This week’s top three summaries: R v Chen, 2025 ONCA 135: s.14 #interpreter, R v Nettleton, 2025 ONCA 155, GP and #arraignment, #penitentiary, R v Roshuk-Finch, 2025 ABCA 85: #step principle
R v Chen, 2025 ONCA 168
[March 6, 2025] Charter s.14 – The Right to Interpretation [Reasons by Pepall J.A. with A. Harvison Young and L. Sossin JJ.A concurring]
AUTHOR’S NOTE: The s.14 Charter right to an interpreter ensures that individuals who do not understand the language of court proceedings have the same opportunity to understand and be understood as if they were fluent in the language used. As a multicultural country, Canada enshrines this right as a constitutional guarantee.
In this case, the Court applied this guarantee, reviewed relevant case law, and overturned a conviction because the trial proceedings were translated into Cantonese, a dialect the accused did not understand, as he was a Taishanese speaker. This ruling reinforces the strict standard required for interpretation in court and highlights the importance of accurate language accommodations to uphold fair trial rights.
INTRODUCTION
[1] Section 14 of the Canadian Charter of Rights and Freedoms states that “[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.”
[2] The appellant was charged with second degree murder. It is uncontested that he does not understand or speak English, the language of his criminal proceedings. A Taishanese1 interpreter was requested for the appellant. He had one interpreter for the first half of the trial and another interpreter for the second half. Two audits of the interpretation of the first half of the trial requested by the Ministry of the Attorney General (“MAG”) reported that the portions reviewed revealed an interpretation that was not Taishanese but 100 percent Cantonese.
[4] The appellant also applies for an order to adduce fresh evidence relating to the s. 14 ground of appeal including the Crown audits of the interpretation at trial, the differences between Taishanese and Cantonese, and the ineffective assistance of counsel ground of appeal. The Crown filed materials in response and consents to the admission of the fresh evidence. I would admit the fresh evidence as requested. While not directed at any issue litigated at trial, the proposed evidence “seeks to shed light on the validity of the trial process” and is admissible for that purpose: R. v. Saini, 2023 ONCA 445, 90 C.R. (7th) 212, at para. 34; R. v. S.T., 2024 ONCA 572, at para. 14. It is in the interests of justice to admit the fresh evidence.
[5] The respondent fairly and candidly concedes that there were shortcomings in the interpretation services provided to the appellant which should not have occurred and are properly the subject of criticism. What happened should not have. However, relying on: R. v. S.A., 2021 ONCA 434, 493 C.R.R. (2d) 105; R. v. L.C.T., 2012 ONCA 116, 288 O.A.C. 133; and R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, the respondent submits that s. 14 does not require interpretation to be perfect; there must be a real possibility that the appellant either did not understand or was misunderstood; any objection to the interpretation provided must be timely…
…respondent submits that the appellant has failed to meet his onus to show a reasonable possibility that he did not understand the interpreter…
[6] I disagree and for the following reasons, would allow the appeal on the ground relating to s. 14 of the Charter. As a result, there is no need to address the other two grounds of appeal.
[7] The appellant speaks Taishanese. He was born to a farming family in a rural village in the Guangdong province of China and immigrated to Canada in 2000. In China, he was a farmer and after moving to Canada, he worked making fortune cookies until he was 65. His education consists of a few years of elementary school “on and off” in the 1940s and 1950s. His instruction was in Taishanese and the language of the appellant’s village was Taishanese. He does not read or write in any language and is functionally illiterate. The appellant maintained that he can understand Cantonese “a little here, and a little there”. It is undisputed that the appellant has no English language capability. He does not speak nor understand English.
[9] Video surveillance showed the appellant getting off of his bicycle, engaging in a conversation with Ms. Liu, and then suddenly lunging and attacking her. After the attack, the appellant placed his bike against a wall and departed on foot. A passerby found Ms. Liu lying in the grass bleeding. Ms. Liu subsequently died and an autopsy revealed that she had sustained multiple blunt force injuries. Police recovered a metal bar with blood on it near Ms. Liu’s body that appeared to be from the appellant’s bicycle.
(1) Relevant Background and Fresh Evidence
(a) Police Interview and Preliminary Inquiry
[12] On October 16, 2014, the appellant was interviewed by Detective Worden. PC Liang, who speaks English and Cantonese, served as the appellant’s interpreter. The recorded interview revealed numerous references to a lack of understanding by PC Liang or the appellant…
[13]…He never expressed any confusion about the translation PC Liang provided. PC Liang maintained that the appellant understood Cantonese as did his wife, Bi Lian Chen. He testified that in the booking hall when the appellant wanted to use the washroom, he asked the appellant whether he spoke Cantonese, and the appellant said “yes”. The appellant never told PC Liang that he spoke Taishanese.
