Onus is upon claimant of right seeking not to testify in language of judicial proceeding

Ontario criminal | Charter of Rights

Right to interpreter

Onus is upon claimant of right seeking not to testify in language of judicial proceeding

At outset of criminal trial, court was advised that Punjabi interpreter would be required for complainant. Punjabi interpreter was provided for complainant without specific inquiries being made about why complainant could not be accommodated in one of Canada’s official languages. As trial progressed, it became evident that complainant understood, and was able to communicate in, English. Parties made submissions about appropriate remedy. Mistrial declared and re-trial ordered. Four factors contributed to mistrial decision. First, trial testimony had only consumed about three and one-half hours. Second, complainant did not visibly experience discomfort while testifying. Third, complainant indicated preparedness to investigating officer to return to testify in English. Fourth, with trial very much about credibility of principal witnesses, interpretation filter materially interfered with trier of fact’s ability to make credibility determinations. Appropriate remedy was for complainant to testify again in English with help of stand-by interpreter if required. Needs assessment ought to have been conducted at outset of trial respecting complainant testifying through interpreter. Section 14 of Canadian Charter of Rights and Freedoms presumes that witness will testify in one of Canada’s official languages absent showing that witness does not understand or speak language of trial proceedings. Onus is upon claimant of right seeking not to testify in language of judicial proceeding.
R. v. Singh (June 3, 2016, Ont. S.C.J., Hill J., Brampton CRIMJ(P) 609/14) 131 W.C.B. (2d) 317.

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