R. v. Tran

R. v. Tran
Collection
Supreme Court Judgments
Date
1994-09-01
Report
[1994] 2 SCR 951
Case number
23321
Judges
Lamer, Antonio; La Forest, Gérard V.; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 23321
Decision Content
R. v. Tran, [1994] 2 S.C.R. 951
Quoc Dung Tran Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Tran
File No.: 23321.
Hearing and judgment: February 25, 1994.
Reasons delivered: September 1, 1994.
Present: Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the nova scotia supreme court, appeal division
Constitutional law ‑‑ Charter of Rights ‑‑ Right to interpreter ‑‑ Trial ‑‑ Accused's court‑appointed interpreter testifying as defence witness ‑‑ Interpreter not translating testimony in full but only summarizing evidence ‑‑ Whether accused's right to assistance of an interpreter breached ‑‑ Canadian Charter of Rights and Freedoms, s. 14 .
The accused, a native of Vietnam, was charged with sexual assault. In her statement to the police a few hours after the assault was alleged to have occurred, the complainant described her two assailants as "Asian", one being "fat" and "clean‑shaven". The complainant later picked the accused's photo from a photo line‑up. At trial, the accused appeared as slender with a mustache. The complainant identified him in court as the man she had previously described as clean‑shaven and fat, but conceded on cross‑examination that as he appeared in court he was not fat. The defence called the accused's court‑appointed interpreter to testify about the accused's weight at the time the attack was alleged to have taken place. Instead of translating his testimony in full as he gave it, as instructed by the trial judge and by defence counsel, the interpreter answered in English and only summarized his evidence in Vietnamese at the end of his direct examination and again after his cross‑examination. An exchange between the trial judge and the interpreter which followed his cross‑examination appears not to have been interpreted at all. The accused was convicted. He appealed his conviction on the grounds that the identification evidence was flawed and that deficiencies in the translation of the evidence deprived him of the right to be actually present at his trial, contrary to s. 650 of the Criminal Code . The Court of Appeal upheld the conviction. The main issue in this appeal is whether the failure to provide the accused with full and contemporaneous translation of all the evidence at trial constituted a breach of his right to an interpreter, as guaranteed by s. 14 of the Canadian Charter of Rights and Freedoms .
Held: The appeal should be allowed and a new trial ordered.
The right of an accused who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. This right is also intimately related to our basic notions of justice, including the appearance of fairness, and to our society's claim to be multicultural, expressed in part through s. 27 of the Charter . The magnitude of these interests favours a purposive and liberal interpretation and a principled application of the right to interpreter assistance under s. 14 of the Charter . The principle underlying all of the interests protected by the right to interpreter assistance under s. 14 is that of linguistic understanding.
In determining whether there has in fact been a breach of s. 14, it must be clear that the accused did not understand or speak the language being used in court and was thus actually in need of interpreter assistance. Where an interpreter was appointed and it is the quality of the interpretation provided that is being challenged, it is necessary to determine whether there has been a departure or deviation from what is considered adequate interpretation. While the interpretation provided need not be perfect, it must be continuous, precise, impartial, competent and contemporaneous. The question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court. Not every deviation from the protected standard of interpretation will constitute a violation of s. 14 of the Charter : the claimant of the right must establish that the lapse in interpretation was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter. In determining whether the alleged deviation in interpretation was part of an occurrence which actually served in some way to "advance the case", one must consider whether there was an unfolding or development in the proceeding with respect to a point of procedure, evidence and/or law. Since s. 14 guarantees the right to interpreter assistance without qualification, it would be wrong to introduce into the assessment of whether the right has been breached any consideration of whether or not the accused actually suffered prejudice when being denied his or her s. 14 rights. The Charter in effect proclaims that being denied proper interpretation while the case is being advanced is in itself prejudicial and is a violation of s. 14 . There will be situations where the right to interpreter assistance cannot be waived for reasons of public policy. Where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant.
