Docket: IMM-1078-11
Citation: 2011 FC 1175
Ottawa, Ontario, October 18, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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MANWINDER SINGH SOHAL
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Natural
justice requires that a person be given a fair opportunity to make his case or
to meet the case against him. It may be that the person does not speak the
language of the Tribunal. In that case, he is entitled to an interpreter. The
issue in this judicial review is whether the interpretation was so poor that
Mr. Sohal did not have a fair opportunity to make his case.
[2]
Mr.
Sohal, a permanent resident since 1992, had been ordered deported pursuant to
section 36(a) of the Immigration and Refugee Protection Act (IRPA) as a
result of his conviction for assault with a weapon. He appealed to the
Immigration Appeal Division (IAD) of the Immigration and Refugee Board of
Canada. He testified with the aide of an English/Punjabi interpreter. He was
represented by counsel, who did not himself speak Punjabi, and presumably
neither did the tribunal member.
[3]
On
25 January 2009, the IAD dismissed his appeal. He did not seek judicial review,
but subsequently retained other counsel who applied to the IAD to reopen the
appeal on the basis that the interpretation at the hearing had been so poor it
constituted a breach of natural justice.
[4]
The
legal basis of a request to reopen an appeal is section 71 of IRPA which
provides:
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71. The Immigration Appeal
Division, on application by a foreign national who has not left Canada under a removal order, may reopen an
appeal if it is satisfied that it failed to observe a principle of natural
justice.
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71. L’étranger qui n’a pas quitté le
Canada à la suite de la mesure de renvoi peut demander la réouverture de
l’appel sur preuve de manquement à un principe de justice naturelle.
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[5]
The
IAD’s refusal to reopen is the subject of this judicial review.
THE APPLICATION TO
REOPEN
[6]
At
the heart of the application before the IAD was the affidavit of Sarb Sandhu,
an accredited interpreter fluent in the Punjabi and English languages. He has
had a great deal of experience and from 1982 to the present has acted as an
interpreter and translator at the IRB, the Provincial and Supreme Courts of
British Columbia and elsewhere. Indeed, he has audited translations on behalf
of the IRB.
[7]
Mr.
Sandhu reviewed the recording of the proceedings and sets out what he considers
to be a number of errors. The member of the IAD, who decided not to reopen the
appeal, was not the member who heard the appeal in the first place. He cited
jurisprudence from the Supreme Court of Canada, the Federal Court of Appeal and
this Court in support of the proposition that errors in interpretation, which
prevent a party from telling his or her story, may lead to be breach of natural
justice. However, the errors must be material.
[8]
The
member noted that the Minister had not taken issue with the alternative
language suggested by Mr. Sandhu. He said: “I accept that this auditor, given
the luxury of time to consider carefully the precise wording that is
appropriate, in his professional opinion, has chosen different language where
those concerns are expressed in his affidavit.”
[9]
He
concluded, however, based on particular passages cited, that distinctions
between the two versions were trivial, or would not lead to a misunderstanding.
[10]
The
member concluded that Mr. Sohal had not shown that the interpretation was not
continuous, precise, competent, impartial and contemporaneous, or that he was
unable to tell his story due to misinterpretations. The alleged
misinterpretations were not linked to any aspect of the member’s decision that
could reasonably have resulted in the negative decision Mr. Sohal sought to
overcome.
[11]
The
member also pointed out that although Mr. Sohal’s counsel at the appeal did not
speak Punjabi, neither did he raise any concerns regarding the English
translation of the evidence. He said at paragraph 21 of his decision:
Regardless of whether or not he spoke
Punjabi and could monitor the quality of the interpretation at the hearing, he
ought to have known that the applicant’s answers to questions were incorrect,
incomplete or indicated confusion on the applicant’s part. It would not be
proper for counsel to hold back from exploring discrepancies, perhaps due to
fear that further questioning would do more harm than good, and then seek
relief in the form of a reopening, due to those same discrepancies.
STANDARD OF REVIEW
[12]
It
is beyond doubt that this Court owes no, indeed must not show any, deference to
the decision of the Tribunal under review on issues of natural justice (either
these issues are beyond the scope of the standard of review, see C.U.P.E. v
Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; or the
standard of review is correctness; see Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392).
[13]
However,
since the issue here is the quality of the interpretation, given the vast
experience of the IRB, I queried at the hearing if the decision should be
assessed as to its reasonableness. Counsel for the Minister was not prepared to
take up the point and assumed that the standard of review is correctness. I
have assessed on that standard, and find no breach of natural justice. Consequently,
the standard of review pertaining to the quality of interpretation, rather than
to the right to interpretation, shall be left to another day.
ISSUES
[14]
In
my view, this case raises three issues. The first is whether there was a breach
of natural justice. This is dependent on the quality of the interpretation between
English and Punjabi. The second issue is whether the applicant waved such
rights as he may otherwise have had by failing to complain about the quality of
the interpretation at the earliest opportunity. The third issue is more
technical. It relates to the lack of affidavit evidence.