[14] Under cross-examination, PC Liang acknowledged that there was a dialect problem the two were having and that the appellant was having a hard time understanding everything PC Liang was saying and he did not understand 100 percent of what the appellant was saying.
[16] For his preliminary inquiry, a Taishanese interpreter was requested for the appellant. Verna Chong was his interpreter at his preliminary inquiry and for the second half of his trial. No issue is taken with her interpretation.
(b) The Trial
[19] Ms. Chong was unavailable for the commencement of the appellant’s trial which started on April 1, 2019. Anna Auyang was the interpreter provided by MAG for the trial before Ms. Chong was able to attend. She was one of only two conditionally accredited Taishanese interpreters on MAG’s registry at the time of trial, and there was only one fully accredited Taishanese interpreter. She interpreted from the second to the ninth day of the trial. This covered the Crown’s opening address and the proceedings relating to 12 witnesses.
[20] Ms. Auyang filed an affidavit …
…She admitted that she was never tested in the Taishanese language by MAG. She was unsuccessful in being accredited by MAG to interpret Cantonese but had been accredited for Cantonese by the Immigration and Refugee Board since 2013. Cantonese is her first language and was the language of instruction at her high school in Hong Kong where she grew up. She maintained that Taishanese is a dialect of Cantonese and, in her experience, people who speak Taishanese also speak Cantonese. The two “are very intertwined” and “[m]any of the common expressions are the same.” She described her own interpretation as “a mixture of Cantonese and Taishanese, but ‘heavier’ on the Cantonese side.” According to her, the appellant also spoke a “mixture” of the two, but she found it difficult to understand him given his mumbling and “baby talk”. She claimed to be in the habit of repeating things for him but it was “difficult to do so consistently given the pace of the proceedings.”
[22] In her cross-examination, Ms. Auyang said that during the trial, the appellant told her he could not hear well. She stated that the appellant confirmed that he understood the way she was speaking.
[23] In her affidavit, she stated:
In my interactions with Mr. Chen, he spoke a mixture of Cantonese and Taishanese. I found it difficult to understand him, as he mumbled and spoke in “baby talk” that was neither fully Cantonese nor fully Taishanese. It appeared to me that only Mr. Chen’s family members could completely understand him…
[24] In cross-examination, when asked whether she interpreted in Cantonese throughout the proceedings, she responded: “That’s my strongest dialect that I could do the best.” She said the appellant speaks some Cantonese but he primarily speaks in his dialect. She also used sign language with him. She “spoke Cantonese with a little bit of Taishan dialect in it”, “not fully Taishanese”. She acknowledged that she did not understand the appellant fully.
[25] She admitted that she asked the appellant in Cantonese whether he could hear and translated him as saying he could hear when in fact, he said he could not. She admitted she mistranslated him. Similarly, the instruction she gave him to push her if he could not hear was in Cantonese.
[26] Ms. Chong took over for the remainder of the trial. Ms. Chong listened to the audio recordings for the preceding days of the trial. For those that were audible, Ms. Chong stated that Ms. Auyang was not interpreting from English to Taishanese but to a very standard form of Cantonese. She stated that the appellant speaks a regionally distinct form of Taishanese that is very different from Cantonese. He would understand some words but not the entirety of the proceedings. For instance, on April 1, Ms. Auyang interpreted him as saying: “Now I can hear, now I can hear” when he actually said “I cannot hear.” On the same day, Ms. Auyang told him in Cantonese: “We want to know exactly at what time you can hear and at what time you cannot hear.” The appellant responded: “Only can hear some whenever, now does not work. I cannot hear.” However, Ms. Auyang interpreted this as: “Now it’s working.”
[27] Ms. Chong maintained that Ms. Auyang “never spoke one word Taishanese. It’s all in Cantonese.”
(c) MAG’s Interpretation Evaluation Assessments
[30] In response to the appellant’s allegations of errors identified by Ms. Chong, the Crown requested that the MAG Court Interpretation Unit (the “CIU”) obtain an Interpretation Evaluation Assessment.
