Law Times

Law Times • December 12, 2016 Page 11 www.lawtimesnews.com Ruling shows evaluating witness' language skills important Consider carefully before using translator: judge BY GABRIELLE GIRODAY Law Times A mistrial declared over the unnecessary use of a court translator for a victim of an alleged sex assault shows the importance of the careful use of translators, say lawyers. In R. v. S., Justice Casey Hill declared a mistrial after a woman who alleged she had been sexually assaulted testified in Punjabi in the Ontario Su- perior Court of Justice when she had the ability to communicate in English with the assistance of a stand-by translator if neces- sary, the judge ruled. In his ruling, Hill said the woman — who had immigrated to Canada in 2008 and whose first language was Punjabi — had the skills to communicate in English and the court "failed . . . to make specific inquiries relating to why the proposed beneficiaries of the interpretive services could not be accommo- dated in one of Canada's official languages. "This turned out to be a mis- take," said Hill, in his ruling. Lawyers say the case under- scores the necessity for lawyers to carefully consider if a trans- lator is needed for courtroom witnesses. The ruling highlights the issue of how unnecessary trans- lations can slow down court proceedings, they say, or create barriers when it comes to as- sessing the credibility of wit- nesses. "During the complainant's [three] hours of testimony, for the unilingual trier of fact, pre- liminary credibility determina- tions of [the witness'] testimony were virtually impossible with the original evidence in a foreign language, and the cadence of de- layed answers for interpretation to take place together with per- iodic interpreter interjections," said Hill, in the ruling. "Pauses, witness box de- meanour, requests for repetition of repeated questions, appar- ently non-responsive answers and peculiarities of vocabulary could not be confidently refer- enced to evaluation of the wit- ness' veracity." Under s. 14 of the Canadian Charter of Rights and Free- doms, it is stated that a "party or witness in any proceedings who does not understand or speak the language in which the pro- ceedings are conducted or who is deaf has the right to the assist- ance of an interpreter." Heather Pringle, a criminal defence lawyer in Toronto, says the ruling shows lawyers are too quick to default to a translator when a person's first language isn't English or French. "It's a time waster if you have an interpreter and you don't need one," says Pringle. "Courts are jammed as it is . . ." Pringle says Crown prosecu- tors can face a challenge in terms of assessing a witness' facility with language. Crowns are not supposed to communicate in a meaningful way with their wit- nesses, she says, so, therefore, they may not know the language skills of a witness or rely on a po- lice assessment. "The difficulty with Crowns is they don't have the type of communication with their Crown witnesses that defence lawyers do with their clients, because everything is filtered through the police," she says. She recommends Crown attorneys communicate with police about these issues before setting a trial date and review disclosure and videotapes to assess a witness' language skills. "The last resort should be full interpretation because of those problems of assessing credibil- ity that Justice Hill was talking about," says Pringle. Michael Lacy, partner at Brauti Thorning Zibarras LLP and vice president of the Crim- inal Lawyers' Association, said an important takeaway from the ruling is how lawyers "per- mit witnesses to testify through interpreters rather than in one of the official languages without putting the witness/Crown to the test of establishing it is nec- essary. "When cross-examining, it is much more difficult to be ef- fective when evidence has to be translated. Impugning credibil- ity is more difficult," he said. "We need to be more vigilant in ensuring that witnesses who request to testify through inter- preters are not abusing that op- tion as some witness might pur- posefully choose not to testify in one of the official languages to buy more time before answering questions." Hill has an established profile among lawyers for rulings relat- ed to translation issues. In 2005, in R. v. Sidhu, Hill said the Brampton courthouse had been utilizing unskilled in- terpreters and called the issue "a critical threat to justice." In 2009, the province said it would have more comprehen- sive testing of interpreters. "The competency of inter- preters is obviously an impor- tant issue that has been dealt with previously by Justice Hill in other decisions. This case is not about court resources or compe- tence, however," said Lacy. "It is about whether witnesses actually need the interpretive services." Meanwhile, the case is not finished. The accused still faces a charge of sexual assault and a charge of uttering a threat to cause death or bodily harm. A spokesman for the Ontario Ministry of the Attorney Gener- al said there is a trial scheduled to begin in March 2017 in the Ontario Court of Justice. LT FOCUS Heather Pringle says a recent ruling shows lawyers are too quick to default to a trans- lator when a person's first language isn't English or French. © 2016 Thomson Reuters Canada Limited 00239RO-A70088-CM New Edition The 2017 Annotated Tremeear's Criminal Code Mr. Justice David Watt and Madam Justice Michelle Fuerst Order # 987134BE-65203 $162 Hardcover + CD-ROM + ProView eBook approx. 2900 pages August 2016 L7798-7134BE Includes one annual case law and one legislative supplement 1-2 additional case law supplements invoiced separately Annual volumes supplied on standing order subscription Multiple copy discounts available eBook only A26517-17ON-65203 $135 Print only 987134-65203 $135 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 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The 2017 edition of The Annotated Tremeear's Criminal Code: • Features all of the latest legislative amendments, including those stemming from: — Victims Bill of Rights — An Act to amend the Criminal Code (exploitation and trafficking in persons) — Anti-terrorism Act, 2015 — Respect for Communities Act — Tougher Penalties for Child Predators Act — Common Sense Firearms Licensing Act — Zero Tolerance for Barbaric Cultural Practices Act — Justice for Animals in Service Act (Quanto's Law) — Section 43 of the Economic Action Plan 2015 Act — Schedules I, II, IV, and VI to the Controlled Drugs and Substances Act • Incorporates such key cases as: — R. v. Knapczyk and Alcantara (2016 S.C.C.) — R. v. Tatton (2015 S.C.C.) — R. v. Lacasse (2015 S.C.C.) — R. v. Appulonappa (2015 S.C.C.) — R. v. Moriarty (2015 S.C.C.) — Caron v. Alberta (2015 S.C.C.) — R. v. Rodgerson (2015 S.C.C.) — R. v. Ali (2015 B.C.C.A.) — R. v. Belcourt (2015 B.C.C.A.) — R. v. Hill (2015 Ont. C.A.) — R. v. Crevier (2015 Ont. 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