[17] It thus appears that the trial itself was to be held in English with agreed simultaneous interpretation of the testimony of any witness testifying in French.
[18] A subsequent O’Connor type motion was argued in English on February 10, 2017. However, the Crown counsel nevertheless insisted on making submissions in French, thus requiring the interpretation of these submissions. This resulted in the following comment by counsel then representing the appellant:
Me DEBORA DE THOMASIS:
So just for the benefit of the client and I’m not waiving his constitutional rights to be… to have everything said in English, but basically…[10]
[19] Moreover, the interpretation of the Crown’s arguments was provided at that date by means of whispering to the appellant. The transcript sets out the following note in this matter:
Note: Translation was whispered to the defendant and thus was inaudible for transcription purposes – MJL, o.c.r.
[22] This appears to have been a recurring problem considering similar notes and comments being made from time to time by the stenographers who subsequently transcribed the proceedings, most notably with regard to the hearings held September 12, 2017, and November 29, 2017.[16]
[23] The trial was in fact almost exclusively held in French, with simultaneous interpretation being provided to the appellant, at times by way of whispering. Crown counsel and the judge expressed themselves mainly in French throughout the proceedings.
[24] No formal objection was raised at trial on behalf of the appellant with respect to the language of the proceedings or the quality of the interpretation. The appellant himself recognized this when he testified on August 31, 2017, in the context of his first Jordan type motion:
Q. Is there any other things you did in the legal procedure to…
A. I agreed for a simultaneous translation, I agreed not to have an English trial just to speed up the process, I agreed not to have a judge and jury just not to go… just not to create any delays with my trial. I agreed to have a judge only trial, everything, I agreed with everything whatever I could.[17]
[25] The parties achnowledge that the appellant did not renounce to an English language trial, but rather agreed to simultaneous interpretation in order to speed up the process.
[26] When the formal trial phase itself began on November 27, 2017, the attorney then representing the appellant began by expressing herself in English, while reiterating that simultaneous interpretation of witness testimony would be allowed if it could be recorded on a separate sound recording track:
Me DEBORA DE THOMASIS:
Maybe for la cuisine, if you want to say, we have an interpreter present, because the trial had started with O’Conner motion back in January and we agreed that the witnesses, they testify in French or in English, whatever language is beneficial for them and that the translation, if there is, will be done simultaneously through an interpreter, but absolutely has to be registered on a second (2nd) band, that was what we requested and this is the way we would want to proceed. (…)[18]
[27] However, though the trial itself started in English, it rapidly slid back into an almost all-French modus operandi. At the November 28, 2017, hearing, the trial judge queried the attorneys as to the language of the trial [...]
[28] The trial was thereafter conducted almost entirely in French since most witnesses testified in that language. All arguments, including closing arguments, were made in French. However, the final judgment on the verdict was rendered in English.
[52] The Crown recognizes that serious lapses with respect to the appellant’s language rights occurred throughout the trial proceedings. While further recognizing that the jurisprudence is somewhat mixed on the issue, the Crown submits that the curative powers of the Court under paras. 686(1)(b)(iii) and (iv) Cr.C. should be exercised in this case, as no substantial wrong or miscarriage of justice occurred and the appellant suffered no substantial prejudice. This is the thrust of the Crown’s position. It must therefore first be decided if these curative powers may be exercised by an appellate court in such circumstances.
[60] This does not mean that any breach of language rights will necessarily result in a new trial. The standard is not perfection. Rather, only sufficiently serious and substantial breaches may lead to a judicial reparation on appeal. There will always be challenges in implementing s. 530 and s. 530.1 and a degree of flexibility is thus required.[63] The mere fact that a prosecutor or a judge speaks French during an English language trial to deal with minor administrative issues, or where there are minor lapses in interpretation or in the transcript of the interpretation which go unnoticed during a trial, will not necessarily lead to the conclusion that a serious or substantial breach of the language rights has occurred. Each case must be decided on its particular facts and in the overall context in which the trial was held.
[61] However, when a substantial breach of the rights has occurred, then irrespective of any analysis under paras. 686(1)(b)(iii) or (iv) Cr.C., a judicial remedy is required, including, in appropriate circumstances, an order for a new trial.
[77] Finally, no whispering interpretation is to be used where s. 530 and 530.1 Cr.C. apply since this type of simultaneous interpretation is of doubtful accuracy and does not readily allow for a control of the required standard of interpretation and a recording of the interpretation. Whispering interpretation is therefore inconsistent with s. 530.1(g), which sets out that the record of the proceedings must include a transcript of the interpretation of what was said in the proceedings. It is also inconsistent with Tran in that the quality of interpretation which forms part of the standard set forth by the Supreme Court can rarely be upheld with whispering.