[31] The CIU sent a five-minute segment of the trial recording for an Interpretation Evaluation Assessment to be done by Yuki Eng. Ms. Eng concluded that Ms. Auyang’s interpretation “was 100% in Cantonese”…
[33] The CIU also retained Wanru (Angie) Gong to perform an audit of Ms. Auyang’s interpretation. Ms. Gong was qualified for interpretation in 2018 or 2019. Ms. Gong also stated that the interpretation was “100% Cantonese” and “not…Taishanese at all…”
…Ms. Gong believes that Ms. Auyang should “speak louder” and “pay attention [to] numbers while doing interpretation”. Examples of errors on the assessment form she completed include:
“At approximately 12:50 PM” was interpreted as “At approximately 12:13 PM”;
“Approximately 27 years” was interpreted as “approximately 20 years”;
“it was a palm print in blood in a bicycle seat” was interpreted as “it was a fingerprint in blood in a bicycle seat”;
“We are talking about a minute and maybe 25 seconds later” was interpreted as “We are talking about at time of 10:45”;
“we’re looking at the December 16 report that you prepared” was interpreted as “we’re looking at the [not clear about the month] 14 report that you prepared”.
[34] Ms. Gong was mostly unresponsive to the questions on cross-examination as she did not remember much about the case except that the interpreter was speaking in Cantonese.
(d) Expert Reports
[35] Genevieve Yuek-Ling Leung prepared an expert witness report dated July 31, 2023 for the Crown. She has a Ph.D. in Educational Linguistics from the University of Pennsylvania…
[36] She wrote that Taishan is a county-level city of Guangdong province in China. The area was agrarian and most people lived in villages with others of the same surname. Most people born and raised in Taishan speak Taishanese. Because of migration and intermarriage, many people in the region also speak some form of (standard or near-standard) Cantonese…
[39] Professor Leung was asked to what extent she expected Cantonese to be comprehensible to a monolingual Taishanese speaker, and she said that “it depends on social factors like education and interpersonal networks” and later added vocation and age of exposure to Cantonese. She opined that “for someone with limited schooling and whose life centered around the village or the countryside, or solely worked in communities with other Taishanese people, it is possible to live without much Cantonese exposure at all…”
[40] Jia Wang is the interim director of the China Institute at the University of Alberta…
…She described the Chinese language as follows:
Chinese is a cluster of languages spoken by the Han Chinese majority and some ethnic minority groups. Though often referred to simply as “Chinese”, many of the spoken varieties known as “fang yan” or dialects, are mutually unintelligible…
Taishanese, spoken primarily by residents of Taishan of Canton (Guangdong) Province and those migrated from the region, is known in China as a unique dialect that is difficult for non-speakers to understand…
(e) Evidence from the Appellant and Other Witnesses
[41] As part of the fresh evidence filed, the appellant was interviewed on May 20 and 27, 2021 and cross-examined on January 24 and February 27, 2024. In his interview he said he could not understand what was being said before Ms. Chong took over the interpretation at the trial but he did not remember much as the trial was so long ago. When asked whether he could speak Cantonese, he stated: “Well I cannot speak Cantonese, sometimes I could say something they may understand but I speak Taishan.” When asked if he had friends or family that only speak Cantonese, he said: “Cantonese, sometimes something understood, and sometimes not understood.”
[42] When asked how much of the trial he understood, the appellant replied that he did not “understand any, any day because I feel like I am a bull.” He said that neither the judge nor his lawyer asked him if he could understand and he could not hear what was being said. He maintained he said he could not hear but they didn’t do anything. He told his wife he did not understand.
[43] The appellant did not tell the interpreter that he did not understand nor did he tell his lawyer. He acknowledged he had difficulty hearing.
[45] The deceased’s son, Wan Peng Mei, gave evidence at trial, part of which the respondent relies on regarding the s. 14 ground of appeal. Mr. Mei stated that he had worked at the same place as the appellant and would drive him home most days. They spoke in the car. Mr. Mei stated that the appellant sometimes spoke in Cantonese and sometimes in Taishanese. When asked about this in crossexamination, the appellant maintained he spoke with the deceased’s son in Taishanese.
[46] The appellant’s wife, Bi Lian Chen, provided an affidavit and was crossexamined as part of the fresh evidence on appeal. She only speaks Taishanese. During the first half of the trial, she noticed that the interpreter was not fluent in Taishanese. She raised the issue with her son-in-law who in turn raised the issue with their lawyer, but she asserted that nothing was done until a second interpreter who could speak Taishanese started to interpret.
(3) Applicable Legal Principles
[57] The leading case in Canada on s. 14 of the Charter is Tran. In that decision, Lamer C.J. noted at pp. 960-61 that s. 14 confers on an accused “a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court”.
