New trial for accused after right to interpreter breached

A man who sexually assaulted and threatened a woman he was living with has had his convictions overturned and a new trial ordered after arguing that the trial judge had failed to understand his testimony and should have had an interpreter involved.

In September 2014 Marius Mitroi was convicted in relation to an incident that had happened in his home in October 2013. At the time, Mitroi and a woman who can only be identified by the initial R due to a publication ban were living together.

R testified at trial that after working a night shift, she went out with a female friend and when she returned home Mitroi was upset with her and accused her of having had sex with another man. She said Mitroi sexually assaulted her and then warned her that if she had sex with another man again he would slash her throat. Testifying with a heavy accent, Mitroi denied the allegations and portrayed R as the aggressor.

On appeal, the accused, who is from Eastern Europe and whose first language is not English, argued that the judge had not understood his testimony and that he had not got a fair trial.

In a ruling released Tuesday, a three-judge panel of the B.C. Court of Appeal agreed with Mitroi, set aside his convictions and ordered a new trial.

In his written reasons, B.C. Court of Appeal Justice David Frankel noted that Provincial Court Judge Rory Walters had struggled throughout the evidentiary phase of the trial to understand what the witnesses were saying and apparently did not have a solid grasp of the critical evidence.

Frankel said the judge did not order a transcript of the testimony merely to assist him with some details of the evidence, but because he was unable to comprehend what had been said.

He said the fact that a third party — the person who produced the transcript — was able to decipher most of what was said by Mitroi was not pertinent. The fact that Mitroi appeared to have considered himself capable of making himself understood in English was not relevant, said Frankel.

“What is relevant is that the trial judge was not able to understand what Mr. Mitroi was saying in the witness box. As soon as the judge realized he could not understand Mr. Mitroi, the judge should have intervened and raised the matter, so that the problem could be addressed,” the judge said.