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December 12, 2011

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Law Times • December 12, 2011 FOCUS PAGE 13 Gov't 'obliged to pay the agency's rates' Continued from page 12 Rai, the lawyer represent- ing Dutt, says he was lucky that he spoke Hindi himself. "Th at helped me a lot," he says, not- ing the court might otherwise not have become aware of the problems. In response, the defence brought an application to declare a mistrial given that, in its view, the poor interpretation had es- sentially excluded Dutt from his trial. Th e Crown, meanwhile, countered that A.K. had gener- ally interpreted the proceedings despite summarizing parts of them. It argued that interpreta- tion "is not an exercise in perfec- tion," Hill noted. In his decision in September, Hill ruled in favour of the de- fence application. "In this case, the non-English speaker was prejudiced by a denial of full linguistic presence at his trial on April 27, 2011, on account of pervasive departure from the guaranteed standard of interpre- tation to which he was constitu- tionally entitled and in particu- lar during the very details of the complainant's factual allegations of sexual assault," he wrote. "In these circumstances, the court must exercise its discretion to or- der a mistrial." For Toronto defence lawyer Patrice Band, the case is proof of the need for an added response by the ministry. "It seems to be becoming a crisis," he says of the lack of qualifi ed interpreters, an issue he argues is frequently "the elephant in the room." Because of the failure of so many interpreters to pass the new tests, he notes, the courts fi nd themselves having to con- duct voir dires to assess whether those lacking full accreditation are qualifi ed to handle the case. But in Band's view, there are several problems with that, the most obvious being the fact that the court doesn't speak the lan- guage it needs interpreted. At the same time, the courts are at the mercy of the interpret- ers to fully and accurately de- scribe their qualifi cations, says Band. As a result, it's the inter- preters who tell their court about their own training and testing as well as the results of previous hearing into their qualifi cations. "Th ere's no government over- sight of that group of people," says Band, noting it's not un- common for one judge to fi nd an interpreter competent and then a colleague to rule other- wise. In Dutt, in fact, the court declined to reopen the voir dire into A.K.'s qualifi cations after she noted her testing through Vancouver Community Col- lege involved Hindi and not just English. At the time, the court didn't have access to the list of 24 languages that involved bilin- gual testing and therefore wasn't aware of the fact that Hindi wasn't one of them. Band, then, would like the government to create a sort of tracking system of interpreters' records in the court. Noting he has seen hearings where the in- terpreters couldn't remember the names of judges they'd previ- ously appeared before and cases they'd worked on, Band says it's time for a repository of that in- formation, including the courts' previous fi ndings of the person's competence. "To me, the answer to this problem is to address it," says Band, a member of the Criminal Lawyers' Association's committee on court interpreters. "To leave it to the individual litigant to mention the problem . . . makes it very diffi cult, if not impossible, to determine when a miscarriage of justice has oc- curred," he adds. Of course, a key problem has been the fact that it's hard enough for the courts to fi nd anyone who can interpret a language, let alone someone who's actually qualifi ed to do so. In a recent matter involv- ing a Tagalog speaker, for ex- ample, the evidence was that there's only one fully accred- ited interpreter and one who's conditionally accredited in the province, says Band. "Th ere are no quick fi xes here," he notes. Rai, meanwhile, says the problems are particularly evident in areas such as the bail courts. "Th ese guys have not been trained," he says in reference to the interpreters. Shoukri agrees that training is a problem. "We want to train," he says. "We want to maintain the highest possible standards. It can't be all stick and no carrots." Shoukri notes the ministry initially provides roughly two days of information sessions largely on court regulations but says that's it for training. His as- sociation is getting set to provide its own training in February but is getting no funding for it. Th e ministry, however, is de- fending its record on training and accreditation. "In order to increase the number of accred- ited interpreters, there is ongo- ing recruitment in the most com- monly used languages such as Punjabi, Tamil, Mandarin, and Vietnamese," ministry spokes- man Brendan Crawley said in an e-mail. "More recently, targeted recruitment has been conducted focusing on international stu- dents at universities, law schools, and professional organizations." At the same time, Crawley said the government is address- ing the training issue. "In addi- tion, the ministry is commit- ted to providing resources to interpreters to assist them. Test preparation classes are off ered free of charge." Shoukri, however, says the testing the government intro- duced isn't working. Besides lis- tening to the words, successful interpretation involves reading visual cues and body language, he argues. But the new tests don't take that into account, according to Shoukri. "It was not scientif- ic," he says. "It was an audio test alone. It has to be audiovisual." As an example of the prob- lems with the testing, Shoukri notes that someone who passes it for Punjabi — one of the 24 languages assessed bilingually — also gets accreditation for Hindi, the language that was at issue in Dutt. As part of its consideration of job action, the association, which says interpreters in a number of other provinces make $45 an hour, has made a number of demands: • Remuneration for qualifi ed interpreters at the national average. • Replacing the current testing system. • Forming an independent governing body to oversee training, testing, accredita- tion, and discipline. "It's a mess," Shoukri says of the current system. "Work with us. Help us. We are providing service here." Crawley, meanwhile, de- fended the ministry's use of agencies and the amount it pays them. "When an agency is used, court sites are obliged to pay the agency's rates," he said. WHERE AUTHORITATIVE CRIMINAL LAW CONTENT COMES TOGETHER CRIMINAL SPECTRUM This online research service integrates leading authored works with the Canadian Criminal Cases decisions, a comprehensive collection of full- text reported and unreported decisions and the Weekly Criminal Bulletin case summaries. Topical indexes, a case citator and search templates have been designed to make your research easier. Select from four different editions – Essential, Select, Classic or Premier. Each includes a different combination of works. Works includes: • Canadian Criminal Cases • Martin's Annual Criminal Code with annotations by Edward L. Greenspan, Q.C., The Honourable Justice Marc Rosenberg and Marie Henein • Martin's Related Criminal Statutes with annotations by Edward L. 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