The Ministry of the Attorney General has failed to provide adequate court interpreters - despite a lambasting of the quality of those services by a Superior Court justice three years ago, alleges a $35-million class action lawsuit launched in Brampton last week.
“It goes to a Charter right that every person has to be entitled to understand the criminal proceedings which are brought against them,” says Mike Girard, who brought the suit with fellow lawyer Anthony Moustacalis.
“The responsibility for discharging that Charter obligation is given to the provinces, and they have not, in some cases, provided competent translators.”
The lawsuit arises out of a case involving representative plaintiff Avtar Sidhu, who won a stay of proceedings in 2005 when Superior Court Justice Casey Hill ruled that the Punjabi-speaking man’s s. 7 and s. 14 Charter rights had been breached.
In that ruling, Hill criticized the Court Services Division for its “reckless indifference” to Sidhu’s right to a court interpreter, and added, “It is statistically inevitable that there exist as yet undiscovered miscarriages of justice.”
The lawsuit alleges that the province used unaccredited interpreters without telling the court; that interpreters aren’t sufficiently trained, tested, or monitored; and that the province failed to deal with the problems, even though it was aware of them.
“What we have is some known, and potentially a much larger group that are unknown, people who have been subjected to criminal proceedings where the interpretation may be an issue. And that brings up the spectre of potential wrongful conviction,” says the suit.
Girard says, “It doesn’t appear that anyone is taking any steps to try and identify who those people might be, and whether in fact there was a miscarriage of justice.”
Ministry of the Attorney General spokesman Brendan Crawley confirmed that the ministry has been served with a notice of action and amended statement of claim under the Class Proceedings Act.
“It’s anticipated that this matter will proceed to litigation, and therefore we won’t be making any further comment on the litigation aspect,” says Crawley.
But he tells Law Times that the ministry “continues to ensure that we have the highest standards of interpretation in Canada,” and that complaints about interpreters “are handled promptly and effectively.”
He adds, “Our quality-assurance model allows us to identify, retest, and remove interpreters who do not meet industry standards or breach the Rules of Professional Conduct for court interpreters.”
The ministry uses unaccredited interpreters in “situations of extreme urgency,” says Crawley. They may be used when an accredited interpreter is unavailable, or if there’s a need for a rare language or dialect, he says.
“Being unaccredited does not automatically mean the person is not a credible interpreter; it simply means they are not on the ministry’s registry,” says Crawley. “Many unaccredited interpreters perform interpreter functions outside of the Ministry of the Attorney General.”
Court managers must approve the use of unaccredited interpreters and note it in the court file, he says.
“The court, the Crown, the defence, and/or any other parties in the case, are made aware of the use of an unaccredited interpreter,” says Crawley.
The judge hearing a case can take steps to ensure that the interpreter has the necessary abilities to hear it, he says, adding that a judge may decide to move a trial to a day when an accredited interpreter is available.
Frank Addario, president of the Ontario Criminal Lawyers’ Association, says Attorney General Chris Bentley inherited the court interpreter problem from his predecessors.
“His ministry has not moved with any apparent speed to rectify the problem,” says Addario. “They have not made a remedial plan public, and what we learned from Sidhu was that the system is essentially unregulated.”
“The result of the absence of a plan from the ministry, now going into the third year, is that no one knows if there are one, 100, or 1,000 miscarriages of justice out there as a result of deficient, unconstitutional interpretation services,” he says.
The Supreme Court of Canada weighed in on the importance of s. 14 in the 1994 judgment R. v. Tran, a sexual assault trial involving a Vietnamese accused.
“The right of an accused who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it,” wrote the court.
“This right is also intimately related to our basic notions of justice, including the appearance of fairness, and to our society’s claim to be multicultural, expressed in part through s. 27 of the Charter.
“The magnitude of these interests favours a purposive and liberal interpretation and a principled application of the right to interpreter assistance under s. 14 of the Charter.”
Addario says there has been little litigation involving s. 14 since Tran, “because everybody seemed to understand what it required.”
Moustacalis said in a release, “I am concerned that so many people who put their trust in the administration of justice in this province have suffered from incompetent interpretation. If you do not understand the proceedings through competent interpretation, you are denied justice.”