Attorney General of Ontario v. Cosimo Reale, [1975] 2 SCR 624

Supreme Court of Canada

Attorney General of Ontario v. Cosimo Reale, [1975] 2 S.C.R. 624

Date: 1974-10-01

Attorney General of Ontario (Plaintiff) Appellant;

and

Cosimo Reale (Defendant) Respondent.

1974: June 21, 24; 1974: October 1.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Constitutional law—Civil rights—Criminal trial—Right to interpreter during Judge’s charge.

Criminal law—Trial—Refusal of right to interpreter by trial judge on basis of possible distraction of jury—Criminal Code, s. 577(1)—Canadian Bill of Rights, s. 2(g).

Respondent, whose mother tongue is Italian, was tried on a charge of non-capital murder. He was unable to follow the proceedings at the trial without the services of an interpreter and was accordingly provided with an interpreter at the start of the trial. The trial judge having invited submissions from cousel, particularly with respect to the interpretation of the addresses to the jury and his charge, indicated that he would dispense with the interpreter’s services when all the evidence was in. The trial judge did permit the addresses of the jury to be interpreted as they were delivered but ruled that with respect to his own charge there would be no interpretation at all during that charge. The Court of Appeal allowed the respondent’s appeal on the point that the accused had been deprived of his categorical right to hear the judge’s charge.

Held (Judson and de Grandpré JJ. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson and Beetz JJ.: Section 2 (g) of the Canadian Bill of Rights provides that in the absence of express alleviation by Parliament every law of Canada shall be construed so as not to “deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved…, if he does not understand or speak the language in which such proceedings are conducted”. There is no room in the present case to deny to s. 2(g) the efficacy which the language in which it is couched carries.

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Although a trial judge may be justified in refusing to allow his charge to be interpreted while he is giving it he is not relieved from giving effect to s. 2(g) of the Canadian Bill of Rights in some other way.

Per Judson and de Grandpré JJ., dissenting: The right to translation, the rule in s. 2(g) of the Canadian Bill of Rights has to be read in the light of the other rights of the accused, particularly the right to be tried by a jury properly instructed. The trial judge formed the conclusion that a danger existed that the jury would be distracted by the voice of the interpreter translating the charge as it was being read and decided that in the circumstances the right to translation should not take precedence. As neither appellate Court is familiar with the facts on which the trial judge based this conclusion his finding should be given its full weight.

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal from a conviction for non-capital murder and directing a new trial. Appeal dismissed, Judson and de Grandpré JJ. dissenting.

W.J. Parker, for the appellant.

A. Maloney, Q.C., for the respondent.

The judgment of Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson and Beetz JJ. was delivered by

THE CHIEF JUSTICE—This appeal by the Crown from an order of the Ontario Court of Appeal, directing a new trial of the accused on a charge of non-capital murder, comes here by leave of this Court on the following question of law:

Did the learned trial judge err in law in ruling that during his charge to the jury the accused should not have the services of an interpreter?

Although counsel for the respondent accused, as was his right, sought to sustain the order for a new trial on other grounds such as misdirection by the trial judge on provocation, misdirection with respect to the application of s. 212(c) of the Criminal Code, and failure to charge the

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jury that they had a duty to bring in a verdict of manslaughter if they were in any doubt as between murder and manslaughter, the Court was of the opinion, which it conveyed at the hearing, that none of these grounds was made out. The only question for consideration then is that on which leave was given to the Crown.