Here the accused was in need of interpreter assistance throughout his trial, since he did not understand or speak English, and there is no doubt that the interpretation of the proceedings in which the interpreter was involved as a witness fell well below the guaranteed standard. First, the accused did not receive continuous interpretation of all the evidence at his trial, since the questions posed to and answers given by the interpreter were condensed into two one‑sentence summaries and the interpreter's exchange with the judge was not translated at all. Second, the interpretation was not precise, as the summaries failed to convey everything that had been said and the first summary was incorrect in that it referred to something which had not in fact been said. Third, while there is no reason to doubt the actual impartiality or objectivity of the interpretation provided in this case, the practice of having an interpreter act as both a witness and an interpreter is one which should be avoided in all but exceptional circumstances. Finally, the timing of the interpretation was unsatisfactory, in that it should have occurred contemporaneously with the asking of questions and the giving of answers. These lapses were not trivial or de minimis in nature, but rather occurred at a point when the accused's vital interests were clearly involved and the case was thus being advanced. The problems with the interpretation arose during the testimony of a witness, and the evidence given by that witness covered a topic of considerable importance to the accused, namely, the issue of identification upon which his entire defence was built. There was no clear or unequivocal waiver by the accused of his right to interpretation. There is also no indication that the accused personally understood the scope of his right to interpreter assistance and what he was giving up, and that the waiver was made by him personally. The curative provisos of the Criminal Code are not applicable when an infringement of the right to interpreter assistance is in issue. While denial of a Charter right constitutes an error of law, it is by its very constitutional nature a serious error of law, and certainly not one which, for Criminal Code purposes, can be characterized as minor or harmless, or as a "procedural irregularity". Recourse should be had to s. 24(1) of the Charter , which allows a court to tailor the remedy to the particular circumstances of the violation. Since the violation of s. 14 of the Charter in this case occurred in the trial proper, the appropriate and just remedy under s. 24(1) is to quash the accused's conviction and order a new trial.
Cases Cited
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Reale (1973), 13 C.C.C. (2d) 345, aff'd [1975] 2 S.C.R. 624; Roy v. Hackett (1987), 45 D.L.R. (4th) 415; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; R. v. Kwok Leung (1909), 4 Hong Kong L.R. 161; R. v. Lee Kun, [1916] 1 K.B. 337; Kunnath v. The State, [1993] 4 All E.R. 30; Negron v. New York, 434 F.2d 386 (1970); Valladares v. United States, 871 F.2d 1564 (1989); R. v. Hijazi (1974), 20 C.C.C. (2d) 183; R. v. Hertrich (1982), 67 C.C.C. (2d) 510; R. v. Barrow, [1987] 2 S.C.R. 694; Vézina v. The Queen, [1986] 1 S.C.R. 2; R. v. Rahey, [1987] 1 S.C.R. 588; Dubois v. The Queen, [1985] 2 S.C.R. 350; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Gruenke, [1991] 3 S.C.R. 263; Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388; United States v. Joshi, 896 F.2d 1303 (1990); R. v. Tsang (1985), 27 C.C.C. (3d) 365; R. v. Tabrizi, [1992] O.J. No. 1383 (QL); R. v. Petrovic (1984), 13 C.C.C. (3d) 416; People v. Aguilar, 677 P.2d 1198 (1984); R. v. L.L., [1986] O.J. No. 1954 (QL); Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373; Meunier v. The Queen (1965), 48 C.R. 14, aff'd [1966] S.C.R. 399; R. v. Grimba (1980), 56 C.C.C. (2d) 570; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Evans, [1991] 1 S.C.R. 869.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C., 1985, App. III, s. 2(g).
Canadian Charter of Rights and Freedoms, ss. 2 (a), 7 , 8 , 10 (b), 11 (d), 14 , 15 , 24(1) , 25 , 27 .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 36.
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 6(3)(e).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 577(1), 613(1)(b)(iii).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 271(1) , 650(1) , (3) , 686(1) (b)(iii), (iv) [ad. c. 27 (1st Supp.), s. 145(1) ], 795, 800(2), (3), 803(2)(a).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(3)(f).
United States Constitution, Fifth, Sixth and Fourteenth Amendments.
Authors Cited
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol. 2, 2nd ed. Aurora, Ont.: Canada Law Book, 1987 (loose‑leaf).
