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Court File No CV-07-03708-CP ONTARIO SUPERIOR COURT OF JUSTICE

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                                            Court File No. CV-07-03 708-CP

                         ONTARIO
                 SUPERIOR COURT OF JUSTICE

BETWEEN:

                          AVTAR SIDHU

                                                                  Plaintiff
                               -   and-

  HER MAJESTY THE QUEEN, IN RIGHT OF THE GOVERNMENT OF
              ONTARIO, AS REPRESENTED BY THE
            MINISTRY OF THE ATTORNEY GENERAL

                                                                Defendant

           Proceeding under the Class Proceeding Act, 1992

             AMENDED STATEMENT OF CLAIM

           Notice of Action Issued on November 16, 2007
                                         -2-

                                        CLAIM

Prayerfor Relief

      The plaintiff and the class members claim:

      (a)   an Order pursuant to the Class Proceedings Act, S.O. 1992, c. 6, certifying
            this proceeding as a class proceeding and appointing Avtar Sidhu as
            representative plaintiff;



      (b)   a Declaration that the defendant has breached the section 7 and 14

            Charter Rights of the plaintiff and class members;



      (c)   an Order requiring the defendant to comply with its obligations under

            sections 7 and 14 of the Charter;



      (d)   an Order requiring the defendant to re-test all court interpreters using an

            appropriate test based on proper standards and to provide the testing

            results to class members;



      (e)   damages for breach of sections 7 and 14 Charter Rights in the amount of

            $30,000,000.00;
                                           --5-



       (f)    damages pursuant to the Family LaivAct, R.S.O. 1990, c.F.3, in the amount

              of S5,000,000.00;




       (g)    class wide aggravated and exeniplarv damages in the amount of

              $10,000,000.00;




       (h)    class wide punitive damages in the amount of $10,000,000.00;




       (i)    pre-judgment interest pursuant to the provisions of the courts qffusticeAct,

              R.S.O. 1990, c. 43, as amended;




      (j)     costs and applicable GST on a substantial indemnity basis; and,




      (k)     such further and other relief as this Honourable Court shall deem just.




The Parties



2.    The plaintiff, Avtar Sidhu (Sidhu), is an individual who resides in the City of

Mississauga, in the Province of Ontario.
                                            -4-
3.    The defendant is Her Majesty The Qpeen, in right of the Government of Ontario,

as represented by the Ministry of the Attorney General (the Ministry). At all material

times, the Ministry was charged with the duty and obligation of providing defendants,

including the plaintiff and the class members, with competent translators in accordance

withtheirsection7and l4Charterright&



4.    The class members are all defendants who attended hearings or trials before a

Court in Ontario with an interpreter who was not competent to provide translation

services, or who may not have been competent to provide translation services as

described in this statement of claim and the family members of such defendants who are

endUed to damages pursuant to the Famifr Law Ace, R.S.O. 1990, cF.3.



The Charter Rjghts to Competent Inteipretation



5.    Section 14 of the Charter provides:

      “A party or a 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.”
                                             -5-

6.    The Ministry is responsible for the provision of translators for defendants in

criminal proceedings.



7.    The right to the assistance of an interpreter constitutes a fundamental right

recognized at common law, now protected by section 14 of the Charter; the right to a

fair trial including the ability to make full answer and defence. A competent translation

is fundamental to a full and fair hearing.



8.     Section 27 of the Charter mandates that the Charter be interpreted in a manner

consistent with the preservation and enhancement of the multicultural heritage of

Canadians.



9.    Implicated in the constitutional guarantee of the assistance of an interpreter are

a number of significant factors inherent in real and substantive access to justice:



      (a)    Denial of interpreter assistance constructively denies the defendant’s

             constitutional, statutory and common law right to be present in every

             respect at his or her trial and to understand and answer the case to meet

             and to comprehend all proceedings which affect his or her vital interests.
                                     -6-

(b)   For a hearing to be fair, a party who does not understand the language of

      the proceeding must himself or herself be understood.




(c)   Exclusion of the accused in whole or in part from a criminal proceeding on

      account of non-compliance with the full protection of s. 14 of the Charter

      compromises the appearance of fairness of the proceedings leaving the

      accused with a justifiable sense of injustice and diminishing respect for the

      administration of justice.




(d)   An accused, denied the assistance of the standard of interpretation

      necessary for a fair trial, can scarcely be said to stand on the same footing

      or in an equal position with respect to the application of the criminal law

      as others who are subject to its process.




(e)   Denial of competent assistance of an interpreter affects the integrity of the

      fact-finding process, and the potency of the adversary system.




(f)   Interpreter assistance provides a defendant sufficient ability to consult with

      his or her lawyer with a reasonable degree of rational understanding.
                                            -7-

       (g)    Section 1 4 Charter adherence gives the ability to testify in a responsive

              manner going to the very fairness of the trial.




Coinpeten t Interpretation



10.    Section 14 of the Charter guarantees the right to interpreter assistance without

qualification. Basic fairness requires that the objective be linguistic understanding of the

proceedings. The level of understanding will necessarily be high.




11.    The basic standard requires that the interpretation include an acceptable level of

continuity, precision, impartiality, competency and contemporaneousness; a significant

deficiency or material departure in any of these features in the course of proceedings

advancing the case or affecting a vital interest of the accused, without any need for

prejudice assessment, threatens violation of the s. 14 Charter right.




