Law Times

Page 4 May 27, 2013 Law Times • NEWS Courts growing impatient with interpreter shortage Judge refuses to hold voir dire despite Crown entreaties during preliminary inquiry BY YAMRI TADDESE Law Times T he lack of accredited court interpreters remains a serious problem as the courts devote "significant judicial resources" in order to rule on competencies, according to a Superior Court judge. "The situation does not appear to have improved and the lack of properly qualified court interpreters remains a serious problem," wrote Justice Glenn Hainey in R. v. Tesfai on May 13. "Significant judicial resources are being used to determine the competency of many court interpreters who are not accredited by [the Ministry of the Attorney General] and who are provided by the Crown to assist in criminal proceedings." Although the ministry has a program to accredit court interpreters, judges have lamented that the number of people coming out of it isn't nearly sufficient to meet the needs of a large, diverse community. In Tesfai, the preliminary inquiry judge declined to hold a voir dire to rule on the competence of a freelance Tigrigna interpreter. "But I am not in a position to override what the ministry — I don't speak the language, I have no way of being able to know whether or not what is being interpreted is sufficient, and I am not the court, this court is not prepared to override the rigorous regime that the ministry and the standards that the ministry has with respect to inter- The lack of interpreters 'continues to be a very big problem in Ontario,' says Jeff Manishen. preters," the judge found. In response, the Crown sought a writ of certiorari. 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And once the Crown sought to challenge the preliminary inquiry judge's decision not to embark on a voir dire, the case couldn't proceed pending a ruling on the application. Court interpreters don't have to have accreditation to take part in proceedings. The law gives respondents who don't speak English or French the right to a competent interpreter but not necessarily an accredited one. According to a 2011 decision from Superior Court Justice Carolyn Horkins, the ministry collaborated with the Vancouver Community College to create the accreditation program, but "the implementation of that program over the last two years has been difficult, primarily because of the significant failure rate, which has in turn resulted in an extreme shortage of fully accredited court interpreters." Judges reasonably decline to rule on the competence of interpreters when they don't have enough evidence to do so because "the courtroom is not a linguistics laboratory," wrote Hainey. But even in situations where the judge has evidence yet declines to make a ruling on language proficiency, that action doesn't constitute a breach of statutory duty, he found. "The presiding justice's decision not to conduct an interpreter competency voir dire in the particular circumstances amounted to an error in law but not a jurisdictional error." Hainey's decision wasn't merely about the legal issue but it also served as "a judicial clarion call for government action," says criminal lawyer Jeff Manishen of Ross & McBride LLP in Hamilton, Ont. "The judge has eloquently and powerfully expressed his concern that, notwithstanding the several years since the problem was identified, it still has not been adequately addressed by the attorney general," he notes. "The effect is that a significant amount of already-scarce judicial resources have been and continue to be required for the determination of an issue that's fundamental to the trial process and which should otherwise have been rectified long ago." In essence, Hainey is ascribing the decision of the preliminary inquiry judge to frustration with the lack of accredited court interpreters, says Manishen. It's a frustration defence counsel also share, he suggests. "It clearly continues to be a very big problem in Ontario." Part of the problem is that often no one knows who the interpreter will be until the morning of the trial, says criminal lawyer Patrice Band. "When that happens, everyone can be surprised if the interpreter that has been sent is not accredited or only conditionally accredited.  This can lead to an unexpected need for a voir dire. If counsel come prepared for that eventuality, then the process does not necessarily take a great deal of time but it can take the better part of the morning." And unlike other experts who testify in court, interpreters face less scrutiny, says Band. "For some reason, I have never seen a court interpreter bring a CV to court. So I have had cases in which court interpreters could not remember their scores on the accreditation exams or other aspects of their professional background, including whether they were previously found competent or not and, if so, in which level of court and what kind of matter." As Horkins observed in 2011, the lack of accredited court interpreters often means criminal prosecutions are "terminated, abandoned, delayed or settled on questionable terms." In fact, as The Globe and Mail reported last week, Ontario Court Justice Peter Tetley recently found himself in the position of having to toss an impaired driving case over the issue. The obvious response is to train more court interpreters, says Band, but it's a solution that costs a lot of money. To avoid some of the frustration, the ministry should consider making its roster of accredited interpreters and their qualifications available to the public so counsel can come prepared, he suggests. LT

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