Morel, André. "Certain Guarantees of Criminal Procedure". In Gérald-A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Carswell, 1989, 497.
Proulx, Michel. "The Presence of the Accused at Trial" (1982‑83), 25 Crim. L.Q. 179.
Rydstrom, Jean F. "Right of Accused to Have Evidence or Court Proceedings Interpreted" (1971), 36 A.L.R.3d 276.
Steele, Graham J. "Court Interpreters in Canadian Criminal Law" (1992), 34 Crim. L.Q. 218.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1992), 116 N.S.R. (2d) 300, 320 A.P.R. 300, dismissing the accused's appeal from his conviction on a charge of sexual assault. Appeal allowed and new trial ordered.
Marguerite J. MacNeil and Frank E. DeMont, for the appellant.
Robert E. Lutes, Q.C., for the respondent.
The judgment of the Court was delivered by
//Lamer C.J.//
Lamer C.J. -- This appeal raises for the first time before this Court s. 14 of the Canadian Charter of Rights and Freedoms , which guarantees the right to the assistance of an interpreter. As a result, these reasons for judgment are somewhat longer than would normally be warranted. The context is that of a criminal proceeding and the claimant of the right is an accused who neither spoke nor understood English, the language of the proceedings. Following the hearing of this case, the appeal was unanimously allowed from the bench and a new trial ordered, with reasons to follow.
I. Facts
The appellant, a native of Vietnam, was charged with committing on September 22, 1990, a sexual assault contrary to s. 271(1) of the Criminal Code, R.S.C., 1985, c. C-46 , as amended. The appellant's command of English was insufficient to permit him to follow the proceedings without the assistance of an interpreter. As a result, Mr. Nguyen served as the appellant's interpreter at election on November 22, 1990, at his preliminary inquiry on March 13, 1991 and, subject to the lapses which are at issue in this appeal, at his trial on October 31, 1991.
The complainant, a 15-year old, testified that she had been kissed and fondled by two Asian men while waiting in the lobby of an apartment building for a drive home from babysitting in the early hours of the morning. In her statement to the police a few hours after the assault was alleged to have occurred, the complainant described her two assailants as being "Asian", one being "fat" and "clean-shaven" and the other having a "pock-marked face". Three weeks after the alleged incident, the complainant picked the appellant's photo from a photo line-up. At trial, the appellant appeared as slender with a mustache. The complainant identified the appellant in court as the man she had previously described as "clean shaven" and "fat". On cross-examination, the complainant conceded that the appellant, as he appeared in court, was not fat.
The police constable who had put together the photo line-up and arrested the appellant was called by the Crown. On cross-examination, the constable testified that the appellant "might have been a few pounds heavier" at the preliminary inquiry, but was "maybe 10 or 15 pounds heavier in the mid-section" on the date of the appellant's arrest, October 24, 1990.
After a brief adjournment to consider whether it would call any evidence, the defence called the interpreter, Mr. Nguyen, to testify about the accused's weight in the fall of 1990 when the attack was alleged to have taken place. Although the interpreter was instructed by the trial judge and by defence counsel to translate in full his testimony as he gave it, he did not do so. Instead, he answered in English and only summarized his evidence in Vietnamese at the end of his direct examination and again after his cross-examination. Based on the record and the affidavit submitted on appeal, it appears that an exchange between the trial judge and Mr. Nguyen which followed his cross-examination was not interpreted at all to the appellant. (The text of the relevant passages from the transcript is reproduced below at pp. 999-1001.)
On October 31, 1991, Chief Judge Palmeter of the County Court of Nova Scotia convicted the appellant. The appellant appealed his conviction on the grounds that the identification evidence was flawed and that deficiencies in the translation of the evidence deprived him of the right to be actually present at his trial, contrary to s. 650 of the Criminal Code . An affidavit was filed before the Court of Appeal in which the interpreter, Mr. Nguyen, swears to having listened to the tapes of the summaries he provided to the appellant at trial and provides a verbatim translation of his summaries back into English. On September 22, 1992, the Nova Scotia Supreme Court, Appeal Division, dismissed the appellant's appeal: (1992), 116 N.S.R. (2d) 300, 320 A.P.R. 300.
