REGINA vs SIVANANDAMOORTHY

RULING ON SECTION 11(b) CHARTER APPLICATION 

Justice T. Lipson

 [1] The applicant, Niroshan Sivanandamoorthy, is charged with care or control over 80 mgs. He applies for a stay of proceedings pursuant to section 24(1) of the Charter on the basis that his section 11(b) right to be tried within a reasonable time has been infringed.

Summary of the case history

[2] The applicant was arrested on June 25, 2009 for the offence before the court. The information was sworn on July 27, 2009. His first appearance was on August 13, 2009. Some disclosure was available then and further disclosure was provided at subsequent appearances on September 10 and 18 respectively. An in-court judicial pre-trial was held on September 22, 2009 and a trial date of June 16, 2010 was set. The trial did not proceed because an accredited Tamil-speaking interpreter was not available. A second trial date of August 13, 2010 was scheduled but could not go ahead because of the applicant's illness. The parties set a third trial date of November 4, 2010. The trial did not proceed on that day because the trial judge found that the conditionally accredited interpreter was not properly qualified to interpret the proceedings. A fourth trial date of January 27, 2011 was set. On December 13, 2010 this Charter application was heard.

Legal Principles

[3] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is primarily directed to the protection of the individual rights of the accused. This protection encompasses security of the person, liberty and fair trial interests. However, there is also an important societal interest protected by s. 11(b) of the Charter, as the public has an interest in ensuring that accused persons are tried promptly and fairly on the merits. These principles are described in R. v. Morin 1992 CanLII 89 (S.C.C.), (1992), 71 C.C.C. (3d) 1 (S.C.C.) and in R. v. Qureshi et al. 2004 CanLII 40657 (ON C.A.), (2004), 190 C.C.C. (3d) 453 (Ont. C.A.) at pp. 458-9.

[4] In Morin  the Supreme Court of Canada comprehensively analyzed the jurisprudence on s. 11(b) to that date and summarized the method by which the time elapsed from the laying of the charge to the completion of the trial should be analyzed to determine whether s. 11(b) of the Charter has been contravened. Before balancing the interests that s. 11(b) is designed to protect, Morin mandates (at p. 13) an examination of the delay under the following categories:

1. The length of the delay;

2. Waiver of time periods;

3. The reasons for the delay, including,

(a)   inherent time requirements of the case

(b)  actions of the accused

(c)  actions of the Crown

(d)  limits on institutional resources

(e)  other reasons for the delay, and

4. Prejudice

[5] While the delay is to be analyzed under these categories, the resolution of the issue does not come down to a mathematical formula. Rather, a balancing must take place in order to determine whether or not the delay is unreasonable. The nature of that balancing process was described in R. v. Kporwodu, [2005] O.J. No. 1405 (C.A.), at paras. 184-197. Reasonableness is not a precise concept, and its determination requires an assessment of the entire time period in light of the explanations for the constituent parts of the delay: Morin, at p. 13; R. v. Allen 1996 CanLII 4011 (ON C.A.), (1997), 110 C.C.C. (3d) 331 (Ont. C.A.) at p. 345, aff'd. 1997, 119 C.C.C. (3d) 1 (S.C.C.); R. v. MacDougall 1998 CanLII 763 (S.C.C.), (1998), 128 C.C.C. (3d) 483 (S.C.C.); R. v. Smith 1989 CanLII 12 (S.C.C.), (1989), 52 C.C.C. (3d) 97 (S.C.C.) at p. 105; R. v. Pusic [1996] O.J. No. 3329 (Ont. Gen. Div.).

[6] The burden of proof is upon the applicant to establish on a balance of probabilities that his right to be tried within a reasonable time was violated.

Analysis

[7] The total length of delay from the time the information was sworn to the January 27, 2011 trial date is approximately 18 months. The Crown concedes that this length of time warrants an inquiry. The first trial date was set two months after the information was sworn. There is no dispute that those two months should be considered as a neutral intake period. The trial had to be adjourned on August 13, 2010, the second trial date, due to the illness of the applicant. It is agreed that the two month period of delay from August 13, 2010 to the third trial date of November 4, 2010 is attributable to the defence. The parties also agree that the nine month period between September 22, 2009 when the first trial date was set and June 16, 2010, the first trial date, is properly considered institutional delay.

[8] The main areas of controversy in the application concern the characterization of the approximate two month period from the first trial date June 16, 2010 to August 13, 2010 and the 2 ¾ month delay from November 4, 2010 to the fourth trial date of January27, 2011. There is also an issue as to whether the applicant suffered prejudice as a result of the delay in this case.