12.   The criteria   may   be summarized as follows:




      (a)    Continuous interpretation contemplates that gaps or breaks are not to be

             encouraged or allowed.
                                            4-
       (b)    Precision requires the interpretation must be, as dose as can be,

              word-for-word and idea-for-idea not simply summaries.



       (c)    Impartial interpretation requires that interpretation, particularly in a

              criminal context, should be objective and unbiased.



       (d)    Contemporaneous interpretation is essential.



       (e)    Word for word translation of everything an English-speaking defendant

             would be privy to hear is the general standard for court interpretation.



13.   A court interpreter is an officer of the court.



14.    Court interpretation requires substantial familiarity with the legal system.



15.   The criteria described above in paragraphs 10 through 14 shall be referred to as

“competent” interpretation in this claim. An interpreter displaying these criteria shall be

referred to as a “competent” interpreter in this claim.
                                          -9-

16.    “Incompetent” interpretation shall mean any interpretation failing to meet one

or more of the criteria set out in paragraphs 10 through 1 4. An interpreter failing to

meet one or more of these criteria shall be referred to as an “incompetent” interpreter

in this claim.




Ministry’s Duçy to Provide a Competent Interpreter



1 7.   The right to the assistance of an interpreter constitutes a fundamental right

already recognized at common law and protected by section 14 of the Charter.




18.    A multicultural society can only be preserved and fostered if those who speak

languages other than English and French are given full access to the justice system.




19.    Complementing the section 14 Charter right is the constitutional mandate in

section 27 of the Charter which mandates that the Charter be interpreted in a manner

consistent with the preservation and enhancement of the multicultural heritage of

Canadians.




20.    Section 14 of the Charter guarantees the right to interpreter assistance without

qualification.
                                             -10-



2 1.   The underlying principle protected by section 14 is that of linguistic

understanding and the level of understanding protected is high. A criminal defendant is

entitled to understand the precise nature of the testimony against him or her.




22.    A defendant in a criminal proceeding is denied due process when the accuracy and

scope of a translation at a hearing or trial is subject to doubt. 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 non-compliance with the minimally guaranteed standard

inherent in the s. 14 Charter right.




23.    Where effective translation of the proceedings by a competent and impartial

interpreter is denied, there is a serious possibility of grave injustice.




24.    Interpreters are provided to non-English speakers to secure their rights in legal

proceedings. The standard for competence relates to whether the rights of non-English

speakers are protected.




25.    As part of their control over their own proceedings, courts have an independent

responsibility to ensure that those who are not conversant in the language being used in
                                             —Il—
court understand and are understood. Because a court interpreter is an officer of the

court, the presiding justice, on the inherent authority to control the court’s processes,

and the statutory authority of s. 78 of the Courts of Justice Act, determines whether the

proffered interpreter will be permitted to act in the proceeding.



26.   There is a constitutional right to a competent interpreter. Accordingly, the

essential issue is not whether the court interpreter has been formally trained but whether

the interpreter is qualified to profidently discharge the duties of providing continuous,

predse, impartial, competent and contemporaneous interpretation. Where the court is

presented with a Ministry accredited interpreter, the court and the defendant presume

the interpreter qualified having met the objectively set external standards of a

presumptively valid certification process.



27.   In Ontario the Ministry ofthe Attorney General Court Services Division has been

assigned the trust that the constitutionally guaranteed standard of court interpretation

will be achieved through the court interpreters it provides to courtrooms.



28.   The Ministry of the Attorney General Freelance Court Interpreter’s Handbook,

February, 1995 (the Handbook) states as a Rule of Professional Conduct that:
                                          -12-

      “Court interpreters shall faithfully and accurately reproduce in the target

      language the closest natural equivalent of the source language message,

      primarily in terms of meaning, and secondly in terms of style, without

      embellishment, omission or explanation”.




29.   The Handbook also states:




      (1) “[The] Charter of Rights and Freedoms guarantees the                         right to the

      services of an interpreter for a party or a   witness   . . .   --    ‘you are offering

      more than a service, you are ensuring that a Charter right is not violated”.




      (2) “[You] must follow standard procedures and strive to maintain a high

      level of competence and professionalism”.




      (3) ‘vVith consecutive interpretation, “accuracy is essential; a summary or

      approximation is not good enough”   --   “It is essential for the judge and jury

      to receive as accurate an interpretation as possible                 ...“   --   “you must

      interpret exactly what is said, nothing more, nothing less”.
                                         —I   —




      (4) Whispered simultaneous interpretation, i.e. “sitting beside the accused”

      and interpreting for him or her alone       --   “accuracy is of the utmost

      importance when providing whispered interpretation”.



Ministly ‘s Breach of the Duty to Provide a competent Interpreter




30.   The plaintiff and the class members plead that the Ministry has failed to provide

competent interpreters to the plaintiff and the class members. The Ministry has provided

interpreters who are not competent, or who may not be competent to the class members.

The Ministry has failed to take reasonable steps to determine, test and maintain the

competency of interpreters provided to the class members. In particular:




       (a)   The Ministry provides no, or inadequate training to interpreters;

       (b)   The Ministry accreditation test is inadequate to determine competency of

             interpreters;

       (c)   As a result, some interpreters are accredited by the Ministry who are not

             competent;

       (d)   The Ministry does not monitor or provide ongoing training for interpreters;

       (e)   The Ministry uses unaccredited interpreters;
                                          -14-

       (f)    The Ministry fails to advise the court, counsel or class members when

              unaccredited interpreters are used in a hearing;

       (g)   The Ministry continued to use incompetent, accredited interpreters when

              it knew or ought to have known they were not competent;


       (h)    The Ministry ignored or failed to heed complaints about interpreters,

              training, monitoring and procedures raised by Inquiries, judges, crowns and

              counsel;

       (i)    The Ministry ignored or failed to heed warnings and complaints about

              interpreters, training, monitoring and procedures raised by Ministry staff.




