CRDD Handbook - Chapter 9: Interpreters and Translation of Documents

Both the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights confirm the duty to provide an interpreter for a party or a witness who does not understand or speak the language of the proceedings.

CRDD Rule 17(1) establishes that the Refugee Division is to provide an interpreter, where the party or witness gives at least 15 days written notice that the party or witness does not understand or speak the language in which the conference or hearing is to be conducted or is hearing impaired.

This chapter discusses judicial decisions concerning the use of interpreters, and the standards of interpretation and translation of documents. It also describes the role and standard of conduct expected of the interpreters retained by the Refugee Division.

In general, an interpreter provides an oral translation and a translator provides a written translation. In R. v. Tran, [1994] 2 S.C.R. 951, the Supreme Court of Canada provided the following comment at page 987:

… it may be helpful to note the conceptual distinction that exists between "interpretation", which is primarily concerned with the spoken word, and "translation", which is primarily concerned with the written word. In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.

9.2 LEGISLATIVE PROVISIONS

The right to an interpreter is mentioned in the Charter, the Bill of Rights and the CRDD Rules.

The Canadian Charter of Rights and Freedoms, s. 14, provides that:

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.

The Canadian Bill of Rights, s. 2(g), provides that:

no law of Canada shall … be construed or applied so as to…
deprive a person of the right to the assistance of an interpreter
in any proceedings in which the person is involved or is a party or a witness,
before a court, commission, board or other tribunal,
if the person does not understand or speak the language in which such proceedings are conducted.

Rule 17 of the CRDD Rules provides that:

the Refugee Division shall provide an interpreter to assist a party or witness,
where the party or witness advises the Refugee Division in writing at least 15 days before the date set for a conference or hearing, as the case may be, that the party or witness:

does not understand or speak the language in which the conference or hearing is to be conducted, or
is hearing impaired.

the interpreter shall take an oath or make a solemn affirmation:

to interpret accurately any statements made in the course of the conference or hearing, and
to translate accurately any documents that the Refugee Division may require to be translated in the course of the conference or hearing.

The claimant normally gives notice of the need for an interpreter by so indicating on the Personal Information Form (PIF). CRDD Rule 14(1)(u) requires the claimant to provide in the PIF, where applicable, a statement to the effect that the claimant requires an interpreter for the purpose of participating in proceedings before the Refugee Division and the language or dialect required for interpretation.

9.3 PRINCIPLES FROM THE CASE LAW

9.3.1 Right to an Interpreter

CRDD Rule 17(1) provides that an interpreter will be provided to assist a party or witness who advises in writing at least 15 days before the date set for the hearing or conference that the party or witness "does not understand or speak the language in which the proceedings are conducted, or is deaf". The right to an interpreter under the Rules is not absolute, as an interpreter is provided on request only to those who need one.

A claimant who attended university in English or French, or who lived for many years in an English or French speaking country may, in some cases, properly be questioned as to why an interpreter is being requested. It would be a very rare case, however, and only in the clearest of circumstances, where a panel would decide that an interpreter should not be provided because the claimant did understand and speak the language and was only making the request for an interpreter for some ulterior and improper motive.

The Ontario Court of Appeal noted in R. v. Petrovic (1984), 47 O.R. (2d) 97 that when an accused person makes a request for an interpreter, an interpreter ought normally to be provided without question. It is not the proper function of the trial Judge or other decision-maker to conduct a detailed inquiry into the accused's ability to understand or speak the language of the proceedings. Very strong evidence would have to be presented to show that such a request is made in bad faith or for an improper motive before the constitutional right to an interpreter under section 14 of the Charter is removed.

The Court of Appeal also noted that a person may be able to communicate in a language for general purposes but not have sufficient comprehension or fluency to face a trial with its important consequences, without the assistance of an interpreter. Similar comments were made by the Federal Court with respect to refugee proceedings in Boateng, Prince Agyenim v. M.E.I. (F.C.T.D., no. 92-T-1226), Rothstein, November 24, 1993 and in Garcia, Jairo Hernando Ravagli v. M.E.I.(F.C.T.D., no. 92-T-1854), Rothstein, November 24, 1993.

In Roy v. Hackett (1987), 62 O.R. (2d) 365, the Ontario Court of Appeal found that the right to an interpreter under section 14 of the Charter was not an absolute right in the sense that every party or witness would automatically be entitled to an interpreter on demand. A person requesting the assistance of an interpreter could in some cases be cross-examined on the need for an interpreter, even though the denial of an interpreter would be an exceptional situation. The Court said at page 377:

In general, the judge or the chairman of the tribunal must come to a decision regarding the good faith of the witness or the person who has requested an interpreter before granting the request. In coming to his decision, however, he must take into account the legitimate desire of any witness to express himself in the language he knows best, usually his mother tongue. Therefore, he must avoid imputing an ulterior motive to a witness who asks for an interpreter, even if the witness has some familiarity with the language used and could, in a general way, understand the proceedings. The judge must certainly give s. 14 a broad and generous interpretation. That does not mean that the right to an interpreter is an absolute right and that cross-examination as to the linguistic competence of the person who requested such assistance is automatically oppressive and vexatious to the point of making the exercise of that right illusory. [emphasis added]

If a suitable interpreter cannot be made available at a hearing, then there is no authority to proceed with the hearing. The standards for ensuring that a person can communicate at the hearing cannot be lowered simply because of difficulty in finding a qualified interpreter.

This principle was illustrated in Faiva v. Canada (Minister of Employment and Immigration), [1983] 2 F.C. 3 (C.A.). The Immigration Regulations, 1978 required that before any evidence is presented at an inquiry, the adjudicator must be satisfied that the person concerned understands and is able to communicate in the language in which the inquiry is being held. In the Faiva case, the adjudicator at first determined that an interpreter in the Tonga language was needed. No Tonga interpreter could be found. The adjudicator then announced that he would attempt to proceed with the inquiry and that he was "prepared to relax somewhat the standard that would normally apply". At the conclusion of the inquiry, the adjudicator stated that he was satisfied from the testimony that the person concerned's command of English had been sufficient for effective communication at the inquiry. The Federal Court of Appeal quashed the inquiry proceedings. The Court held that if an interpreter was required but could not be provided, the adjudicator did not have a duty or a right to proceed with the inquiry. There was no right, in the circumstances, to relax the normal standards or requirements concerning the ability to understand and communicate in the language of the inquiry. The fact that it may not be possible to conduct an inquiry if an interpreter in the required language cannot be found does not dispense with the requirement to secure an interpreter, which is an essential right of the person concerned.

In Hamidu, Alasa v. M.C.I. (F.C.T.D., no. IMM-4886-97), Tremblay-Lamer, June 25, 1998, it took several years before a refugee claim made in 1991 was adjudicated, because an interpreter proficient in Kusai and English could not be found. The Refugee Division finally convened a hearing at which counsel for the claimant and the RCO questioned the claimant regarding his proficiency in English. The Refugee Division panel was satisfied that the hearing should proceed in English, based mainly on the fact that the claimant was able to provide information to be included in his PIF to a consultant in English and that he communicated at his workplace for three years in English. The Court upheld the decision of the Refugee Division.

Care should be taken to establish the competence and impartiality of the interpreter, especially where the interpreter is provided by one of the parties. In Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont. Co. Ct.), one of the witnesses called by the Crown was the father of the accused. The father did not speak English well. No court interpreter was available, so the father's friend took on the task. No inquiry was made by the Ontario Provincial Court as to the suitability of this person as interpreter. The accused complained during the trial that statements were not being properly translated. On appeal to the County Court, the trial was set aside. The County Court stated that at a minimum, in the circumstances of this case, the interpreter should not have been accepted without the Judge first determining the competence and impartiality of the interpreter by allowing the accused to question the interpreter and make submissions. Further, it is doubtful whether this interpreter should even have been considered acceptable inasmuch as he was a friend of the accused's father who was testifying against the accused. The practice of the Refugee Division is not to allow the claimant to bring the interpreter. Interpreters will be selected by the Refugee Division.

9.3.2 Waiver of Right to Interpreter

A claimant who has some difficulty with English or French may, nevertheless, state that he or she prefers to proceed without an interpreter. The Refugee Division should make sure that the claimant fully understands his or her right to have an interpreter and that the waiver of that right is unequivocal.

Where the claimant's linguistic deficiencies are minor, the claimant's decision to proceed without an interpreter ought to be accepted. If, however, in the opinion of the presiding member, the lack of an interpreter is significantly interfering with the panel's ability to reach a proper decision in the case, then there may be a duty to arrange for an interpreter. There should be compelling reasons, though, when the Refugee Division decides not to follow the claimant's wishes with respect to having an interpreter. The panel might start by discussing the matter with the claimant and suggesting an interpreter be used, rather than imposing one at the outset.