[9] A brief review of what happened on the first and third trial dates is in order.

[10] On the first trial date of June 16, 2010 the court adjourned the trial because the only available interpreter was conditionally, but not fully accredited. The Crown was prepared to proceed with the conditionally accredited interpreter while the defence was not. The Crown did not seek a voir dire to determine the competency of the conditionally accredited interpreter, nor did the presiding judge of his own motion order that one be held. The trial was simply adjourned to August 13, 2010. The applicant contends the resulting two month delay resulted from actions of the Crown and limits on institutional resources. The Crown submits that this delay should be viewed as neutral.

[11] On the third trial date of November 4, 2010 a proper competency inquiry was held resulting in a finding that the proposed conditionally accredited interpreter was not qualified. The case was then adjourned to a fourth trial date of January 27, 2011. The Crown submits that the resulting period of delay from November 4, 2010 is neutral.

[12] Section 14 of the Charter guarantees the right of an accused to the assistance of an interpreter where required. The purpose of section 14 is to ensure a fair trial. A request for an interpreter should only be refused where there is compelling evidence of an oblique motive. No such motive is alleged here. Denial of a competent interpreter affects the integrity of the fact finding process. On the other hand there is no constitutional right to an accredited interpreter. The central issue is whether the interpreter is qualified to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous interpretation: see R. v. Tran 1994 CanLII 56 (S.C.C.), (1992), 92C.C.C. (3d) 218 (S.C.C.); R. v Ryback (2008), 233 C.C.C. (3d) 56 (Ont. C.A.); leave to appeal to S.C.C. denied at [2008]S.C.C.A. No 311. Generally, the preferred practice is that the interpreter be fully accredited by the Ministry of the Attorney General.

[13] It is the responsibility of the Ministry of the Attorney General to ensure that an appropriate interpreter is available.

[14] In her ruling of November 4, 2010 regarding the competence of the proposed interpreter offered for the trial, my colleague Bloomenfeld J., noted that this case was "a somewhat complicated proceeding involving a highly technical charge and a Charter application. She observed that "there would be some complex arguments and potential evidence that the accused would need to understand." The Court Services Division of the Ministry of the Attorney General generally assigns conditionally accredited interpreters to bail hearings, guilty pleas, set date appearances, interpreting for a witness who is not the accused or a party, peace bond applications and diversion. That does not mean that a conditionally accredited interpreter cannot be qualified to interpret for an accused at trial.  For a trial proceeding, the court has a responsibility to conduct an investigative voir dire into the competency of the proposed interpreter. As noted earlier, on June 16, 2010 no party requested the requisite voir dire nor did the court hold such an inquiry. The appropriate inquiry took place on the third trial date of November 4, 2010 before Bloomenfeld J., who concluded that the proposed interpreter was not qualified.

[15] An accused can, of course, request an accredited interpreter for assistance at his or her trial. Once an accused has made this request, he is not required to insist on a competency inquiry when only a conditionally accredited interpreter is offered.  Nor, in my view, can an accused's failure to request an inquiry amount to a waiver of his section 11(b) right in as the Crown contends, unless there is clear evidence that by doing so, he is simply attempting to delay the case. Because an accused seeks an accredited interpreter for his trial does not mean that he wants to delay his trial when an accredited interpreter is not available. It is the responsibility of the state to provide a qualified and competent interpreter. It seems to me that if a proposed conditionally accredited interpreter's qualifications are in issue, it is for the Crown, not the accused, to move for an inquiry. The court also has a responsibility to conduct an inquiry on its own motion, if necessary. I am satisfied that the failure of the Crown to move for an inquiry is one of the reasons leading to the delay that resulted here. The main reason for the delay is systemic. As will be discussed later in these reasons, there is a severe shortage of accredited Tamil-speaking interpreters in this jurisdiction.

[16] To be fair to the parties and the court at the June 16, 2010 appearance, the procedure and everyday practice relating to the competency of interpreters in the criminal courts were less clear then than they are today. At that time Court Services Division was introducing new tests for all court interpreters and developing a new accreditation model for its staff to schedule court interpreters. Testing of interpreters in Toronto was being completed in the summer of 2009, when the interpreter issue first arose. While the Ministry has clarified and greatly improved its accreditation program since then, justice officials, including some Crowns, defence counsel and judges, remain uncertain as to whether a conditionally accredited interpreter is entitled to participate in a trial. Now the requisite competency inquiry for conditionally accredited interpreters is routinely conducted in trials in this courthouse. Judges often find conditionally accredited interpreters qualified to participate in trials.