       (a)    The Ministiy Provides No Training to Interpreters




3 1.   There is minimal testing and effectively an absence of training requirements for

accredited interpreters.




32.    The Ministry has neglected or failed to provide specialized interpreter training.




33.    The Ministry has neglected or failed to provide sufficient funds and instructors

to provide training.
                                                -15-

       (b)    The Ministiy Accreditation Test Is Inadequate




34.    The provincial accreditation test is not functionally adequate. It grants

accreditation to an interpreter who achieves 7         Out   of 10      in   a test. The accreditation

process is deficient in that:

       (a)    The staff administering the test is not trained respecting the administration

              of court interpreter certification tests.

       (b)    For approximately half the languages interpreted                  in   the Ontario courts,

              there are   no    proficiency tests beyond      an     English vocabulary test. No

              attempt is made to evaluate the candidates fluency in the second language.

       (c)    For languages with the two-language accreditation tests, although the

              courts, and the Manual, require simultaneous interpretation the test

              contains no simultaneous interpretation component. No training is

              provided    in   such interpretation.

       (d)    The individual administering the test speaks oniy English and French. For

              audio-taped             of the accreditation test    in   other languages, there is no

              evaluation. The tapes are not sent        out   to be audited by speakers of the

              non-English language.

       (e)    For a number of languages, the accreditation test does not require the

              ability to read    in   the second language other than English.
                                    -16-

(f)   The accreditation test is designed to test a low level of ability in the second

      language. The test is not sufficient to determine competency, as required

      to meet the Ministry’s Charter obligation.

(g)   Legal terminology is not tested and, except in three languages, there is no

      legal lexicon available.

(h)   The test and follow-up workshop provide no skills-based training or

      practice of court interpreting.

(i)   The accreditation test has not been made any more difficult out of a

      concern that a higher failure rate would result.

(j)   The court interpretation certification test has been maintained at a level

      falling short of a reasonably structured competency test out of cost

      concerns or simply in order to turn out a certain quota of interpreters

      labelled “accredited”.

(k)   the Ontario interpreter training process of a few hours’ duration is

      inadequate to provide competent interpreters.

(1)   The provincial testing system accredited interpreters who are not

      competent.

(m)   In spite of increasing numbers of complaints about interpreter

      performance, the Ministry has taken no, or inadequate steps to determine

      or address systemic testing/training deficits.
                                             -17-
       (n)   There is an absence of probationary monitoring of newly accredited court

              interpreters, no re-certification regime nor continuing education

              requirements.



35.    The Ontario interpreter accreditation test, undefined In legislative standards, is

a short and simplistic test.



36.    Where the court is presented with an accredited interpreter, the interpreter is

presumptively qualified having met the objectively set external standards of a

presumptively valid certification process.



37.    The purpose of using certified interpreters is to insure the quality of

interpretations.   Implidt in the qualification requirement is the notion that the

interpreter should be competent to render accurate translations.



38.   A criminal defendant has the right to a qualified interpreter who will render

accurate translations.



39.    Most counsel, judges and defendants act under the belief that court-provided

interpreters are competent.
                                          -18-



40.   There exists no systemic testing of the competency of court-room interpretation.



      (c)    Some Minktiy Accndited Inteipreters Are Not Competent



41.   The courts have no systematic means of recognizing poor interpretation. The

language test and the accompanying seminar or workshop fail to establish that an

interpreter is competent resulting in interpreters who are not competent or who may not

be competent being presented to the court and the defendant as an “accredited”

interpreter. The deficiendes in the accreditation process include:



      (a)    The individual who administers the test has no training respecting the

             administration of court interpreter certification tests.



      (b)    For approximately half the languages interpreted in the Ontario courts,

             there are no profldency tests beyond an English vocabulary test. No

             attempt is made to evaluate the candidate’s fluency in the second language.
                                   -19-
(c)   For languages with the two-language accreditation tests, although the

      courts, and the Manual, require simultaneous interpretation the test

      contains no simultaneous interpretation component.



(d)   For audio-taped parts of the accreditation test in other languages, there is

      no evaluation. The tapes are not sent out to be audited by speakers of the

      non-English language.



(e)   For a number of languages, the accreditation test does not require the

      ability to read in the second language other than English.



(f)   The accreditation test is little more than an aptitude test of sorts.



(g)   Legal terminology is not tested and, except in three languages, there is no

      legal lexicon available.



(h)   The SAT and follow-up workshop provide no skills-based training or

      practice of court interpreting.
                                            -20-

42.   The Ontario interpreter accreditation test does not ensure that accredited

interpreters are competent, as required for protection of the Charter right.




       (d)    The Ministry Does Not Monitor Interpreters




43.    There exists no systemic testing of the competency of court-room interpretation.




44.    There is an absence of probationary monitoring of newly accredited court

interpreters, no re- certification regime nor continuing education requirements.




45.    Even where the Ministry has been made aware of mistrials caused by incompetent

interpretation, or received complaints or concerns over the competency of an interpreter,

the Ministry has failed to monitor the potentially incompetent interpreter.