Where the claimant waives the right to have an interpreter at the hearing, it may still be advisable to have the interpreter in attendance at the hearing so that the interpreter can be used from time-to-time at the hearing, as the situation requires.

The issue of waiver of the right to an interpreter was discussed in Poopalasingam, Thamilchelvan Selliah v. M.C.I. (F.C.T.D., no. IMM-4563-93), Richard, January 30, 1995:

The applicant also claimed that his rights under section 14 of the Canadian Charter of Rights and Freedoms had been infringed and that the hearing had been conducted without a proper interpreter present at all times. The short answer to this submission may be found in the transcript of the hearing before the Refugee Division. At the opening of the hearing held on June 24, 1993, the presiding member asked the interpreter whether the interpreter had had an opportunity to speak with the applicant. The interpreter answered in the affirmative. The presiding member then asked the interpreter whether the interpreter could communicate effectively with the claimant and the interpreter answered in the affirmative. The interpreter then solemnly affirmed that she would interpret and translate to the best of her ability. The interpreter then informed the presiding officer as follows: "[H]owever, I would like to mention the claimant wishes to give his evidence in English." Counsel for the applicant then stated that the interpreter would be standing by in case there was a problem. The presiding officer then asked the claimant the question: "Mr. Selliah Poopalasingam, are you satisfied that you can communicate effectively with the interpreter?" to which the claimant answered in the affirmative. It would appear from the transcript of the hearing that the applicant proceeded to give his evidence in English and that the interpreter remained at the hearing. There is no evidence that the applicant could not communicate effectively. In these circumstances, there is no factual underpinning for the allegation made by the applicant in his written submissions.

Accordingly, the application for judicial review is dismissed.

9.3.2.1 Procedure When No Interpreter Available

When a proper interpreter is required but is not available at the commencement or the resumption of a Refugee Division hearing, the panel lacks jurisdiction to hear evidence and arguments. The hearing would not be "in the presence of the claimant" as the claimant would be unable to follow the proceedings.

Where it is administratively convenient to do so, the panel might nevertheless go on the record (i.e., turn on the tape recorder in the hearing room) and explain to the claimant that, unfortunately, no qualified interpreter is available. For this purpose, counsel or a friend or relative might informally translate (without taking an oath) for the claimant. A new date would be set for the hearing. The transcript of proceedings would show continuity from the start of the hearing and there would be no misunderstanding later about the reason or reasons for the postponement or adjournment.

9.3.3 Standards of Interpretation

In Tung v. Canada (Minister of Citizenship and Immigration) (1991), 124 N.R. 388 (F.C.A.), the Federal Court of Appeal set out a requirement that a refugee claimant must show that he or she was prejudiced by the faulty interpretation, in order to have the proceedings in the Refugee Division set aside.

In Mosa, Hidat v. M.E.I. (F.C.A., no. A-992-92), Stone, Linden, Létourneau, April 19, 1993, the inaccurate translation precluded the Refugee Division from putting further questions as to the nature of the claimant's fear and the basis for it. There was thus potential prejudice to the claimant. The matter was remitted for rehearing.

The Supreme Court of Canada stated in R. v. Tran, [1994] 2 S.C.R. 951 at 985:

While the standard of interpretation under s. 14 [of the Charter] will be high, it should not be one of perfection.

The question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in Court. The Supreme Court went on to find [at page 995] that, in the criminal law context, the accused does not have to show that the accused was actually prejudiced by the faulty interpretation in order to establish that the right to an interpreter under section 13 of the Charter was breached:

Actual resulting prejudice is a matter to be assessed and accommodated under s. 24(1) of the Charter when fashioning an appropriate and just remedy for the violation in question. In other words, the "prejudice" is in being denied the right to which one is entitled, nothing more.

In Tran, the Supreme Court of Canada enunciated the principles applicable in the criminal law context to the right to interpreter in section 14 of the Charter. However, it left open for future consideration the possibility that different rules may have to be developed and applied to other situations which properly arise under section 14 of the Charter - for instance, where the proceedings in question are civil or administrative in nature. While the standard of interpretation under section 14 will be high, it should not be one of perfection. The headnote to the Tran case reads in part:

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. 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. The principle underlying all of the interests protected by the right to interpreter assistance under s. 14 is that of linguistic understanding.

In determining whether there has in fact been a breach of s. 14, it must be clear that the accused did not understand or speak the language being used in court and was thus actually in need of interpreter assistance. Where an interpreter was appointed and it is the quality of the interpretation provided that is being challenged, it is necessary to determine whether there has been a departure or deviation from what is considered adequate interpretation. While the interpretation provided need not be perfect, it must be continuous, precise, impartial, competent and contemporaneous. The question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court. Not every deviation from the protected standard of interpretation will constitute a violation of s. 14 of the Charter: the claimant of the right must establish that the lapse in interpretation was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter. In determining whether the alleged deviation in interpretation was part of an occurrence which actually served in some way to "advance the case", one must consider whether there was an unfolding or development in the proceeding with respect to a point of procedure, evidence and/or law. Since s. 14 guarantees the right to interpreter assistance without qualification, it would be wrong to introduce into the assessment of whether the right has been breached any consideration of whether or not the accused actually suffered prejudice when being denied his or her s. 14 rights. The Charter in effect proclaims that being denied proper interpretation while the case is being advanced is in itself prejudicial and is a violation of s. 14. There will be situations where the right to interpreter assistance cannot be waived for reasons of public policy. Where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant.

Here the accused was in need of interpreter assistance throughout his trial, since he did not understand or speak English, and there is no doubt that the interpretation of the proceedings in which the interpreter was involved as a witness fell well below the guaranteed standard. First, the accused did not receive continuous interpretation of all the evidence at his trial, since the questions posed to and answers given by the interpreter were condensed into two one-sentence summaries and the interpreter's exchange with the judge was not translated at all. Second, the interpretation was not precise, as the summaries failed to convey everything that had been said and the first summary was incorrect in that it referred to something which had not in fact been said. Third, while there is no reason to doubt the actual impartiality or objectivity of the interpretation provided in this case, the practice of having an interpreter act as both a witness and an interpreter is one which should be avoided in all but exceptional circumstances. Finally, the timing of the interpretation was unsatisfactory, in that it should have occurred contemporaneously with the asking of questions and the giving of answers. These lapses were not trivial or de minimis in nature, but rather occurred at a point when the accused's vital interests were clearly involved and the case was thus being advanced. The problems with the interpretation arose during the testimony of a witness, and the evidence given by that witness covered a topic of considerable importance to the accused, namely, the issue of identification upon which his entire defence was built. There was no clear or unequivocal waiver by the accused of his right to interpretation. There is also no indication that the accused personally understood the scope of his right to interpreter assistance and what he was giving up, and that the waiver was made by him personally. The curative provisos of the Criminal Code are not applicable when an infringement of the right to interpreter assistance is in issue. While denial of a Charter right constitutes an error of law, it is by its very constitutional nature a serious error of law, and certainly not one which, for Criminal Code purposes, can be characterized as minor or harmless, or as a "procedural irregularity". Recourse should be had to s. 24(1) of the Charter, which allows a court to tailor the remedy to the particular circumstances of the violation. Since the violation of s. 14 of the Charter in this case occurred in the trial proper, the appropriate and just remedy under s. 24(1) is to quash the accused's conviction and order a new trial. [emphasis added]

In Banegas, Sandro Nahun Flores v. M.C.I. (F.C.T.D., no. IMM-2642-96), McGillis, June 30, 1997, the Trial Division found that the claimant was not denied his right to interpretation guaranteed by section 14 of the Charter, or that the interpretation breached any of the principles of fundamental justice. In Tung v. Canada (Minister of Citizenship and Immigration) (1991), 124 N.R. 388 (F.C.A.), the Federal Court of Appeal set out a requirement that prejudice must also be established. In R. v. Tran, [1994] 2 S.C.R. 951, the Supreme Court of Canada rejected such a requirement for the purposes of the criminal law. Counsel for the claimant had argued that the principles set out in Tran for criminal law proceedings should be extended to apply in the immigration context. The Trial Division found that it was unnecessary to decide that question. The Trial Division was satisfied that the claimant had suffered no prejudice as a result of the interpretation. None of the alleged errors in interpretation affected in any manner the various inconsistencies in the evidence which led to an adverse credibility finding. Alternatively, even if the more expansive Tran test were used, the Court was not satisfied on the balance of probabilities that the claimant was denied proper interpretation. "During the course of his hearing, the [claimant] indicated that he understood the interpreter, gave responsive answers to the questions posed and made no objection, either personally or through his counsel, to the quality of the interpretation. More importantly, the [claimant] did not state in his affidavit that he did not understand the proceedings." In Court, the claimant filed the affidavit of an expert interpreter/translator who had read the transcript, listened to the tapes and made a report outlining the errors in interpretation. The Trial Division found that the vast majority of the errors she identified were trivial in nature, and were as a result of a microscopic examination. Furthermore, she applied in her analysis the higher standard for translation, rather than the lower standard for interpretation. The application for judicial review was dismissed.

