Serving Canada's Legal Community Since 1983  
RSS Feed RSS Feed
This Week's Issue:

Want to learn more about this week's issue?

Legal Update Services

Click on the links above to view recent decisions from the Supreme Court of Canada and summaries for noteworthy cases from across the country.

Misinterpretation: Crisis in Canadian court interpreting
By Mike Sadava
Edmonton
December 03 2010 issue


Translator Regina Landeck recently met with officials from Alberta Justice to deal with the lack of court interpreters in the province.  [Photo by Dan Riedlhuber for The Lawyers Weekly]
Click here to see full sized version.


Comments?
Please contact us at comments@lawyersweekly.ca.
Please include your name, your law firm or company name and address.

As Canada becomes more multicultural, a shortage of skilled interpreters is creating major problems with the administration of justice in courtrooms across Canada.

When 3.4 million Canadians speak neither English nor French at home, and 521,000 are unable to speak either official language, concern is rising that language barriers could be denying them access to the justice system.

The provision of interpreter services is a basic right of anyone who is a party or witness in court proceedings under s. 14 of the Charter, which guarantees the right of an accused to understand the proceedings. The Ontario Court of Appeal noted in R. v. Petrovic, [1984] O.J. No. 3265, that when an accused person requests an interpreter, an interpreter should be provided without question, and that the accused not be subject to a detailed inquiry into their ability to understand or speak the language of the proceedings.

But fulfilling those rights is difficult because of a shortage of qualified, competent interpreters, especially in the languages of recent waves of immigrants from countries such as Somalia and Cambodia. Often the courts use people who speak the language, but aren’t qualified as court interpreters.

In Alberta the issue has become so serious that the provincial justice department has formed a special committee to try to find a solution. In early November the Ontario Criminal Lawyers Association in Ontario heard from Justice Casey Hill of the Ontario Superior Court, who bemoaned the lack of training and competence of interpreters and the fact that competition for interpreters between courts has become “almost cutthroat.”

Mistrials have been declared because inadequate interpretations breach s. 14 of the Charter. The Supreme Court ordered a new trial in R. v. Tran [1994] S.C.J. No. 16 because an interpreter was only summarizing evidence rather than giving a full translation. In the ruling the court said: “…it may be helpful to note the conceptual distinction that exists between ‘interpretation,’ which is primarily concerned with the spoken word, and ‘translation,’ which is primarily concerned with the written word.”

In one noted Ontario case, R. v. Sidhu, [2005] O.J. No. 4881, where Avtar Sidhu was charged with assault causing bodily harm, Justice C. Hill ruled that the Charter rights of the accused had been violated because of inaccurate interpretation.

A certified Punjabi/English court interpreter reviewed the tapes of the trial, noting discrepancies between her translation of the accused’s words and that of the interpreter on duty at the time, whose competence was known to be problematic. “The reviewer reported the interpreter at times leading the witness as well as incomplete and inaccurate interpretations throughout the one to one and a half hour proceeding,” wrote Justice Hill in the Ontario Superior Court decision.

Anthony Moustacalis, a Toronto lawyer who represents Sidhu and is treasurer of the Ontario-based Criminal Lawyers Association, says problems with interpretation occur almost daily.

“Like anything else, first you identify the problem, and then you deal with it,” Moustacalis says. “It’s funding — if you pay enough to people you can get them.”

It’s a hard job but not a lucrative one. It requires knowledge of court procedure and jargon as well as fluency in a second language, and an ability to concentrate for extended periods. The pay scale for court interpreters varies across the country. In British Columbia, it is $45 per hour while Ontario pays only in the $25-to-$28 range. The hours are irregular, and if a procedure is put over, the interpreter might be paid for a couple of hours after committing an entire day to the court.

Denis Bousquet, president of the Canadian Translators, Terminologists and Interpreters Council (CTTIC), the national umbrella group, agrees that lack of funding is a major problem.

Court interpreters are paid a fraction of the rate commanded by conference interpreters. Those who provide the service at business conferences could be further trained to use their skills in the courtroom, but there is no motivation to do it if they’re going to walk away with $75 for a hard morning’s work, Bousquet says.

