IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Luu v. Wang, |
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2011 BCSC 1201 |
Date: 20110824
Docket: S105186
Registry: Vancouver
Between:
Derrick Luu
Plaintiff
And:
Xianping Wang
Defendant
Before: The Honourable Mr. Justice Burnyeat
Reasons for Judgment
In Chambers
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Counsel for the Plaintiff: |
K.M. Wellburn |
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Counsel for the Defendant: |
A.M. Nathanson |
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Date and Place of Hearing: |
August 24,
2011 |
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Date and Place of Judgment: |
August 24,
2011 |
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[1] This application deals with an order made for substituted service. The Order allowed the Plaintiff to serve the Defendant by posting a copy of the claim on the door of a residence owned by the Defendant and the wife or ex-wife of the Defendant and by serving an adult person at that address. The Order was granted on the basis that a process server believed that, when he attended at the address, he recognized a person as the Defendant but that the person was not prepared to accept service. On that basis, the Order for substituted service was granted.
[2] The issue which has arisen is an August 10, 2011 affidavit sworn by Songbai Zou, who is or was the father-in-law of the Defendant and who is the father of the wife or ex-wife of the Defendant. He states in his affidavit that he was the person who was at the address, he met with the process server, he did not understand English, he was shown a piece of paper, he saw the name of the Defendant on the document held by the process server, he stated in Mandarin that he was not the Defendant, and that he then closed the door.
[3] Attached to the Affidavit of Songbai Zou is an endorsement of an interpreter. The interpreter is the wife or ex-wife of the Defendant and the daughter of Songbai Zou. In the format which is provided under Form 109, the interpreter states that she has knowledge of the English and Mandarin languages, she is competent to interpret from one to the other, she interpreted the document for her father, and her father understood the contents of the affidavit that he was swearing.
[4] Rule 22‑2(7) does not provide the Court with any assistance in ascertaining the qualifications of a translator. Rather, the Rule states only:
If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit. [emphasis added]
[5] Form 109 then sets out the following:
“ENDORSEMENT OF INTERPRETER”:
1. I have knowledge of the English and _____________ languages and I am competent to interpret from one to the other.
2. I am advised by the person swearing or affirming the affidavit and believe that the person swearing or affirming the affidavit understands the _____________ language.
Before the affidavit on which this endorsement appears was made by the person swearing or affirming the affidavit, I correctly interpreted for the person swearing or affirming the affidavit from the English language into the _____________ language, and the person swearing or affirming the affidavit appeared to fully understand the contents.
[6] The requirements set by the Legislature do not include a requirement for any inquiry into the competency of an interpreter. Rather, the Rule merely requires the interpreter to “certify” that they have knowledge of the two languages, that they are “competent to interpret from one to the other” and that they have correctly interpreted it for the person swearing or affirming the affidavit.
[7] The independence of and the ability of the interpreter to provide an accurate interpretation has been questioned by the Plaintiff who wishes to keep the substituted service Order in place and not subject to attack. On the other hand, the Defendant wishes to cast doubt on the affidavit of the process server that has been filed in order to be in a position to apply to set aside the Order.
[8] Section 14 of the Charter guarantees the right to interpretation and, although the Constitution does not set out the minimum standard of interpretation, it is clear that a translation must be impartial, objective and unbiased: R. v. Tran, [1994] 2 S.C.R. 951. Justice Hill in R. v. Sidhu (2005) 203 C.C.C. (3d) 17 (Ont. Sup. C.J.) summarized the principles set out in Tran as follows:
The “Tran” criteria may be summarized as follows: ...
(3) Impartial interpretation requires “that interpretation, particularly in a criminal context, should be objective and unbiased” (p. 248).
(4) There is “a right to competent interpretation” although there exist “no universally acceptable standards for assessing competency”. Swearing of the interpreter’s oath and judicial inquiry into interpreter qualifications facilitate this aspect of the s. 14 Charter right (pp. 248-9).