In Arunthavarajah, Vathsala v. M.C.I. (F.C.T.D., no. IMM-4788-97), Reed, July 2, 1998, the Trial Division held that the test for adequate interpretation is whether the claimant "can express himself or herself through the interpreter" and not the lower test used by the panel of understanding "most" of the major points. Further, "…the Board has an obligation to ensure that the interpretation is adequate even in the face of counsel's consent." The following are extracts from Arunthavarajah:

[para 3] The applicant's counsel raised the question of inaccurate interpretation in the course of the hearing. There was an off the record discussion, after which counsel for the applicant agreed that the hearing should proceed, and questions about the quality of the interpretation would be addressed when making submissions. In articulating what had been agreed upon the presiding Board member described the Board's position as being that the panel was of the view that "the claimant had been able to understand most, or perhaps all the major points of the hearing …" [underlining added].

[para4] The test is not whether an applicant can understand "most" of the major points, but whether the applicant can adequately express himself or herself through the interpreter; see Xie v. Canada (Minister of Employment and Immigration) (1990), 10 Imm. L.R. (2d) 284 (F.C.A.) at 292. Understanding "most" of the points of the hearing is too low a standard. Also, it has been recognized that the Board has some obligation to ensure that the translation is adequate even in the face of counsel's consent.

(…)

[para9] Thus one has: a Board that has assessed the quality of translation by an incorrect standard; counsel for the applicant agreeing to proceed despite the concerns expressed; the Board stating at the end of the hearing that it needed to consider the implications of the alleged translation difficulties, and no mention being made of them in its decision; no affidavit being filed in this application documenting any inadequacies in the translation.

[para10] I am of the view that that set of circumstances alone would not justify an order setting aside the Board's decision although it does raise concern about the quality of the hearing the applicant received.

The decision in Arunthavarajah was set aside because of the cumulative effect of the numerous difficulties that existed with the decision (including credibility and IFA issues).

In Mandi, El-Menouar v. M.C.I. (F.C.T.D., no. IMM-1952-97), Campbell, February 24, 1998, the decision of the Refugee Division was set aside, in part because of errors in interpretation. The interpreter was not interpreting everything that the witness was saying; for example, instead of literally translating the insults to which the claimant was subjected in Germany, the interpreter would say only that she was called "bad names".

9.4 ROLE OF THE INTERPRETER

Interpreters are provided for claimants and witnesses at Refugee Division proceedings, at the expense of the Board. Interpreters facilitate communication among all of the participants at the proceedings. Interpreters are required to interpret accurately any statements made in the course of the proceedings, without any paraphrasing or embellishments. Interpreters must be objective and impartial at all times and must refrain from giving advice to any of the participants in the proceedings.

9.4.1 Personal Service Contract for Interpreters

Before being selected to provide services as an interpreter at the Refugee Division, the interpreter must pass an enhanced reliability check and an Immigration and Refugee Board accreditation test, and sign the Board's Personal Service Contract for Interpreters, including the Board's Code of Conduct for Interpreters. The Board has accreditation tests in over 40 languages.

The Board's accreditation test for interpreters was designed as an objective and uniform means of ensuring that interpreters meet an established language standard (in English or French, and in their specific language) as a prerequisite before their services are contracted by the Board. The interpreters accreditation test is comprised of three parts: (1) a proficiency test in English or French language; (2) interpretation of a recording of 35 to 45 minutes of the various representative segments of a hearing; and (3) an oral translation into French or English of a short document in the source language.

Interpreters are not employees of the Board but are engaged under a Personal Service Contract as independent contractors for providing interpretation services as and when needed by the Board.

The Board's contract for interpretation services and accompanying code of conduct sets out clearly the contractual relationship and responsibilities with respect to interpretation services provided to the Board.

9.4.2 Standards of Conduct

As part of their contract with the Board, all interpreters providing services to the Board must sign the Code of Conduct for Interpreters (revised in January 1997). The Code sets out rules to ensure the highest standard of professionalism and conduct by interpreters. All interpreters are expected to comply with the Code, a copy of which is attached as Appendix 9E.

9.4.2.1. Accuracy

CRDD Rule 17(2) requires the interpreter to take an oath or make a solemn affirmation with respect to accuracy:

(2) The interpreter shall take an oath or make a solemn affirmation to interpret accurately any statements made, and to translate accurately any documents that the Refugee Division may require to be translated, in the course of the conference or hearing.

Rule 3 from the Code of Conduct for Interpreters, elaborates on the requirement for care, skill, diligence and efficiency:

Interpreters shall take all reasonable care to faithfully and accurately interpret or translate what is stated in the source language into the target language,

having regard primarily to meaning and secondarily to style,

without any paraphrasing, embellishment, omission, explanation, or expression of opinion,

using the same person as in the source language and

the closest natural equivalent of the source language.

The decision-maker must always assess the credibility of answers given and this can only be properly done if the exact question is known. If expanded explanations are given by the interpreter, the decision-maker has no opportunity to assess the accuracy of the expanded explanation. In addition, the mere fact that a person does not understand a question could lead to a conclusion about the person's education, experience or other factor of personal history. This information may in itself be a relevant factor in some cases.

Once it has been determined that an interpreter is required at a hearing, the interpreter must translate the entire proceedings. A trial judge who directs an interpreter only to summarize a portion of the trial makes an error and, in most circumstances, the failure to have an interpreter translate the entire proceedings would necessitate the holding of a new trial (R. v. Petrovic, above).

Even where counsel for the accused does not object to having a portion of the trial only summarized in translation, this failure to object cannot necessarily be taken as a waiver of the person's right to have the entire proceedings translated. In order to waive a constitutional right (for example, the right to an interpreter under section 14 of the Charter), it must be clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.

9.4.2.2 Impartiality and Avoidance of Conflict of Interest

Rule 4 from the Code of Conduct for Interpreters elaborates on the requirement for impartiality and avoidance of conflict of interest:

Interpreters shall be, and shall appear to be, objective and impartial at all times,
- inside and outside the conference or hearing room,
- in relation to any matter for which they provide services to the Board.
Interpreters shall avoid, and where it arises, shall, without delay, disclose to the case management officer, clerk or presiding decision-maker, as the case may be,
- any real, potential, or apparent conflict of interest
- in relation to any matter for which they provide services to the Board.

Commentary:

As soon as an interpreter becomes aware, for example, of any ties, whether personal, professional, or other, that the interpreter has or may have with the person with respect to whom he or she is providing interpretation, the interpreter is required to disclose this fact, without delay, to the case management officer or clerk or presiding decision-maker, as the case may be.
An interpreter is likewise required to disclose, in the same manner and to the same person, for example, any employment or other activity, association, or private interest, (such as membership in an organization that is critical of or in favour of the government of the country of origin of the person concerned), that may be incompatible with his or her duties as an interpreter.
An interpreter is also expected, for example, to refrain from giving advice to, or discussing any aspect of a case with, any of the participants in the proceedings for which the interpreter is providing services to the Board.

9.4.2.3 Confidentiality

Rule 5 from the Code of Conduct for Interpreters elaborates on the requirement for confidentiality:

Interpreters shall keep confidential all information gained in the course of providing services to the Board.

More specifically, interpreters shall not, either within or outside the Board premises, discuss, report on, or give an opinion concerning any matter for which they provide services to the Board.

9.5 CHALLENGE TO THE COMPETENCE OF AN INTERPRETER

It is the responsibility of the Refugee Division members hearing a case to ensure that the interpreter possesses an acceptable level of proficiency and that the behaviour of the interpreter is appropriate at all times. The hearing should adjourn for a new interpreter if the current interpreter is not competent in a required language or is acting in an offensive manner or otherwise does not provide all parties with the confidence that the interpreter is impartial.

It is recommended that the interpreter and the claimant be given an opportunity to exchange a few words prior to the hearing to ensure that they are able to communicate properly with each other. It should be noted in the record of the hearing that the claimant and counsel, if any, are satisfied with the interpreter. If there appears to be any serious problem with dialect or proficiency, this should be resolved at the outset, and a new interpreter should be sought, where needed.