It is admitted that the accused needed the services of an interpreter, and one was provided who proved very capable and was able to carry out her duties without interfering with the orderly course of the trial. As directed by the trial judge, she sat in a chair adjoining the prisoner’s dock and interpreted to the accused from that position. Consideration was given by the trial judge during the trial to the function of an interpreter in a criminal trial, and submissions were invited by counsel, especially with respect to the interpretation of the addresses to the jury and the charge of the presiding judge. Although he indicated that he would dispense with the interpreter’s services when all the evidence was in, the trial judge permitted the addresses to the jury to be interpreted as they were delivered, counsel for the Crown being content to have this done. However, with respect to his own charge, the trial judge ruled that there should be no interpretation, saying that “the prime consideration is the distraction of the jury… I think there is a fair chance, certainly enough of a chance for me to decide there will be no translation at all during the charge”. And so it was. No alternative way of providing an interpretation of the charge, which lasted one hour and ten minutes, was considered. Counsel for the accused contended throughout that all the proceedings should be interpreted and objected to the trial judge’s ruling.

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On these facts, the Ontario Court of Appeal concluded that there had been a violation of s. 2(g) of the Canadian Bill of Rights in the application of s. 577(1) of the Criminal Code which, so far as material here, provides that “an accused other than a corporation shall be present in Court during the whole of his trial”. Section 2(g) of the Canadian Bill of Rights provides that every law of Canada, unless there is express alleviation by Parliament, shall be construed and applied so as not to “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”.

It is sufficient to say that I agree completely with the Ontario Court of Appeal in making s. 2(g) of the Canadian Bill of Rights the principal ground of its order for a new trial. There is, in my opinion, no room in the present case to deny to s. 2(g) the efficacy which the language in which it is couched carries. Assuming that there may be cases where the trial judge may reasonably apprehend that the jury will be distracted from attention to his charge by a concurrent interpretation to the accused and that he may thereupon be justified in refusing to allow his charge to be interpreted while he is giving it, such apprehension does not relieve the trial judge from giving effect to s. 2(g) of the Canadian Bill of Rights in some other way.

I would dismiss the appeal.

The judgment of Judson and de Grandpré JJ. was delivered by

DE GRANDPRÉ J. (dissenting)—With leave of this Court, the Crown submits the following question of law:

Did the learned Trial Judge err in law in ruling that during his charge to the jury, the accused should not have the services of an interpreter?

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Respondent was tried on a charge of non-capital murder.

The mother tongue of respondent is Italian and it is common ground that he was unable to follow the proceedings at the trial without the aid of an interpreter.

Accordingly, he was provided with the services of an interpreter at the start of the trial. This interpreter was seated beside the accused but outside the dock. At the end of the first day of trial, after emphasizing that the translation had caused no interference, the trial judge asked counsel for their views as to the extent to which translation should be used in the trial. At that stage counsel for the accused submitted that Reale should be able to follow not only the evidence but the addresses of counsel and the judge’s charge to the jury.

The trial judge expressed the preliminary opinion that understanding of the evidence was essential, but that the addresses and charge were in a different category. However, on the sixth day of the trial the judge returned to the question, and after considering the authorities submitted to him, arrived at the following conclusion:

The prime consideration is the distraction of the jury… I think that there is a fair chance, certainly enough of a chance for me to decide there will be no translation at all during the charge.

It was accordingly held that the addresses would be translated, but the charge would not be.

Then the interpreter can do that as long as there is silence during the charge.

Counsel did not raise the question again at the close of the charge, and it was not suggested that the accused should have an opportunity of knowing what the judge had said to the jury.

In the appeal of the accused to the Court of Appeal of Ontario, he raised several points, only one of which was allowed by the Court, namely that the accused had been deprived of his categorical right to hear the judge’s charge, a right

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conferred on him by both s. 577 of the Criminal Code and the Bill of Rights. The Court of Appeal set forth its reasoning in a lengthy judgment, now reported in R. v. Reale[2], which it is not necessary to summarize here.

With all due respect to those who do not share my opinion, I should say at once that I am unable to accept the conclusion of the Court of Appeal in these circumstances.

Section 577 of the Criminal Code gives the accused the right to be present at his trial from the beginning to the end. In so far as actual physical presence is concerned, it is clear that this right is of an absolute nature, except of course for the three exceptions mentioned in para. (2) of the section. To realize this we need only refer to the decision of this Court in The Queen v. Meunier[3]. Nothing can rectify physical absence, however short, again with the exception of the three cases listed in the section.

