please, My Lord, if you can. THE COURT: Let’s start over. Mr. Gill, have you been briefed by your legal counsel about the

Section 14 Charter application she is making to the court on your behalf -- THE INTERPRETER: He say yes. THE COURT: -- in which she seeks remedies in respect of what she will argue has been inadequate translation? Has the briefing extended to that topic? THE INTERPRETER: He say yes. THE COURT: Are you prepared to waive translation into your language while legal argument proceeds on that topic? THE INTERPRETER: No, he is asking the talk which we’d done it previously. THE COURT: Repeat that.

THE INTERPRETER: He just want to ask that the talk which we’d done previously, he just ask me in like his language, so I say, yeah, that’s what they want to know. THE COURT: I will shorten it. Are you prepared to waive translation --

MS. SIMIC: I’m sorry, what is the conversation between you two? THE INTERPRETER: I ask him, like, you don’t need a translation, like you want to waive the translation for that part? THE COURT: Okay. And the answer was? THE INTERPRETER: He is asking me, like, on which part? THE COURT: Repeat what he said. THE INTERPRETER: Okay. He said that he couldn’t understand, like he want to waive the translator, or like the talk which happened in the past. He couldn’t understand that thing.

THE COURT: The question is, sir, are you prepared to waive translation of the legal arguments that will occur this morning respecting the issue whether the translation that occurred during the evidence of Sandeep Gill was adequate or inadequate? THE INTERPRETER: He is saying the translation was not correct. THE COURT: That is not the question, sir. THE INTERPRETER: He says that whatever I explain to him he just answer according to it. THE COURT: Counsel, can you assist? MS. SIMIC: Yes. Mr.

Gill, do you agree that this morning you gave me permission to conduct the first part of the application dealing with adequacies of

interpretation in absence of the interpreter? THE INTERPRETER: He just told me, said yes. THE COURT: And so, sir, with your consent and approval we may ask the interpreter to leave while this happens. Your answer, sir? THE INTERPRETER: He say yes. [ 93 ] While it is obvious the appellant had some difficulty understanding the question as posed by the court, in my view, a valid waiver was given. I say this because defence counsel advised the court that in accordance with Tran she had taken the necessary steps to familiarize the appellant with the application being made in “the language of his understanding”. The appellant himself indicated he was waiving

interpretation. e. T519–T521 [ 94 ] This waiver concerned the questioning of the second interpreter, Satinder Bains, with respect to his qualifications. The discussion was as follows: THE COURT: Okay. Ms. Simic, in terms of qualification questions, go ahead and interpret? THE INTERPRETER: Okay. THE COURT: Are you asking this portion to be translated as well, or is your client prepared to waive translation during the qualification portion? THE INTERPRETER: Okay. Okay, could you repeat it slowly, and I’ll say it again? THE COURT: Okay. The question was addressed to Ms. Simic. THE INTERPRETER: Okay.

THE COURT: And the question was whether, during questions of Mr. Bains regarding his qualifications to interpret -- THE INTERPRETER: Okay. THE COURT: -- whether Mr. Gill requires those questions and answers to be interpreted -- THE INTERPRETER: Okay. THE COURT: -- or -- THE INTERPRETER: No. He said, no, he’s all right. Okay, I’m just saying. THE COURT: -- or whether he is prepared to waive

interpretation of that portion? THE INTERPRETER: He said, It doesn’t matter, I guess. THE COURT: He said, It doesn’t matter. THE INTERPRETER: Hold on.

MS. SIMIC: Because I’ve already canvassed this portion and consistent with the qualifications on the last occasions to obtain a waiver of that. THE COURT: So Mr. Gill is waiving translation for this portion? MS. SIMIC: That’s correct. THE INTERPRETER: Okay. MR. PICHÉ: I’d like to hear him personally waive it, quite frankly. THE COURT: Yes. THE INTERPRETER: Okay. He said, Yes. THE COURT: Yes, he waives? THE INTERPRETER: Okay, give the question some -- he said, he does not understand the question thoroughly. THE COURT: Sorry, stop. We must ensure, Mr. Interpreter -- THE INTERPRETER: Okay.

THE COURT: -- that we are not having private conversations between you and Mr. Gill. So we will start over. The question for Mr. Gill is, does he waive translation or

interpretation -- THE INTERPRETER: Okay, go ahead. THE COURT: -- during the next few moments while Mr. Bains’ qualifications to translate -- THE INTERPRETER: Okay. THE COURT: -- are explored? THE INTERPRETER: Okay. He said, no, it’s not a problem. She can ask. THE COURT: That’s not a waiver, counsel, to say it’s not a problem. I need an express waiver from the accused -- THE INTERPRETER: Okay. THE COURT: -- or we translate. THE INTERPRETER: Okay. He said he doesn’t -- he doesn’t need it, so she can ask questions. That’s what he’s saying. I’m just going to say what he says. THE COURT: Can we take that as -- MS.

