Court Orders Mistrial Due to Poor Jamaican Patois Interpretation

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