II. Judgments Below
County Court (Chief Judge Palmeter)
In oral reasons for judgment, Chief Judge Palmeter concluded that the girl had been the victim of a sexual assault and that she had picked out the appellant as the person who had assaulted her. He observed that the case boiled down to identification: was the assault actually caused by the appellant? Chief Judge Palmeter instructed himself as to the frailty of identification evidence and the weight it should be given, and then concluded that because the photo line-up in this case was an excellent one, it should be given "considerable weight". With respect to the fact that the complainant had initially identified the appellant as "fat", Chief Judge Palmeter stated:
In this particular case we're dealing with the use of the word "fat". What does fat mean? It means, I assume, overweight. Does it mean rotund? Does it mean pudgy? We don't really have any definition of that. But I do agree with submissions by Crown that weight, of course, can fluctuate.
The constable involved has indicated that the accused was heavier, some 10 to 15 pounds heavier and it was around the middle, around the stomach area.
In looking at the accused, the accused is certainly not tall [approx. 5'6"] and he appears to be of slight build and I accept the comments of the officer that even 10 or 15 pounds would have some significant difference in the appearance of the accused.
... I accept the evidence of the young lady in this particular case. I accept her identification of the accused. I have considered submissions made particularly to determine whether her evidence on identification is so significantly flawed ... that standing alone it cannot justify the conviction. I do not find it is so significantly flawed.
Under the circumstances I accept the identification. I find the Crown has proved its case beyond a reasonable doubt and I find the accused guilty as charged.
Importantly, the issue of the adequacy of the interpretation provided to the appellant was not raised before the trial judge and he made no comments about it.
Nova Scotia Supreme Court, Appeal Division (Freeman J.A.)
Freeman J.A. for the Court of Appeal held as follows with respect to the interpretation issue (at pp. 301-2):
The translation issue arose with respect to the court-appointed translator's own evidence when he was called as a defence witness. The translator was Philip Nguyen, who had on previous occasions acted as a court-appointed Vietnamese translator. In his brief testimony he stated in English that Mr. Tran was about five pounds heavier when he first made his acquaintance the previous year. He translated summaries of his evidence at the end of direct examination and cross-examination. The trial judge asked him several questions to clarify how long he had known Mr. Tran, and those were not translated while he was on the witness stand.
No objection was taken at trial to the adequacy of the translation. Part of the impugned translation related to Mr. Nguyen's questioning by Mr. Tran's own lawyer. No affidavit has been filed by Mr. Tran to suggest that he did not understand the nature of the evidence against him.
There is no doubt that Mr. Tran was entitled to a full translation, and not mere summaries, of all testimony and proceedings, which should have been as nearly simultaneous with the actual testimony as possible. Translation by a witness of his own evidence is not a practice to be encouraged. There can be no doubt that Mr. Nguyen's translation of his own evidence fell short of an ideal standard. See R. v. Petrovic (1984), 4 O.A.C. 29; 13 C.C.C. (3d) 416 (C.A.).
Having said that, the departure from the best standard was not so serious that it can be said to have deprived Mr. Tran of the right to be present at his trial, nor of the right to make full answer and defence. The evidence was of minor probative value, and Mr. Tran was made aware of the gist of it.
III. Points in Issue
1.Did the failure to provide the appellant with full and contemporaneous translation of all the evidence at trial, in particular the questioning and testimony of the interpreter, deny the appellant of his right to be present during the whole trial and to make full answer and defence, contrary to ss. 650(1) and (3) of the Criminal Code ?
2.Did the above-described circumstances constitute a breach of the appellant's right to an interpreter, as guaranteed by s. 14 of the Charter?
IV. Analysis
This is the first appeal heard by this Court in which the right to interpreter assistance guaranteed by s. 14 of the Charter has been directly in issue. Section 14 provides as follows:
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.