       (E,)   The Ministry Uses Unaccredited Interpreters




46.    Paragraph 2.1 of the Ministry Court Interpretation Services Manual (as amended

to April 2004) (the Manual) states that the “Court Services Division provides

interpretation services using accredited court interpreters, except in situations described

in section 2.3.1. Paragraph 2.2 provides:
                                          -21-



      “Accredited interpreters are listed in Court Services Division’s Registry of

      Accredited Freelance Court Interpreters. Coordinators must use the

      Registry when booking interpreters for court. The Registry is updated

      regularly and available electronically to every court in the province.”



47.   Paragraph 2.3.1 read, until amendment in October of 2004:



      “Unaccredited interpreters may only be used in situations of extreme

      urgency and only for certain procedures.”




      “A coordinator who has exhausted all means to find an accredited

      interpreter may use an unaccredited interpreter for the following types of

      proceedings:

                Bailcourt

                Setting of an adjournment

            *   Setting of a trial date
                                           -22-
48.    The October amendment broadened the permissible use of unaccredited

interpreters in exigent circumstances to include any type of criminal proceeding

including trials:



       “Unaccredited interpreters may be used only in situations of extreme

       urgency”.



49.    Unaccredited interpreters are not monitored by the Ministry in any way.



50.    The unaccredited interpreters used by the Ministry have not been tested nor have

they been provided any training by the Ministry.



51.    Hearings involving unaccredited interpreters create a real risk of incompetent

interpretation and a miscarriage of justice.



52.    Pan. 2.3.1 of the Manual reads:



       “A coordinator regularly experiencing a shortage of accredited interpreters

       should notify the staff interpreter/translator in their region to arrange for

       further recruiting and testing.”
                                           -23-

53.   The Ministry uses unaccredited interpreters for hearings throughout the province

in situations which are not drcwnstances of extreme urgency.



54.    The Ministry was fully aware that it was using interpreters not only unaccredited

by the Ministry but also individuals who had failed the SAT accreditation process.



55.    Paragraph 2.3.1 of the Manual obliges a Coordinator, before turning to

unaccredited interpreter assistance, to record efforts to acquire an accredited interpreter:



       “Coordinators should first exhaust the list of local interpreters in the

       Restry who could reasonably be expected to make it to court at the time

       required. The effort to reach an accredited interpreter must be carefully

       documented.”



The Ministry failed to exhaust the list of local interpreters and further, failed to

document its efforts before providing unaccredited interpreters to dass members.



56.    The Ministry used unaccredited interpreters for:

       (a)    trials;

       (b)    Ontario Court of Justice and Superior Court of Justice assignment court;
                                          -24-

      (c)    contested bail hearings and consent releases;

      (d)    guilty plea and sentendng proceedings at both levels of court.



57.    The use of unaccredited interpreters for guilty pleas and trials happened at a time

when the Ministry’s policy on the use of unaccredited interpreters allowed for their use

only in bail court and on set-date proceedings.



58.   The purpose of using certified interpreters is to insure the quality of

interpretations.   Implicit in the qualification requirement is the notion that the

interpreter should be competent to render accurate translations.



59.   The Court Services Division of the Ministry is obliged to solidt the services of an

accredited interpreter and, only in circumstances of extreme urgency, may the

government seek to provide an unaccredited interpreter.



      0      The MInistRy Does Not Advise of the Use of Unaccredited Inteqreten



60.   Paragraph 2.3.1 of the original and revised Manual directed that:
                                          -25-

      “If an accredited interpreter cannot be found in time for a court date, the

      coordinator should seek assistance from the staff translator/interpreter and

      notify the judge, the Crown and defence counsel of the situation.”



61.   The Ministry failed to follow this mandatoxy policy and failed to inform the

Ontario Court of Justice Local Administrative Justice or Local Mmirdstrative Justice of

the Peace, class members or anyone else in courtrooms in which unaccredited

interpreters appeared of the presence of such an interpreter.



62.   The judidaiy, the Crown AttorneJs Office, the defence bar and class members are

all dependant on the Interpreter Coordinator’s Office to supply accredited interpreters

for court matters.



63.   Where the court accepts, after inquiry, the assistance of an unaccredited court

interpreter, the court may order only consecutive interpretation and entertain an

application for the opportunity to seek a corollary order for taperecording if the class

members were not aware, as the court was not aware, that the Ministry was providing

an unaccredited interpreter neither would have the opportunity to ask for electronic

monitoring or anything else, to check on this interpretations, and so that any corrections

could be made for the record.
                                          -26-



64.   Recording the interpretation would also enable routine testing of the quality of

the interpreters work. This would enable the accused, where appropriate, to demonstrate

interpreter inaccuracy on appeal.




65.   Regularly scheduling unaccredited and untested interpreters, the Ministry

routinely failed to notify the presiding justice, counsel and the class members of their

status as well. The routine non-disclosure of interpreters unaccredited status has

deprived the courts and the class members of the opportunity to you            dire the

qualifications of interpreters to participate in the proceedings. Acting under the

misconception that accredited interpreters were appearing, the class members were

denied the critical step of determining whether an unaccredited interpreter was

competent.




66.   The Court Services Division of the Ministry, overseeing the Interpreter

Coordinator function knew or ought to have been known of the widespread

non-coinpliance with Ministry policy.
                                          -27-

6.     Where there is a legitimate reason to doubt the competency of a particular

interpreter, a court would be well advised to conduct an inquiry into the interpreter’s

qualifications.




