Ontario’s court interpreters are considering rotating strikes at courthouses across the province if the government doesn’t address long-standing demands, says the president of the Court Interpreters Association of Ontario.
“We don’t want a confrontation. There’s no need for that. But you know what? Be fair,” says Amin Shoukri, president of the association.
According to Shoukri, the government raised the hourly rate for freelance interpreters to $30 an hour in April from $25 per hour following years of complaints about their pay.
But Shoukri says that with the previous raise — one he calls minimal — dating back about a decade or so, the $5-an-hour increase wasn’t enough.
At the same time, he says the government has tried to address the lack of interpretation staff by hiring people working at agencies at up to $90 an hour, a fact he says is proof that it’s able to pay his association’s members more.
“If the ministry has the money to pay $90 an hour, why not pay us?” he asks while on a break from providing interpretation services during the high-profile Shafia murder trial in Kingston, Ont.
The dispute isn’t just about the hourly rate, Shoukri adds. Other concerns include mileage, for which interpreters get 40 cents per kilometre for the first 3,000 kilometres they drive.
After that, the rate goes down to 30 cents. “We don’t get any benefits,” says Shoukri, noting interpreters don’t get a pension either.
In addition, the association argues the current pay structure acts as a disincentive for interpreters to take on longer trials. For a routine traffic matter, for example, interpreters get a minimum of $75 even if the case wraps up quickly.
So with just two short traffic matters, interpreters could earn close to what they’d make during an entire day of sitting through a complex criminal trial. The result is that the most qualified interpreters won’t take on longer cases, a situation that creates shortages and leaves the government turning to agencies, the association says.
The issue of interpreter pay surfaced in the recent case of
R. v. Dutt, a matter in which the court had to declare a mistrial over the interpreter’s poor interpretation of the proceedings.
During that case, the interpreter, A.K., failed to show up on more than one occasion due to illness. But under questioning, the court services supervisor in Brampton, Ont., noted A.K. had previously been asking for more money, at first $400 a day and then $600 a day, amounts well beyond the ministry’s standard pay structure.
At the same time, the supervisor told the court that having informed A.K. that she didn’t yet have an answer to her pay demands, the interpreter responded by saying she’d be telling the judge she was sick. That’s exactly what happened.
Of course, the pay issue wasn’t the only challenge in Dutt. The case involved a sexual assault matter against Vishnu Sharma Dutt before the Ontario Superior Court. A.K., described as a fully accredited interpreter with the ministry for English and Hindi, was to provide simultaneous interpretation for Dutt.
According to the ruling, she had undergone interpreter testing through Vancouver Community College, the institution retained by the ministry to develop the new tests in response to previous concerns about qualifications.
So far, scores of interpreters have failed to achieve full accreditation through the new tests. Many of them have achieved only conditional accreditation, while others remain unaccredited with their ability to work in a matter subject to the court’s discretion.
In Dutt, despite A.K.’s qualification, she hadn’t undergone bilingual testing, according to Superior Court Justice Casey Hill’s ruling that declared a mistrial.
In fact, Hindi isn’t one of the 24 languages — those in highest demand — for which the ministry requires bilingual testing. As a result, Shoukri says, those providing service in other languages undergo what’s essentially an English proficiency test.
In Dutt, then, the court found that A.K. made several errors in interpreting for the accused. She interpreted “You had been sexually assaulted,” for example, as “You had been physically assaulted.”
“Did he touch your genital area?” meanwhile, became “Did he touch you between legs?”
“A couple of weeks” was “Two days,” while defence lawyer Prashant Rai’s statement that something was “completely hearsay” became “Your lawyer has objected.”
Rai, the lawyer representing Dutt, says he was lucky that he spoke Hindi himself. “That helped me a lot,” he says, noting the court might otherwise not have become aware of the problems.
In response, the defence brought an application to declare a mistrial given that, in its view, the poor interpretation had essentially excluded Dutt from his trial.
The Crown, meanwhile, countered that A.K. had generally interpreted the proceedings despite summarizing parts of them. It argued that interpretation “is not an exercise in perfection,” Hill noted.
In his decision in September, Hill ruled in favour of the defence application. “In this case, the non-English speaker was prejudiced by a denial of full linguistic presence at his trial on April 27, 2011, on account of pervasive departure from the guaranteed standard of interpretation to which he was constitutionally entitled and in particular during the very details of the complainant’s factual allegations of sexual assault,” he wrote.