Subsections 650(1) of the Criminal Code , which stipulates that an accused "shall be present in court during the whole of his trial", and 650(3), which entitles an accused to "make full answer and defence", are also implicated in this appeal. However, these provisions of the Criminal Code play a subordinate role to that of s. 14 of the Charter. Not only does s. 14 expressly provide for the right to the assistance of an interpreter, but also it is, by virtue of its constitutional status, part of the supreme and overarching law of the country. Section 14 of the Charter also has a wider reach than s. 650 of the Code. Section 650 applies most directly and fully to proceedings upon an indictment. The rules governing the appearance and presence of an accused in connection with offences punishable upon summary conviction are somewhat different and less rigorous: see ss. 800(2), 800(3) and 803(2)(a), but also s. 795 of the Code. Section 14 of the Charter, however, confers upon all accused, irrespective of the gravity of the offence charged and its classification, a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court.
The elevation of the right to interpreter assistance to the level of a constitutional norm is a significant step requiring, at a minimum, that the rules and principles governing interpreters which have been developed under the common law and under various statutes be reconsidered and, where necessary, adapted to fit with the dictates of the new Charter era. At the same time, there is no doubt that the rich body of jurisprudence which already exists with respect to interpreters, including that which has been developed under s. 650 of the Code, will play an important role in determining the scope of the right guaranteed by s. 14 of the Charter.
At the outset, I would like to make it very clear that the discussion of s. 14 of the Charter which follows relates specifically to the right of an accused in criminal proceedings, and must not be taken as necessarily having any broader application. In other words, I leave open for future consideration the possibility that different rules may have to be developed and applied to other situations which properly arise under s. 14 of the Charter -- for instance, where the proceedings in question are civil or administrative in nature.
This case requires this Court to begin the process of delineating the parameters of the right to interpreter assistance, a right which is framed in very general terms under s. 14 of the Charter. In determining the scope of a Charter right, the words of Dickson J. (as he then was), writing for the Court on s. 8 of the Charter in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 156-57, are a useful starting point:
The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. . . .
. . . the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one . . . [which makes it] first necessary to specify the purpose underlying [the section of the Charter]: in other words, to delineate the nature of the interests it is meant to protect.
In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Dickson J. (as he then was) elaborated on how the interests which are intended to be protected by a particular Charter right are to be discovered:
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.
The interpretive process must, therefore, begin with an examination and review of how an accused's right to the services of an interpreter has historically been interpreted and applied under the common law and statute, how it has been framed in international and European human rights instruments, and the way in which American courts have developed the right inferentially under the United States Constitution. It is only by considering the legal-historical context in which the right has evolved, combined with an examination of the language of s. 14 of the Charter and its relationship to other provisions of the Charter, that the purpose of the right and the interests sought to be protected by it can be discerned and its parameters begin to be defined.
(a) Background
(i) Common Law
Historically, the common law has not always been consistently supportive of an accused's need for the assistance of an interpreter, even in serious criminal trials. This has been noted not only in R. v. Reale (1973), 13 C.C.C. (2d) 345 (Ont. C.A.) (aff'd [1975] 2 S.C.R. 624), at p. 347, but also more recently in Roy v. Hackett (1987), 45 D.L.R. (4th) 415 (Ont. C.A.), at pp. 423-24. However, with the passage of time, the protections afforded under the common law to accused persons in need of interpreter assistance have increased. This is illustrated by two recent decisions involving official language rights under the Constitution in which this Court referred to interpreter assistance as a fundamental right grounded in the rules of natural justice: Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, and MacDonald v. City of Montreal, [1986] 1 S.C.R. 460. For a hearing to be fair, a party who has difficulty with the language of proceedings must not only understand the proceedings, but must also be understood. In MacDonald, Beetz J., for the majority, stated at pp. 499-500:
It is axiomatic that everyone has a common law right to a fair hearing, including the right to be informed of the case one has to meet and the right to make full answer and defence. Where the defendant cannot understand the proceedings because he is unable to understand the language in which they are being conducted, or because he is deaf, the effective exercise of these rights may well impose a consequential duty upon the court to provide adequate translation. But the right of the defendant to understand what is going on in court and to be understood is not a separate right, nor a language right, but an aspect of the right to a fair hearing.
