Mistrial Declared Due to Mistakes By Hindi Interpreter in Sexual Assault Case in Brampton

Update: see previous posts – January 22, 2011 Court Interpretation Services – Ontario, May 1, 2010 Lost in Translation – 2, April 17, 2010 Lost in Translation

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The message comes across loud and clear – don’t invest 100%  faith in the ability of an interpreter to interpret verbatim or everything that was said on the record.

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 of the test were:

  • 76 court reporters failed the test (failed to achieve a passing mark of 50)
  • 103 court reporters received a conditional pass (which means they scored between 51-70 points on the test and can still interpret in the courts, but must pass the test and pass it, by the summer of 2011)
  • 46 court reporters (just over 20%) passed and were fully accredited.
Superior Court Justice Casey Hill, declared a mistrial, because the interpreter's interpretation of the April 27, 2011 trial was poor and substandard. He said that the accused was prejudiced by a denial of full linguistic presence as he was both entitled to and guaranteed, under the Constitution. The accused had constitutional right to a competent interpreter (as guaranteed by section 14 of the Charter).

Words matter, and how.

A “physical” assault is not the same as a “sexual” assault. Touching “between legs” is not the same as touching the “genital area.” And “a couple of weeks” is definitely not “two days.”

But a Hindi interpreter mistranslated those phrases exactly that way in a sexual assault case in Brampton, triggering a mistrial and sending ripples through the GTA legal community.

Superior Court Justice Casey Hill declared a mistrial in a case against Vishnu Dutt Sharma, an Indian citizen on a work permit in Canada, because the interpreter’s Hindi interpretation of the proceedings was poor and substandard, according to court documents.

“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 interpretation to which he was constitutionally entitled, and in particular during the very details of the complainant’s factual allegations of sexual assault,” Hill said.

Stories about the shortage of accredited interpreters are common in courthouses in the GTA — ask any lawyer.

What is unusual in this case is that audiotapes from cross-examination were sent to an expert in the United States, who, in a scathing report, said the interpreter “did not interpret verbatim, summarized most of the proceedings and was not able to interpret everything that was said on the record.”

Umesh Passi, a member of the New York State Bar, said the interpreter spoke “perfect Hindi but could not keep up with the required for simultaneous interpretation.”

Passi’s report included a 182-page transcription of each question, answer or submission followed by his interpretation of the interpreter’s Hindi words.

Court documents don’t identify the interpreter; only her initials, A.K., are used.

Prashant Rai, Dutt’s lawyer, is fluent in Hindi and says that helped bring the problem to the forefront. The court may not have become aware of the inaccuracies otherwise, he added.

“She spoke well in Hindi … I don’t know what happened while interpreting,” Rai said.

Brendan Crawley, a spokesperson for the Ministry of the Attorney General, said an interpreter can be scheduled for work while a complaint is under review.

(A.K. also failed to show up a couple of times due to illness; the court services supervisor said she had been asking for more money.)

Pat Band, a director with the Criminal Lawyers’ Association of Toronto, called the situation with interpreters “a crisis. There aren’t enough accredited interpreters and the standards (of interpreting) are almost impossible to tell.”

He also pointed out there is no way to find out from the ministry if an interpreter was deemed incompetent anywhere else in the province.

“There are too many problems.”

There are 171 accredited and 290 conditionally accredited interpreters in the Toronto area. They serve a population of 1.5 million residents who regularly speak neither English nor French at home. Of that number, at least 200,000 can’t hold a conversation in either language.

Recruitment is ongoing in commonly used languages such as Punjabi, Korean, Tamil, Mandarin and Vietnamese, said Crawley, who added that potential interpreters are being recruited among international students at universities, law schools and professional organizations.

There are just two accredited Portuguese-language interpreters, one Pashto and one Tamil. There are none in Korean, Filipino, Sudanese Arabic or Swedish.

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