When it came time for his trial for heroin trafficking, Luis Ramos says he just wanted to get on the stand and “swear on the Bible and tell the truth and nothing but the truth.”
But whether or not the jury that ultimately convicted him could understand his testimony is now in doubt.
Though he can speak English, the 63-year-old Toronto man is more comfortable in his native Spanish, and so he testified for three straight days with the help of several interpreters. He maintained his innocence, that he was in the wrong place at the wrong time when a drug deal went down between some acquaintances and a police agent.
He ended up with an eight-year prison sentence in 2014.
In early November, the Ontario Court of Appeal granted the now-paroled Ramos’s appeal and ordered a new trial with the consent of the prosecution. In a brief, one-paragraph ruling, the top court said the Crown had reviewed an external assessment of the recordings of Ramos’s trial and now acknowledged that “there were numerous and significant errors in the interpretation of the appellant’s evidence in this case.”
A week later, Ramos appeared in Superior Court, where the Crown decided to forego a new trial and stayed the trafficking charge.
It had been hanging over his head since his arrest in 2010.
“I knew I was winning because, from the very beginning, I was telling them I was innocent,” Ramos told the Star in a recent interview about his successful appeal, which he filed while still an inmate.
“I never did this stupid thing.”
His case shines a spotlight on the court interpretation system in Ontario — one that has faced heavy criticism in the past from judges and the legal profession.
“For years, the Ministry of the Attorney General has failed to provide an adequate supply of properly qualified interpreters. Some interpreters have failed to meet the high competency threshold necessary to guarantee fairness in the court process,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.
“The ministry should conduct regular competency checks and provide ongoing training to ensure these high standards are being met across the province.”
A ministry spokesman told the Star that Ontario has a “world-class interpreting model” to accredit interpreters, and that tests are based on actual transcripts from Ontario court proceedings.
“This approach ensures the tests match a realistic court interpretation experience,” said ministry spokesman Brian Gray.
Courts take problems with interpretation very seriously, as the Ramos case demonstrates. After all, the right to the assistance of an interpreter is enshrined in the Charter of Rights and Freedoms for those who do not “understand or speak the language in which the proceedings are conducted or who (are) deaf.”
In a landmark 1994 case dealing with this right, known as R v. Tran, the Supreme Court of Canada made clear that bad interpretation can taint the appearance of fairness of the whole trial.
“It is impossible to know for sure what would have happened if an accused had been provided with full and contemporaneous interpretation of the proceeding in question,” then-Chief Justice Antonio Lamer wrote for a unanimous court.
“For example, one can never really know what might have been triggered in an accused’s mind had he or she received the interpretation to which he or she is entitled under s. 14 of the charter.”
A breach of that right is so serious that, as a general rule, the remedy would have to be a new trial, the Supreme Court concluded.
In the Ramos case, there were issues with one interpreter in particular, according to a letter sent to the Crown this year by criminal defence lawyer Jill Presser, who assisted Ramos, who represented himself in his appeal.
For one thing, the interpreter did not always provide simultaneous interpretation. On many occasions, she instead had conversations with Ramos and with the lawyers asking the questions.
“This broke up the simultaneity of the translation — instead providing the jury a disjointed and confusing picture that made it difficult for the trier of fact to assess Mr. Ramos’s credibility,” Presser wrote.
Further, an external audit by an accredited interpreter found there were inaccuracies with words and sentence structure when the interpreter was interpreting from Spanish to English, and vice versa, and in other instances, she did not translate any of the relevant content, Presser noted.
The external interpreter had also heard from the recording that the judge had concerns with the quality of the interpretation during the trial, including asking both the Crown and Ramos to speak with frequent breaks to give the interpreter more time to interpret.
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“If what happened in this case is exemplary of the state of interpretation in the system, we still have a distance to travel until interpretation is where it needs to be,” Presser told the Star.
“The right to effective, competent translation is a charter right for a reason, in a heterogeneous society like ours, where people come from all over the world and speak all kinds of languages.”
Presser said she encountered difficulties when trying to verify the interpreter’s accreditation with the ministry, being told that information about interpreters is confidential. She said there should be more transparency to, at the very least, allow those working in the justice system to access more information about interpreters.
“If someone wants to know if I’m a lawyer, they can find out everything online on the law society website. My membership status, whether I’ve been disciplined. All of that is available, because it’s to protect the public,” she said.
Gray, the spokesperson for the Ministry of the Attorney General, which maintains a registry of court interpreters, said personal information about interpreters is considered confidential unless the ministry has received written permission from the interpreter.
He said the accreditation status is shared with the judge and the parties in the proceeding where interpretation services are provided, but not once the proceedings are concluded. In the Ramos case, the request for the interpreter’s accreditation was made several years after the trial was over.
To become an accredited interpreter on the ministry’s registry, a person must have achieved a score of at least 70 per cent in each section of the ministry’s court interpretation test, Gray said. A person can also be “conditionally accredited” if they achieved less than 70 but more than 50 per cent. Those interpreters must retake the test within two years in order to become accredited.
Court staff are supposed to first try to schedule accredited interpreters for court proceedings, Gray said.
Interpreters know that there are problems in the system that need to be addressed, said Shahla Husain, president of the Court Interpreters’ Association of Ontario, and want to work with the ministry to fix them.
There should be a standardized training program across the province for court interpreters, as well as formal mentorship where a new interpreter can shadow a senior colleague in court, said Husain, who was speaking on her own behalf and not the association’s.
Husain said it can be daunting for a new interpreter to arrive in a courtroom with no hands-on training. “They don’t even know where to stand in court, and I don’t blame them, it’s not their fault,” she said.
If a complaint is filed about the quality of the interpretation, an independent evaluator will be hired to examine audio files and transcripts of the court proceeding as part of determining whether there is merit to the complaint, Gray at the ministry said. Results of the complaint are sent to the interpreter “as well as appropriate court management and staff.”
He told the Star the ministry would require more time to compile the number of interpreters who have been stripped of their accreditation.
Going to prison took its toll on Ramos and his family, and even after he was paroled, he had to live under conditions that included staying within Toronto’s boundaries. That meant having to ask permission if he wanted to visit his parents’ graves in a cemetery north of the city.
He’s now hoping to get his passport back, so that he can visit family in his native Ecuador, a country he said he hasn’t visited in more than 40 years. And of course, he’s hoping that what happened to him doesn’t happen to anyone else.
“There should be good qualified people for everyone,” he said of interpreters. “Toronto is multicultural. I don’t want it to happen again.”