[58] He also described at p. 977 the purposes served by s. 14:
First and foremost, the right 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. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society’s claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.
[59] A party must have the same opportunity to understand and be understood as if they were conversant in the language being used in the proceedings: at pp. 977-78…
…“Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others…”
[60] To establish a breach of s. 14, first it must be clear that the accused was in need of interpreter assistance – they did not understand or speak the language used in court. In this regard, courts have an independent responsibility to ensure the accused understands the language and is understood. Establishing need is not normally an onerous step unless the issue of interpretation is being raised for the first time on appeal and/or there is some question as to whether it is being raised in bad faith: Tran, at p. 979.
[61] Second, the accused must show a departure from the standard of interpretation that is required to ensure that they have the same opportunity to understand and be understood as if they were conversant in the language used in court. This standard can be helpfully defined by reference to a number of criteria, including continuity, precision, impartiality, competency, and contemporaneousness: Tran, at p. 985; Rybak, at paras. 80-81. Precision and competency, which are the principal elements engaged on this appeal, must ensure that the interpretation is of a high enough quality to ensure that justice is done and seen to be done.
[62] Third, the accused must establish that the alleged lapse in interpretation occurred in the course of the proceeding itself when a vital interest of the accused was involved – i.e., when the case was being advanced: Tran, at pp. 979-80; Rybak, at para. 86.
[63] According toTran, the question is whether there is a possibility that accused parties may not have understood a part of the proceedings by virtue of their difficulty with the language used in court: at pp. 990-91. That said, the standard of interpretation under s. 14 is not perfection. The burden of proof is on the accused and the standard of proof is balance of probabilities. [Emphasis by PJM]
[64] Chief Justice Lamer described the question to be answered at pp. 990-91 of Tran:
Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right – namely, that of linguistic understanding – should be kept in mind. In other words, 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.
[65] A court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case: Tran, at p. 994.
[67] The absence of a timely objection does not constitute a waiver of the s. 14 right. Nor is it determinative of a s. 14 claim on appeal: R. v. Mitroi, 2018 BCCA 236, 362 C.C.C. (3d) 374, at para. 31. It can, however, be a very serious consideration in determining whether the accused has satisfied the burden of proving that interpreter assistance was required and that the interpretation provided fell short of the requisite standard. This is particularly relevant in situations where the accused needs only limited assistance from the interpreter and is able to follow the court’s direction that they speak up about interpretation problems, but fails to do so: Rybak, at paras. 94-96 and 101; L.C.T., at paras. 82- 85.
[68]…As the Saskatchewan Court of Appeal noted inR. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at para. 54: “a claimant who lacks comprehension or the ability to communicate may be totally unaware of deficiencies in the interpreter assistance provided.” This is one of the challenges associated with a lack of complaint. If the accused do not understand or speak English, how are they always to know whether something has been improperly interpreted?
(4) Application of Principles
[69] Applying these principles to this case, I will first summarize the context. The accused was 70 at the time of the offence and at the time of trial 4 1/2 years later, 74 years old. 3 He was diagnosed with late onset schizophrenia…
…As evident from the trial transcript, he also had some hearing impairment. He did not testify so there was no opportunity for the trial judge to observe the interaction between him and others while on the stand. His education consists of two years of intermittent elementary school in a village in China in the 1940s and 1950s and he is illiterate. He does not speak nor understand English. As such, he was dependant on the interpreter for his trial for second degree murder.
[70] The appellant’s need for an interpreter is uncontroverted and thus the first element required to satisfy a s. 14 breach as described in Tran is readily satisfied…
…As mentioned, the challenged interpretation occurred over the course of eight days of trial during which the Crown presented its opening statement and 12 witnesses testified. This leaves the second step that the appellant must satisfy to establish a breach of s. 14 of the Charter: He must show that the interpretation at his trial fell below the constitutionally guaranteed standard.
[71] The appellant was to have a Taishanese interpreter. Although Ms. Auyang was a conditionally accredited Taishanese interpreter, based on audio recordings they reviewed, the two external interpreters contracted by MAG’s CIU to audit the interpretation conducted by Ms. Auyang, both opined that her interpretation was “100% in Cantonese”. Ms. Chong viewed the appellant’s family as friends and considered the appellant to have been wrongfully convicted. Nonetheless, her interpretation was never disputed. She reviewed excerpts of Ms. Auyang’s trial interpretation and was also of the view that it was in Cantonese, not Taishanese.