It is difficult for a Refugee Division member to know whether an interpretation from, for example, English or French to Spanish is accurate. The interpreter, however, for the most part, should be interpreting without hesitation and the length of interpretation should bear a relationship to the original language. A proper Spanish interpretation would not normally be greatly different in length from the original English or French version; some languages other than Spanish may require many more words to say the same thing. Therefore some flexibility and discretion is required on the part of the member when assessing an interpreter's performance.

On occasion, counsel or the claimant may challenge the competence of an interpreter. Counsel may have some fluency in the foreign language or may have brought along a friend or relative of the claimant to monitor the interpreter's performance. In either case, when objection is taken to the use of a particular interpreter, the reason for the objection should be given with as much specificity as possible. Although one may reasonably assume that the objection is being taken in good faith, it may be that the professional interpreter has more proficiency than the counsel or relative and that the objection is therefore not well founded. It is also sometimes the case that having the interpreter dismissed may be seen as a strategy that would assist a person concerned who wants to change parts of a story: apparent discrepancies could then be blamed on the inadequacies of the performance of other interpreters prior to the hearing or the incompetence of the current interpreter. In all situations, though, the claimant has a right to have a proper interpreter, and all complaints must be properly addressed. Ordinarily, a new interpreter must be provided when a serious problem arises. Interpreters should not be dismissed, however, for frivolous or capricious reasons. Each case calls for the exercise of good judgment based on the particular circumstances of that case.

In Kandola, Piara Singh v. M.E.I. (F.C.T.D., no. 89-T-735), Rouleau, January 30, 1990, an order was issued out of the Federal Court, on the consent of the parties, requiring that a new "credible basis" hearing be held before a new Refugee Division member and an adjudicator. The order also stated that:

3. If objection is taken to the competency of the interpreter at the credible basis hearing reconvened pursuant to this order, the adjudicator and board member shall hold an inquiry into the competency of the interpreter in a manner which is in accordance with the rules of natural justice and principles of fundamental justice.

The background to this decision, briefly, is this. At the first sitting the claimant was represented by a law clerk who brought along an observer fluent in Punjabi and English. The observer told the law clerk that the interpreter was not interpreting verbatim, but was only summarizing the evidence. The law clerk made a formal objection, but the adjudicator ruled that the interpreter could continue. At the second sitting, a new interpreter was present but the observer found the new interpreter to have the same inadequacies as the first interpreter. At the request of counsel for the claimant, the adjudicator questioned the interpreter, but the adjudicator refused to allow counsel to question the interpreter. The adjudicator's questions did not seem to establish that the interpreter was fluent in Punjabi, nor was it shown that the interpreter had training or experience in interpreting. The adjudicator nevertheless found the interpreter to be satisfactory. Due to the late hour, however, the case was adjourned for a third sitting. The Federal Court order prevented the third sitting from taking place and required that a new hearing be held with a competent interpreter.

In Ming v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 336 (C.A.), (also reported as Xie v. Canada (Minister of Employment and Immigration) (1990), 10 Imm. L.R. (2d) 284), the Federal Court also directed that the adjudicator conduct a proper inquiry into the competency of an interpreter. At the first sitting, the adjudicator asked the claimant, before swearing in the interpreter, whether he understood her and he replied that he did. A different interpreter (the one complained of) was present for the second and third sittings. At the start of the second sitting, the adjudicator had simply noted that the interpreter was known to him to be proficient, but the adjudicator did not ask the claimant if he understood the interpreter before the interpreter was sworn in.

The Court found (at pp. 343-44):

The applicant's counsel raised three objections to the interpretation: the speed with which the interpreter was speaking; her dialect in Chinese; and her incorporation of English words. The adjudicator in his comments took note only of the first objection, one which could probably indeed have been resolved by the interpreter's speaking more slowly. But the other two problems could not be so easily dealt with, certainly not without some form of inquiry. The adjudicator did not even ask [the interpreter] if she felt there was a problem. Instead, he asserted his belief in her competence and blamed the applicant for lack of cooperation. No doubt the interpreter had often proved her competence before, but in a language with as may dialects as Chinese, problems of comprehension may possibly arise even between people who may be said to speak the language competently.

In my view the objection raised by the applicant's counsel was a serious one. Once raised, it required resolution. It could not be dismissed by the adjudicator without inquiry, although it is doubtful that an inquiry as formal as a voir dire as used in a criminal trial would be necessary or desirable. Given the fact that the applicant's counsel could not communicate with the applicant during the hearing except through the very interpreter whose competence vis-à-vis his client was in question, I cannot take as decisive the counsel's failure to continue to press his objection after a negative ruling by the adjudicator. It was the adjudicator's responsibility to assure himself that the interpretation was competent.

Nor can I take as decisive the subsequent affirmation by the applicant that he understood the proceedings. No doubt he was able to follow in a general way, but the very objection he raised at the beginning of the third session, in the face of previous similar avowals that he understood, must stand as a caution.

Moreover, the issue is not only whether the applicant understood. It is also whether he could adequately express himself through this interpreter. This factor assumes special importance in light of the reliance of the panel on the applicant's credibility in arriving at its conclusion. It was the "contradictions" in his evidence that caused the panel (Case, at 47) to question his claim to have a well-founded fear of persecution based on his particular social group.

Taking the issue of the competence of the interpreter in its total context, I must conclude that the applicant did not receive a fair hearing. In the result, I would allow the section 28 application, set aside the decisions under attack, and refer the matter back to a differently constituted panel for rehearing. [emphasis added]

9.5.1 Procedure When Competence of Interpreter is Challenged

As noted in Ming v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 336 (C.A.), (also reported as Xie v. Canada (Minister of Employment and Immigration) (1990), 10 Imm. L.R. (2d) 284), once a serious objection to the competence of the interpreter is raised, the issue must be resolved.

One method of addressing concerns about the quality of the interpretation is to submit a tape of the proceedings to another interpreter for a report. This method was used in Rahmaty, Parviz v. M.C.I. (F.C.T.D., no. IMM-1221-95), Jerome, May 13, 1996:

I am satisfied that the Refugee Division gave full and fair consideration to the applicant's concerns about interpretation. It not only reviewed the submissions made by Mr. Rahmaty's counsel, but also the report prepared by a second Board interpreter based upon his review of the audio tapes, as well as the subsequent submissions and observations of counsel and the Refugee Hearing Officer.

In any event, the alleged errors of interpretation, which were not supported by any evidence, did not affect the outcome of the case and did not relate to the central issues which were before the Board. The essence of the Board's decision was that it was implausible for a person in Mr. Rahmaty's position to be able to supply only the vague and general responses which he provided at the hearing. Quite simply, the panel disbelieved the applicant's testimony concerning his alleged Mujahedin activism. That is a finding which not only goes far beyond any difficulties with translation, but is one which is entirely within the expertise and jurisdiction of the Board.

9.6 RECOMMENCING BECAUSE OF INADEQUATE INTERPRETATION

When it is determined that the interpretation has not been adequate, the hearing should be recommenced as the evidence and arguments may have been tainted by faulty translation. (Minor mistakes, in an otherwise satisfactory job, might not be cause for recommencing, depending on all of the circumstances.)

If the hearing had not proceeded very far, that is, where only introductory matters or a small amount of evidence had been covered, there would usually be no legal requirement to have a new panel take over the case. The first panel, therefore, could continue with the case but it is not seized with the case. As the hearing will be starting from the beginning, a new panel could take over, where it is administratively convenient to do so.

If a large amount of evidence and arguments have been heard before the interpreter was dismissed, it would be preferable to have a new panel take over the case. An argument could be made that there would be an "apprehension of bias" regarding the first panel. For example, it could be argued that the panel had already formed an impression which was based on tainted evidence in respect of the credibility of the claimant or on other issues. In addition, the panel, itself, might have difficulty at the end of the case in distinguishing between what was heard from the first interpreter and what was heard later. Only what was heard with the new interpreter should be considered. The fairer procedure, then, would be to start over with a new panel.

9.7 TRANSLATION OF DOCUMENTS

CRDD Rule 37(3) provides:

(3) All documents submitted in the course of any proceeding under these Rules in a language other than English or French shall be accompanied by a translation in English or French that is certified to be correct, unless the Refugee Division decides that a translation is not necessary to provide for a full and proper hearing.

9.7.1 Translation at the Hearing

If the claimant produces a certificate or other short document in a language other than English or French, the panel, in its discretion, might have the interpreter at the hearing orally translate the document.

