see source, the Star
One of the questions that you will be asked in the Form 7 (when requesting a trial) is: “I intend to appear in court to enter a plea at the time and date set for trail and I wish that it be held in the English language” You check this off, unless, due to you language needs (other than English) you require a language interpreter for the trial, in which case, you indicate the language that you feel most comfortable having a trial in, or you are deaf and require a sign language interpreter.
The Ministry of the Attorney General of Ontario has been attempting to raise the standard (by introducing comprehensive testing of court interpreters in April, 2009) of the court interpreters it utilizes in Ontario’s courts since a former defendant, Avtar Sidhu decided to sue the Attorney General on November 16, 2007 (see Avtar Sidhu v. HER MAJESTY THE QUEEN, IN RIGHT OF THE GOVERNMENT OF ONTARIO, AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL) for thirty-five (35) million dollars, as a result of a breach of his rights under section 7, 14 and 24 of the Charter.
The Crown is taking the rare step of asking a judge to “sever” a trial for two people accused in the same case because of a lack of qualified language interpreters, an issue plaguing the province’s justice system.
The joint trial can’t proceed as planned over the next three to four weeks because there is no accredited Arabic interpreter available for one of the defendants, Prosecutor Glenn Crisp said Wednesday.
The interpreter issue has dogged the province for years, and has recently worsened as the attorney-general’s ministry struggles to impose tough new standards.
Crisp told Ontario Superior Court Justice Alfred O’Marra that there is only one accredited Arabic court interpreter in all of Ontario, and he is unwilling to do long trials.
He asked O’Marra to split the trials of Farsi-speaker Shahin Pirouzi, 31, and Arabic speaker Mahmoud Abou Al Rashta, 41, who are jointly charged with conspiracy to commit murder.
The interpreter shortage is dogging other cases.
It derailed a murder trial last month. On Dec. 6, Ontario Superior Court Justice Todd Ducharme declared a mistrial in the case of Amin Mohamed Kassim due to the lack of an accredited interpreter of Oromo, an East African language.
A new trial date is set for Feb. 22.
The issue stalled the opening of the trial last October for David Chen, the Chinatown grocer charged with assault and forcible confinement after he apprehended a shoplifter. There were no fully accredited Mandarin interpreters in the province, court was told.
This week, prominent lawyer Clayton Ruby subpoenaed Sheila Bristo, manager of the province’s court interpreter services, to outline the qualifications of man claiming to be proficient in Turkish.
Ruby told the Star that the interpreter, though deemed qualified by a judge in the hearing for his client, Hasan Cocelli, has only been tested for his proficiency in Kurdish, not Turkish — and he failed.
It’s practically unheard of for the Crown to make “severance applications” such as the one made by Crisp in the murder conspiracy trial Wednesday, though they’re commonly made by the defence.
Lawyers for the two accused oppose the severance.
Sid Freeman, Pirouzi’s lawyer, said the defendants are accused of jointly conspiring to kill a man, so their cases are “inextricably intertwined.”
Al Rashta’s lawyer, Susan von Achten, said splitting the trial is “highly likely” to result in a miscarriage of justice by preventing the truth from coming out and leading to inconsistent verdicts.
The judge will rule on the application Friday. He would have ruled Thursday, but a Farsi interpreter was not available.
The interpreter issue has dogged the province for years, and is the subject of an ongoing class-action lawsuit on behalf of people who claim they were wrongly convicted because of inadequate interpretation.
In 2009, the province instituted a new, more comprehensive testing system for court interpreters. Of the 225 who took the test, 34 per cent failed and are considered unaccredited. Those who received a mark of between 51 and 70 per cent are “conditionally” accredited.
Court Interpreters are “officers of the court” in Ontario and must provide accurate, competent and objective assistance. The court interpreter translates English or French into a language which the defendant understands or translates the proceedings of the court, into sign language to a defendant who is deaf.