[74] The experts, Dr. Leung and Ms. Wang, and Ms. Chong all rejected Ms. Auyang’s assertion that Taishanese and Cantonese were essentially the same language with some variation of tones and accents
[76] As Tran instructed, prejudice is not required to establish a breach of s. 14 although Saini, at para. 37 suggests that the number, quality and impact of the interpretation errors are relevant. See also S.A., at paras. 26-32.
[77] The record does disclose important errors. On April 1, 2019, an issue was raised by Ms. Auyang about the microphones. She said, “He couldn’t hear anything”. After the audio equipment was adjusted, the trial judge asked the appellant whether it was working now. According to Ms. Chong, the appellant said “I cannot hear”, yet Ms. Auyang interpreted him as saying “Now I can hear. Now I can hear.” Later that same day, during the segment of the audio that Ms. Eng was asked by the CIU to evaluate, Mr. Chen said, “With the interpretation, then I can hear. At the end of the conversation I couldn’t hear it clearly. I can hear it now after it’s fixed.” but Ms. Auyang added in the English translation “[i]nterpretation was ok.”
[80]…I am satisfied that the appellant has met his onus that on a balance of probabilities his s. 14 rights were breached. Chief Justice Lamer instructed in Tran, at pp. 990-91 that “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.” This court’s decisions in S.A. and Saini have characterized this threshold as a “real possibility” of not understanding the proceedings. Given that the standard guaranteed by s. 14 is not one of perfection, in my view, this is a fair characterization. That said, on either description, the appellant has met his onus.
[84]…when I consider the whole of the record and the state of the appellant – a unilingual, non-English speaking, uneducated, unsophisticated, elderly accused who was diagnosed with late-onset schizophrenia and for whom a cognitive disorder could not be ruled out – I am persuaded that there was a real possibility that the appellant may not have understood the proceedings by virtue of his difficulty with the language used by the interpreter in court. I view this as a rather unique case. A failure to complain during the trial is not a bar to a s. 14 ground of appeal but will typically weigh very heavily against an accused. Here however, the appellant had an interpreter in his trial for second degree murder but not for the language he spoke and understood. [Emphasis by PJM]
[85] It remains to address whether, as the appellant submits, a voir dire into the qualifications of Ms. Auyang ought to have been conducted as suggested in Dutt.
[87]…a trial judge’s gatekeeping role includes being satisfied with the qualifications of the interpreter. Where there is legitimate reason to doubt the interpreter’s competence, the trial judge should conduct an inquiry into the interpreter’s qualifications: Tran, at p. 988; Rybak, at para. 83; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at para. 108.
[88] A trial judge should inquire into whether the proposed interpreter has been accredited or conditionally accredited by MAG. Neither the presence nor absence of accreditation can be considered dispositive of whether the interpretation provided is competent: Rybak, at para. 84; Singh, at para. 109. If a proposed court interpreter is not accredited or conditionally accredited by MAG, though discretionary, a trial judge should give serious consideration to conducting a voir dire. SeeR. v. Gadam, 2015 ONSC 7204, at para. 10. For lengthy and complex proceedings, it may be advisable to err on the side of caution. The greatest degree of confidence will be provided where an interpreter has been tested in both the language used in court and the language of the accused: Dutt, at para. 97. At the same time, a trial judge must always be mindful that court time be used efficiently and may consider a voir dire to be unnecessary.
[90] After the proceeding has begun, the trial judge and both counsel should remain alert to any interpretation problem that appears to arise. Some interpretation errors or lapses can be adequately cured by having the court reporter read back the relevant parts so that they can be re-interpreted: Tran, at p. 1010. The presiding judge may also offer to re-commence the hearing of an issue to cure the absence of an interpreter or any interpretation issue that has occurred: Rybak, at para. 45. At times, it may even be necessary to conduct a further inquiry into the interpreter’s competence: M.R., at paras. 34-40.
[91]…The need for a competent interpreter should be raised at the earliest opportunity so as to ensure that no difficulties subsequently arise.
[92] No voir dire was conducted into the competency of Ms. Auyang. At a minimum, it would have revealed that she was conditionally accredited and might have revealed that she was never tested in Taishanese…
[93] To close, as Lamer C.J. observed in Tran, at pp. 976-77, “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.” As I have concluded that the appellant’s s. 14 Charter right was breached, I would order a new trial. Under the circumstances, there is no need to address the remaining grounds of appeal.
DISPOSITION
[94] For these reasons, I would allow the appeal based on a breach of s. 14 of the Charter. In the circumstances, I would order a new trial.