When a claimant submits a longer document in a language other than English or French, it is ordinarily the responsibility of the claimant to have the document translated into one of the official languages prior to the hearing, in accordance with CRDD Rule 37(3).

In June 1998 the following guidelines concerning the use of interpreters for translation of documents written in a language other than French or English were provided to Interpreter Coordinators:

At the direction of the presiding decision-maker contracted interpreters may be asked to translate short documents written in a language other than French or English submitted before or in the course of Board proceedings.

Context/Background

Subrule 37(3) of the CRDD Rules requires that all documents submitted in the course of any proceedings in a language other than French or English be accompanied by a translation in English or in French that is certified to be correct.

The last minute filing of documents is discouraged by Practice Notice [ Disclosure and Filing before Hearings of Relevant Evidence, May 5, 1998] and should occur by exception. In such instances, the presiding decision-maker may ask the interpreter at the hearing to provide a) an oral translation on record or b) a written translation, i.e. during a recess, of a short document submitted during a proceeding by counsel and claimant in order to avoid a postponement or adjournment of the proceedings.

Unless the presiding decision-maker decides that it is expeditious to have the interpreter at the hearing translate a short document or a portion thereof, it is recommended to have the document translated and certified by a foreign language translator through Multilingual Translation Directorate, Public Works and Government Services Canada (PWGSC).

9.7.2 Official Languages

It is the IRB's responsibility , not the claimant's responsibility, to have any documents translated from one of Canada's official languages to another. For example, the claimant who speaks neither official language may have had the assistance of French-speaking counsel in Montreal to prepare a Personal Information Form (PIF) in French. The claimant may then have proceeded to a Refugee Division hearing in English in Toronto. Any such documents which need to be translated for the benefit of the panel should be looked after by the Board.

Another aspect was discussed in Prado, Gustavo Adolfo Ocampo v. M.C.I.(F.C.T.D., no. IMM-4727-97), Dubé, October 29, 1998. The claimant first made his claim in Montreal, where a Legal Aid lawyer assisted him. His PIF was translated from Spanish to French. He moved, and his CRDD hearing was held at Saint John, N.B. New Brunswick does not provide legal aid for refugee matters. It does not appear that the CRDD members were fluent in French; however, the French PIF was used at the hearing to establish a contradiction between what the claimant apparently said in his PIF against his oral evidence in Spanish at the hearing. Under section 14 of the Charter, a party to a proceeding has the right to the assistance of an interpreter. The Court held that section 14 is infringed when neither the interpreter nor the claimant or his assistant understand the official language of one of the key documents. Accordingly, the Court allowed the application for judicial review. The Trial Division certified a question for appeal:

… where the claimant does not request that any documentation be translated from the original official language into the second one, is it a breach of natural justice … or s. 14 of the Charter for the CRDD to examine the claimant on any information contained in any of the documents which have not been translated …?

9.7.3 Claimant's Documents in English or French

The Federal Court said in Kainth, Ram Singh v. M.E.I. (F.C.T.D., no. 89-T-717), Muldoon, October 31, 1989, that counsel for the claimant is not entitled to submit whole texts of documents in English to a tribunal and insist that a tribunal (in this case, an initial hearing panel) provide a translation into another (non-official) language for the benefit of the claimant. The same principle would apply if the claimant's documents are in French and the claimant asks the Refugee Division to provide translation into a non-official language.

9.7.4 Recess for Translation

Where the Refugee Division produces a relatively lengthy document in English or French that needs to be translated for the benefit of the claimant or where, for any other reasons, a lengthy document needs to be translated for the benefit of the claimant, the panel might recess the hearing and have the interpreter translate the document to the claimant during the recess. The interpreter has taken an oath [ CRDD Rule 17(2)] to translate any documents that the Refugee Division may require the interpreter to translate in the course of the proceedings, so this procedure is valid.

It would be a good practice for the panel to have the claimant confirm on the record at the resumption of the hearing that the document was fully translated to the claimant.

It should be remembered that the Board's interpreters are hired primarily for the purpose of interpreting oral testimony during a hearing and that they should be used for the translation of documents only on an exceptional basis.

Appendix 9A - Canadian Charter of Rights and Freedoms, s. 14

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.

Appendix 9B - Canadian Bill of Rights, s. 2

2. [No] law of Canada shall … be construed or applied so as to…

(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

Appendix 9C - CRDD Rules 17 and 37(3)

Interpreter

17. (1) The Refugee Division shall provide an interpreter to assist a party or witness where the party or witness advises the Refugee Division in writing at least 15 days before the date set for a conference or hearing, as the case may be, that the party or witness does not understand or speak the language in which the conference or hearing is to be conducted, or is hearing impaired.

Service and Filing

CRDD Rule 37(3):

Appendix 9D - Selected Case Law: Interpreters

Right to an Interpreter

Azofeifa, Kattia Perez v. M.C.I. (F.C.T.D., no. IMM-1889-94), McKeown, December 21, 1994 (The claimant did not request an interpreter in her PIF; therefore, the CRDD had no obligation to supply an interpreter at the commencement of the hearing. The CRDD has an ongoing obligation during the hearing to ensure that a claimant does not require an interpreter. At no stage during the hearing did the claimant state that she was having problems with English, and the CRDD properly pursued those instances when she appeared to have trouble understanding questions.)
Boateng, Prince Agyenim v. M.E.I. (F.C.T.D., no. 92-T-1226), Rothstein, November 24, 1993 (The adjudicator erred in denying the services of an interpreter. The inquiry into a claimant's ability to understand and communicate in English does not have to be conducted according to a rigid formula, but it does have to be reasonable and the information elicited must be relevant in the context of the hearing to be held.)
Cirahan, Zeynal v. M.C.I. (F.C.T.D., no. IMM-1650-97), Muldoon, October 31, 1997 (The applicant sought a stay of execution of a deportation order which became effective after the CRDD found that he had abandoned his claim. The CRDD continued with the abandonment hearing despite the claimant's difficulty understanding the questions posed to him and his request for a Turkish interpreter. The CRDD was too rushed and failed to provide a fair hearing. Stay granted until the judicial review of the abandonment hearing.)
Garcia, Jairo Hernando Ravagli v. M.E.I. (F.C.T.D., no. 92-T-1854), Rothstein, November 24, 1993 (The adjudicator acted contrary to the regulations in denying the services of an interpreter; the adjudicator must conduct at least an informal dialogue with the claimant about some of the factual and legal issues to be dealt with at the hearing. Understanding English for the purposes of watching movies or reading newspapers does not necessarily mean an ability to understand proceedings of a quasi-judicial nature.)
Hamidu, Alasa v. M.C.I. (F.C.T.D., no. IMM-4886-97), Tremblay-Lamer, June 25, 1998 (It took several years before a refugee claim made in 1991 was adjudicated, because an interpreter proficient in Kusai and English could not be found. The CRDD finally convened a hearing at which counsel for the claimant and the RCO questioned the claimant regarding his proficiency in English. The panel was satisfied that the hearing should proceed in English, based mainly on the fact that the claimant was able to provide information to be included in his PIF to a consultant in English and that he communicated at his workplace for three years in English. The Court upheld the CRDD decision.)
R. v. Tsang (Oct. 3, 1985), 16 W.C.B. 341 (B.C.C.A.) (A trial judge is not required to inquire into ability of accused to speak the language when there is no apparent reason for doing so.)
Roy v. Hackett (1987), 62 O.R. (2d) 365 (C.A.) (judgment in French at p. 351) (The Charter does not create an absolute right to an interpreter; the opposing party may cross-examine on need for an interpreter.)
Vasile, Andrian v. S.S.C. (F.C.T.D., no. IMM-7576-94), Reed, August 31, 1994 (The alleged difficulties with translation were not serious enough to undercut the Board's decision. The applicant does not have any grounds which could entitle him to complain about the translation. He is fluent in English. Yet, through his counsel, he stated that an interpreter was necessary. An interpreter was provided and the applicant became dissatisfied with the quality of that interpretation. He sought to dispense with the interpreter's services in the midst of the hearing. To request the services of an interpreter when one is fluent in English is surely an abuse of the process. Application dismissed.)