SIMIC: Yes, sir -- THE COURT: -- meaning a waiver? Thank you. MS. SIMIC: -- because, sir -- and just -- THE COURT: You’ve explored this previously? MS. SIMIC: I have explored this previously, and I’ve explored it previously when we did this portion with Mr. Singh. THE COURT: Mmhmm. MS. SIMIC: So usually waivers are -- legal words are broken down in basics to him. They’re -- and it sounds to me he is saying -- he is confirming my previous instructions. [ 95 ] In my view, this too constituted a proper waiver. Defence counsel indicated she had “canvassed” the question with the appellant and obtained a waiver.

Moreover, the appellant himself personally provided his waiver on the record. f. T851 [ 96 ] This waiver related to Crown and defence counsel’s arguments with respect to the admission of certain emails. The exchange relating to the waiver was as follows: MR. PICHÉ: That’s the other thing I’m learning -- are we to be translating the arguments, or is that something we have been waiving? THE COURT: Sorry, we’ve started this. MR. PICHÉ: Are we --

MS. SIMIC: I have previously explained this to the accused with -- through Mr. Gill, and we have -- THE COURT: Okay. MS. SIMIC: -- the history. We have waived the argument, so sorry I didn’t -- THE COURT: Okay. MS. SIMIC: -- I didn’t raise that this morning. MR. PICHÉ: We should get his -- THE COURT: I want to be clear on this, Ms. Simic. Is your client, in fact, waiving

interpretation of the argument this morning because if he doesn’t it’s an easy matter for us to turn the tape back and have the interpreter interpret it and catch us up to this point. However, if Mr. Gill is waiving

interpretation of the legal arguments this morning, from the moment we stepped into this court, I would like that clearly on the record, and then we’ll proceed alternatively. MS. SIMIC: Yes, I’m prepared to waive, and Mr. Gill did -- we did speak about the rebuttal application because we had anticipated, and I confirm that he has said that before, with respect to this anticipated argument, as with respect to today, so it’s not necessary. [ 97 ] In my view, there was a proper waiver. Defence counsel’s colleague – Raj Gill – was fluent in Punjabi and he had explained what was to occur to the appellant.

In the circumstances, the trial judge was entitled to rely on the submissions of counsel. g. Conclusion [ 98 ] In

summary, all the waivers complained of by the appellant met the Tran standard. Moreover, it is significant the appellant did not provide any evidence that the waivers identified were not in accordance with his instructions or that he lacked understanding of the purpose or effect of such waivers. C. Was the remedy granted by the trial judge for the s. 14 breach pertaining to the testimony of Sandeep Gill appropriate? [ 99 ] The trial judge was acutely aware of the appellant’s s. 14 right to interpreter assistance.

His conclusion that the interpreter assistance provided during the course of Sandeep Gill’s April 10 testimony constituted a breach of s. 14 of the Charter is not challenged in this appeal. What is challenged, however, is the remedy ordered for that breach pursuant to s. 24 – namely that Sandeep Gill’s evidence be redone. The appellant contends this remedy was not appropriate and that a new trial should have been ordered. [ 100 ] Section 24(1) is the remedial

section of the Charter . It provides: 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 101 ] It is well-settled that the curative provisions of the Criminal Code being ss. 686(1) (b)(iii) and (iv) do not apply to violations of s. 14 of the Charter .

In Tran at 1009, Lamer C.J. stated the following: While denial of a Charter right constitutes an error of law, it is by its very constitutional nature a serious error of law, and certainly not one which, for Criminal Code purposes, can be characterized as minor or harmless, or as a “procedural irregularity”. Therefore, I find as a matter of law that a violation of s. 14 of the Charter precludes application of both s. 686(1)(b)(iii) and s. 686(1)(b)(iv) of the Code .

To the extent that a particular Charter violation is more or less serious and/or prejudices an accused to a greater or lesser degree, this raises remedial issues which fall squarely to be decided under s. 24(1) of the Charter , not under the Criminal Code . (Emphasis added) [ 102 ] As a general rule, the appropriate remedy under s. 24 for a breach of s. 14 will be a new trial. This general rule, however, does not affect a Court’s power to craft a different remedy that is “appropriate and just” in the circumstances: Tran at 1010.

In my view, the appellant’s suggestion that the remedy was not appropriate is without merit. The trial judge’s remedy was both creative and appropriate. It corrected the deficiencies in the interpreter assistance provided without necessitating a new trial. Importantly, it allowed the appellant to fully know the case against him. VI. conclusion [ 103 ] For the reasons set out herein, the appeal is dismissed. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Jackson J.A.”

Jackson J.A. I concur. “Ryan-Froslie J.A.” for Ottenbreit J.A.