Section 14 – Right to an interpreter

Provision

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.

Similar provisions

Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: paragraph 2(g) of the Canadian Bill of Rights; section 15(1) of the Official Languages Act; and article 14(3)(f) of the International Covenant on Civil and Political Rights.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include Similar provisions: article 6(3)(e) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;and article 8(2)(a) of the American Convention on Human Rights.

In the criminal context, section 14 has a close relationship with section 7 (fundamental justice) and paragraph 11(d) (fair trial) of the Charter (see the discussion further below). More generally, sections 15 (equality rights), 25 (aboriginal rights) and 27 (multicultural heritage) of the Charter also speak to the importance of the right to interpreter assistance. Section 27, which mandates that the Charter be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, is particularly germane. In so far as a multicultural heritage is necessarily a multilingual one, it follows that a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system (R. v. Tran, [1994] 2 S.C.R. 951).

Purpose

In the criminal context, the Supreme Court has referred to section 14 as serving three main purposes: i) to ensure that persons charged with an offence hear the case against them and have an opportunity to answer it; ii) as a right intimately related to our basic notions of justice, including the appearance of fairness; and iii) as a right intimately related to our society's claim to be multicultural, expressed in part through section 27 of the Charter. The Court also has referred to the underlying interests protected by section 14 as those of linguistic understanding and creating a level and fair playing field (Tran, supra, pages 977-978). As discussed below, however, the right also applies outside of the criminal context. While certain of the above-noted purposes of section 14 are particular to criminal proceedings, the other indicated purposes will likely be relevant outside of this context.

Analysis

1. General considerations

The right to the assistance of an interpreter is a fundamental right grounded in the rules of natural justice (Tran, supra, page 963; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460 at page 499; Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 at page 621, per Wilson J., concurring)).

It is not a separate language right, but, in the criminal context, it is a means of ensuring that criminal proceedings comply with the constitutional guarantee to a fair and public hearing found in paragraph 11(d) of the Charter (Tran, supra, page 976). As such, section 14 should be understood in part by reference to sections 7 and 11 of the Charter, which protect a person’s right to make full answer and defence, the right to have full disclosure of the case to be answered prior to making one's defence, and the right to a fair trial. Indeed, the close relationship of section 14 to these other Charter guarantees suggests that the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of section 7 of the Charter (Tran, supra, page 976).

However, unlike many other sections of the Charter which apply in the criminal law context specifically, this section is more encompassing: it applies to "any proceedings". In Tran, the Supreme Court indicated that "the right under section 14 of the Charter is one held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses" (Tran, supra, page 995). However, the Tran decision also indicated that the discussion in that case applied to criminal proceedings and left open the possibility that other rules may apply to other proceedings (Tran, supra, page 961).

The principle of linguistic understanding which underpins the right to interpreter assistance should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings, be it English or French, are given or seen to be given unfair advantages over those who are fluent in the court's language (Tran, supra, page 978).

2. "A party or a witness"

Section 14 applies to parties to proceedings and to witnesses (Tran, supra, page 995). There is lower court jurisprudence indicating, however, that section 14 has no application to counsel (Cormier v. Fournier (1986), 29 D.L.R. (4th) 675 (N.B.Q.B.), aff’d without consideration of the section 14 issue, 78 N.B.R. (2d) 406 (N.B.C.A.); Taire v. Canada (Minister of Citizenship and Immigration), 2003 FC 877), nor to corporations (Reno-Design Hongyi Inc. v. Directeur des poursuites criminelles et pénales, 2016 QCCS 3491).

3. "The proceedings"

A number of courts have found that the application of section 14 is limited to “proceedings” and does not include the investigatory process or the arrest of the accused (see, e.g., R. v. Dennie (1997), 43 C.R.R. (2nd) 144 (Ont. Gen. Div.) and R. v. Odones, 2012 QCCS 7080). However, other Charter rights of the accused may be unjustifiably limited at the pre-trial or trial stages if no interpretation is allowed (see, e.g., Dennie, supra; R. v. Ansary., 2001 BCSC 1333 at paragraphs 75-83, upheld, though without consideration of the section 14 issue, 2004 BCCA 109).

