Protecting the Right to Interpreter Assistance

Yesterday, the SCC denied leave to appeal in R v Rybak. On 1 November 2003, Janusz Rybak was convicted by a jury of second-degree murder following a seven-week trial. At the Ontario Court of Appeal (see 2008 ONCA 354), Rybak raised three grounds of appeal. His primary complaint was that he did not receive the full measure of interpreter assistance, a right guaranteed under s. 14 of the Charter, which will be the focus of this post.

Section 14 of the Charter provides:

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.

The Charter right is a codification of the common law right to a fair hearing, which requires the physical presence and capability to understand the proceedings. As explained by Justice Watt, writing for the Court of Appeal:

The guarantee in section 14 . . . ensures that a person charged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it. The right touches on the very integrity of the administration of justice in the country and is intimately related to our basic notions of justice, including the appearance of fairness. Likewise, the right displays an affinity for our claim of multi-culturalism, partially demonstrated by s. 27 of the Charter. (para 67)

In R v Tran, [1994] 2 SCR 951, the Supreme Court of Canada provided a framework for the exercise of the s. 14 right. In summary:

1. The person asserting the right (e.g., the accused) must show that he or she was actually in need of interpreter assistance. As a general rule, the court must appoint an interpreter when either:

1. it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him- or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or
2. an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.

2. The basic, constitutionally guaranteed standard of interpretation includes (and is not necessarily limited to continuity, precision, impartiality, competency, contemporaneity. However, the underlying principle of s. 14 is that of linguistic understanding, and departures from the standard are constitutionally permissible.

3. The right to the assistance of an interpreter applies during the times when the case is being advanced against the accused, including adduction of evidence, presentation of arguments, rulings on evidentiary points and address to the jury. There is no violation of section 14 where no interpreter is present during scheduling or other such administrative matters.

Section 14 guarantees the right to interpreter assistance without qualification; any consideration of whether or not the accused actually suffered prejudice is irrelevant to the determination of whether the accused’s s. 14 right was infringed.

Unfortunately, the current state of court interpretation in Ontario is such that it often falls far below the standard articulated in Tran. In 2005, Superior Court Justice Hill made a close and detailed examination in R v Sidhu (2005), 203 CCC (3d) 17, which revealed a slew of problems with the system of accrediting and assigning court interpreters in Ontario. The assumption is that the information from Sidhu was the “fresh evidence” which Rybak introduced on appeal.

While Diana Zywulco, the Polish interpreter at Rybak’s trial, was unaccredited, the Court of Appeal found nothing in the trial record indicating that her assistance to Rybak during trial was inadequate – according to Justice Watt, it was “eerily silent, utterly barren of any suggestion of incompetence or other interpretation deficiency” (para. 95). Indeed, Rybak himself had requested that Zywulko be assigned as the interpreter for the entirety of his trial. Shamin Jhooty, an accredited court interpreter trained in British Columbia who had testified in Sidhu, had also indicated that despite Zywulco’s lack of accreditation, she was one of the best Polish interpreters at the court.

The danger of this decision, however, is that it leaves one with the impression that the higher courts do not perceive accreditation as a necessary requirement for one to work as a court interpreter. Although I agree with the Court of Appeal that “[c]ompetence and accreditation are not co-extensive” (para 84), Sidhu had shown that although there are some first-rate interpreters working in Ontario courts, there is also a surprisingly high number of unaccredited interpreters and their lack of proper testing and training has resulted in mistrials.

The procedure in British Columbia is particularly admirable. In Sidhu, Jhooty indicated that in B.C., she had been required to pass a three-hour exam that tested her knowledge in both English and her second language (Punjabi) prior to her entrance in a 10-month college program, where she was taught simultaneous, consecutive, and sight interpretation skills through various methods of teaching including mock trial exercises (para 129).

In comparison, Ontario’s interpreter accreditation process can be described as “slipshod” at best. To become an accredited interpreter in Ontario, one must pass the Standard Aptitude Test for Court Interpretation, which Jhooty described as being “at best . . . an aptitude test to see [if] someone has a knack for maybe transferring languages”, that required a “tourist level” of language skills in both English and the second language (paras 125-126). No legal terminology is included in the test. Those who pass the test must take a basic one-day training workshop is held. Upon completion of the workshop, there is a brief written test consisting of ten questions, of which the candidate must correctly answer seven in order to become an accredited interpreter.

Considering the fact that the right to interpreter assistance is a constitutionally protected right in criminal proceedings where an individual’s liberty is at stake, it seems ridiculous to have such a huge gap between the skill and training of interpreters in different parts of the country. Rather, there should be a uniform and constitutionally appropriate process for the certification of court interpreters applied across the country. What is needed is for Parliament pass comprehensive legislation ensuring minimum standards for training and competence of court interpreters to prevent future appeals like Rybak.