[17] As for the third trial date, when the Ministry failed to provide a qualified Tamil-speaking interpreter, the resulting delay was, in my view, clearly institutional. There is no controversy that Scarborough has a large Tamil-speaking community. The GTA has one of the largest, if not the largest, Tamil-speaking populations outside of Sri Lanka. Many cases are heard daily in this courthouse involving Tamil-speaking witnesses and accused persons. The Ministry of the Attorney General has a responsibility to provide qualified Tamil-speaking interpreters for those who regularly require their assistance. At the competency hearing on November 4, 2010, the Scarborough courthouse interpreter coordinator advised the court that there is only one fully accredited interpreter for the Tamil language for the entire province of Ontario and at the time that individual happened to be in hospital. In addition there were only two conditionally accredited interpreters. Crown counsel correctly points out that there is no evidence to explain why interpreter assistance in the Tamil language in this courthouse is so limited. Even if there are good reasons for this shortage of competent Tamil-speaking interpreters, the Ministry of the Attorney General is not relieved of its responsibility to provide them. Whether one characterizes the reason for the delay as a result of the interpreter issue as "limits on institutional resources" or "actions of the Crown", the delay must count against the prosecution in the context of the Morin analysis.

[18] The present case is not similar to that in R. v. Tamang [1998] N.S.J. No. 289 (N.S.C.A.), where delay resulted when the court, despite great effort, was unable to provide a Nepalese interpreter for an accused at his trial in Halifax. The Nova Scotia Court of Appeal found this to be novel situation which could not be characterized as an institutional resource problem. There is nothing novel or unusual about the daily need for Tamil-speaking interpreters in the Scarborough trial courts. There is no doubt that the failure of the state to provide properly qualified Tamil-speaking interpreters in this courthouse is a systemic problem that has yet to be properly addressed. The Crown submitted that the period of delay should be considered neutral because there is no evidence of any unwillingness on the part of the government to commit sufficient resources to prevent unreasonable delay. It seems to me that such an argument should be supported by evidence. For example, in Tamang there was information before the trial judge that revealed substantial efforts by justice officials to arrange interpretation services in that case. I cannot agree with the Crown that this court should simply accept the status quo regarding the dearth of qualified Tamil-speaking interpreters in Scarborough and accordingly extend the length of acceptable delay to accommodate the current reality.

[19] The applicant led no evidence of specific prejudice. However, it is also the case that the applicant and the counsel he had retained were ready but unable to proceed on two separate trial dates because of the unavailability of qualified interpreter assistance. There is also inferred prejudice from this 13 ¾ month delay that was not contradicted by Crown evidence.

[20] The operative delay in this case falls almost four months outside the upper range suggested in the Morin guidelines. As observed earlier in these reasons, the delay is largely institutional and attributable to the inability of the justice system to provide the applicant on two separate trial dates with proper interpreter assistance, a right that is guaranteed by section 14 of the Charter. As Watt J. A. observed in Ryback at para. 67:

   The guarantee in s. 14 serves several important purposes. It ensures that a person charged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it. The right touches on the very integrity of the administration of justice in the country and is intimately related to our basic notions of justice, including the appearance of fairness. Likewise, the right displays an affinity for our claim of multi-culturalism, partially demonstrated by s. 27 of the Charter.

[21] In summary, the delay in this case obviously interfered with the applicant's Charter right to be tried within a reasonable time. To compound the problem, much of the delay resulted from limited institutional resources that adversely impacted another important Charter right- the right  to competent interpreter assistance

[22] In Quereshi at paras.8-9, Laskin J.A, provided an important overview of the legal framework for the s.11(b) analysis, as follows:

Section 11(b) aims to protect both the individual rights of the accused and the rights of society.  It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

Section 11(b) also seeks to protect two societal rights.  First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly.  Promptly held trials increase public confidence.  Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly.

[23] In assessing and balancing these individual and societal goals, I am satisfied that the applicant's section 11(b) right to be tried within a reasonable time was infringed. Once a breach is established, the only remedy available to the court is to stay the proceedings. Accordingly, the charge of care or control over 80 mgs is stayed pursuant to section 24(1) of the Charter.

[24] I would ask Crown counsel to consider forwarding a copy of this ruling to the head of the Court Services Division of the Ministry of the Attorney General (Justice T. Lipson, Released: December 17, 2010: Citation: R. v. Sivanandamoorthy, 2010 ONCJ 625, D.Tsagaris for the Crown, P.Connelly for the Applicant). 