[78] In the case of the appellant, it is readily apparent that these requirements were not complied with. There is no disagreement that the appellant consented to simultaneous interpretation by electronic means. However, that consent was clearly and specifically given on the understanding that adequate equipment would be available and that a full audio recording of the interpretation would be made and would form part of the court record.
[79] In this case, the judge made no serious effort to ascertain that the required equipment, including proper audio recording equipment, would be available. Nor did the judge exercise any control over the standard of the interpretation. After being informed of systemic problems in other trials, the judge instead commented that “Well, I cannot guarantee anything.”[75] Yet, it is the duty of the judge to ensure that the trial is properly conducted. If the government services responsible for providing interpretation are deficient with respect to simultaneous interpretation or if they cannot provide reasonable assurances to the judge with respect to the legal standards of continuity, precision, impartiality, competency and contemporaneity of the interpretation, then it is incumbent upon the judge to make the required orders to ensure that these standards are fulfilled or to adopt consecutive interpretation. In the circumstances of this trial, where no assurances were provided, the judge should have ordered the use of consecutive interpretation since the conditions under which the appellant consented to simultaneous interpretation could not be ensured.
[80] In fact, the required equipment was deficient on many occasions, which resulted in providing interpretation by means of whispering to the appellant, a method which is clearly contrary to the terms of s. 530.1 Cr.C.; in addition, many of the recordings of the interpretation were misplaced, as it took the government close to two years to locate and transcribe the interpretation. Despite orders from this Court to locate them, the Crown acknowledges that the records of the interpretation of at least eight days of the proceedings remain lost[76] and that some parts of other days were not recorded.[77] Moreover, numerous judgments were rendered in French during the proceedings, and in many instances the recording of the interpretation of these judgments is missing.[78]
[81] The appellant also submits that the quality of the interpretation is deficient, not necessarily as a result of the incompetence of the interpreters, but rather because the method of simultaneous translation used in this case did not allow the interpreters to ask the parties and the judge to slow the pace of their speech, rendering at times the interpretation difficult, if not impossible. Though the Crown and the appellant do not agree on the extent of interpretation errors and slips which occurred, it suffices to state that these are numerous and it is not the only violation.
The Language Used by the Prosecutor and the Judge
[82] In this case, both the Crown prosecutor and the judge used French as the usual language of communications throughout the proceedings. This is a substantial breach of the language rights of the appellant as set out in ss. 530 and 530.1 Cr.C.
[84] It is therefore particularly surprising that, in this case, the Crown prosecutor assigned to the case insisted on using the French language throughout the trial which was to be held in English, in flagrant and direct breach of s. 530.1 Cr.C. Though defence counsel objected to this, it cannot be said that the objection was forcefully pursued. That, however, does not relieve the Crown of its legal duties and that of the trial judge to require Crown counsel to do so. As previously noted, an accused cannot waive this right implicitly, assuming such a waiver is legally possible.[82]
[85] As for the judge, s. 530 specifically sets out that he or she must speak the official language of the accused. This is the cornerstone of the language guarantees set out in the Criminal Code. A judge cannot rely on the interpretation of his speech during a trial conducted pursuant to s. 530 Cr.C., but must rather express himself or herself in the official language of the accused throughout the proceedings. This was not done.
The Trial Transcripts
[86] As previously noted, there are serious deficiencies with respect to the transcripts of the interpretation of the proceedings. Though these deficiencies may not constitute in themselves serious and substantial breaches of the appellant’s rights under s. 530.1 Cr.C. justifying a new trial,[83] they nevertheless add to the other breaches of these rights.
[87] What is particularly disturbing in this case is that the breaches with respect to the transcripts appear to be systemic in nature, as recognized by the Crown. This matter was addressed in part by this Court in its judgment dealing with the release of the appellant.[84] We add that the systemic nature of the problem renders the breaches all the more serious. This Court should not and cannot condone this sorry state of affairs with respect to the administration of justice in this province.
CONCLUSION
[88] It is readily apparent in this case that the statutory rights of the appellant under s. 530 and s. 530.1 Cr.C. were substantially ignored and breached throughout the trial proceedings. This is sufficient to allow the appeal without it being necessary to formally conclude that the appellant’s. 14 Charter rights were also breached.
[89] The breaches of the appellant’s language rights at trial, taken as a whole, are serious and substantial. In light of the circumstances, no order other than a new trial can be envisaged as a remedy to these breaches.
[90] I would therefore allow the appeal, quash the convictions and order a new trial.