In the summer of 2009, the Ministry of the Attorney General of Ontario subjected 225 court interpreters to a new, more comprehensive testing system which was reduced to a half hour (30 minutes) mandatory language test. The results of these tests were of alarming concern:
225 court reporters were given the new 30 minute test in 2009, the results:
The Ministry of Attorney General Court Services Division, Courtroom co-ordinators have strict instructions to use court interpreters from the accredited list first, then those with conditional credentials.
Those court interpreters who fail the half hour test, can still be called to interpret in court in “extreme and urgent” cases as long as they, like their qualified colleagues, disclose their status to the court before a proceeding. As of April, 2010, all Ontario court interpreters are required to declare their language competency to judges, crown attorneys and defence lawyers.
The Court Interpreters Association of Ontario maintains that the new test is unfair and doesn’t accurately reflect court conditions.
The Star reported that as of Monday, April 12, 2010 the Ministry of the Attorney General of Ontario introduced two registries of court interpreters, classifying them, based on their scores in a new mandatory language test: those who are fully or conditionally “accredited”, and others who fail the thirty (30) minute test.
Section 14 of the Charter – A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
This right under the Charter, means that you have the right to a qualified and competent court interpreter or translator, if you are in the need of assistance during a hearing in the court. If you are denied this right, the courts may provide you with a “stay of proceedings” as a remedy for this Charter breach.
Two years ago, the Star reported that in 2005, when the issue of court reporters not properly fulfilling their duties, came before Justice Casey Hill of the Superior Court of Justice in Brampton, the Ministry of the Attorney General of Ontario’s Court Services own records showed that 10 unaccredited interpreters – who failed the government’s testing program – spent a total of 2,670 days in court translating evidence, with judges and lawyers oblivious to their lack of qualifications.
Justice Casey Hill was presiding over an appeal brought by Mr. Avtar Sidhu, who was appealing his conviction of three counts of assault causing bodily harm. Justice Casey Hill provided a “Stay of Proceeding”, ruling that the Ministry of the Attorney General of Ontario’s Court Services had shown a “reckless indifference” to Sidhu’s constitutional right to a competent interpreter (as guaranteed by section 14 of the Charter).
The Punjabi language court interpreter assigned to his case, stopped the proceedings 27 times in a 36-page transcript to say he didn’t understand or couldn’t hear the questions.
As a result of Mr. Sidhu’s appeal, Mr. Sidhu decided to bring an action against the Province of Ontario’s Ministry of the Attorney General. He sued the Ministry for thirty-five (35) million (see the Statement of Claim). To date this lawsuit remains unresolved.
Since the summer of 2009, the Ministry of the Attorney General of Ontario subjects court interpreters to a new half hour (30 minutes) mandatory language test.
Both the old and new language tests, for court interpreters, include three (3) separate components:
More than 110 languages were represented in the old registry of court interpreters, but only 25 languages in highest demand are part of the testing program. The first group tested last year included speakers in Cantonese, Farsi/Persian, French, Greek, Mandarin, Portuguese, Punjabi, Russian, Spanish, Tamil, Urdu and Vietnamese.
Currently, there is only one “fully accredited” Mandarin language court interpreter and only one “fully accredited” Tamil language court interpreter in the Greater Toronto Area, based on the fact that these two interpreters were able to pass the examinations that were recently administered by the The Ministry of Attorney General in Ontario.
Through the Province’s Ministry of the Attorney General’s Court Services Division, over 800 accredited freelance court interpreters provide interpretation in over 100 spoken languages
PART I OF THE CONSTITUTION ACT, 1982, CANADIAN CHARTER OF RIGHTS AND FREEDOMS, Assented to March 29th, 1982
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Section 84 (1) Interpreters – A justice may authorize a person to act as an interpreter in a proceeding before the justice where the person swears the prescribed oath and, in the opinion of the justice, is competent.
Section 84 (2) Idem – A judge may authorize a person to act as interpreter in proceedings under this Act where the person swears the prescribed oath and, in the opinion of the judge is competent and likely to be readily available.