As noted above, the Supreme Court in Tran indicated that the right to an interpreter's assistance may be claimed not only in the context of criminal matters, but also in civil and administrative proceedings. The right has been applied in various types of civil and administrative cases. (See, e.g., Roy v. Hackett (1987), 45 D.L.R. (4th) 415 (Ont. C.A.) in respect of labour arbitration proceedings; Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, leave to appeal to the SCC dismissed, [2001] S.C.C.A. No. 435 (QL), in respect of refugee proceedings and Anand v. Anand, 2016 ABCA 23 in respect of spousal support proceedings.) However, there is some lower court jurisprudence suggesting that section 14 does not apply in civil matters involving purely private parties on the basis of a lack of application of the Charter under section 32 (Farimex marketing international inc. v. Owen, (2000 CarswellQue 541) [2000] Q.J. No. 1179 (Qué. S.C.); Roy-Sinclair (Syndic de), [2007] Q.J. No. 1074 (Qué. S.C.), paragraph 15). This restriction, in the section 14 context, does not yet appear to have been uniformly applied or authoritatively discussed in jurisprudence.

4. Framework for establishing a section 14 violation

To establish a section 14 violation, the claimant must prove on a balance of probabilities:

  1. that he or she was in need of, but was denied, interpreter assistance;
  2. if it is not a case of complete denial of interpretation, that the standard of interpretation fell below what was required, the requisite standard being continuity, precision, impartiality, competency and contemporaneousness;
  3. that the alleged lapse in interpretation occurred in the course of the proceedings themselves when a vital interest of the claimant was involved — i.e., while the case was being advanced — rather than at some point or stage which was extrinsic or collateral to the advancement of the case. (Tran, supra, pages 978-980)

In the consideration of these requirements, developed in Tran, it should be recalled again that the Supreme Court indicated that the discussion of section 14 principles set out in that ruling does not necessarily apply outside the criminal context. However, see Mohammadian, supra, indicating that the Tran principles do apply generally at least to refugee proceedings.

(i) Need for an interpreter

Section 14 is engaged where the accused does not understand or speak the language in which the proceedings are conducted. It is not engaged where the accused does speak and understand the language but has some difficulty because of an accent or limited communications skill or some other similar reason, in understanding or answering questions.

The opposing party has a right to challenge the basis for a request for the assistance of an interpreter by means of cross-examination in a voir dire (Roy v. Hackett, supra).

Establishing need is generally not onerous. The right to interpreter assistance should not be denied unless there is cogent and compelling evidence that an accused's request is not made in good faith (Tran, supra, page 984). Thus, while the right is not automatic or absolute, courts should be generous and open-minded when assessing an accused's need for an interpreter (Tran, supra, page 980).

As a general rule, courts should appoint an interpreter when either of the following occurs:

  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. (Tran, supra, pages 980-981).

Although courts are not required to inform all accused of the existence of the right to interpreter assistance or inquire into the ability of each accused to understand the language of proceedings, they nevertheless have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and, therefore, to protect an accused person's right to interpreter assistance, irrespective of whether the right has actually been formally asserted (Tran, supra, page 981). That said, while courts must be alert to signs which suggest that an accused may need an interpreter, they are not expected to be mind readers. Where there are no outward indications which point to a lack of understanding on the accused’s part and where the right has not been invoked by the accused or counsel, these may be factors weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is raised for the first time on appeal (Tran, supra, page 982; R. v. Chica, 2016 ONCA 252, paragraphs 33 to 35).

As officers of the court, there is an obligation on both Crown and defence counsel to draw a court's attention to the need for an interpreter when counsel become aware that such a need exists (Tran, supra, pages 981-992).