EMPLOYEE TESTS DON'T ALWAYS MAKE THE GRADE

Shaunn Herron

The Ottawa Citizen, January 25, 1997 

Higher price to pay for an impromptu test. A Hamilton-based dispatcher for the Niagara region was fired after he failed a test euphemistically known as a standardized instrument. Ministry officials told Robertson the test showed he didn't have the aptitude or traits they were looking for in a dispatcher. He was told to work his remaining shifts and finish his career. It was a high price to pay for failing a test he was never meant to take. "I was surprised to find out that I wasn't cut out to be a dispatcher," Robertson says. "I've been doing it for 20 years, then his Mickey Mouse test comes along and tells me I can't do it." The Ontario Public Service Employees Union protested Robertson's firing. He was back on the job three weeks later with an apology and back pay in hand.

It was vindication for him - and egg on the ministry's face. "It was what I consider a no-brainer case," said Larry Butters, OPSEU's top ambulance official for Niagara and Hamilton. "He should never have been put through the procedure." The grievance coupled with pressure from Bob Patrick, head of OPSEU's ambulance division, prompted the ministry to stop testing experienced dispatchers and remove results from the files of any dispatcher who had been forced to take it. New applicants without experience must still write the test. "This is a very right-wing approach to hiring - very discriminatory," said Patrick, who added that he feels the test is faulty. "We were seeing people with 10 and 15 years' service, with no blemishes on their records, being told they were incompetent." Provincial spokesmen declined to discuss Robertson's case. Managers would say only the grievance had been resolved. Graham Brand. Ontario's director of emergency health services, said the test is designed to screen untrained applicants for dispatching jobs. It identifies, among others, and do a variety of tasks at the same time.

If tha's the case, Robertson asks, why was he questioned about U.S. steel companies, American presidents and a fictional war in Antarctica? "It didn't recreate may job or what I go through," he said. "What does any of that have to do with my job?" Alex Polgar, the Hamilton consultant who provided the test to the ministry, described Robertson's claims as "nonsense." Polgar said the test is not a psychological one. He called it a "standardized instrument" designed to find qualities needed in dispatchers. Neither the province nor Polgar would provide The Hamilton Spectator with a copy of the test.

Gary Latham, an industrial psychologist and professor at the University of Toronto, said alarm bells should have gone off when longtime dispatchers performed poorly on the test. First, nobody should be fired on the basis of the results, he said. Second, veteran workers should be the ones posting the best results. "That's stupidity," said Latham. "If a person does well on the job but not on the test, it's the test that should be fired." Brand said the plan "went off the rails" when it was applied to more than 30 full-and part-time dispatchers in Niagara, Hamilton, Simcoe and Brantford. Robertson was the only worker fired.

TRANSLATORS, TERMINOLOGISTS, AND INTERPRETERS

Translators translate written material from one language to another. Terminologists conduct research to itemize terms connected with a certain field, define them and find equivalents in another language. Interpreters translate oral communication, such as speeches, proceedings and dialogue, from one language to another. Sign language interpreters use sign language to translate spoken language and vice versa during meetings, conversations, television programs or in other instances. 

Common Job Titles

Community Interpreter

Conference Interpreter

Court Interpreter

Interpreter

Interpreter for the Deaf

Legal Terminologist

Literary Translator

Localisor

Medical Terminologist

Sign Language Interpreter

Terminologist

Translator

Translator-reviser 

Typical Employers

federal, provincial and municipal governments

large corporations

social service agencies

elementary and secondary schools

in-house translation services

international organizations

media

courts

Selected Main Duties

Translators and translator-revisers perform some or all of the following duties:

• Translate a variety of written material such as correspondence, reports, legal documents, technical specifications and textbooks from one language to another, maintaining the content, context and style of the original material;

• Localize software and accompanying technical documents to adapt them to another language and culture;

• Revise, edit, proofread and check translated material;

• Train and supervise other translators. 

Terminologists perform some or all of the following duties:

• Identify the terminology used in a field of activity;

• Conduct documentary and terminological research for the preparation of glossaries, technological

files, dictionaries, lexicons and resource centres and add to terminological databases;

• Manage, update and circulate linguistic information collected from terminological databases;

• Provide consultative services to translators, interpreters and technical writers preparing legal,

scientific or other documents requiring specialized terminologies. 