68.    Judges, counsel and class members have justifiably assumed that competent,

accredited interpreters were placed in Ontario’s criminal courtrooms.




69.    The Ministry, on occasion scheduled unaccredited interpreters into courtrooms

before they became accredited. It has also used unaccredited interpreters in the criminal

courts who have failed the accreditation test one or more times.




70.    By having failed an accreditation test, an interpreter would be presumptively

incompetent. Failing the Ontario test, would seem to provide a guarantee of

incompetence.




7 1.   It was not for the Ministry Coordinator and staff to conclusively determine the

competence of interpreters unaccredited bvthe Ministry without disclosure to the court

and the parties that such individuals were being used in the courts.
                                             -28-

       (g)    The Minithy Used Incompetent Accredited Interpreters



72.    Where there is a complaint about court interpretation performance, followed by

an independent evaluation confinning a skills deficit, accreditation re-testing is

appropriate. The interpreter in question should be withdrawn from court immediately

pending re-testing.



73.    The Manual, paragraph 6.l,provides: “Coordinators should refer all concerns or

complaints about an interpreter’s skills to the staff interpreter/translator in their region”.



74.    The Ministry had knowledge of prior instances of mistrials and complaints

respecting the competence of interpreters, yet took no steps to took no preventative

steps to have the interpreters retested or removed from court. The Ministry did not even

speak to the interpreters about the mistrials.



       (h)    The Ministry Ignored or Failed to Heed Complaints



75.    Complaints about interpreter performance have increased across the Province. The

Ministry failed to audit or investigate the complaints to determine whether a pattern
                                           -29-

exists suggesting systemic testing/training deficits, or whether a miscarriage of justice or

breach of a dass member’s Charter rights had occurred.



       (I)    The Ministry Ignored or Failed to Heed Warnings Raised by Its Staff



76.    Staff employed by the Ministry raised concerns over the competence of

interpreters and breaches of the protocols required by the Handbook and Ministry The  .




Ministry failed to investigate the complaints to determine whether a pattern exists

suggesting systemic breach of the protocols required by the Handbook and Ministry, or

whether a miscarriage of justice or breach of a dass member’s Charter rights had

occurred.



The Representative Plaintiff



77.    Mr. Sidhu is married and has two children. He was gainfully employed and had

no criminal record prior to September 5, 2001.



78.    On or about September 5,2001, Mr. Sidhu was charged with three counts of

assault causing bodily harm and a single count of assault, all alleged to have occurred on

August 19, 2001.
                                          -30-



79.   Mr. Sidhu was released on a promise to appear as well as an undertaking to a

peace officer on August 19,2001.



80.   At Mr. SidhuYs first appearance before the Ontario Court of Justice (OCJ) on

September 24, 2001, he appeared self-represented. His noticeable language difficulties

led the court to question him as to his language of preference, however, no Punjabi

interpreter was paged to assist Mr. Sidhu. He expressed his wish for a Punjabi-speaking

interpreter at his next court appearance. Mr. Sidhu indicated to the court that he would

be retaining a lawer.



81.   On his next appearance, October 15,2001, Mr. Sidhu appeared with a letter from

his counsel, Mr. Bhangal, indicating he was retained and requesting a remand to

November 1. Although, on September 24, Mr. Sidhu specifically asked for

Punjabi/English interpretive assistance at his next court appearance, no interpreter was

provided.



82.   On December 18,2001, the case was pre-tried before Hawke J.
                                          -31-
83.   On February 13, 2002, Rosemav J. concluded a further pre-trial. The case was

remanded to February 18.



84.   On February 18, 2002, Blacklock J. remanded the case to September 19 to be

spoken to for the purpose of confirming a trial date and fIxed the trial dates of October

30 and November 12.



85.   On September 19, 2002, counsel for Mr. Sidhu confirmed readiness for trial on

October 30 and November 12. Mr. Bhangal confirmed that his client would require a

Punjabi-speaking interpreter for trial.



      (I)    Dhirc Intapretation at Sidhts Trial



86.   On the first day of trial, October 30,2002, Mr. Ravi Dhir was the interpreter

assigned by the Ministry.



87.   Mr. Sidhu pleaded not guilty to all charges.



88.   On approximately 20 occasions during the day’s proceedings the interpreter

intervened at times saying he could not hear a witness or to complain that a witness was
A




                                              -32-

    speaking too quickly. On other occasions, it seemed Mr. Dhir may not have understood

    a witness’ testimony.



    89.      On November 12, a third complainant, P. Sohi, testified. About one and a half

    hours of evidence was heard with about nine interventions by the interpreter who

    seemed, at times, unable to hear the prosecutor’s questions.



    90.      On November 26, 2002, in a chambers application, the Crown and Mr. Sidhu’s

    counsel obtained an order from Kastner J. requiring the Court Services Division to copy

    and release a copy of the audio-recording of the November 12 trial proceedings in it v.

    Sidhu.



    91.      On December 2, 2002, at the commencement of court, an interpreter was

    affirmed to interpret to and from the Punjabi language.



    92.      Counsel infonned Kastner J. that, after the November 12 court day concluded,

    the Crown raised with defence counsel her concerns regarding Mr. DhWs interpretation

    of some of the answers of her witness, Sohi.
                                          -ii-


93.   The Crown informed Kastner 1. that the Peel Crown Attorney’s office wished to

retain a Punjabi-speaking individual to independently examine the copy of the released

tape of the proceedings to report to the court as to the accuracy of the interpretation

provided on November 1 2. Depending on the conclusions from the review, the Crown

might agree to a mistrial being declared. Kastner J. granted an adjournment to allow the

recording of the translation to be transcribed.