It should be absolutely clear however that this common law right to a fair hearing, including the right of the defendant to understand what is going on in court and to be understood is a fundamental right deeply and firmly embedded in the very fabric of the Canadian legal system. That is why certain aspects of this right are entrenched in general as well as specific provisions of the Charter such as s. 7 , relating to life, liberty and security of the person and s.14 , relating to the assistance of an interpreter. [Emphasis added.]
The fundamental importance of the right of an accused to the assistance of an interpreter under the common law was also stressed by Wilson J., writing for herself and concurring in the result, in Société des Acadiens. She noted at p. 622 that "the ability to understand and be understood is a minimal requirement of due process".
In tracing the evolution under the common law of the right of an accused to the services of an interpreter, the case of R. v. Kwok Leung (1909), 4 Hong Kong L.R. 161 (Full Ct.), stands out as an early landmark decision. However, the better known authority is the English case, R. v. Lee Kun, [1916] 1 K.B. 337 (C.C.A.), which relied heavily on the principles advanced in Kwok Leung. In Lee Kun, the accused was charged with murder. He neither spoke nor understood English. Although the evidence was interpreted to him at his appearance before a magistrate (a proceeding akin to our preliminary inquiry), the evidence at his trial was not. The Court of Criminal Appeal denied leave to appeal on the ground that, even if the failure to interpret at the trial was an irregularity, there had been no substantial miscarriage of justice because the evidence at the trial was the same as that which had been presented before the magistrate. However, its dictum has proven highly influential in the subsequent development of the common law right to interpreter assistance, and continues to have considerable resonance to this day.
In short, Lee Kun stands for two basic propositions. First, in the case of an unrepresented person charged with a criminal offence who does not understand or speak the language of the court, the evidence given at the trial must be interpreted to him or her. This rule cannot be waived. Second, in the parallel situation of an accused represented by counsel, the evidence must also be interpreted unless the accused or counsel expresses a wish to dispense with the service and the judge is of the opinion that the accused substantially understands the nature of the evidence which is going to be given against him or her.
Over and above the statement of these two basic rules, Lee Kun is important for the significance it attaches to the "presence" of an accused in the active sense of understanding the proceedings. Lord Reading C.J. phrased the issue at p. 341 as follows:
The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings. [Emphasis added.]
Also of note is what Lee Kun says about other issues which continue to be relevant to the delineation of the right today -- namely, the positive obligation on our courts to ensure that those whose liberty is in jeopardy understand and are understood, waiver and the underlying rationale for providing accused persons with the assistance of an interpreter. For instance, in the ensuing passage relating to unrepresented accused, Lord Reading C.J. denied the possibility of a valid waiver, stressed the independent role of courts, and laid out the broad policy reasons why the right to interpreter assistance is to be valued and protected (at p. 341).
If [the accused] does not understand the English language, he cannot waive compliance with the rule that the evidence must be translated; he cannot dispense with it by express or implied consent, and it matters not that no application is made by him for the assistance of an interpreter. It is for the Court to see that the necessary means are adopted to convey the evidence to his intelligence, notwithstanding that, either through ignorance or timidity or disregard of his own interests, he makes no application to the Court. The reason is that the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty, except when tried under the safeguards so carefully provided by the law.
Importantly, Lord Reading C.J. made it clear that the overriding consideration in cases where an accused does not speak or understand the language used by the court is to ensure that injustice is not done, even where this causes inconvenience or takes up additional time, and where an accused wishes to dispense with the right or is careless in exercising it.
Lord Reading C.J.'s dictum in Lee Kun was expressly approved and applied in the very recent Privy Council decision, Kunnath v. The State, [1993] 4 All E.R. 30. The accused in Kunnath was from India, but was arrested in Mauritius and tried for drug trafficking there. The trial was conducted entirely in English. The accused, who was represented by counsel, spoke Malayalam. Although an interpreter was present throughout the trial, the interpreter only translated the charge to the accused and did not translate any of the evidence to the accused, apparently because he was under the impression that he could only interpret when directed to do so by the trial judge. When the accused made a statement to the court from the dock, the interpreter translated his words, including the accused's assertion that he had not understood what the witnesses had said. The accused was convicted and sentenced to death. While the case raised the interpretation and application of a provision of the Constitution of Mauritius guaranteeing the right to the assistance of an interpreter, the Privy Council decided the case on the basis of common law principles, making only a few supplementary comments on the correct interpretation of the constitutional guarantee.