Waiver of Right to an Interpreter

Amadasun, Osazuwa v. M.C.I. Canada (F.C.T.D., no. IMM-927-97), Gibson, August 18, 1997 (The CRDD found the claimant's testimony not credible. The claimant and his counsel made a choice to have the claimant give his testimony in English rather than in his native language. In doing so, they may have done the claimant a disservice. However, the CRDD made no reviewable error.)
Poopalasingam, Thamilchelvan Selliah v. M.C.I. (F.C.T.D., no. IMM-4563-93), Richard, January 30, 1995 (The claimant's Charter rights were not infringed, although he was not assisted by an interpreter at the CRDD hearing. At the hearing, the claimant indicated that he wished to give evidence in English; the interpreter stood by in case of a problem. Application dismissed.)
R. v. Hijazi (1974), 20 C.C.C. (2d) 183 (Ont. C.A.) (The counsel had by his conduct waived the right to an interpreter.)

Adequacy of Interpretation

Abadi, Akbar Mokhtari v. M.C.I. (F.C.T.D., no. IMM-5440-97), Reed, November 26, 1998 (The CRDD granted the request for a further extension of time for written submissions, so that there could be a second audit of the quality of the interpretation, at the expense of the claimants. Since it received neither a report of the second audit nor written submissions, the CRDD rendered its decision. Assuming the Tran (S.C.C.) test is applicable, no evidence was filed to show that the translation was not adequate. There was some awkward English syntax, that may or may not have reflected awkwardness in the applicants' original expression in their own language.)
Abdibi, Abdol Mohammad v. M.C.I. (F.C.T.D., no. IMM-4906-97), Tremblay-Lamer, June 25, 1998 (The claimant sought a resumption of the CRDD hearing to challenge the competency of the interpreter. Evidence submitted indicated one error in translation. It is obvious, however, that the CRDD did not rely on the impugned error in rejecting the claim. Thus, the claimant was not prejudiced by the error.)
Arunthavarajah, Vathsala v. M.C.I. (F.C.T.D., no. IMM-4788-97), Reed, July 2, 1998 (The test for adequate interpretation is whether the claimant "can express himself or herself through the interpreter" and not the lower test used by the panel of understanding "most" of the major points. Further, "…the Board has an obligation to ensure that the interpretation is adequate even in the face of counsel's consent.")
Banegas, Sandro Nahun Flores v. M.C.I. (F.C.T.D., no. IMM-2642-96), McGillis, June 30, 1997 (Tung and Tran discussed. It was unnecessary to decide whether Tran should be extended to apply in the immigration context. Even if the more expansive Tran test were used, the Court was not satisfied that the claimant was denied proper interpretation guaranteed by s. 14 of the Charter. In Court, the claimant filed the affidavit of an expert interpreter/translator who made a report outlining the errors in interpretation. The vast majority of the errors she identified were trivial in nature.)
Birgani, Mozafar Arzani v. M.C.I. (F.C.T.D., no. IMM-2569-96), Heald, May 9, 1997 (Based on an affidavit from a university student who reviewed the hearing tapes, the claimant complained in Court about the quality of the interpretation at the CRDD. However, the Court noted that each of the three interpreters had taken an oath, that the CRDD took into account that the testimony was given through an interpreter, that the record didn't disclose any problems with the interpretation during the four-day hearing and that no objections were made during the hearing. Mosa distinguished on the basis that in Mosa the inaccurate interpretation had precluded a particular line of questioning going to the very essence of the claim.)
Castro, Franz Loayza v. S.S.C. (F.C.T.D., no. T-711-93), Jerome, October 31, 1994 (The credible basis tribunal found the claimant's testimony not credible. The reasons left doubt as to whether the correct test was applied. The Court went on to say: "when an applicant speaks through an interpreter, internal inconsistencies between the evidence and the personal information form can often be attributable to innocent misunderstandings arising out of the use of different interpreters on separate occasions." The Court noted an incompetent interpreter had been replaced during the proceedings. Application allowed.)
Chen, Ming Di v. M.C.I. (F.C.T.D., no. IMM-2813-93), November 15, 1994 (The Board provided a Mandarin interpreter, although the claimant had requested a Fujian interpreter. No difficulties or objections were raised during the hearing. No evidence was tendered to establish that the interpretation was erroneous or that it prevented the claimant from presenting his story in a detailed or accurate manner. Application dismissed.)
Faiva v. Canada (Minister of Employment and Immigration), [1983] 2 F.C. 3 (C.A.) (Standards cannot be relaxed where an interpreter is difficult to secure.)
Golam-Nejad v. M.E.I. (F.C.T.D., no. IMM-2479-93), Gibson, March 31, 1994 (The Farsi expression for "communist union" was translated as "Soviet Union". Because of this interpretation error, the Board found a contradiction that didn't exist. If this error were the sole basis on which the CRDD determined the claimant not credible, it would be of grave concern. However, it was but one of several factors that led the CRDD to conclude against the claimant's credibility. In the circumstances the error was not central to the CRDD decision and therefore not fatal to its decision. Application dismissed.)
Guan, Jie v. M.E.I. (F.C.T.D., no. T-2828-92), McKeown, August 4, 1993 (A problem arose with the interpretation provided at the credible basis hearing. When the hearing reconvened, the adjudicator raised the problem, and offered counsel a chance to recommence the examination or to clarify any part of the testimony. There was no prejudice to the claimant. The adjudicator took all reasonable steps to ensure adequate interpretation services were available. Application dismissed.)
Hagopian, Samvel v. M.E.I. (F.C.T.D., no. 93-A-201), Noël, August 23, 1993 (The panel had changed interpreters at the start of the hearing because of difficulties with the claimant's testimony. Despite the change, the testimony continued to be confused. While it is clear that there were interpretation problems, the Court could not conclude that the errors and omissions noted in an affidavit by an independent interpreter had an impact on the decision rendered. Application dismissed.)
Haque, Azizul v. M.C.I. (F.C.T.D., no. IMM-3136-96), Lutfy, August 27, 1997 (During the hearing, the claimants did not object to the quality of interpretation. A report from another interpreter, made after the hearing, alleged there errors and omissions in the interpretation. Without deciding whether Tran (S.C.C.) applies to the CRDD, the Court held that the errors fell short of the test in Tran. Application dismissed.)
Ho, Li Hua v. M.C.I. (F.C.T.D., no. IMM-4301-97), Denault, September 3, 1998 (The interpreter may have misinterpreted from Mandarin when he had the claimant saying "a guard was guarding the door" rather than "there were guards somewhere outside", according to experts who listened to the hearing tapes. However, this minor error in interpretation, in less than ideal circumstances, does not affect in any manner the various inconsistencies in the claimant's testimony, with respect to the presence of guards, which gave rise to the adverse findings of credibility. Application dismissed.)
Jiang, Xue Zhi v. M.E.I. (F.C.T.D., no. IMM-482-94), Gibson, April 13, 1994 (The interpreter's faulty translation in the Fuzhou dialect lead the panel to err in finding discrepancies between the PIF and oral testimony about the length of the claimant's detention. A letter from the Board, based on review of the hearing tapes by another interpreter, acknowledged that there were material errors in translation. Application allowed.)
Kandola, Piara Singh v. M.E.I. (F.C.T.D., no. 89-T-735), Rouleau, January 30, 1990 (A new credible basis hearing ordered because of problems with the interpreter. The panel was directed to hold a proper inquiry into the competency of the new interpreter, if an objection was taken to that new interpreter.)
Mosa, Hidat v. M.E.I. (F.C.A., no. A-992-92), Stone, Linden, Létourneau, April 19, 1993 (The inaccurate translation precluded the Refugee Division from putting further questions as to the nature of the claimant's fear and the basis for it. There was thus potential prejudice to the claimant. The matter was remitted for rehearing.)
R. v. Tran, [1994] 2 S.C.R. 951 (The Supreme Court enunciated the principles applicable in the criminal law context to the right to interpreter in s. 14 of the Charter. However, it left open for future consideration the possibility that different rules may have to be developed and applied to other situations which properly arise under s. 14 of the Charter - for instance, where the proceedings in question are civil or administrative in nature. While the standard of interpretation under s. 14 will be high, it should not be one of perfection.)
Singh, Kulbir v. M.E.I. (F.C.A., no. A-1230-92), Nadon, March 28, 1995 (Although it is clear that the Punjabi interpreter had some difficulty expressing himself in French, he expressed himself with sufficient clarity to enable the panel to fully understand the claimant's testimony. The Court will not presume that prejudice resulted. Application dismissed.)
Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.) (the claimant was entitled, through the interpreter, to tell the story of his fear in his own language as well as he might have done had he been able to communicate to the Board in the English language. Natural justice demanded no less. Manifestly, however, he was unable to do so upon points of key importance to his claim because of the poor quality of the translation. This circumstance prejudiced the appellant in the proceedings to review important aspects of the Board's decision on a record which is plainly deficient.)
Xhelilaj, Emine v. M.C.I. (F.C.T.D., no. IMM-2471-96), Dubé, June 6, 1997 (There were problems with the interpreters and at one point the presiding member stated the whole hearing "has been a bit of a nightmare". After the hearing, the CRDD had the tape audited by two interpreters who found that there were minimal discrepancies but that everything had been translated. Nevertheless, the Court found that the criteria in Tran (S.C.C.) had not been met. In particular, the obligation to call upon a different interpreter each day of the hearing clearly offends the principle of continuity.)
Yu, Li Na v. M.E.I. (F.C.T.D., no. IMM-569-93), Nadon, January 27, 1994 (The Court did not give much weight to the general allegation that the interpreter was only able to translate 60% of the proceedings; however, the one example given convinced the Court that the Board's decision was unsound. The Court was not sure that the Board would have concluded that the claimant's fear was exaggerated, had her testimony on the video issue been properly translated.)