Interpreters perform some or all of the following duties:

• Interpret oral communication from one language to another aloud or using electronic equipment

either simultaneously (as the speaker speaks) or consecutively (after the speaker speaks);

• Interpret language for individuals and small groups travelling in Canada and abroad;

• Provide interpretation services in court or before administrative tribunals; Sign language interpreters perform some or all of the following duties:

• Translate sign language to a spoken language and vice versa either simultaneously or consecutively. 

Translator's work environment is usually quiet and equipped with dictionaries and other reference materials, now generally on-line. Interpreters work in soundproof booths listening through earphones to the speaker whose speech they are interpreting. Salaried translators work normal office hours with some overtime. Freelance translators work irregular hours depending on the work available. Sign language interpreters work in groups and individual situations and must be aware of the special needs of the deaf. 

Education/Training

A university degree in translation is required with a specialization in translation, interpretation or terminology in two languages including at least one of the two official languages. Alternate requirement could be a university degree in a related discipline such as languages, linguistics, philology and courses in linguistic transfer and two years experience as a full-time translator working in two languages, at least one of which is an official language. Five years experience as a full-time translator working in two languages, at least one of which is an official language, may also qualify individuals to work in this occupation. Sign language interpreters require a college or other training program in sign language interpretation.

The reserved titles of certified translator, certified conference interpreter, certified court interpreter and certified terminologist are granted by the Association of Translators and Interpreters of Ontario under Ontario provincial statute and may be used only by translators who have passed the standardized national certification examination administered by the Canadian Translators and Interpreters Council. Translators, terminologists and interpreters tend to specialize in two languages, such as French and English, the official languages of Canada. They may also specialize in another language and one of the official languages. A minimum of three languages is usually required for translators and interpreters employed by international organizations. The main areas of specialization include administrative, literary, scientific and technical translation. Interpreters may specialize in court, parliamentary or conference interpretation. 

Employment Prospect

Over the next five years: Average Opportunities for employment in this occupation are expected to be average over the period from 2009 to 2013. In addition to openings due to growth, many jobs will be created each year from the need to replace workers who retire. Demand for these workers will be good over the forecast period as international immigration and trade expands. Work prospects will be particularly good for translators in health care, law, ecology and other scientific and technical fields. In Ontario, demand for translators of Spanish, French and Asian into English or French are likely to have better employment prospects. Employers are also increasingly seeking individuals with expertise in three or more languages. While technology has made the work of interpreters and translators easier, their employment growth will not decline as a result of technology as these innovations are incapable of delivering comparable results. However, this occupation will be affected by outsourcing to other countries. 

Additional Information Sources

Additional information about this occupation can be obtained from the following web sites:

• Association of Translators and Interpreters of Ontario (www.atio.on.ca)

• Canadian Translators, Terminologists and Interpreters Council (CTTIC) (www.cttic.org)

• Canada Public Works - Translation Bureau (www.btb.gc.ca)

LACK OF INTERPRETERS

Lack of interpreters threatens court cases

ANTONELLA ARTUSO

SUN, Toronto, 2010-06-11 

Criminal charges across the province are in jeopardy as the courts grapple with a desperate shortage of accredited interpreters, Tory MPP Frank Klees says.

The Newmarket-Aurora MPP said he attempted unsuccessfully to question Attorney General Chris Bentley this week regarding his ministry's retesting of interpreters — a program that resulted in many losing their accreditation.

The shortage is causing serious problems within the court system, leading to charges being thrown out or bargained down to a lesser charge, Klees said.

"Who's in control of this little project here?" he said.

Lou Strezos of the Criminal Lawyers' Association said some cases have been adjourned by the courts for a lack of interpreters, but he's unaware of any charges being dismissed.

Defence lawyers are insisting that a ministry-accredited interpreter be used in the courts, and the Crown's delay in producing one causing a backlog, he said.

The accused has a constitutional right to be tried within a reasonable time frame or the charges can be thrown out by the courts.

"The clock is ticking in the criminal cases," Strezos said.

The CLA has asked Bentley for a public inquiry but has failed to gain a positive response.

Roger Nadarajah, a 20-year Tamil interpreter who has lost his accreditation, said the test was poorly designed by someone unfamiliar with the courts, leading to a high number of failures.

Currently, there is only one person in the province accredited by the ministry to interpret Tamil, two for Cantonese and none for Mandarin, he said.

"It's a huge problem that is just brewing and it's starting to overflow," Nadarajah said. "Usually I have bookings 10 months ahead."

Defence lawyers are arguing that the use of a non-accredited interpreter is grounds for appeal, and charges are being knocked down or out, he said.

Nadarajah said the test was broken into three parts, including a speed translation that did not reflect the true nature of their work.