94.   The interpreter, a certified Punjabi/English court interpreter and author of the

interpretation review report, noted at the outset of the re-interpretation document that:




        Interpreter [Mr. Dhir] has repeatedly used the word Henh--? It means

      either he has not understood the question or has not heard it properly.”




On November 12, 2002, the interpreter said “Henh?” to the witness, Sohi, on

twenty-seven occasions in a thirty-six-page transcript. The reviewer reported the

interpreter at times leading the witness as well as incomplete and inaccurate

interpretations throughout the one to one and a half hour proceeding.




95.   The inaccurate translations variously involved adding or dropping words asked by

the questioner or with respect to the Punjabi-speaking witness’ answers. The reviewer
                                            -34-

noted that at times very different questions were translated into the Punjabi language

and materially different responses reported back to the court when a Punjabi-spoken

answer was translated.



96.      Mr. Sidhu’s counsel renewed his mistrial application based on his reading of the

interpretation review report. The prosecution consented to a mistrial order. Kastner J.

filed:



         “I’m in agreement with both counsel that there are substantial and

         fundamental differences between the interpretation of what the witness

         was saying and the independent Punjabi translation of what the witness

         was saying and these are on material issues in terms of the sequence of the

         events. Under the circumstances it is appropriate that a mistrial be

         dedared.”



         (ii)   Dhirc Intnpretation in Other Pnceedlngs



97.      Mr. Dhir has been interpreting in criminal courts since the 1970s. In Toronto, in

1987, Mr. Dhir was accredited by the Ontario Ministry of the Attorney General as a

Punjabi/English court interpreter. At the end of 1998, Mr. Dhir was offered a contract
                                         -35-

position as a court interpreter. This was a union position. Mr. Dhir became a fuli-time

or staff employee of the Ministry of the Attorney General in December of 2003.



98.   The Ministry was repeatedly informed of deficiencies and concerns over the

interpretation being provided by Dhir. In particular:



      (a)    In or about the spring of 1999, the Ministrywas informed by staff in the

             Victim Witness Assistance Program that Mr. Dhir was “very mdc with the

             female victims, particularly in the spousal assaults and in sexual assault

             cases”. As well, it was reported, “he intermpts the women causing

             problems” in court.



       (b)   In early 2000, the Ministry was advised that Mr. Dhir was interpreting “in

             a general way instead ofword-for-word”. Mr. Dhir “kind of summarizes it”.



       (c)   From mid 2000 onward, court reporters criticized Mr. Dhir to the

             knowledge of the Ministry, including his lack of politeness. They did not

             think he was a good interpreter. The reporters spoke of his demeanour in

             court as mdc and that he was a bad interpreter.
(d)   In or about 2000. the Ministry was informed by a judge that the defendant

      in a matter before the court raised the issue of the quality of Mr. Dhirs

      interpretation. The Ministry switched interpreters.




(e)   At some point in 2002, a Crown counsel came to see the Ministry

      employee, Ms. Masrour and reported:




      “I don’t think Ravi [Dhir] interprets well. I was raised with

      a lot of Punjabis around me   in Brampton.   I know this man

      does not interpret well.”



      The prosecutor specifically heard a Punjabi-speaking complainant say

      “hunji’ (yes) which was not repeated in English by Mr. Dhir.




(f)   In or about the winter of 2002, the Ministry became aware that a

      Punjabi-speaking lawyer was upset that Mr. Dhir was saying “Hey? Hey?”,

      “asking the witness to repeat so many times”.
                                      -37-

(g)   In or about 2002, the Ministry employee, Ms. Masrour, was asked by

      Havke   J. what was being done about Mr. Dhir to which she replied: “1 said
      to her that it is out of nw hand[s]. I have no authority to do anything’.




(h)   Subsequently, Morten         J. complained to the Ministry employee, Ms.
      Masrour that Mr. Dhir was controlling his courtroom. Mr. Dhir, was

      asking a lot of questions for clarification when the witness was speaking.

      According to Morten    J.,   in the middle of a witness’ evidence in an OCJ

      trial, Mr. Dhir would repeatedly say “Hey? Hey?”, “meaning repeat, I don’t

      understand” causing the witness to lose her train of thought. Morten        J.

      advised the Ministry not to schedule Mr. Dhir “for any Superior Court

      matter”.




(i)   In the course of R. v. Bhullar in which Dhir was appointed interpreter by

      the Ministry, the Ministry subsequently obtained and examined the review

      transcription of the reviewer and became aware that there were omissions

      and that the translation by Mr. Dhir was bad. The reviewer noted material

      deficiencies in the trial interpretation record. There were inaccuracies,

      judgmental translations, vital omissions, and witness clarifications and side

      conversations not reported to the court.
                                         -38-



      (j)    On November 4, 2002, eight days before the misinterpretation in the

             Sidhu case, Crown and defence counsel in the Bhullar trial submitted that

             a mistrial was the only remedy in light of the scope of the

             misinterpretation. Edmonstone J. declared a mistrial in the Bhullar

             proceeding finding that “the sufficient discrepancies” in the interpretation

             accuracy would make it “inappropriate to make findings of credibility”.



