A Vietnamese interpreter translates for an accused Vietnamese speaking man.
As Canadians, we are lucky to live in a multicultural society that embraces diversity.
Canada’s dedication to multiculturalism is such a vital aspect of Canadian society that it has been entrenched in the Canadian Charter of Rights and Freedoms.
Section 27 of the Charter tell us that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”.
In addition to the general interpretive provision in s. 27, the Charter also contains specific rights that are geared towards protecting diversity and upholding Canada’s commitment to maintaining a multicultural society.
One of those rights is the legal rights to an interpreter found in s. 14 of the Charter.
Section 14 guarantees that “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”.
The right to an interpreter in s. 14 is a straightforward procedural right.
However, it serves three important purposes in the context of a criminal trial.
First and foremost, the right in s. 14 ensures that all individuals charged with a criminal offence are able to understand the case against them and make full answer and defence.
Second, the right to an interpreter is indicative of Canada’s dedication to fairness in the justice system.
Finally, the right is intimately related to our desire to preserve our multicultural society.
The principle forming the backdrop of all three purposes is recognition of the importance of linguistic understanding.
No person should be denied access to justice, be deprived of the opportunity to tell his or her side of the story, or have judgment rendered against him or her, without their comprehension and participation.
Justice should never be imposed without giving the target an opportunity to respond to the allegation. Every accused person must be able to enter a defence.
The threshold ability to “speak and understand the language” for the purposes of s. 14 is quite high.
An individual must not only understand the language of the court, but must be comfortable conversing in that language to relieve the government of the obligation to provide an interpreter.
If proceedings are carried on without an interpreter in a situation where the accused person required an interpreter, s. 14 will be breached.
The SCC in R. v. Tran set out a three-part test to determine whether a breach of s. 14 has occurred.
First, the court must be satisfied that the accused was actually in need of interpreter assistance (in other words, that he or she did not speak and or understand the language of the proceeding).
If the case is one where an interpreter was denied, satisfying the court that an interpreter was needed is sufficient to establish a breach of s. 14 (court records will indicate, of course, that no interpreter was provided, so the defendant need not adduce proof as to that fact).
However, in situations where an interpreter was provided but the claimant alleges that the interpreter was deficient, we must examine the process in two steps of the three-part test. In step two, the claimant must satisfy the court that there has been a departure from the basic, constitutionally guaranteed standard of interpretation.
The defence may consider factors such as continuity, precision, impartiality, competency and contemporaneousness of the interpretation services provided.
Finally, the claimant must show that the alleged lapse in interpretation occurred in the course of the proceedings themselves when a vital interest of the accused was involved.
In other words, the service provided must have been deficient at a point in the proceedings where the case against or for the accused has been advanced, rather than at some stage collateral to the advancement of the case.
Thus, if the interpreter failed to properly interpret for the accused a mundane matter that was not relevant or material to the case, such as comments made by the judge about an administrative detail, the constitutional protection in s. 14 would not attach.
If all three aspects of the test are made out, the court must find a breach of s. 14, unless the Crown is able to prove that the defendant somehow waived their right to an interpreter.
Establishing “necessity” in stage one will not usually be difficult. As part of the court’s control over its own proceedings, the court has an independent responsibility to ensure that those who cannot converse comfortably in the language of the court are provided with an interpreter.
The issue of need only becomes controversial where the right is being asserted for the first time on appeal or is being asserted in bad faith (i.e. to delay the proceedings).
However, in most cases, the court will not conduct a detailed inquiry into the defendant’s ability to speak the language.
A person may be able to use the language for general purposes without being comfortable conversing in it for legal purposes where his or her liberty is at jeopardy.
Broken English will not suffice. Usually, if a person requests an interpreter, one must be provided. Likewise if the court suspects that an interpreter is needed, it must offer one.
It would take clear cogent and compelling evidence for a judge to rule that a request was made in bad faith.
If an interpreter were refused during the trial, a new trial would be ordered. If the interpreter was only lacking at sentencing, only a new sentencing trial need be ordered.
The opposing party can challenge the request for an interpreter by means of cross-examination.
The party who objects can call witnesses to attest to the accused’s language skills.
The court must then come to a decision regarding the credibility and reliability of the witness who asserts that the defendant is capable of speaking the language versus the credibility and reliability of evidence in the defendant’s favour or the defendant him or herself should he or she choose to testify on this matter.
However, the court must take into account the natural and legitimate desire of any witness/defendant to express him-or-herself in the language he or she knows best.
In a diverse city like Toronto, criminal defence lawyers often require the assistance of interpreters.
In Toronto the “language of the court” is predominantly English though a person may also be tried in French.
Depending on a court’s ability to speak French, a French interpreter may be required.
The right in s. 14 attaches only to the accused and not to the accused’s criminal defence lawyer (Cromier v. Fournier).
Because the constitution puts an obligation on governments to provide an interpreter, interpreters are provided as a free service at all Toronto courthouses and other courthouses across Canada.
Make sure that you are properly represented in Court by a skilled Toronto defence lawyer. Call Kostman and Pyzer, Barristers, if you have been charged with a criminal offence.