The situation could have been avoided had the ministry consulted with interpreters in drafting an exam that appropriately assesses their abilities, he said.

Strezos said it's critical that interpreters can skilfully translate the law to ensure fair trials.

"I don't know whether the test was a good test or a bad test," Strezos said. "What we know now is you had a very large fail rate."

Bentley's office would provide only a written response Friday.

"Ontario has a strong court interpreter testing program in place but we recognize the need to continue to make improvements as the demand for court interpretation changes and grows," the e-mail said. "The old test exceeds the standard of most other provinces, and the new testing will ensure that Ontario continues to be a leader in court interpreter testing and accreditation in Canada. The Ministry is taking steps to ensure that there are not unnecessary delays in individual cases during the transition period."

The e-mail appears to suggest the ministry is altering the tests, but did not say if it was a response to the high failure rate.

INTERPRETERS' FACTSHEET

2010-07-10

(1)     According to the memo dated March 3, 2006 and addressed "To All Ministry of The Attorney General Accredited Freelance Interpreters" the Court Services Division would entertain "Requests from judicial officials for a review of interpreter performance". Any complaint on the performance of an interpreter would be "under investigation".

"Following this investigation, the Corporate Planning Branch may:

·         dismiss the complaint

·         require the interpreter to undertake language re-testing;

·         require the interpreter to undertake refresher training and re-testing in court interpretation procedure and ethics; and/or

·         remove the interpreter from the registry if he or she is found to have violated the

Rules of Professional Conduct, or if the results of re-testing are not satisfactory."

 

(2)     One may safely assume that none of the already-accredited interpreters who were required to undergo re-testing in 2009, and who have been required to do so since then, faced any complaint or investigation on his or her performance. As a matter of fact, the Ministry has informed Interpreter Mani Velupillai that "there are no complaints about your interpretation" (2010-05-26). In other words, all those interpreters who had already been accredited were required to be re-tested for re-accreditation against the letter and spirit of the above memo.

(3)     The logic of re-testing already-tested interpreters or re-accrediting already-accredited interpreters does not make any sense either. That's why accredited professionals like doctors, engineers and lawyers are not re-tested or re-accredited.

(4)     "An error in judgement" is a common and recurrent expression in courthouses. No judge is required to be re-tested or re-accredited for his or her "error in judgement". But already-tested and accredited interpreters have been required to be re-tested and re-accredited even though there have been no complaints or investigations on their performance. This amounts to discrimination and "an error in judgement" on the part of the Ministry. But, as in the case of judges, nobody would insist that the Ministry be re-tested and re-accredited for its "error in judgement"

(5)     We subjected ourselves to re-testing because "The Ministry is currently in the process of acquiring and implementing new tests which interpreters must successfully complete in order to be considered accredited" (according to the memo dated October 2, 2006 and addressed "To Ministry of The Attorney General Court Services Division Staff and Accredited Freelance Interpreters").

(6)     Interpreter Francis Sinnamalar who did not want to be re-tested received from the Ministry a Declining to Take Interpreter Accreditation Test Form. In other words, an already-accredited interpreter was required to fill out, not a re-accreditation test form, but an "Accreditation Test Form!"  He was advised that "This decision means that you will no longer be accredited with the Ministry" with effect form June 2009).

(7)     Here are his reasons for declining to take the re-test: "Too old (76 years). After 21 years unblemished service… hoped to retire gracefully when present accreditation ends in 2011. Never expected a bum's rush. But please don't get me wrong. I'm not boycotting the test. I do realise its value. But it's like my days are numbered. Anyway thanks for all these years" (2009-06-15). Regardless, the Ministry removed him from the registry; despite his credentials including seniority, experience and an impeccable record.  

(8)     Relevant to the point raised by Francis Sinnamalar is a finding made by Court in Regina vs. Tran: "What it requires are individuals to interpret continuously, precisely, impartially, completely and contemporaneously. I'm satisfied from the voir dire that Ms.Constant appears to be able to satisfy that, and therefore, I'm ruling that the trial proceed. However, should there be difficulties we'll have to take that situation into advisement at the time but, as I say, this voir dire  is similar to a  voir dire  for expertise and expertise can be achieved through experience, not just through training." This finding speaks volumes about the matter at issue before us.