In its per curiam decision, the Privy Council in Kunnath noted that, as part of his duty to ensure a fair trial, the trial judge should have made sure that effective use was made of the interpreter who had been provided to the accused. On the facts of the case, the Privy Council found that this was not a case in which the trial judge could in any way be said to have been unaware of the accused's inability to understand the proceedings. The Privy Council reiterated at p. 35 the necessity for an accused to be meaningfully and actively present at his or her trial:
It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the accused [citations omitted] .... the basis of this principle is not simply that there should be corporeal presence but that the accused, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him [citations omitted]. An accused who has not understood the conduct of proceedings against him cannot, in the absence of express consent, be said to have had a fair trial. [Emphasis added.]
In the result, the Privy Council held that the appeal should be allowed and the conviction quashed on the ground that the accused had been deprived of the opportunity for a fair trial and that a substantial miscarriage of justice had occurred.
The recent Privy Council decision in Kunnath along with this Court's dicta in the official language rights cases of MacDonald and Société des Acadiens confirm that a person facing criminal charges who does not speak or understand the court's language has the right under the common law to be provided with an interpreter. The right to interpreter assistance is a means of ensuring that proceedings are fair and comply with the basic principles of natural justice.
(ii) Statute
The correlation between an accused's entitlement and obligation to be present at trial and his or her right to the assistance of an interpreter, which was first noted in early common law cases such as Kwok Leung and Lee Kun, was subsequently incorporated into courts' interpretation of the provision of the Criminal Code mandating an accused's presence in court during the whole of his or her trial. The current formulation of this provision of the Code, which is found in s. 650(1) , reads:
650. (1) Subject to subsection (2), an accused other than a corporation shall be present in court during the whole of his trial.
According to G. J. Steele, "Court Interpreters in Canadian Criminal Law" (1992), 34 Crim. L.Q. 218, at p. 229, until the advent in this country of statutory and constitutional instruments expressly proclaiming interpretation to be a right, "[t]he entire law of court interpreters was written upon this tabula rasa".
It was not until 1960 that the right to interpreter assistance received express statutory recognition in Canada in the Canadian Bill of Rights, R.S.C., 1985, App. III. Section 2(g) of the Canadian Bill of Rights reads as follows:
2. ... no law of Canada shall be construed or applied so as to ...
. . .
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.
Apart from the obvious and most significant difference which stems from the fact that the Charter is a constitutional document with far broader application than the Canadian Bill of Rights, a mere federal statute, the primary difference between s. 2(g) of the Canadian Bill of Rights and s. 14 of the Charter is that the latter expressly includes deaf persons and is more clearly declarative of a positive right: A. Morel, "Certain Guarantees of Criminal Procedure" in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989) 497, at pp. 526-28.
In so far as the provinces are concerned, Quebec is unique in having specific legislation which guarantees the right to an interpreter. Section 36 of its Charter of Human Rights and Freedoms, R.S.Q., c. C-12, reads as follows:
36. Every accused person has a right to be assisted free of charge by an interpreter if he does not understand the language used at the hearing or if he is deaf.
What is significant about Quebec's guarantee is that, while it is limited to criminal proceedings ("[e]very accused person"), it nonetheless specifies that interpreters will be provided free of charge.
The priority given to the right to interpreter assistance of criminally accused persons, which is seen not only in Quebec's guarantee but also more generally in the jurisprudence, is echoed in international human rights instruments. For instance, both the United Nations' International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(3)(f), and the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 6(3)(e), provide that everyone charged with a criminal offence has the right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court". While the United States' Constitution lacks a provision which expressly guarantees the right to interpreter assistance, American courts have found such a right to exist inferentially under the Fift