Although there’s less money in it, court interpreting requires one to be very quick on your feet and very accurate, he says.

“A lot can happen in the heat of an exchange in a courtroom,” Bousquet says. “You really need well-trained people, not just bilingual people.”

Edmonton-based Regina Landeck, past president of the Association of Translators and Interpreters of Alberta, met in late summer with officials from Alberta Justice “because they were unhappy with what they are getting with court interpreters.”

Some people used as interpreters know the language needed in a trial, but don’t have the training. But people aren’t motivated to make the effort to become trained, certified interpreters if they are going to be hired anyway.

“It is very hard to find qualified people,” Landeck says. “It’s a bit of a Catch-22 — the courts aren’t providing enough work that makes it worthwhile to get certified and keep up your certification because they won’t use you a lot.”

Most people who serve as interpreters have other regular jobs, and occasionally get the call at 6 a.m. to come to court, she says. “That doesn’t bode very well, but they can’t be fussy because they have no alternative.”

Being a qualified as a court interpreter involves much more than just understanding the language, Landeck says. “It’s not something that just anybody can do. You need education, training and qualification.”

Julie Siddons, spokesperson for Alberta Justice, says the province is well aware of the changes in the population. Between 2004 and 2006, the percentage of Albertans whose mother tongue is neither English nor French increased to 18 per cent from 16 per cent.

“This is something we’re taking very seriously because people have a constitutional right to understand the legal proceedings against them,” Siddons says, adding that this population trend is expected to continue.

The committee will look at how the issue is handled in other provinces and consult with the courts as well as stakeholder groups about what needs to be done. While the committee is just starting its work, Siddons says there’s no doubt that training will be part of the solution.

Currently Vancouver Community College offers the only court interpreter training in Canada. Courses are planned at Niagara and Glendon colleges, but Bousquet says it takes about three years to get a course off the ground.

Karin Reinhold, co-ordinator of the interpreter program at Vancouver Community College, says the annual intake for the 10-month part-time court interpreter program is about 25. Students need to have “native fluency” in at least one language as well as English to register, and the most common in Vancouver are Mandarin, Spanish, Korean and French.

Landeck says many languages have much different syntax than English, and the interpreter’s job is to convey the meaning of what the person is saying, the interpreter literally is the mouthpiece for the witness, speaking in the first person. If a person is being sarcastic, it is the duty of the interpreter to convey that sarcasm rather than simply give a literal translation.

Court interpreters also have training in legal jargon, and know the formulas involved in regular courtroom procedures such as swearing in witnesses, she says. If a proceeding involves technical jargon, the interpreter should review the file and learn the vocabulary, “but a lot of people just wing it and do the best they can.”

Above all, the interpreter has an ethical responsibility to be neutral, which can be in doubt if a distant cousin or friend of the family is used. Landeck once saw an immigration case where the person admitted to shoplifting, but with the intervention of the interpreter, was later denying the charge.

Court interpreters also need a wide range of knowledge, she says. While this might not be a problem for the large, well-educated Mandarin-speaking population of Vancouver, it could be problematic for the Somali population in Edmonton, for example.

Landeck says that many of those coming to Canada in new waves of immigration have spent much of their lives in refugee camps, which means that it is hard to find suitably educated people in that community to become court interpreters.

As Reinhold says, there’s much more to interpreting than just knowing a second language.

“Playing the piano doesn’t make you a concert pianist, and it’s the same with language,” she says. “Just speaking a language doesn’t make you an interpreter.”


Lost in translation

Some examples, taken from R. v. Sidhu, [2005] O.J. No. 4881, indicate the errors that can be made by inadequate interpretation:

INTERPRETER: I was struck with the hockey stick by Kala, Sally was also kicking me.

REVIEWER: I was struck by Sunny with the hockey stick and Sally was also kicking him here.

INTERPRETER: No, I had injuries to my legs and my arms…

REVIEWER: I had injuries to my legs and my arms, my back and face.


Click here to see this article in our digital edition (available to subscribers).

Back      Print This Article