[15]
Both
parties agree that concerns about the quality of interpretation should be
raised at the earliest opportunity. Nuances have been raised, depending on the
applicant’s knowledge of the language of the Tribunal, be it English or French,
and his lawyer’s knowledge of the applicant’s language, in this case Punjabi. However,
there is no need to deal with this issue as, in my opinion, there was nothing
to complain about.
[16]
Likewise,
in the light of my decision, it is not necessary to consider whether Messrs
Sohal and Sandhu should have provided affidavits in this Court. Certainly, Mr.
Sandhu’s evidence before the IAD was in affidavit form and that affidavit forms
part of the record.
[17]
A
leading case dealing with interpretation issues in the immigration and refugee
law context is Mohammadian v Canada (Minister of Citizenship and
Immigration), [2000] 3 FC 371, [2000] FCJ No 309 (QL), appeal dismissed, 2001
FCA 191, [2001] 4 FC 85, application for leave to appeal to the Supreme Court
dismissed, [2001] SCCA No. 435 (QL). Mr. Mohammadian was an Iranian Kurd. The
first hearing of his refugee claim had to be adjourned because the interpreter
and Mr. Mohammadian could not communicate with each other. Apparently, there
are four variants of the Kurdish language, depending on one’s country of
residence, Turkey, Iran, Iraq or Syria. When the
hearing first resumed, the interpreter was an Iranian Kurd. There were no
difficulties. At the third hearing there was another interpreter. There appeared
to be some minor difficulties during the course of the hearing, but no
objection was taken at the time. The case is one of many which have held that
the quality of interpretation should have been raised during the hearing itself
because it was obvious to the applicant that there were problems between him
and the interpreter.
[18]
As
to the right to interpretation, Mr. Justice Pelletier, in first instance, applied
the decision of the Supreme Court in R v Tran, [1994] 2 S.C.R. 951, a
criminal law case. He held that article 14 of the Charter applied and
that the interpretation should be continuous, precise, impartial, competent and
contemporaneous. Although the standard of interpretation is high, it need not
be so high as to be perfect. If a breach of this standard is shown, it is not
necessary to show actual prejudice. This is entirely consistent with the
earlier decision of the Supreme Court in Cardinal v Director of Kent Institution, [1985] 2
SCR 643.
[19]
Mohamaddian, above,
was appealed on certified questions. Speaking for the Court of Appeal, Mr.
Justice Stone answered the three certified questions as follows:
a. Must the interpretation
provided to applicants be continuous, precise, competent, impartial and
contemporaneous? Yes.
b. Must applicants show
they have suffered actual prejudice as a result of a breach of the standard of
interpretation before the Court can interfere with the CRDD's decision? No.
c. Where it is reasonable
to expect an applicant to do so, such as when an applicant has difficulty
understanding the interpreter, must the applicant object to the quality of
interpretation before the CRDD as a condition of being able to raise the
quality of interpretation as a ground of judicial review? Yes.
[20]
In
this particular case, unlike Mohammadian, above, the problem, if any, does
not appear to be with the interpreter’s Punjabi, but rather with his translations
to and from English.
[21]
The
issue here is whether the interpretation was “competent”, i.e. of a high
enough standard to ensure that justice was done and was seen to be done,
keeping in mind that the interpretation need not be perfect.
[22]
While,
on reflection, the English could have been better, I agree with the IAD that
the language was satisfactory and did not prejudice Mr. Sohal in any way. Let
me give but one example. Mr. Sandhu said in his affidavit at point 25 s.:
Also, during the questioning of the
Claimant, the word ‘evidence’ is consistently misinterpreted as ‘proof’ when
there is a specific and exact Punjabi word available.
[23]
This
surely is a distinction without a difference. The heading of entry 957 in Rogets
International Thesaurus, 6th Ed, a most-useful educational tool,
(MacKay v Canada (Attorney General), 2010 FC
856, 372 FTR 299, [2010] FCJ No 1016 (QL)) is titled “EVIDENCE, PROOF”. Prime
nouns include “evidence”, “proof”, “reasons to believe” and
“manifestation”. Prime examples of verbs include “evince”, “show’, “testify”,
“give evidence” and “prove”.
[24]
As
to the quality of interpretation, as Chief Justice Lamer noted in Tran,
above, at page 978:
…the principle of linguistic understanding
which underpins the right to interpreter assistance should not be elevated to
the point where those with difficulty communicating in or comprehending the
language of the proceedings, be it in English or French, are given or seen to
be given unfair advantages over those who are fluent in the court’s language.
[Applied by Mr. Justice de Montigny in Bal v
Canada (Minister of Citizenship and Immigration), 2008
FC 1178, [2008] FCJ No 1460 (QL) at para 27]
See also Mr. Justice de Montigny’s more
recent decision in Dhaliwal v Canada (Minister of
Citizenship and Immigration), 2011 FC 1097 at para 18.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that
1.
This
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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