99.   In spite of the knowledge of the Ministry, Mr. Dhir was permitted to act as a

court Punjabi/English interpreter in the criminal courts for anotherl9 ½ months after

the date of the Bhullar mistrial. November 4, 2002 until June 24, 2004.



100. Finally, on or about June 23, 2004, the Ministry withdrew Mr. Dhir from court.

This was in order to prevent another situation occurring while the Ministry was

belatedly investigating the competence of the interpretations of Mr. Dhir.



101. The Ministry directed that tapes of court proceedings with Mr. Dhir interpreting

be randomly selected for an accuracy review evaluation by an independent service.

During the summer of 2004, to test the level of competence of Mr. Dhir, three identical

tapes were sent to firms in Ottawa and Mississauga. The Ottawa test results returned
                                          -39-

with an acceptable evaluation while the Mississauga company, a translation company

favouring a verbatim approach, was very harsh in its criticism of the interpretation

samples.



102. The Ministry, now aware of the test results, still did not:



      (1) relate the Mississauga test results to the Crown Attorney for Peel or the

      defence counsel acting for defendants in proceedings on the three sample

      tapes; or,



      (2) pass the test results to a Court Services Division lawyer for

      examination of whether material points within the proceedings were not

      correctly interpreted.



103. The Ministry elected to have Mr. Dhir retested using the Ministry SAT.



104. In or about August of 2004, Mr. Dhir was given the basic or Standard Aptitude

Test for Court Interpretation thereby treating him the same as a test candidate who had

never interpreted in the courts. The Punjabi and English segments were both sent out

to independent evaluators. Mr. Dhir failed the test.
                                             -40-



105.   In light of the re-test results, the Ministry knew it could not have faith in Mr.

Dhir’s ability to interpret in the courts.




106.   In spite of this knowledge, the Ministry did not   notify   the potentially affected

class members that reason existed to believe an interpreter may not have met prevailing

standards that they may not have received competent interpretation or that their

Charter rights may have been violated.




107.   The Ministry has taken no, or insufficient steps to examine other tapes of cases

in which Mr. Dhir may have provided incompetent interpretation.




108.   The Ministry ignored or abandoned constitutional and access to justice values

unreasonably discounting the seriousness of the concerns involving Mr. Dhir’s

interpretation competency.




109.   Charged with the knowledge of Mr. Dhirs incompetent translation, the Ministry

simply permitted his continued in-court scheduling without regard to the objectively

existing risk of a miscarriage of justice including wrongful convictions.
                                          41-

110. While Mr. Dhir was subsequently removed from court, was re-tested, and some

of his earlier interpreting work externally evaluated, the Court Services Division of the

Ministry’ did not expand the past proceedings tape monitoring or notify the profession

ofthe now-exposed problem ofthe realistic prospect ofother material misinterpretations

by Mr. Dhir.



111. The class members plead that the Ministry’s actions and failures with respect to

Dhir are but one example of systemic problems involving other incompetent interpreters

across Ontario.



112. The Court Services Division of the Ministry, responsible for discharging the

government’s constitutional obligations under s. 14 of the Charter, provided an

interpreter whose interpreting proficiency it knew, or reasonably ought to have known,

fell below constitutional standards.



113. On or about November 17, 2005, the Honourable Mr. Justice Hill declared that

there had been a breath of Mr. Sidhu’s section 7 and section 14 Charter rights by the

Ministry.
                                            -42-

11 4.   The plaintiff pleads that the   Ministry’s   violation of his s. 7 and s. 1 4 Charter

rights is n’s Judicata.




Damages




115.    The plaintiff and class members claim that the Ministry is liable and responsible

for damages sustained through its breach of the Charter rights of each class member.




11 6.   In failing to train, monitor and provide competent interpreters, the Ministry

created a court subsystem for non English and French speaking accused causing systemic

Charter violations throughout the accused’s court proceedings. The resulting damage

to each class member speaks to the very root of the fundamental right to security of

person and freedom from unlawful detainment. The Ministry’s Charter violations have

caused and continue to cause mental, emotional, psychological, financial and physical

damage to the class members resulting from the prospect of confinement, actual

confinement, embarrassment and loss of liberty.




117.    The only means by which the class members can determine whether their Charter

rights have actuall\r been infringed is by incurring the expense of obtaining all the

transcripts recording each step of their court appearances. The class members must
                                           -‘f



then hire language experts to review’ the transcripts to identify improper translations.

If the translation is found defective, the class member will require a lawyer to review the

deficiencies to determine whether they were material to the outcome of the proceedings.

The class members claim for these ongoing costs and damages.




11 8.    The class members depended on the Ministr to competently translate the charges

against them, the allegations on which the charges were based, the bail conditions, the

procedural decisions of the court, the evidence of witnesses, the evidence they

themselves provided, the submissions of counsel, the instructions to the jury, the verdict

and judgement, the victim impact statements and the sentencing. The class members

had no way of understanding the court proceedings, the evidence being given or the

instructions of the court without a competent interpreter.      This vulnerability left the

class members entirely at the mercy of the court system to ensure proper interpretation.

To now realize that the trust was breached has caused and continues to cause the class

members significant emotional anxiety and distress.




1 1 9.   The Ministry’s failure to employ competent interpreters may have led to wrongful

convictions based on misinterpretation. The effects of misinterpretation begin as early

as bail hearings. Misinterpreted testimony of a surety can result in the accused being

denied bail or lead the court to impose unnecessary bail conditions at great
                                            -44-

inconvenience to the accused. Bail conditions improperly relayed to the accused by an

incompetent interpreter may result in the accused unknowingly breaching their bail

conditions, leading to detention, incarceration, additional charges and             further

convictions and sentences.




