REGINA VS SIDDIQUE

TUESDAY, MAY 18, 2010

R U L I N G 

TAYLOR, J.  (Orally):

Noman Siddique is before me for trial today.  He is charged in a five count information.  The essential allegations are that he sexually assaulted Miriam Siddique.  He requires the services of a Punjabi interpreter.

The right to an interpreter was recognized at common law and is now constitutionally protected by Section 14 of the Charter of Rights and Freedoms.  The right touches on the integrity of the judicial process and it involves basic Canadian values of fairness.

In response to growing concerns about the quality of interpretation services provided to courts in this province, the Court Services Division of the Ministry of the Attorney General, who are responsible for the recruitment, accreditation and provision of interpreters embarked on a new accreditation program for court interpreters.

Joginder Khalsa is the interpreter assigned to this case.  He has been a court accredited interpreter under the old testing regime for eight years.  He has taken his tests under the new regime of accreditation.  Those tests were taken on the 30th of April this year and Mr. Khalsa is awaiting the results of the test.

Mr. Caroline, who acts for the accused, Siddique, objects to Mr. Khalsa continuing as the interpreter.  He says unless the interpreter is fully accredited, he is not suitable for use in the proceedings.  Mr. Caroline raises no particular concerns about the integrity or competence of Mr. Khalsa.

Analysis - A logical starting point for the analysis is the Supreme Court of Canada's decision in R. v. Tran (1992) C.C.C. (3d), 218.  The following principles can be gleaned from that case.

 "The guiding principles are that the interpretation should be competent, continuous, precise, impartial and contemporaneous.

On the issue of competency, the court noted there is a right to competent interpretation, although there exists no universally acceptable standards for assessing competency.  The swearing of the interpreter's oath and judicial inquiry into interpreter qualifications facilitate this aspect of the Section 14 Charter right.

Continuous contemplates that gaps or breaks are not to be encouraged or allowed.

Precision does not require unattainable perfection.  Interpretation involves a lower standard than translation, but it must be as close as can be to word for word and idea for idea, not simply summaries or distillation.

Impartial means, particularly in a criminal context, objective and unbiased.Contemporaneous means consecutive, as opposed to simultaneous.  (See pages 246 to 250)"

The Tran principles were reviewed by Justice Casey Hill of the Superior Court of Ontario in R. v. Sidhu (2003) C.C.C. (3d), 17.  Justice Hill was particularly concerned about the shortcomings of the accreditation tests for interpreters in Ontario.  (See paragraph 314)

 The issue was further dealt with by the Ontario Court of Appeal in the decision of R. v. Rybak, 233 C.C.C. (3d), 58, leave to appeal to the Supreme Court of Canada denied.  Justice Watt, writing for the majority, indicated that the use of an unaccredited interpreter was not fatal to the proceedings, that competence and accreditation are not co-extensive.  In the absence of universally accepted standards for assessing interpreter competence, neither presence or absence of accreditation can be dispositive of the issue of competence.  The balance of the case dealt with the factual situation which presented itself in Rybak, including the fact that there was no objection to the interpretation that was provided in the court.  Indeed, the defence advised the court that the interpreter was doing an exceptionally good job.

The application of the principles to this case - Prior to the present model or regime being set out by the Court Services Division of the Ministry of the Attorney General, the old accreditation model involved a four part assessment, a testing process, a training seminar, a written test in court procedures and interpreter ethics and, finally, a successful police background check.

 The new accreditation model provides for two levels of accreditation.  One is accredited, which means the individual has achieved a score of 70 percent and above on the new court interpretation test, which involves three areas, simultaneous, consecutive and sight translation and conditionally accredited, those are individuals who have achieved a score of less than 70 percent, but greater than 50 percent overall in the new test and who demonstrate a high degree of efficiency.  They will be conditionally accredited and must re-take the test and achieve accreditation results within two years.

The Court Services Division then indicated that conditionally accredited interpreters would be assigned to proceedings that are shorter, do not have a difficult vocabulary, are more informal and are easier for the interpreter to control the pace and ask questions if necessary.  They gave some examples, bail hearings, guilty pleas, interpreting for a witness who is not the accused or a party, case conferences, peace bond applications, diversion.  Implicit is that provisionally accredited interpreters or conditionally accredited interpreters are not to be used for trial.

Although the cases contemplate the court conducting an inquiry, there is a very real practical disadvantage to the court.  Unless the court is fluent in the language of interpretation, there is no way of assessing how well the interpreter is performing her task.

 While I accept that Mr. Khalsa speaks English in a clear and unaccented manner and that is my first language and I have no difficulty whatsoever in understanding him, I have at best, minimal familiarity with the Punjabi language.  I have no way of really assessing whether he is a good, bad or indifferent Punjabi speaker, although Punjabi is his first language, I have no way of knowing his ability to translate technical terms.

 There is a superficial attractiveness to saying, well, Mr. Khalsa is accredited under the old system and presumably will become accredited under the new system.  The practical difficulty with that analysis is that it is relatively common knowledge that the attrition rate following the new tests was nothing less than dramatic.  Published reports have indicated that only approximately one-third of previously accredited interpreters achieved fully accredited status.  Approximately another 50 percent were conditionally accredited and the balance were not accredited at all.  Anecdotally, there have been individuals who have provided court interpretation over cases in which I have presided and have seen in the Courts of Ontario for at least the last 10 to 20 years, who failed the test outright.

Given the seriousness of the matter and I say this as no reflection on Mr. Khalsa and I have every confidence that he will become an accredited interpreter, but given the seriousness of the matter, it is perhaps best to wait until a fully accredited interpreter is available.  The consequences of proceeding on, in the absence of an accredited interpreter and looking at a worse case scenario, that Mr. Khalsa would only become conditionally accredited or not accredited at all, would in essence involve doing the trial over again.  It is a trial with delicate issues.  I am advised that the complainant was three-and-a-half-years-old at the time of the alleged complaint.  She is approximately five years old now.  It would be exceedingly unfortunate if the trial had to be re-done because of a failure of interpretation services.

 

Mr. Khalsa, this is not a reflection on you, but simply a concern that the court has with respect to the entire process.

**********