Ottawa, Ontario, September 20, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mirian Marlene Ayala Saravia is a citizen of El Salvador who claims status in Canada as a Convention refugee and a person in need of protection. She brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD") dismissing her claim.
[2] The determinative issue in this application is whether the interpretation provided before the RPD met the appropriate standard. Counsel agree that, as a matter of law, the interpretation must be continuous, precise, competent, impartial and contemporaneous. See: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.). This does not mean that perfection in interpretation is required. In Mohammadian, the Court of Appeal expressly adopted the comments of Chief Justice Lamer, as he then was, in R. v. Tran, [1994] 2 S.C.R. 951 at page 987, that interpretation is an "inherently human endeavour which often takes place in less than ideal circumstances".
[3] Counsel also agree that because the adequacy of the interpretation provided goes to the fairness of the hearing, no pragmatic and functional analysis is required. It is for the Court to determine whether the hearing was conducted in accordance with both the requirements of procedural fairness and the rights guaranteed to Ms. Saravia under section 14 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[4] I accept the submission of counsel for the Minister that where interpretation is required, all concerned must be prepared to use short sentences, speak slowly, use alternate words or phrases where a word or phrase is not understood or easily interpreted, and generally act in good faith. There should be no quarrel by counsel with trivialities of expression and meaning in an effort to make whole cloth from a few threads. However, despite the able argument of counsel for the Minister, I have been persuaded by the equally able argument of counsel for Ms. Saravia that in the present case, the difficulties in interpretation were of a more substantial quality.
[5] To illustrate, the second interpreter provided at the hearing struggled with interpreting the words "demeanour", "onus", "stitches", "sober", "audited", "seized", and "waiving". There were omissions of substance with respect to comments made about the war in Iraq and Ms. Saravia's alleged attack by members of an organized crime gang. (Those omissions and other difficulties were identified by counsel at the hearing so no issue of waiver arises). In a transcript which begins on page 10 with the arrival of a second interpreter and continues until page 48, difficulties with the interpreter being able to understand the speaker (often the presiding member's questions to Ms. Saravia), or to interpret what the speaker said, are found on pages 12-15, 20-22, 24, 26, 28, 31, 35-39, 41, 42, 44, 46 and 47.
[6] In that circumstance, I conclude that the interpretation cannot be said to be continuous, precise and competent. It follows that the application for judicial review will be allowed.
[7] Before parting with this application, I wish to acknowledge the difficulties the interpreter faced. First, the hearing was held by way of videoconference. The presiding member and the interpreter were in Montreal, while the claimant and her counsel were in Toronto. At the outset, the interpreter noted the echo caused by the conferencing equipment, stating it was going to be "tough" for the translation. Second, the presiding member, counsel and Ms. Saravia all had to be repeatedly asked to speak in shorter sentences and to allow time for the interpretation. Third, the presiding member himself acknowledged it was "difficult" because he was "giving a lot of things in English". Fourth, counsel for Ms. Saravia (not Mr. Kranc who represented her before the Federal Court) was, at times, singularly unhelpful in providing synonyms to aid the interpreter. The following extract from the transcript is illustrative of his conduct:
BY COUNSEL (to presiding member)
- Instead of being allowed an opportunity to put your best case forward first, and particularly I said on situation like this when she has the onus of proving that she is in danger. The onus of proof is on her.
BY COUNSEL (to interpreter)
- It's not the (onor) I'm sorry. I suggest that you [use] the dictionary, madame.
A. You say honour of proof.
BY PRESIDING MEMBER (to interpreter)
- No, onus.
BY COUNSEL (to interpreter)
- Onus. Onus.
A. Onus, okay.
BY PRESIDING MEMBER (to interpreter)
- The burden of proof.
A. Okay.
- Say it differently.
BY INTERPRETER (to counsel)
- So. Well, if you pronounce correctly, I would be able to understand you, so.
A. Are you suggesting that I don't speak English well, madame? Is that what you're suggesting?
- No, I'm just...
[8] In my view, better cooperation, and restraint, should be expected of counsel.
[9] The interpreter is to be commended for acknowledging the difficulties that she faced and for stopping the proceedings in order to clarify what was said or to allow a full interpretation to be given. Notwithstanding, because the quality and fairness of the hearing provided to Ms. Saravia is very much in doubt, the application is allowed.
[10] Counsel posed no question for certification, and I agree that no question of general importance arises on this record.
ORDER
[11] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated December 3, 2004 is hereby set aside.
2. The application is remitted to a differently constituted panel of the Refugee Protection Division for redetermination.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10396-04
STYLE OF CAUSE: MIRIAN MARLENE AYALA SARAVIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 8, 2005
APPEARANCES:
BENJAMIN A. KRANC FOR THE APPLICANT
SOLICITORS OF RECORD:
KRANC & ASSOCIATES FOR THE APPLICANT
BARRISTERS & SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA