R. v. Bidesi

2015 BCSC 206 R. v. Bidesi IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bidesi, 2015 BCSC 206 Date: 20150213 Docket: X076633 Registry: New Westminster Regina v. Russell Atma Bidesi RESTRICTION ON PUBLICATION: An order has been made in this proceeding pursuant to s. 486.5(1) of the Criminal Code that prohibits the publication, broadcast or transmission of any information that could identify the witness referred to in this judgment by the initials M.B. This publication ban applies indefinitely unless otherwise ordered. These reasons for judgment comply with the publication ban. Before: The Honourable Mr. Justice Butler Ruling on Admissibility of Evidence of Constable Cieslar Counsel for the Crown: Christopher A. McPherson Jay L. Fogel Marko Vojvodic Counsel for the Accused: Darcy P. Lawrence Place and Date of Hearing: New Westminster, B.C. November 4, 2014 Place and Date of Judgment: New Westminster, B.C. February 13, 2015 [1] In the course of the trial, on November 4, 2014, the Crown sought to qualify Constable Benita Cieslar as an expert in the translation of Fijian Hindi to English. She was offered as an expert witness in order to introduce into evidence, translation of a telephone conversation which had been intercepted pursuant to a wiretap authorization. The conversation was partially conducted in Fijian Hindi. The defence objected to Cst. Cieslar's qualification and took the position that she should not be permitted to offer opinion evidence as to the English translation of the conversation. [2] I accepted Cst. Cieslar's qualifications and ruled that she could give opinion evidence as to the translation of the Fijian Hindi portions of the conversation in question and indicated I would provide reasons for that ruling at a later date. These are the reasons for that ruling. Background and Qualifications of Cst. Cieslar [3] Cst. Cieslar is a 31-year-old RCMP officer. She was born in Canada to Fijian parents. She grew up speaking both English and Fijian Hindi. She continues to do so when she is with family members including her two siblings. When speaking with members of her family, the breakdown between English and Fijian Hindi has been roughly half and half. In other words, she speaks Fijian Hindi half the time when she is with them. She has never studied Fijian Hindi, which she understands is not a formal language. She had classes in Hindi for several years while in Sunday school as a child. She has no formal training in either Hindi or Fiji Hindi. [4] Cst. Cieslar has travelled to Fiji on five occasions and can understand the local language. However, she says that the Canadian pronunciation of Fijian Hindi is quite different from that which is heard in Fiji. She says that people in Fiji have some trouble understanding the Canadian version of Fijian Hindi, because the local slang is quite distinct in each country. [5] Cst. Cieslar is not aware of any books or movies that use the Fijian Hindi language. In cross-examination, she indicated she was unaware of the 1977 publication of a Fijian Hindi grammar book. She was also unaware that, according to defence counsel, there is at least one book and one movie in Fijian Hindi. In addition, Cst. Cieslar was not aware that Fijian Hindi is an official language of Fiji. [6] Cst. Cieslar was asked to translate portions of a single phone conversation that was intercepted pursuant to the authorization. The phone conversation was between the accused and two individuals. The accused spoke with the first speaker for approximately nine minutes before the second speaker took over the call. The conversation took place on February 27, 2012 and lasted for approximately 15 minutes. The majority of the discussion took place in English. A small portion - approximately 15 % - is in a foreign language. Cst. Cieslar identified that language as Fijian Hindi. She says she was able to understand all of the discussion which took place throughout the telephone conversation. A transcript of the conversation was marked as an exhibit in these proceedings. According to Cst. Cieslar, the portion of the transcript in italics was spoken in Fijian Hindi. The English translation which appears in italics in the transcript is Cst. Cieslar's translation of the Fijian Hindi. Position of the Defence [7] The defence's objection is based on the fourth criteria set out in R. v. Mohan, [1994] 2 S.C.R. 9: opinion evidence is admissible only through a properly qualified expert. An expert must have training or experience in a field of study or subject in order to be qualified. The defence says that where the field in question is the interpretation or translation of language, the proposed expert should be certified, qualified, or accepted by a body which sets appropriate standards. Cst. Cieslar has no training, certification, or formal qualification to translate or interpret from Fijian Hindi to English. She has never been accepted by any institution, including a court, as having the appropriate knowledge or experience to do so. Accordingly, the defence argues she should not be accepted as an expert and should not be permitted to give opinion evidence. [8] The defence further says that the qualification of Cst. Cieslar as an expert would set a dangerous precedent. It would mean that anyone who speaks a foreign language could come into court and purport to translate or interpret from a foreign language into English. If that is permitted, litigation involving conversations in a foreign language would be prolonged, multiple experts would be called, and the interests of justice would not be served. [9] In support of its position, the defence relies on the ruling in R. v. Sanghera, 2012 BCSC 995, in which Holmes J. refused to permit a police officer to translate intercepted telephone conversations from Punjabi to English. Position of the Crown [10] The Crown argues that the evidence of Cst. Cieslar is admissible as it satisfies all the Mohan criteria. It says Cst. Cieslar has acquired, through life experience, the necessary expertise to provide opinion evidence as to the English translation of Fijian Hindi, as spoken in British Columbia. The Crown stresses that the evidence is relevant; the accused discusses