Section 14 of the Canadian Charter of Rights and Freedoms
(“Charter”) provides a constitutional right to the assistance of an
interpreter for a party or witness who does not understand or speak the language
in which the proceedings are being conducted or who is deaf.
In a recent decision of the Ontario Superior Court of
Justice, Justice Conlan allowed a defence application and declared a mistrial
where an accused who was charged with the offence of importing cocaine had not
been provided with an accredited interpreter of Jamaican Patois. Justice Conlan
declared the mistrial on the basis that the accused, Michael Bryan’s right to
make full answer and defence and his right to a fair trial were compromised by the
deficiency in interpretation services provided at the Brampton, Ontario
court.
Mr. Bryan and his co-accused, Ryan Douglas, were tried jointly
before a jury on a single-count indictment alleging the offence of importing
cocaine. The allegation was that the two accused has ingested cocaine and
brought the drug into Canada on an airplane from Jamaica.
The primary defence for each accused was duress – that their
families had been threatened by thugs in Jamaica and that such threats caused
them to swallow pellets of cocaine before flying from Jamaica to Toronto’s
Pearson International Airport.
During the course of the trial, an accredited interpreter who
was attending the trial brought to the defence counsel’s attention that there
had been several deficiencies with the interpretation of Mr. Bryan’s testimony. The
defence applied for a mistrial.
The interpreter who testified in a voir dire at the
trial, was 33 years old. He had lived in Jamaica for the first 25 years of his
life, had worked as a youth ambassador for the United Nations and worked for
three years as an interpreter for the United States Peace Corp. The interpreter
pointed out numerous inconsistencies and mistakes in the Patios interpretation provided to
Mr. Bryan, some of which amounted to a paraphrasing of his evidence. Even
Mr. Bryan had to stop the trial interpreter on two occasions to correct mistakes
Justice Conlan, allowed the mistrial application. He held that, while there was no requirement or even an expectation that the interpretation be
perfect, the minimum constitutional threshold to meet the obligation under
section 14 of the Charter requires that the interpretation must be continuous,
precise, impartial, competent and contemporaneous. While poor interpretation
can be accepted, it is not appropriate for the court to second-guess and
speculate as to whether there has been a breach of section 14 of the Charter.
The accused is entitled to the minimum constitutionally protected threshold afforded
by section 14. .
Justice Conlan found that the trial was too far along to stop
and start again with the same jury. Accordingly, even though it was a joint
trial with Mr Douglas, Justice Conlan found that nothing short of the remedy of a mistrial would
suffice in those circumstances.
Regards,
Blair
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