Inquiry into Competency of the Interpreter

Ming, Xei Wei v. M.E.I. (F.C.A., no. A-243-89), Urie, Marceau, MacGuigan, February 28, 1990. Reported: Ming v. Canada (Minister of Employment and Immigration) [1990], 2 F.C. 336 (C.A.); also reported as Xie v. Canada (Minister of Employment and Immigration) (1990), 10 Imm. L.R. (2d) 284 (There was evidence that the interpreter spoke too fast, used a dialect unfamiliar to the claimant, and used English words. The adjudicator only addressed speed. A proper inquiry into the competency of the interpreter is required, although it is doubtful that an inquiry as formal as a voir dire as used in a criminal trial would be necessary or desirable.)
Rahmaty, Parviz v. M.C.I. (F.C.T.D., no. IMM-1221-95), Jerome, May 13, 1996 (The CRDD gave full and fair consideration to the applicant's concerns about interpretation. It not only reviewed the submissions made by Mr. Rahmaty's counsel, but also the report prepared by a second Board interpreter based upon his review of the audio tapes, as well as the subsequent submissions and observations of counsel and the RHO. In any event, the alleged errors of interpretation, which were not supported by any evidence, did not affect the outcome of the case. Application dismissed.)
Roble, Ubad Ahmed v. M.E.I. (F.C.T.D., no. IMM-4044-93), McKeown, September 2, 1994 (An important issue was whether the claimant said her husband was in the "military or armed forces" or in the "police force". During a break, the member and RHO checked the translation of that Somali phrase with another interpreter. Court questioned whether the Board had the jurisdiction to seek out and rely on an opinion outside the hearing room from another interpreter. The Court was troubled by the fact that an interpreter's testimony, who was only asked to interpret one word taken completely out of context, would be preferred to the testimony of the duly sworn official interpreter assigned to the hearing. Court did not need to rely on this natural justice ground, as the application for judicial review was allowed for other reasons.)
Varaich, Ravinder v. M.E.I. (F.C.T.D., no. 92-T-2129), Tremblay-Lamer, March 11, 1994 (During the credible basis hearing, counsel made objections concerning the quality of interpretation. The adjudicator consulted with the Board Member, who professes fluency in Punjabi and Urdu, and affirmed that the interpreter had translated completely. Counsel objected once again, stating that the interpreter used many words that his client did not understand. The adjudicator instructed the claimant to proceed. Being the master of his or her proceeding, the adjudicator may call a witness if necessary to determine the competency of the interpreter, but the adjudicator is not obliged to do so. The adjudicator did take sufficient steps to ensure that the interpretation was adequate. Contrary to the situation in Xie, the adjudicator did not rely on the interpreter's reputation, but asked the claimant directly what she did not understand. In fact, the adjudicator engaged in a relatively lengthy questioning of the interpreter as to his qualifications before concluding that he was competent. Application dismissed.)
Wang, Yuhua v. M.C.I. (F.C.T.D., no. IMM-4929-94), Reed, November 14, 1995 (With respect to the alleged difficulties arising out of the interpretation, it would certainly have been preferable for the Board (1) to have provided the internal evaluation, which it did with respect to that interpretation, to the applicant's counsel and (2) to have made that evaluation part of the record before this Court. However, counsel for the applicant was knowledgeable in both languages and was instructed by the Board to alert it to any errors in interpretation that might occur, and the burden is on the applicant to prove that the translation was such as to deprive her of natural justice. Application dismissed.)

Interpreter Bias

Alexandrov, Serguei v. M.C.I. (F.C.T.D., no. IMM-1708-96), Jerome, November 20, 1997 (The interpreter at the CRDD requested and was permitted to make a personal statement in the presence of only the RCO and the claimant's counsel. The panel was then advised that the interpreter may be called as a witness. At a mid-hearing conference, the panel rejected a request for a de novo hearing, and continued the hearing with a new interpreter. No reasonable apprehension of bias was established. The interpreter's comments were never disclosed to the panel; therefore, they could not have influenced the panel's assessment of the evidence.)
Basyony, Mohamed v. M.E.I. (F.C.T.D., no. 92-A-4946), Reed, March 29, 1994 (The claimant viewed the interpreter, the RHO, and the Board as being opposed to his claim from the beginning and as working together to defeat that claim. The Court cannot so conclude without clear and convincing evidence. Some errors in translation, which do not affect the overall outcome of the hearing, are not sufficient for that conclusion. Translation is not an exact science. There is always room for differences in nuance between what is said in one language and its translation into another. This can occur without any malicious intent on the part of the translator. Such inexactitude has to be expected. Application dismissed.)
Milic, Ljubivoje v. M.C.I. (F.C.T.D., no. IMM-1243-94), Rouleau, September 23, 1994 (When a decision is based primarily on credibility, and the Court is satisfied that the interpreter was inadequate, this demonstrates potential prejudice. By retaining the services of a Croatian to interpret for Serbians (a concern not raised at the hearing), the CRDD unwittingly breached the principles of natural justice.)
Shah, Samiuddin v. M.E.I. (F.C.T.D., no. IMM-3308-93), Teitelbaum, June 27, 1994 (The Court was not able to find any examples of "incompetent interpretation" or errors of interpretation which affected the outcome. On a number of occasions the interpreter intervened but simply to tell the claimant to "wait" or to explain to the claimant that it would be better if the claimant waited for the entire question before answering. This is to help the claimant, not hinder him. Application dismissed.)

Requirement to Interpret Entire Proceedings

Mandi, El-Menouar v. M.C.I. (F.C.T.D., no. IMM-1952-97), Campbell, February 24, 1998 (The CRDD decision was set aside, in part because of errors in interpretation. The interpreter was not interpreting everything that the witness was saying; for example, instead of literally translating the insults to which the claimant was subjected in Germany, the interpreter would say only that she was called "bad names".)
R. v. Petrovic (1984), 47 O.R. (2d) 97 (C.A.) (failure to interpret the entire proceedings)
R. v. Reale (1973), 13 C.C.C. (2d) 345 (Ont. C.A.); affd 22 C.C.C. (2d) 571, [1975] 2 S.C.R. 624 (failure to translate charge to the jury violated Bill of Rights)
Weber v. Canada (Minister of Manpower and Immigration), [1977] 1 F.C. 750 (C.A.) (Summarizing part of the testimony in interpretation at the special inquiry was not sufficient.)

Delay in Raising Objections

Aquino, Jose Felix Paniagua v. M.E.I. (F.C.A., no. A-344-89), Mahoney, MacGuigan, Linden, June 4, 1992 (It is apparent from the transcript that the appellant understood some English and that one of the members of the panel understood Spanish. The appellant appears to have answered some questions without waiting for interpretation, and the panel member interrupted the interpreter on several occasions to correct the interpretation. The appellant's counsel, who one assumes spoke no Spanish, did not object to the interpretation during the hearing although two adjournments were taken during the course of the appellant's testimony and counsel was clearly on notice, as a result of the member's interventions, that there were problems. In the circumstances, the appellant's current objection to the quality of interpretation is not a ground on which the appeal should succeed.)
Huynh, Cam Hoa v. M.E.I. (F.C.T.D., no. 92-T-1772), Rothstein, June 24, 1993 (The claimant alleged in Court that his credible basis hearing should have used a Cantonese rather than a Vietnamese interpreter. The Court cannot conclude that the relatively minor deficiencies to which counsel refers arise from the inability of the applicant to understand the Vietnamese interpretation. Simply pointing out excerpts in which the claimant says he does not understand, does not prove a failure of interpretation. At no place in the record did the applicant object to Vietnamese. His PIF contains a certification by the interpreter that it was translated from English to Vietnamese and that the applicant assured the interpreter that he fully understood the contents. The applicant was born in Vietnam and went to school there for some nine years. The first time the inadequacy of translation was raised was in the applicant's affidavit in support of a motion for leave to seek judicial review over five months after the credible basis hearing. Application dismissed.)
Konadu, Yaa v. M.C.I. (F.C.T.D., no. A-985-92), Heald, November 20, 1996 (The claimant alleged she was denied natural justice since the hearing was conducted in English. However, the Court found it apparent that both the claimant and counsel elected to proceed in English and that to raise the question of adequate interpretation this late was not proper. The claimant's counsel was present throughout the proceedings. She could have objected if her client did not understand the proceedings.)