what he was doing the day before the conversation, which was the day of the home invasion and murder for which he is charged. In addition, there is no question that expert evidence is necessary to translate the non-English portions of the telephone conversation; without translation the Court would be unable to discern what was said. [11] The Crown further says the decision in Sanghera is either distinguishable, or was wrongly decided, and that I should decline to follow it. Analysis [12] As set out in Mohan at 20, four criteria must be met for the admission of expert evidence: 1) relevance; 2) necessity in assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a properly qualified expert. There is no question that the content of the telephone conversation is potentially relevant, as it is a statement by the accused about events or activities which took place on the day of the murder. [13] This is not a case where there is any prejudice to admission of the evidence, as I will explore in greater depth later in these reasons. To draw on the language from R. v. Abbey, 2009 ONCA 624, this is not a case where the court has to be concerned that the cost of admitting the evidence might outweigh the benefit of receiving it. There is also no doubt that translation from Fijian Hindi to English is necessary to assist the court to understand what is in fact being said during the conversation. There is no exclusionary rule which might apply. The only outstanding issue in the case at bar is whether Cst. Cieslar is a properly qualified expert. [14] An expert need not obtain expertise through a course of study or special accreditation. It is possible for an individual to become expert in a subject or field by obtaining knowledge through relevant experience. The ability of an expert to acquire their expertise either through study or experience was expressed in Mohan at 25: "[t]he evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify." [15] There is no doubt that Cst. Cieslar has obtained special knowledge through personal experience which allows her to speak and understand Fijian Hindi. She was raised in British Columbia in a family which speaks the local dialect of Fijian Hindi, the same language which she has been asked to translate for the court. [16] Applying the Mohan principles, the special knowledge of Fijian Hindi which Cst. Cieslar has gained through experience would appear to qualify her to give opinion evidence about the meaning of the wiretap conversation. However, in similar circumstances, the court in Sanghera found that the police officer who spoke Punjabi was not qualified to translate conversations recorded pursuant to a wiretap authorization. This requires a close examination of the decision in that case. [17] In Sanghera, the Crown put forward Det. Cst. Sangha as an expert to give opinion evidence on two matters: 1) the meaning of urban street jargon in the Lower Mainland of British Columbia; and 2) the interpretation of the Punjabi language in phrases, full sentences, and verbal exchanges over the course of several lines or paragraphs of the intercepted transcript. The proposed interpretation or translation involved numerous conversations between five accused over the course of about 60 days. The court concluded that Det. Cst. Sangha was qualified to give opinion evidence about the meaning of urban street jargon because he had specialized knowledge about such jargon, gained over the course of his personal and professional life. However, Det. Cst. Sangha was not permitted to translate or interpret the Punjabi portions of the intercepted communications. [18] Madam Justice Holmes began her analysis of Det. Cst. Sangha's qualifications by noting, at para. 21, "I have no doubt that Det. Cst. Sangha is fluent and fully competent in both Punjabi and English. His personal and professional history make that entirely clear." In spite of that fluency and competence in both languages, the court rejected his expertise on the following basis as expressed at paras. 22 and 23: [22] The interpretation and translation of verbal exchanges, however, involves more than proficiency in the languages concerned. Reliable interpretation and translation of, for example, a full sentence depends on the interpreter or translator selecting the appropriate grammatical structure for the sentence, so as to convey as accurately as possible the tone, tenor, and nuance of the original. [23] There is no evidence that Det. Cst. Sangha has any training or experience in interpretation or translation of this type. It is a field for which certification standards have been developed and implemented, for good reason. In the interpretation of court proceedings, for example, the importance and value of the interpretation process as such is well-recognized, as contrasted with word-for-word translation from one language to another. [19] The court went on to note that the witness had experience in preparing summaries of intercepted communications in Punjabi, but noted there is a difference between a summary which intends to convey the gist of a conversation as opposed to a reliable interpretation or translation which "conveys the whole, in as complete and accurate a fashion as possible." [20] Holmes J. found that cross-examination of Det. Cst. Sangha "would not suffice, and would fail the cost-benefit analysis discussed by Doherty J.A. in Abbey", stating at para. 26: [26] Among the dozens of intercepted communications are numerous portions translated from, the Crown says, Punjabi. To require cross-examination to tease out the reliability of all of those translations would expand Det. Cst. Sangha's evidence far beyond its contemplated scope, as reflected in the time allotted for his evidence in the witness schedule. Det. Cst. Sangha was to be the last witness to testify in the trial, and was scheduled to give all of his testimony yesterday afternoon, with that short time allotted for the hearing into his qualifications, as well as his direct and cross-examinations in full. [21] Here, the Crown's first argument is that Sanghera was wrongly decided and that I should decline to follow it. It is unnecessary to consider this argument as I am satisfied that the circumstances in Sanghera are distinguishable from the circumstances before me. As a result of the difference in circumstances, I conclude that I need not follow Sanghera. I have set out the distinguishing circumstances as follows: 1. I am advised by counsel, and accept, that while there are qualified Hindi interpreters in British Columbia, there are no qualified interpreters of Fijian Hindi. In other words, if the Fijian Hindi in the conversation in question could only be translated or interpreted for the court by a qualified interpreter, no translation of that conversation could be made available to the court. In Sanghera, there was no discussion about the availability of Punjabi interpreters, however I can take judicial notice of the fact that Punjabi interpreters frequently appear in this court. 