(ii) Standard of interpretation

Section 14 of the Charter requires that the interpretation of the proceedings be continuous, precise, impartial, competent and contemporaneous. The standard that must be met in interpretation is not one of perfection, but is high (Tran, supra, page 985; R. v. Rybak (2008 ONCA 354, leave to appeal denied, [2008] S.C.C.A. No. 311). Appellate rulings suggest that an interpreter is presumed to have provided an accurate interpretation unless the claimant can demonstrate that the interpreter has not (R. v. Titchener, 2013 BCCA 64; R. v. Match, 2015 BCCA 271; see also Nguyen v. R., 2013 QCCA 1127).

(a) Continuous

Breaks and interruptions in interpretation are not to be encouraged or allowed (Tran, supra, page 986).

(b) Precise

The interpretation must be, as close as can be, word-for-word and idea-for-idea; the interpreter must not "clean up" the evidence by giving it a form, a grammar or syntax that it does not have; the interpreter should make no commentary on the evidence; and the interpretation should be given only in the first person, e.g., "I went to school" instead of "he says he went to school" (Tran, supra, pages 986-987). However, courts have acknowledged that interpretation requires certain “judgment calls”; not all words, phrases or concepts can be translated exactly to another language. As indicated previously, the standard is not that of perfection (Match, supra, paragraphs 8-9, 37).

(c) Impartial

Interpretation, particularly in a criminal context, should be objective and unbiased. Certain persons are disqualified, by reason of apprehension of bias, from acting as interpreter. Obviously a party litigant will not be permitted to interpret, but neither will a relative or friend of a party, the judge, nor a person closely connected to the events giving rise to a criminal charge. These rules may be relaxed if the proceedings are non-adversarial (Tran, supra, page 988). The practice of having an interpreter serve as both a witness and an interpreter is one which should be avoided in all but exceptional circumstances (Tran, supra, page 1002).

(d) Competent

An accused has a right to a competent interpreter and it is the judge’s responsibility to ensure that the interpreter chosen possesses the necessary qualities (Tran, supra, pages 988-989). However, formal accreditation as an interpreter and competence are not the same thing: neither the presence nor absence of accreditation is dispositive of competence (Ryback, supra, paragraph 84). It has been considered, however, that accreditation provides a basis for a presumption of competence absent evidence to the contrary (Titchener, supra, at paragraph 23).

(e) Contemporaneous

It is generally preferable that interpretation be “consecutive” (after the words are spoken) rather than "simultaneous" (at the same time as words are spoken). However, the overriding consideration is that the interpretation be contemporaneous (Tran, supra, pages 989-990). Although consecutive translation is generally to be preferred, in the absence of any indicia that the interpretation was inadequate, there can be no violation of section 14 on account of the interpretation being simultaneous (Nguyen, supra, at paragraph 5; see also R. v. Santhanarasa, 2013 ONCA 779).

(iii) In the course of the proceedings

A claimant must establish that fault in respect of interpretation occurred in the course of the proceedings when a vital interest of the accused was involved — i.e., while the case was being advanced — rather than at a stage which was extrinsic or collateral to the advancement of the case, such as an administrative or scheduling issue (Tran, supra, pages 991-994).

5. Renunciation of the right to an interpreter

In light of the importance and status of the right to an interpreter under section 14, this right will be more difficult to waive than may formerly have been the case under the common law and under statutory instruments, such as the Criminal Code and the Canadian Bill of Rights. Indeed, in the criminal context, there will be situations where the right simply cannot, in the greater public interest, be waived (Tran, supra, pages 996-998).

Nevertheless, where a person receives the assistance of an interpreter at a hearing, but fails to object to the quality of the interpretation at that time, he or she may be precluded from later raising the quality of interpretation as a failure to respect section 14 rights (see, e.g, Mohammadian, supra at paragraph 19; Match, supra, at paragraphs 14-15, 41-43). However, where an applicant does not know the extent of the errors because they are not readily apparent during a hearing, the applicant cannot waive her right to an interpreter simply by failing to raise the errors at that time. It is for the party alleging waiver to demonstrate that there was knowledge of the errors (Mah v Canada (Citizenship and Immigration), 2013 FC 853 at paragraph 18).