“In these circumstances, the court must exercise its discretion to order a mistrial.”
For Toronto defence lawyer Patrice Band, the case is proof of the need for an added response by the ministry.
“It seems to be becoming a crisis,” he says of the lack of qualified interpreters, an issue he argues is frequently “the elephant in the room.”
Because of the failure of so many interpreters to pass the new tests, he notes, the courts find themselves having to conduct voir dires to assess whether those lacking full accreditation are qualified to handle the case.
But in Band’s view, there are several problems with that, the most obvious being the fact that the court doesn’t speak the language it needs interpreted.
At the same time, the courts are at the mercy of the interpreters to fully and accurately describe their qualifications, says Band. As a result, it’s the interpreters who tell their court about their own training and testing as well as the results of previous hearing into their qualifications.
“There’s no government oversight of that group of people,” says Band, noting it’s not uncommon for one judge to find an interpreter competent and then a colleague to rule otherwise.
In Dutt, in fact, the court declined to reopen the voir dire into A.K.’s qualifications after she noted her testing through Vancouver Community College involved Hindi and not just English.
At the time, the court didn’t have access to the list of 24 languages that involved bilingual testing and therefore wasn’t aware of the fact that Hindi wasn’t one of them.
Band, then, would like the government to create a sort of tracking system of interpreters’ records in the court.
Noting he has seen hearings where the interpreters couldn’t remember the names of judges they’d previously appeared before and cases they’d worked on, Band says it’s time for a repository of that information, including the courts’ previous findings of the person’s competence.
“To me, the answer to this problem is to address it,” says Band, a member of the Criminal Lawyers’ Association’s committee on court interpreters.
“To leave it to the individual litigant to mention the problem . . . makes it very difficult, if not impossible, to determine when a miscarriage of justice has occurred,” he adds.
Of course, a key problem has been the fact that it’s hard enough for the courts to find anyone who can interpret a language, let alone someone who’s actually qualified to do so.
In a recent matter involving a Tagalog speaker, for example, the evidence was that there’s only one fully accredited interpreter and one who’s conditionally accredited in the province, says Band. “There are no quick fixes here,” he notes.
Rai, meanwhile, says the problems are particularly evident in areas such as the bail courts. “These guys have not been trained,” he says in reference to the interpreters.
Shoukri agrees that training is a problem. “We want to train,” he says.
“We want to maintain the highest possible standards. It can’t be all stick and no carrots.”
Shoukri notes the ministry initially provides roughly two days of information sessions largely on court regulations but says that’s it for training.
His association is getting set to provide its own training in February but is getting no funding for it.
The ministry, however, is defending its record on training and accreditation. “In order to increase the number of accredited interpreters, there is ongoing recruitment in the most commonly used languages such as Punjabi, Tamil, Mandarin, and Vietnamese,” ministry spokesman Brendan Crawley said in an e-mail.
“More recently, targeted recruitment has been conducted focusing on international students at universities, law schools, and professional organizations.”
At the same time, Crawley said the government is addressing the training issue. “In addition, the ministry is committed to providing resources to interpreters to assist them. Test preparation classes are offered free of charge.”
Shoukri, however, says the testing the government introduced isn’t working. Besides listening to the words, successful interpretation involves reading visual cues and body language, he argues.
But the new tests don’t take that into account, according to Shoukri. “It was not scientific,” he says. “It was an audio test alone. It has to be audiovisual.”
As an example of the problems with the testing, Shoukri notes that someone who passes it for Punjabi — one of the 24 languages assessed bilingually — also gets accreditation for Hindi, the language that was at issue in Dutt.
As part of its consideration of job action, the association, which says interpreters in a number of other provinces make $45 an hour, has made a number of demands:
• Remuneration for qualified interpreters at the national average.
• Replacing the current testing system.
• Forming an independent governing body to oversee training, testing, accreditation, and discipline.
“It’s a mess,” Shoukri says of the current system. “Work with us. Help us. We are providing service here.”
Crawley, meanwhile, defended the ministry’s use of agencies and the amount it pays them. “When an agency is used, court sites are obliged to pay the agency’s rates,” he said.
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