120.     At the trial level, misinterpretation of witness evidence can result in a wrongful

conviction. The class members face the humiliation and embarrassment of having a

criminal record, regardless of sentencing, especially when traveling or in further dealings

with the police. Convictions based on misinterpreted information can also lead to

incarceration.     The class members have suffered and continue to suffer mental,

emotional, psychological, financial and physical hardship from their experiences in

prison.     Incompetent interpretation continues to cause an accused damages at the

sentencing hearings where the accused’s own statement maybe misinterpreted or that of

non French and English speaking victims have not had their impact witness statements

properly interpreted.




1 2 1.    The class members claim damages for losses suffered through the Ministry’s

breach of the class members’ charter rights.
                                         -45-

122.   For those cases where an interpreter was used and where the hearing and

interpretation were recorded, the class members claim:




       (a)   The cost of having the recording translated and transcribed by a

             professional, competent translation service;




       (b)   The cost of having a report prepared on the quality and competency of the

             translation provided by the Ministry appointed interpreter; and,




       (c)   The cost of having the transcribed record and the report reviewed by

             defence counsel to determine whether there are grounds for seeking a

             review or appeal of the judicial determination arising out of the

             proceedings.




123.   For those cases where the defence counsel determines there are grounds for

seeking a review or appeal of the judicial determination arising out of the proceedings

and successfully brings such review or appeal, the class members claim:




       (a)   full indemnity for the costs of defence counsel;
                                         -46-
       (b)    damages for breach of the class members’ Charter rights;



       (c)    damages for loss of income, loss of opportunity, loss of liberty and

              wrongful imprisonment;



       (d)    damages for loss of reputation, mental anguish and humiliation;



       (e)    damages for loss of care, guidance and companionship suffered by those

              entitled to claim under the Famifr Law Act, R.S.O. 1990, c.F.3.



124. Where there was an unaccredked translator used and no recording was made of

the proceeding the class members claim damages for breach of their Charter rights.



125. Where there was an accredited translator used who was not competent and no

recording was made of the proceedin& the class members claim damages for breach of

their Charter rights.



126. Where there was an unaccredited translator used without warning to the class

member as required by the Handbook and Ministry protocols and no recording was
                                             47-
made of the proceeding, the class members claim damages for breath of their Charter

rights.



Punitive Damages



127. The reckless indifference of the Court Services Division of the Ministry to the

section 14 Charter right led to the Sidhu mistrial. It is statisticafly inevitable that there

exist as yet undiscovered miscarriages of justice to other class members.



128. Due to the egregious, high handed and contumelious conduct of the Ministry,

thduding

          (a)   failure to recruit, test and train interpreters in an effective manner;

          (b)   failure to monitor interpreters to ensure quality control;

          (c)   failure to provide continuing education to interpreters;

          (d)   failure to ensure interpreters were kept abreast of linguistic changes and

                trends;

          (e)   failure to provide resource materials;

          (f)   failure to develop internal education such as shadowing and mentioning;

          (g)   failure to initiate internal monitoring procedures for quality
                                          -48-

       (h)   failure to acknowledge and act on concerns and requests raised by the

             court;

       (i)   failure to acknowledge and act on concerns raised by Ministry employees;

       (j)   failure to acknowledge and act on concerns of the interpreters themselves;

       (k)   failure to review the transcripts of mistrials involving interpreters;

       (1)   failure to cease using incompetent interpreters once their lack of

             competence became known;

       (m)   failure to inform past accused of their potential Charter violations;

       (n)   failure to review transcripts of convicted accused; and,

       (o)   abdication of its Charter responsibility for the provision of competent

             interpreters;

the plaintiff and the class members are entitled to recover punitive, aggravated and

exemplary damages.




Statutes



129.   The plaintiff pleads and relies upon sections 7, 14, 24 and 27 of the charter of

Rights anti Freedoms and the Family Law Act, R.S.O. 1990, c.F.3.
                                         —49-

1 30.   The plaintiff propos   that the trial of this action take place in the City of

Brampton, in the Province of Ontario.




DATE:         December 14, 2007                 MICHAEL E. GIRARD
                                                Barrister & Solicitor
                                                6 Adelaide Street East
                                                Suite 710
                                                Toronto, Ontario
                                                M5C 1H6

                                                Law Society No. 246431
                                                (416) 203-3127 (phone)
                                                (416) 913-1886 (fax)


                                                Anthony Moustacalis
                                                Barrister & Solicitor
                                                1000-12 1 Richmond Street West
                                                Toronto, Ontario
                                                M5H 21(1

                                                Law Society No. 23820B
                                                (416)363-4919 (phone)
                                                (416) 363-4920 (Fax)

                                                Solicitors for the plaintiff
SIDHU               -and-   THEQUEEN
        Plaintiff                                          Defendant
                            Court File No. CV-07-03708-CP
                            ONTARIO
                            SUPERIOR COURT OF JUSTICE
                            Proceedings commenced at Brampton
                            AMENDED STATEMENT OF CLAIM
                            MICHAEL E. GIRARD
                            Barrister & Solicitor
                            6 Adelaide Street East
                            Suite 710
                            Toronto, Ontario
                            M5C 1H6
                            Law Society No. 246431
                            (416) 203-3127 (phone)
                            (416) 913-1886 (fax)
                            Solicit or for the plaintiff

				
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