2. Based on the evidence of Cst. Cieslar, it is apparent that Fijian Hindi as spoken in British Columbia has developed from the time its speakers first came to this province. It is now a slang, dialect, or modified form of the Fijian Hindi commonly spoken in Fiji. In other words, it is necessary to have someone in British Columbia who speaks the local jargon, with the local accent, to translate the conversation in question. In this sense, the language which Cst. Cieslar is purporting to translate has some similarity to the urban street jargon about which Det. Cst. Sangha was permitted to give evidence in Sanghera. 3. In Sanghera, Det. Cst. Sangha was offered as a witness to confirm the preparation of a transcript which had been translated by another unnamed person. In other words, he was not giving his own opinion as to the translation of Punjabi to English but was attempting to confirm the reliability of a translation made by someone else. It is difficult to understand how the evidence of Det. Cst. Sangha could have been accepted. The translation which the court in Sanghera was being asked to accept was made by someone other than the witness before the court. The opinion which was being offered to the court by the police officer was not his own opinion, and there was no evidence before the court as to the qualifications of the unnamed person. By contrast, the translation which the Crown seeks to admit in evidence in this case was performed by Cst. Cieslar. 4. In Sanghera, Det. Cst. Sangha's task was to listen to the verbal exchanges and confirm for the court that a prior translation of the conversation was accurate. In other words, what he was purporting to do included elements of both interpretation and translation. The decision recognizes the duality of the witness's task. Indeed, Holmes J. states that her decision concerns the "interpretation and translation of verbal exchanges". This situation arose because, as I have noted, Det. Cst. Sangha did not perform the translation set out in the transcript. Instead, he was asked to interpret the conversation as he was in the witness stand, and then confirm the accuracy of the translation in the transcript. The court expressed concern that the translation of verbal exchanges demands more than language proficiency. As a result, the court rested its decision in part on the fact that a qualified interpreter would be required to convey "as accurately as possible the tone, tenor, and nuance of the original". Contrary to the situation in Sanghera, Cst. Cieslar was not being asked to interpret language in the immediate way that a court interpreter must do. The element of simultaneous interpretation of the taped conversation was removed from the process because the translation had been performed by Cst. Cieslar at her leisure outside of the courtroom and reduced to the transcript. In these circumstances there is not the same need for a qualified interpreter. The task performed by Cst. Cieslar was much more akin to translation. While the intent of her task was to produce a transcript that is accurate and conveys the correct meaning, there is less justification in comparing her qualifications against those of a certified court interpreter. 5. Finally, the conversation which has been translated by Cst. Cieslar covers a relatively short period of time. It is a single telephone conversation involving the accused. The portion in Fijian Hindi is less than two minutes in duration. In Sanghera, there were numerous segments of conversations between a variety of different individuals which the witness was purporting to interpret or translate. This exacerbated the complexity of the cross-examination of Det. Cst. Sangha, and the assessment of the quality of the translation. It appears from the reasons in Sanghera that introduction of the evidence would have unnecessarily lengthened the trial. In other words, the court in Sanghera took into account certain factors when weighing the cost benefit analysis that are simply not present in this case. Here, the trial would not be unnecessarily prolonged by admitting the evidence and the cross-examination can be easily focused on translation issues that might arise in the short segments of conversation. [22] When I consider these distinguishing circumstances, I conclude that Cst. Cieslar is qualified to provide opinion evidence as to translation of the Fijian Hindi spoken in the recorded conversation and that the cost of admitting the evidence does not outweigh the benefit of receiving it. In arriving at that conclusion, I have also found that there is no prejudice to the accused in admitting this evidence. The accused was provided with the transcript of the conversation with the translated portions of the conversation highlighted in italics well in advance of Cst. Cieslar's testimony. Defence counsel had ample opportunity to prepare for cross-examination. Further, the accused was a participant in the entire conversation and, as such, is able to instruct counsel regarding the translation for the purpose of cross-examination. [23] In summary, I conclude that Cst. Cieslar is qualified to give opinion evidence regarding the translation of the Fijian Hindi portions of the recorded conversation of February 27, 2012. Cst. Cieslar is an RCMP officer, and has no formal qualifications, and those facts are, of course, matters which may go to weight rather than admissibility. "Butler J."