(9)     Admittedly, the re-test we were required to take consisted of real court material, but we were required, quite unnecessarily, to do it at a break-neck speed. The consecutive part of the test required us to interpret whenever there was a pause and not before that. But, virtually, there was no pause up to the very end of the text to be interpreted. We had no option other than to interpret whatever we could remember from a page-long text! The whole re-test would be a cake-walk for us if not for the computerized speed arbitrarily stipulated by the examiners. Proceedings slow down for the sake of interpretation in a real court setting. Ironically, there have been instances, in a real court setting, where interpreters themselves have been asked to slow down by none other than their own clients! That's why the Court sets nearly double the time (nearly 6 hours) for a trial which can be completed in 3 hours under normal circumstances, if it involves interpretation.

(10) Interpreters are allowed enough leeway in a real court setting because "Translation is like serving two masters at the same time (Chandra Rajan, The Loom of Time, Penguin, 2006, London, p.17). It is beyond comprehension why the Ministry insists on speed at the cost of accuracy. Speed and accuracy are strange bed-fellows. The Court simply cannot sacrifice accuracy for speed or the defendant for speed.

(11) The examiners themselves were conscious of the unrealistic speed they set for the re-test: "candidates" were allowed to skip words in the simultaneous interpretation test! Skipping, in a real court setting, is unthinkable. The fact that we were allowed to skip invalidates at least the simultaneous part of the re-test. The purpose of the re-test is lost when you are allowed to skip while being tested for interpretation in a real court setting where you are bound to cover everything.     

(12) We understand that only 30% of the candidates passed the re-test, that a higher proportion of the successful candidates interpret European languages, that none of the Mandarin interpreters passed, that only one Tamil interpreter passed…This is not surprising. Whatever differences existing between European languages in terms of grammar, syntax, vocabulary etc. are fewer than those between European and Oriental languages. 

(13) If the Court expressed any reservations about the performance of an already-accredited interpreter, then his or her interpretation must be reviewed at random or entirely by none other than a panel of accredited interpreters. In fact, there have been instances where interpretations of a particular interpreter were reviewed by his or her colleagues at the request of the Ministry itself as required by the Court.

(14) The Ministry can simply isolate such a case and deal with it just as it did in Brampton where an unaccredited interpreter was dealt with after the court had expressed reservations about his interpretation. This applies to accredited interpreters as well.

(15) If the Ministry is not satisfied with the performance of already-accredited interpreters and if it prefers newcomers who can pass the ongoing test or a similar test, then the Ministry can and must test and accredit newcomers instead of subjecting already-tested and accredited interpreters to a re-test and re-accreditation. The Ministry can and must phase in newcomers who pass the latest test and phase out already-accredited interpreters.

(16) Unaccredited interpreters have been informed that the Ministry "… would like to thank you for your contribution to the Ministry's court interpretation program and wish you all the best in your future endeavours" (2010-04-08). Even though the Ministry has thus bid adieu to the unaccredited interpreters, it has retained their names in it's registry with a red label. This reminds the proverb: Have your cake and eat it! So the courts continue to call them as a last resort and subject them to a voir dire which amounts to an interrogation on their biography. 

(17) There is no chance that such a voir dire will have any validity. For the Court consisting of a monolingual Judge, Prosecution and Defence has to rely on the same defendant or the  witness who needs an interpreter to gauge whether their bilingual interpreter is competent enough to interpret for themselves. A lay individual becomes an amicus curiae in such a voir dire!      

(18) On June 7, 2010 interpreter Candiah Nadarajah who happened to be in Oshawa for a set-date matter was asked to attend to a plea. He advised the plea court he was not comfortable with doing so for obvious reasons. But the court insisted that he proceed with the plea. He stood his ground in compliance with his current level of accreditation. The court said: "I could find you in contempt … I'm going to complain against you to the Ministry of the Attorney General" (which no longer recognizes him as an interpreter even though he is busier than before in the same capacity!). He bowed out of the court.

(19) Quite contrary to Candiah Nadarajah's experience in Oshawa, he has been comfortable with attending to a trial with the consent of the court given to him in writing in another jurisdiction. This shows a lack of consistency not only between the Ministry and the Court but also between jurisdictions. 

(20) We wonder why the Ministry did not organize workshops in a real court setting in aid of existing interpreters at no cost at all instead of subjecting them to an unrealistic re-test at an enormous cost (running into millions of dollars according to rumours) resulting in a situation where they face humiliation and embarrassment in open court and in public.   

(21) The Ministry is obliged to identify the "experts in the field of interpretation and an independent, expert advisory panel," who designed the re-test, specify their "field of interpretation" and clarify the words "independent" and "advisory" in this context. May we know whether they are court interpreters, whether their "field of interpretation" includes court interpretation, and whether those who marked the tests are court interpreters. If so, they ought to be identified. 