Miscellaneous

Canadian Javelin Ltd. v. Restrictive Trade Practices Commission, [1981] 2 F.C. 82 (T.D.) (Counsel is entitled to have an interpreter; simultaneous interpretation is not mandatory.)
Khakh v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 548 (T.D.) (The Adjudicator, having tested the claimant's English, twice refused counsel's requests to have an interpreter for the claimant. An interpreter was provided after the adjudicator commented that the claimant's English had "deteriorated" since the first sitting. A reasonable apprehension of bias was found, although bias was not argued at the hearing.)
Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont. Co. Ct.) (It is improper to accept a friend of the witness as interpreter without testing that person's impartiality and competency as an interpreter.)

Appendix 9E - Selected Case Law: Translation of Documents

Dragomirov, Valentin v. M.E.I. (F.C.A., no. A-35-92), Isaac, Stone, Robertson, March 15, 1994 (Where the claimant did not complain to the CRDD that the documents on change of circumstances in Bulgaria should not be admitted into evidence because they were in English only, he could not complain later. The documents had been disclosed well in advance of the hearing. Also, counsel did not file any evidence at the CRDD to discredit that evidence. Appeal dismissed.)
Frias, Aldo v. M.C.I. (F.C.T.D., no. A-729-95), Reed, November 16, 1995 (The CRDD is not bound by the strict rules of evidence and did not err in relying on an unofficial translation of a document. No evidence was presented to show any inaccuracies in the translation. Application dismissed.)
Fuentes, Patricia Sandoval v. M.E.I. (F.C.A., no. A-450-78), Jackett, Pratte, Ryan, November 20, 1978 (An exclusion order was set aside because a document submitted during an inquiry was not translated, contrary to the requirements of s. 28(b) of the Regulations.)
Kainth, Ram Singh v. M.E.I. (F.C.T.D., no. 89-T-717), Muldoon, October 31, 1989 (A tribunal is not obliged to translate from English to the language of claimant all documents submitted in English by counsel for the claimant.)
Muthusamy, Lingam v. M.E.I. (F.C.T.D., no. IMM-5801-94), Cullen, September 14, 1994 (The CRDD drew an adverse inference from the lack of proper translation of the applicant's identification documents. During the course of the hearing, it failed to bring this matter to the attention of the applicant. It is a well-settled principle of natural justice that one must know the case to meet. If the Board was to rely on the translated identity documents but had concerns about the accuracy of the translation and their authenticity, they had a duty to alert the applicant. To not do so and then base their decision on an issue to which the applicant did not reply, is a breach of natural justice.)
Prado, Gustavo Adolfo Ocampo v. M.C.I. (F.C.T.D., no. IMM-4727-97), Dubé, October 29, 1998 (The claimant first made his claim in Montreal where his PIF was translated from Spanish to French. His CRDD hearing was held in New Brunswick. It does not appear that the CRDD members were fluent in French; however, the French PIF was used at the hearing to establish a contradiction between what the claimant apparently said in his PIF against his oral evidence in Spanish at the hearing. Clearly, s. 14 of the Charter is infringed when neither the interpreter nor the claimant or his assistant understand the official language of one of the key documents. Application allowed.)
Sasani, Farzad v. M.E.I. (F.C.A., no. A-26-91), Heald, Hugessen, Stone, January 17, 1992. Reported: Sasani v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 261 (The adjudicator erred in not ordering the translation of the transcript of the examination under oath, where the case presenting officer used the transcript to attack the claimant's credibility. The adjudicator failed to determine whether, in accordance with the regulations, a translation would not be necessary to provide a full and proper inquiry. Application allowed.)
Szczecka v. M.E.I. (F.C.A., no. A-1270-92), Marceau, Desjardins, Létourneau, September 15, 1993. Reported: Szczecka v. Canada (Minister of Employment and Immigration) (1993), 25 Imm. L.R. (2d) 70 (F.C.A.) (The CRDD did not deny natural justice when it accepted into evidence the standardized country file for Poland, despite the objection of the claimant's counsel that the country file had not been translated into a language understood by the claimant. When during a hearing the panel or RHO refers to certain passages from a document, either for clarification or to confront a claimant with them, it will be necessary to have them translated by the interpreter so the claimant can participate fully. However, natural justice does not require that any document entered into evidence must necessarily be translated into the claimant's language.)
Touita, Abdelkader v. M.C.I. (F.C.T.D., no. IMM-649-97), Tremblay-Lamer, November 14, 1997 (The CRDD is under no obligation to verify the accuracy of the translation of the PIF, which is the claimant's evidence, where it has already been translated by an interpreter who has already certified that the claimant understood its contents.)

Appendix 9F - IRB Code of Conduct for Interpreters

The following Code of Conduct for Interpreters forms part of the contract between the Immigration and Refugee Board and the interpreters who provide service to the Board.

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CODE OF CONDUCT FOR INTERPRETERS

Interpreters providing services to the Immigration and Refugee Board (the "Board") shall comply with the rules that are set out in the following Code of Conduct.

Rule 1 Conduct Generally

(a) Interpreters shall, at all times, conduct themselves with courtesy, discretion and decorum and provide high-quality services to assist the Board in its proceedings.

(b) On the day of the proceedings, the interpreter shall go directly to the reception area or designated area for interpreters. A case management officer or a clerk will meet the interpreter and inform him or her of the assigned case.

(c) If the proceedings are recessed, adjourned, postponed or concluded the interpreter shall return immediately to the reception area or designated area for interpreters to await further instructions; in the event that the interpreter does not return immediately to the reception/designated area, he or she shall keep the case management officer or clerk informed of his or her whereabouts in case further interpretation services are required.

(d) At no time shall the interpreter withdraw from, or leave, a proceeding without discussing the reasons for this with the presiding decision-maker.

Rule 2 Competence

(a) Interpreters shall only undertake to provide and shall only provide services for which they have the required competence.

(b) If at any time the interpreter believes that he or she is unable to competently interpret or translate what is stated in the source language into the target language, the interpreter shall, without delay, inform the case management officer or clerk or the presiding decision-maker, as the case may be.

Rule 3 Care, Skill, Diligence and Efficiency

Interpreters shall take all reasonable care to faithfully and accurately interpret or translate what is stated in the source language into the target language, having regard primarily to meaning and secondarily to style, without any paraphrasing, embellishment, omission, explanation, or expression of opinion, using the same person as in the source language and the closest natural equivalent of the source language.

Rule 4 Impartiality and Avoidance of Conflict of Interest

(a) Interpreters shall be, and shall appear to be, objective and impartial at all times, inside and outside the conference or hearing room, in relation to any matter for which they provide services to the Board.

(b) Interpreters shall avoid, and where it arises, shall, without delay, disclose to the case management officer, clerk or presiding decision-maker, as the case may be, any real, potential, or apparent conflict of interest in relation to any matter for which they provide services to the Board.

Commentary:

(i) As soon as an interpreter becomes aware, for example, of any ties, whether personal, professional, or other, that the interpreter has or may have with the person with respect to whom he or she is providing interpretation, the interpreter is required to disclose this fact, without delay, to the case management officer or clerk or presiding decision-maker, as the case may be.

(ii) An interpreter is likewise required to disclose, in the same manner and to the same person, for example, any employment or other activity, association, or private interest, (such as membership in an organization that is critical of or in favour of the government of the country of origin of the person concerned), that may be incompatible with his or her duties as an interpreter.

(iii) An interpreter is also expected, for example, to refrain from giving advice to, or discussing any aspect of a case with, any of the participants in the proceedings for which the interpreter is providing services to the Board.

Rule 5 Confidentiality

Interpreters shall keep confidential all information gained in the course of providing services to the Board. More specifically, interpreters shall not, either within or outside the Board premises, discuss, report on, or give an opinion concerning any matter for which they provide services to the Board.

Rule 6 Compliance

Interpreters shall, without delay, disclose to the case management officer or clerk or the presiding decision-maker, as the case may be, any matter of which they are aware that may impede full compliance with this Code.

I have read and understood the Code of Conduct for Interpreters and hereby undertake to comply with its provisions.

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