STANDARD OF INTERPRETATION

The Supreme Court of Canada

(Excerpts from: Regina vs. Tran)

These criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness. I shall consider each one in turn:

I. Continuous

In considering what constitutes adequate interpretation, courts and commentators have generally treated continuity as a necessary requirement. As a result, breaks in interpretation and/or summaries of the proceedings have usually not been viewed in a favourable light.

The American case of People v. Aguilar, 677 P.2d 1198 (Cal. 1984), is noteworthy in this regard. In that case, the defendant was provided with a court-appointed interpreter; however, this interpreter became unavailable to him during the testimony of two Spanish-speaking prosecution witnesses whose testimony needed to be translated into English for the court's benefit. The Supreme Court of California considered the scope of the right to interpreter assistance under the California Constitution, which expressly provides that a "person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings" (p. 1201). It held that, because "[t]he defendant's right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses is a continuous one" (p. 1201) (emphasis added), the court's "borrowing" of his interpreter constituted a denial of his constitutional right to an interpreter.

I find, therefore, that s. 14 of the Charter requires that interpretation of proceedings be continuous. Breaks and interruptions in interpretation are not to be encouraged or allowed.

II. Precise

The need for precision in interpretation is self-evident. As Steele suggests at pp. 240-41 of his article, supra:

. . . the interpretation must be, as close as can be, word-for-word and idea-for-idea; the interpreter must not "clean up" the evidence by giving it a form, a grammar or syntax that it does not have; the interpreter should make no commentary on the evidence; and the interpretation should be given only in the first person, e.g., "I went to school" instead of "he says he went to school".

This necessity for precision is an additional reason why summaries are most unlikely to meet the general standard of interpretation required under s. 14 of the Charter. Indeed, in the American case Negron, supra, Kaufman J. held, at pp. 389-90, that the summaries provided to the defendant by the prosecutor's interpreter were inadequate because:

However astute [the interpreter's] summaries may have been, they could not do service as a means by which Negron could understand the precise nature of the testimony against him during that period of the trial's progress when the state chose to bring it forth.

However, it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection. As Steele explains, at p. 242:

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.

In this respect, it may be helpful to note the conceptual distinction that exists between "interpretation", which is primarily concerned with the spoken word, and "translation", which is primarily concerned with the written word. In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.

III. Impartial

It also stands to reason that interpretation, particularly in a criminal context, should be objective and unbiased: see, e.g., Unterreiner, infra, Tabrizi, supra, and Morel, supra, at pp. 535-36. As Steele suggests, at pp. 238-39:

Certain persons are disqualified, by reason of apprehension of bias, from acting as interpreter. Obviously a party litigant will not be permitted to interpret, but neither will a relative or friend of a party, the judge, nor a person closely connected to the events giving rise to a criminal charge. These rules may be relaxed if the proceedings are non-adversarial.

While I agree with Steele that an interpreter should be impartial, I would further relax these rules, particularly on preliminary issues such as bail release or adjournment in remote areas of our country, where the practical reality of Canadian geography coupled with the urgency presented by some cases would result in the interests of justice being better served.

IV. Competent

To meet the standard of protection guaranteed by s. 14 of the Charter, interpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an accused has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency, a point stressed by Steele at p. 238, an interpreter must at least be sworn by taking the interpreter's oath before beginning to interpret the proceedings: see, e.g., R. v. L.L., [1986] O.J. No. 1954 (Ont. Dist. Ct.), and Petrovic, supra, at p. 423. Where there is a legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter's qualifications.

In Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont. Co. Ct.), for example, the appeal court found that there had been a denial of natural justice and ordered a new reference on the basis that the judge below had failed to conduct an inquiry to determine the competence and impartiality of the interpreter before he was sworn. The case involved a reference to a Provincial Court Judge in which denial of a firearms certificate was being appealed. When no court interpreter proved to be available to interpret the testimony of a Crown witness, a friend of this witness was used. On several occasions during the cross-examination of the witness, the applicant (who was unrepresented) complained that the interpreter was not accurately translating the proceedings. Nevertheless, the Provincial Court Judge dismissed the reference. By ordering a new trial, the appeal court made it clear that it was the responsibility of the Provincial Court Judge to ensure that the interpreter chosen possessed the necessary qualities of competence and impartiality.

V. Contemporaneous

A further factor which needs to be taken into account when defining the proper standard for interpretation is that of timing. To meet the constitutionally guaranteed standard of protection under s. 14 of the Charter, interpretation must take place contemporaneously with the proceeding in question. Here, it may be useful to keep in mind the distinction between "consecutive" (after the words are spoken) and "simultaneous" (at the same time as words are spoken). While it is generally preferable that interpretation be consecutive rather than simultaneous, the overriding consideration is that the interpretation be contemporaneous. Although I need not decide the matter, I would tend to agree with Steele, at pp. 248-49 of his article, that, although consecutive interpretation effectively doubles the time necessary to complete the proceedings, it offers a number of advantages over simultaneous interpretation. Simultaneous interpretation is a complex and demanding task for which court interpreters, unlike conference interpreters, are seldom trained. Moreover, it requires expensive sound equipment with which our trial courtrooms are rarely equipped. In addition, simultaneous interpretation works best when there is a minimum of distraction both for the interpreter and the listener(s), a feature which will not always be present in our busy courtrooms. Consecutive interpretation, on the other hand, has the advantage of allowing the accused to react at the appropriate time, such as when making objections. It also makes it easier to assess on the spot the accuracy of the interpretation, something rendered more difficult when one has to listen to the original language and its translation at the same time, as would be the case with simultaneous interpretation.

All of these factors suggest that consecutive interpretation is the better practice as compared to simultaneous interpretation. However, I recognize that the different needs of persons targeted by s. 14 of the Charter, such as those with a hearing disability, as well as the possibility of technological advances in interpretation methods may change this. What is important above all is that interpretation be contemporaneous with that which is being interpreted.