An Alberta judge has stayed sex charges against a deaf man because the courts could not find an interpreter to help him understand court proceedings.
The three charges against Kendal Longclaws, 31, of Ermineskin Cree Nationsouth of Edmonton Maskwacisstemmed from alleged assaults that occurred between 2012 and 2016 and in 2021.
In a ruling dated January 10, Justice Debra Yungwirth of the Court of King’s Bench said Longclaws was born deaf, illiterate, did not communicate in recognized sign language and was “completely incapable” of communicating with the court and the lawyer.
She said the accused has a right to an interpreter under the Canadian Charter of Rights and Freedoms and that proceeding without an interpreter would deprive him of his right to a fair trial.
“There’s no way to provide the interpretation necessary to allow him to do that,” Yungwirth said. “As such, he is unable to present a full response and defense.”
Yungwirth said it is the most drastic remedy a criminal court can order because it permanently ends the prosecution of a defendant.
But, she added, there is “simply no other cure available.”
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Crown prosecutors said Longclaws’ fitness to stand trial should be assessed before considering a suspended sentence and argued language deprivation syndrome could be classified as a mental disorder.
Language Deprivation Syndrome (LDS) is a condition that occurs when a child does not have access to language during their critical period of development, from birth to age five. This can have lifelong consequences on a child’s language, cognition and behavior.
The judge ruled, however, that there was no evidence to suggest that Longclaws suffered from a mental illness or psychiatric disorder that would constitute a mental disorder as defined by the Criminal Code.
“Being deaf and unable to speak is a communication disorder and not a mental illness or psychiatric disorder,” Yungwirth said.
The judge wrote in his ruling that Katherine Longclaws, the defendant’s mother, said she did not know her son was deaf until he was four years old. The mother told the court she did everything she could to help her son, including taking him to audiologists and hiring someone when he was 19 to teach him how to communicate.
Those classes stopped after her instructor died, she said. The mother said there were no resources for the Longclaws to learn sign language because the Ermineskin Band would only pay for the children to learn Cree.
“There is no funding for deaf children on the reservation,” said Katherine Longclaws, adding that her son can only communicate with hand signals and rudimentary facial gestures.
Katherine Longclaws also said her son didn’t understand what court was and she didn’t try to explain it to him for fear of hurting him.
Debra Russell, a professor who studies the experiences of deaf people in the Canadian justice system, has found no evidence that he understands or uses any form of standard sign language.
She believes he suffers from “language deprivation syndrome” and was not exposed to it in his early years because he couldn’t hear. The judge said Russell saw nothing to suggest the defendant was faking.
“Dr. Russell believed that if Mr. Longclaws received one-on-one tutoring for two years, he could learn to communicate using pictorial images with American Sign Language,” Yungwirth said.
Even if that were possible, she said Longclaws would fail to learn the communication skills needed to navigate the courts. Currently, there is no interpretation service in Canada that can assist the accused.
“There is no remedy available to redress the harm other than a stay of proceedings,” Yungwirth said. “I recognize that a stay of proceedings will mean that the plaintiffs will be deprived of their day in court.
“Even if the outcome is not satisfactory for everyone involved, there is simply no other remedy available. »
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