The “constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited”: The Queen v. Tran, supra, at p. 250. That said, the standard that must be met in interpretation is not “perfection”: The Queen v. Tran, supra, at pp. 247-8; R. v. R.(A.L.) (2000), 141 C.C.C. (3d) 151 (Man. C.A.), at p. 156. In all American courts, the “right to an interpreter means a right to a competent interpreter”: State v. Teshome, 94 P. 3d 1004, 1007 (Wash. C.A. 2004).
(at paras. 282-283)
[9] In Tran, Lamer C.J., on behalf of the Court, stated:
It also stands to reason that interpretation, particularly in a criminal context, should be objective and unbiased: see, e.g., Unterreiner, [Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373], Tabrizi, [R. v. Tabrizi, [1992] O.J. No. 1383], and Morel, [Morel, André. “Certain Guarantees of Criminal Procedure”. In Gérald-A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed. Toronto: Carswell, 1989, 497], at pp. 535-36. As Steele suggests, at pp. 238-39:
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.
...
To meet the standard of protection guaranteed by s. 14 of the Charter, interpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an accused has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency, a point stressed by Steele [Steele, Graham J. “Court Interpreters in Canadian Criminal Law” (1992), 34 Crim. L.Q. 218] at p. 238, an interpreter must at least be sworn by taking the interpreter’s oath before beginning to interpret the proceedings: see, e.g., R. v. L.L., [1986] O.J. No. 1954 (Ont. Dist. Ct.), and Petrovic, [R. v. Petrovic (1984), 13 C.C.C. (3d) 416], at p. 423. Where there is a legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter’s qualifications.
(at paras. 61-62)
[10] I am satisfied that the standards set out in Tran apply not only to criminal proceedings but also to civil proceedings. At para. 73 in Tran, Lamer C.J. stated that the right under s. 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”. In this regard, see also McMeekin v. Northwest Territories (Department of Education, Culture and Employment) (2010), 209 C.R.R. (2d) 243 (N.T.S.C.).
[11] The certification required by Rule 22‑2(7) combined with Form 109 gives absolutely no assistance to the Court in the determination of whether an interpreter is competent, objective and unbiased. The qualifications of the interpreter need not be set out. There is no requirement that the interpreter state that he or she is not a relative, friend or a person closely connected to the events giving rise to the proceedings. The certification is not under oath. This is to be contrasted with the oath or affirmation sworn to by an interpreter at in-court proceedings:
Do you swear that you shall well and truly interpret/translate the evidence/proceedings from the English language to the _____________ language, and from the _____________ language to the English language, to the best of your skill and understanding, so help you God?
[12] In my opinion, Rule 22-2(7) and Form 109 are singularly unhelpful in dealing with the questions raised by the application to set aside the Order for substituted service which was granted.
[13] Under Rule 22‑2(7) and Form 109, the Legislature has established what must be certified by an interpreter. Ordinarily, that would be determinative of the issue. However, I am satisfied that the inherent jurisdiction of the Court to control its process creates the necessary jurisdiction which allows me to look beyond what has been certified even though the Legislature has not included provisions which could be called upon to judge whether an interpretation has met the constitutionally guaranteed high standard. The Court is entitled to unbiased and accurate interpretation. The parties are entitled to the same.
[14] Where, like under Rule 22‑2(7), an interpreter need not be sworn, need not set out his or her qualifications, and need not set out any connection to the parties or the proceedings, it would be good practice for an interpreter to set out those things so that the Court can make an independent assessment of whether it is possible to rely on the interpretation which has been undertaken.
[15] Where, like here, a reasonable doubt has been raised about the interpretation, the Court is in a position to conduct an inquiry into the qualifications of the interpreter or to set into motion a new interpretation which complies with the qualifications that should be expected of all interpreters.
[16] Here, there are legitimate reasons to doubt the objectivity of the interpreter. In the circumstances, I am satisfied that the Plaintiff has raised sufficient doubt regarding the competency and neutrality of the interpreter that it is appropriate to require a new affidavit from Songbai Zou.
[17] There will be an affidavit prepared in the Mandarin language. That affidavit will set out the same content as the August 11, 2011 affidavit of Songbai Zou. The new affidavit will be endorsed by an interpreter other than his daughter, Bin Zou. The new interpreter must be one who is a certified interpreter.
_________ “Burnyeat J.”___________
Mr. Justice Burnyeat