Law Times

Page 6 January 7, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Time to fix Ontario's interpreter shortage D espite years of criticism over the lack of fully accredited interpreters in court, it appears the Ontario government has yet to fix the problem. Judges in two recent rulings, in fact, rejected the proposed interpreters for criminal trials. In R. v. Akaeze, Anyiam, Superior Court Justice Thomas Bielby considered two proposed interpreters for an accused drug trafficker whose first language is Ibo. One interpreter, Blessing Omere, was born in Nigeria and speaks Ibo at home but has little experience in the criminal courts. The Ministry of the Attorney General hasn't accredited her for interpretation of Ibo, although she has handled some matters in the provincial offences court and at the Immigration and Refugee Board. The other interpreter has conditional accreditation for Ibo. He has much more experience in criminal matters but scored low marks on the accreditation test. According to Bielby, there are reportedly only four Ibo interpreters in Ontario. In the other case, R. v. Abrha-Beyene, the accused required a Tigrigna interpreter. The interpreter, A.T., had also scored relatively low marks on the ministry-approved testing. As a result, he, too, had conditional accreditation for interpretation. The case involved a charge of driving over 80. Ontario Court Justice Heather McArthur issued her ruling on A.T.'s ability to interpret the trial on Dec. 11 following a voir dire held on Dec. 7. In both cases, the judges rejected the proposed interpreters despite submissions by the Crown that they should allow them. "The ruling of this court is that Ms. Omere and Mr. Mbaegbu are not competent to interpret in this Superior Court trial," wrote Bielby. The rulings follow long-standing concerns over the availability of fully accredited interpreters for a number of languages. Admittedly, the languages in these two cases aren't among the most common, although there certainly are a number of Ibo speakers in this country. But the government has known about the problems in this area for some time and doesn't appear to have fixed it yet. In the meantime, courts such as those in Akaeze, Anyiam and AbrhaBeyene face repeated difficulties and delays in moving forward due to interpretation issues. Bielby, in fact, offered some advice to the government as he reached his conclusions. "While the [ministry] cannot conscript interpreters, it can certainly make the need to qualify via standardized testing more attractive by increasing the remuneration and thereby increasing the incentive," he wrote. "Court services and [the ministry] will likely be required to look further afield to seek competent English/Ibo interpreters in this matter." Bielby is right. As we start another year, let's hope the government listens. — Glenn Kauth Victim surcharges among many changes complicating sentencing V ictim surcharges will probably soon be mandatory, double what they have been, and a key part of taking instructions from clients in criminal matters. The House of Commons passed bill C-37, the increasing offenders' accountability for victims act, last month. It has now moved to the Senate for consideration. Making surcharges mandatory is a further example of the reduction of judicial and even Crown discretion in the modern sentencing process. The bill exemplifies the modern emphasis on the rights of victims, who were not traditionally part of the sentencing process, over those of offenders. At present, s. 737 of the Criminal Code authorizes judges to impose a surcharge when the court convicts an offender under that law or the Controlled Drugs and Substances Act. The surcharge arrived on the scene in 1989. At present, the court may order adult offenders to pay 15 per cent of the fine imposed. But if it doesn't impose a fine, Law Times the legislation didn't materialit may order the offender to pay a surcharge of $50 per A Criminal ize. The purpose of the surcharges was to offer assistance count for summary convicMind in each province and territion matters.  For indictable tory to victims of crime. So we offences, the cost is $100 per have a clash of values between count. The court also has the victims and offenders. power to impose a higher surcharge if appropriate and The practice in Ottawa it's satisfied that the offender has been that judges routinely has the ability to pay. waive the surcharges if the acUnder s. 737(5), judges cused is poor or going to jail. In can now waive the surcharge Rosalind Conway situations where the court if offenders can establish to grants absolute discharges, Otthe court's satisfaction that undue hardship would result to either tawa judges have been routinely waiving them or their dependants.  While the the surcharges. This is where the problem lies: courts subsection requires the offender to apply for this relief, it has become com- across Canada frequently waive the surmonplace to waive the surcharges at charge. Waiver rates may be as high as 80 the instance of the court. And the court to 90 per cent. If — perhaps I should say when — must state its reasons for waiving the bill C-37 becomes law, s. 737(5) will be surcharge. Defence lawyers may ask why the repealed and the surcharges will jump court doesn't generously waive the sur- to $100 for each summary offence and charge.  Frequently, it may be more than $200 for indictable matters or 30 per obvious that the offender is poor. In fact, cent of any fine imposed. As mentioned, the influx of funds expected to flow from they'll also be mandatory. The surcharges Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ©2013 Thomson Reuters Canada Ltd. 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Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com will figure largely in negotiations when Crowns and defence counsel are meeting on multiple charge informations and indictments or are wrapping up groups of outstanding charges. Clients to whom the R. v. Gladue principles apply will have no relief under this new regime, meaning street people and single parents will emerge from prison under a heavy cloud of debt. Poor people will be able to work this debt off through fine-option programs in provinces and territories where they exist. Impoverished people shouldn't go to jail for non-payment of surcharges pursuant to the decision of Supreme Court of Canada in R. v. Wu. But there may now be a risk of that happening. In any event, bill C-37, once it becomes law, will have a dramatic effect on modern sentencing, a process that continues to become more complex and onerous for clients and counsel alike. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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