An Alberta judge has stayed sex charges against a deaf man because the courts couldn’t find an interpreter to help him understand the legal proceedings.
The three charges against 31-year-old Kendal Longclaws of Ermineskin Cree Nation, south of Edmonton, stemmed from alleged assaults that took place between 2012 and 2016 and in 2021.
In a decision dated Jan. 10, Court of King’s Bench Justice Debra Yungwirth said Longclaws was born deaf, is illiterate, does not communicate in a recognized sign language and is “wholly unable” to communicate with court and counsel.
“There is no way to provide the necessary interpretation to allow him to do so,” said Yungwirth. “As such, he is unable to make full answer and defence.”
Yungwirth said this is the most drastic remedy a criminal court can order as it permanently stops the prosecution of an accused.
But, she said, there is “simply no other remedy available.”
Crown prosecutors had said Longclaws’ fitness to stand trial should be assessed before a stay is considered and argued language deprivation syndrome could be classified as a mental disorder.
The judge, however, ruled there is no evidence to suggest Longclaws suffers from any 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 her decision that Katherine Longclaws, the accused’s mother, testified she didn’t know her son was deaf until he was four years old. The mother told 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 lessons stopped after his instructor died, she said. The mother said there were no resources for Longclaws to learn sign language as the Ermineskin Band would only pay for children to learn Cree.
“There is no funding for deaf kids on the reserve,” Katherine Longclaws said, adding that her son can only communicate with rudimentary hand signals and facial gestures.
Katherine Longclaws also said her son does not understand what court is and she has not tried 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, found no evidence that he understands or uses any form of standard sign language.
She believes he has “language deprivation syndrome” and was not exposed to one in his early years since he couldn’t hear. The judge said Russell saw nothing to suggest the accused was faking.
“Dr. Russell opined that if Mr. Longclaws had one-on-one tutoring for two years, he might learn to communicate using pictorial images with American Sign Language,” Yungwirth said.
Even if it was possible, she said Longclaws wouldn’t achieve the communication skills necessary to navigate the courts. As it stands, there are no interpretive services in Canada that can help the accused.
“There is no remedy available to redress the prejudice other than a stay of proceedings,” Yungwirth said. “I recognize that a stay of proceedings will mean that the complainants are deprived of their day in court.
“While the result is unsatisfactory to all involved, there is simply no other remedy available.”
This report by The Canadian Press was first published Jan. 16, 2025.
Aaron Sousa, The Canadian Press
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