Language Barriers: Lost in Translation
As a volunteer in family docket court, I frequently watch litigants struggle to communicate with judges, duty counsel, and even their own lawyers. If English or French is not someone’s first language, it is extremely difficult for them to communicate their point of view. Language barriers hinder a person’s ability to receive helpful advice, read and complete court documents, and understand orders or judgments. Even in a trial setting, litigants often go without interpreters when they are badly needed. There is a shortage of interpreters in Canada, meaning some individuals go without interpreters at all, while others rely on unqualified translators or friends or family.
Although section 14 of the Charter of Rights and Freedoms guarantees an accused person the right to understand the case against them, this right is easier stated than respected. Unlike the situation in other provinces, interpreters are only provided by the courts in Alberta for criminal matters. This means civil litigants must find their own interpreters, either on their own or through organizations like the Family Centre, Multicultural Health Brokers, the Edmonton Immigrant Services Association, or the Multicultural Family Law Facilitators Project.
According to Mike Sadava for The Lawyers Weekly, there is a shortage of qualified interpreters in Alberta. As trends in immigration change – for example, there has been an influx of new immigrants from Somalia in recent years, and there’s about to be a marked increase in Arabic speakers living here – there may not be enough qualified interpreters to meet demand. He explains that with no trained translators or interpreters available, the courts are sometimes forced to rely on individuals who simply speak the appropriate language but are not trained interpreters.
That lack of formal training is a problem, because in order to be effective, interpreters need to be more than just fluent in the language at issue–they need to be trained in court procedure and legal jargon.
Interpreters must also decipher the meaning of a phrase or sentence, and not simply translate the words from one language to another. Lawyer Joseph Fearon explains that simple errors like these can result in miscommunication:
“In my experience, many Chinese speakers use the term back to refer to their entire back
and neck. In a personal injury lawsuit where someone feels pain is important, the Judge
or jury could view someone who complains of “back” pain but has only visited their
doctor for neck problems as less credible.”
Such miscommunications have resulted in mistrials, but when errors are not discovered, it means anyone who doesn’t speak fluent English or French suffers. Anthony Moustacalis, Toronto lawyer and president of the Criminal Lawyers’ Association in Ontario, indicates that miscommunications due to language barriers are frequent occurrences.
So what can be done to improve access to interpreters’ services – and to improve the quality of those services?
Some lawyers and court interpreters believe interpreters are underpaid: it’s tough to attract adequate numbers of educated speakers in less commonly-spoken languages if interpreters’ salaries are not competitive. Other advocates argue that there aren’t enough training programs available for interpreters (like the ones at Seneca College in Toronto and the Vancouver School of Interpreting and Translating). Even where trained interpreters are available, many litigants simply can’t afford to pay them, and it isn’t acceptable to have a situation where justice is accessible only to those who can afford it.
One thing is clear: the issue of miscommunication is a complex problem without a simple solution. As Canada’s population of newcomers continues to increase (including immigrants, temporary foreign workers, and even undocumented workers), language barriers must be addressed in order to ensure access to justice.
Sources and Resources:
“Coping with the Courtroom: Essential Tips and Information for Self-Represented Litigants”, online: Alberta Courts <http://www.albertacourts.ab.ca/fjs/selfhelp/Coping_With_the_Court room.pdf>
Fearon, Joseph, “Reasonable Doubt: Language Barriers and the Legal System” (2013), online: The Georgia Straight <http://www.straight.com/news/396331/reasonable-doubt-language-barriers-and-legal-system>
Kumar, Nayanika, “Multicultural Family Law Facilitators Project” (2014), online: Law Now: Relating Law to Life in Canada <http://www.lawnow.org/multicultural-family-law-facilitators-project/>
Sadava, Mike, “Misinterpretation: Crisis in Canadian Court Interpreting” (2014), online: Lawyers Weekly <http://www.lawyersweekly.ca/index.php?section=article&articleid=1306> (online article no longer available)
Smalls, Peter, “Court Interpreter Shortage Nears Crisis” (2011), online: The Toronto Star <http://www.thestar.com/news/crime/2011/01/28/court_interpreter_shortage_nears_crisis.html>
 The province of British Columbia, for example, offers interpretation services at all levels of court in criminal matters, and in Provincial Court for any family law issue. In Ontario, interpreters are provided at Provincial Court if the litigant qualifies for a Court Services Division fee waiver.
 Nayanika Kumar, “Multicultural Family Law Facilitator’s Project”, Law Now: Relating to Law Life in Canada, 2014, online: <http://www.lawnow.org/multicultural-family-law-facilitators-project/>.
 Joseph Fearon, “Reasonable Doubt: Language Barriers and the Legal System”, The Georgia Straight, 2013, online: <http://www.straight.com/news/396331/reasonable-doubt-language-barriers-and-legal-system>.
 Peter Smalls, “Court Interpreter Shortage Near Crisis”, The Toronto Star, 2011, online: <http://www.thestar.com/news/crime/2011/01/28/court_interpreter_shortage_nears_crisis.html >