6. Remedy – Prejudice and reparation

It is crucial that, at the stage where it is being determined whether an accused's section 14 rights were in fact unjustifiably limited, courts not engage in speculation as to whether the lack of or lapse in interpretation in a specific instance made any difference to the outcome of the case, or as to whether the accused actually suffered prejudice (Tran, supra, pages 994 and 995). The prejudice is in being denied the right in the first place. The resulting prejudice actually suffered is a matter to be assessed in consideration of remedy under subsection 24(1) of the Charter (Tran, supra, page 995; Mohammadian, supra at paragraph 4).

While some case law at the lower court level has adopted a standard under which any errors must be “material” rather than “trivial”, care must be taken not to thereby import a requirement of prejudice. “Material” in this context should be understood as an extension of the principle, also recognized in Tran, that the standard under section 14 is not one of perfection in interpretation: it is not an additional requirement to show prejudice arising out of non-trivial errors (see the discussion, e.g., in Mah, supra, at paragraphs 21-26 and in Bidgoli v. Canada (Minister of Citizenship and Immigration), 2015 FC 235 at paragraphs 10-16).

As a general rule, the appropriate remedy under subsection 24(1) of the Charter for a breach of section 14 will be the same as it would be under the common law and under statutory guarantees, such as section 650 of the Criminal Code or paragraph 2(g) of the Canadian Bill of Rights — namely a re-hearing of the issue or proceeding in which the violation occurred (Tran, supra, page 1010). However, where appropriate, other remedies may be ordered, tailored to particular circumstances. For example, in one appellate case it was considered that prejudice that would have flowed from proceeding without an interpreter could have been addressed by adjourning proceedings to a date when an interpreter was available (R. v. Pan, 2012 ONCA 581 (Ont. C.A.); see also the comment in Tran, supra, pages 1010-1011, re remedying a violation in the course of the proceedings). Where an accused is able to demonstrate that he or she has suffered or will suffer prejudice over and above that which flows directly from the violation itself, such as having to incur the financial costs associated with a new trial, a court may find it appropriate to award an additional remedy under subsection 24(1), such as damages (Tran, supra, page 1010).

7. Costs of interpretation

In criminal cases, interpreter fees are generally borne by the state (see the discussion in McCullock Finney c. Canada (Attorney General), 2009 QCCS 4646 at paragraph 23). Lower court rulings suggest, however, that in civil proceedings the right to an interpreter does not generally mean that the costs of interpretation should be borne other than by the person seeking it (see e.g., Wyllie v. Wyllie (1987), 37 D.L.R. (4th) 376 (B.C.S.C.); Royal Bank of Canada v. Welton, [2009] O.J. No. 4205 (S.C.); McCullock Finney, supra). Nevertheless, some cases suggest that, although interpreter’s fees are normally initially borne by the party seeking interpretation, they are claimable as costs that follow the event, to be paid by the losing party (Paul’s Restaurant Ltd v. Dunn, [1996] B.C.J. No. 114 (B.C.S.C.); Park v. Koepke, 2013 BCSC 1806). The approach in administrative proceedings is mixed, with jurisprudence suggesting that, absent evidence of impecuniosity, costs of interpretation should be borne by the person requiring it, while other jurisprudence is more favourable to payment by the state (compare Canada (Minister of Citizenship and Immigration) v. Phan, [2003] F.C.J. No. 1512 and Caron v. Alberta (Chief Commissioner of the Alberta Human Rights and Citizenship Commission) 2007 ABQB 525). The general issue of payment of the costs of interpretation as an adjunct to the section 14 right has not yet been comprehensively and authoritatively explored by the courts.

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