(22) "Vancouver Community College (which has been conducting the tests) is an internationally recognized specialist in court interpreter training and language assessment test development" according to the Ministry. If so, the Ministry should identify the VCC professionals who train or trained court interpreters and court interpreters already or currently trained by VCC.

(23) Re "specialized terminology required for court interpretation," we would like to know if VCC uses a specialized legal glossary in each language.

(24) A lay defendant can hardly understand "specialized terminology." So the interpreter has to do his or her best to reconcile "specialized terminology" with the vernacular. A lay litigant might be more familiar with certain English terms than with their vernacular equivalents

(25) We are not sure if the Ministry or VCC know that many languages have a written form and a spoken form, that a lay litigant might be more familiar with the spoken form than with the written form, and that any "specialized terminology" could include only the written form but not the spoken form.  

(26) "Many interpreters were successful in various areas of the test" according to the Ministry. But only a few interpreters passed the whole test according to their own information.

(27) The Ministry ought to specify "the standard expected in the courtroom situation," and give a breakdown of how the test met "the standard expected in the courtroom situation."

(28) We are afraid that the Ministry and VCC have no idea how many hours are normally set for a trial (1) with and (2) without interpretation. No court prescribes any time limit for interpretation during a trial. The court recognizes the fact that the interpreter sets the pace of a trial in need of his or her interpretation. 

(29) The Attorney General's Office itself has admitted in an e-mail that "Ontario has a strong court interpreter testing program in place... The old test exceeds the standard of most other provinces…" (quoted by Antonella Artuso, SUN, Toronto, June 11, 2010). This needs a clarification from the Ministry. We would like to hear from the Ministry in its own words how the new test differs from the old test in terms of standard except speed. 

(30) "The e-mail appears to suggest the ministry is altering the tests…" according to the same source (Item 29). The authorities have to clarify how "the ministry is altering the tests" and how it is possible to alter the current tests without invalidating the tests conducted in 2009.

(31) We are afraid the re-test does not reflect what happens in a real court setting. We would, however, invite the Ministry to review at random or entirely the transcripts of our past interpretations and verify where we have failed to meet the latest standards set by the Ministry for the re-test and re-accreditation.

(32) We wish to reiterate that the Ministry can and must phase in newcomers who pass the new test and phase out existing interpreters without subjecting them to humiliation and embarrassment by relegating them to the level of unaccredited interpreters and subjecting them to a voir dire.  

(33) "Removal from the Ministry of the Attorney General's Registry of Accredited Freelance Interpreters."  We understand, however, that the registry does still include our names with a red label. We seek a clarification from the Ministry.

(34) The current situation has led to a large number of 11B motions for a stay or dismissal of trials in very serious cases involving murder, sexual assault, robbery, impaired driving etc. Such charges have been lowered for lack of an accredited interpreter. Court staff have been allowed to fall back on MCIS (Multi-Cultural Interpretation Service, an agency) for interpreters who are being repeatedly turned down by most defence lawyers for obvious reasons. In one instance the court pressed ahead with a preliminary hearing despite objections raised by the defence counsel who put it on record that the services of an unaccredited interpreter would lead to an appeal.     

(35) Robertson, a Hamilton-based dispatcher for the Niagara region, was fired after he failed a test. The test showed "he didn't have the aptitude or traits they were looking for in a dispatcher." It was a high price to pay for failing a test he was never meant to take. "I was surprised to find out that I wasn't cut out to be a dispatcher," Robertson says. "I've been doing it for 20 years, then this Mickey Mouse test comes along and tells me I can't do it." OPSEU protested Robertson's firing. He was back on the job three weeks later with an apology and back pay in hand… It was what I consider a no-brainer case," said Larry Butters, OPSEU's top ambulance official for Niagara and Hamilton. "He should never have been put through the procedure." The grievance coupled with pressure from Bob Patrick, head of OPSEU's ambulance division, prompted the ministry to stop testing experienced dispatchers and remove results from the files of any dispatcher who had been forced to take it… He feels the test is faulty. "We were seeing people with 10 and 15 years' service, with no blemishes on their records, being told they were incompetent."… Gary Latham, an industrial psychologist and professor at the University of Toronto, said alarm bells should have gone off when longtime dispatchers performed poorly on the test. First, nobody should be fired on the basis of the results, he said. Second, veteran workers should be the ones posting the best results. "That's stupidity," said Latham. "If a person does well on the job but not on the test, it's the test that should be fired" (Shaunn Herron, The Ottawa Citizen, 1997-01-25).