In principle, this physical presence means active presence, by which the accused is able to understand what is taking place. The case law on the point is clear, and long before the Bill of Rights, the courts recognized the necessity of translation enabling the accused to fully understand the course of events at his trial. See for example R. v. Lee Kun[4]. However, the courts have never to my knowledge held that the accused who is represented by counsel had an absolute right to follow, through the services of an interpreter, the evidence, the addresses and the charge by the judge. In the view of the judges who have dealt with this point the obligation was rather to enable the accused to have an accurate understanding of the nature of his trial and of the evidence against him.

Did s. 2(g) of the Bill of Rights alter the position as I have just summarized it, to the point of making translation an absolute rule which may not be departed from whatever the

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circumstances? In other words, does this section of the Bill of Rights set aside the three exceptions of s. 577 of the Criminal Code dealing with physical presence and the exceptions recognized by the courts concerning active presence? I think not. If we were to conclude, for example, that relying on the Bill of Rights the accused has an absolute right to be present throughout his trial, no matter how he may behave, anarchy and chaos would result.

The right to translation confirmed by the Bill of Rights and already granted by the decided cases is a right pertaining to the accused as do a number of others set out in the Code or recognized by the courts. There is no doubt that on occasion these rights may conflict with each other, and the courts must then decide which should have priority.

In the case at bar two such rights must be considered, namely, on the one hand, the right to translation, and on the other, the right of the accused to be tried by a jury which has been instructed on the law relating to the circumstances disclosed by the evidence. The latter right is just as important as the former, and the number of appeals brought by accused persons on the ground that the jury was improperly instructed on the rules applicable to the case clearly demonstrates the significance attached to it by the accused themselves. Further, this latter right would seem to be expressly recognized by ss. 2(e) and 2(f) of the Bill of Rights.

In the case at bar the trial judge, having in mind the circumstances known to him, namely, the size of the courtroom, its acoustics, the respective positions of the judge, the jury and the accused, formed the conclusion that a danger existed that the jury would be distracted by the voice of the interpreter translating the charge as it was being read. These are facts which neither the Court of Appeal nor this Court is familiar with, and as to which we must rely entirely on the trial judge. His finding on the point must therefore be given its full weight.

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It is true that the translation process had caused no problems during the presentation of evidence. It should be borne in mind, however, that the chances of being distracted during an exchange of questions and answers are less great than during a charge lasting at least an hour, during which difficult questions of law are being discussed. Furthermore, if there was any distraction during the presentation of evidence, this could easily be remedied, during testimony for example by the rewording of a question, or during the addresses. That is not the case with instructions given by a judge to the jury on questions of law.

Having to weigh against each other these two rights of the accused, the right through translation to have a full understanding of what is taking place at his trial, and the right to be judged by a jury properly instructed on the relevant points of law, the trial judge, for the reasons stated by him, came to the conclusion that in the circumstances the second right should take precedence over the first. As this Court noted in another context, in Smythe v. The Queen[5], the administration of the criminal law calls for a choice to be made, and I am not persuaded that in the case at bar the choice made by the trial judge was incorrect.

With all due respect, I feel the conclusion of the Court of Appeal of Ontario makes into an absolute requirement which admits of no exceptions the rule in s. 2(g) of the Bill of Rights, a rule which must notwithstanding be read in the light of the other rights of the accused. Ideally, every courtroom in Canada should be constructed so as to facilitate simultaneous translation without there being the slightest risk of interfering with the conduct of a trial. So long as that ideal situation does not exist, it must be recognized that the rule in 2(g), though very important, is somewhat relative when other rules, which are just as important, conflict with it.

For these reasons I would allow the appeal and reinstate the conviction.

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Appeal dismissed, JUDSON and DE GRANDPRÉ JJ. dissenting.

Solicitor for the appellant: The Attorney General for Ontario.

Solicitor for the respondent: Arthur Moloney, Toronto.