Translating Errors Lead to Successful Judicial Review

In a previous post I introduced some judicial principles regarding the role of translators in proceedings before the Immigration and Refugee Board.

There, I wrote that:

Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.

A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.

Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161,  provides a more comprehensive summary of the common law principles governing translation.  These principles are that:

a.         The interpretation must be precise, continuous, competent, impartial and contemporaneous.

b.         No proof of actual prejudice is required as a condition of obtaining relief.

c.         The right is to adequate translation not perfect translation. The fundamental value is linguistic understanding.

d.         Waiver of the right results if an objection to the quality of the translation is not raised by a claimant at the first opportunity in those cases where it is reasonable to expect that a complaint be made.

e.         It is a question of fact in each case whether it is reasonable to expect that a complaint be made about the inadequacy of interpretation.

f.         If the interpreter is having difficulty speaking an applicant’s language and being understood by him is a matter which should be raised at the earliest opportunity.

Was the Issue Raised?

A defense that is often used in response to arguments about inadequate translation is that the argument cannot result in a decision being set aside if the applicant did not sufficiently raise the translation issue at the hearing.

However, where a review of the audio recording from a hearing reveals serious interpretation errors, the failure to raise the issue of interpretation at the hearing does not preclude it from being raised in a judicial review proceeding: Khalit Ahamat Djalabi v. Canada (Minister of Citizenship and Immigration), 2007 FC 684

Where an applicant has raised the issue of inadequate translation at a hearing, the Federal Court has been flexible in terms of what it considers to be “sufficient raising of the issue.”  In Neheid v. Canada, 2001 FC 846, the claimant’s daughter had attempted to raise the issue, however, the Board Member “ordered [her] to be quiet”.  The Department of Justice appears to have argued that the claimant should have done more to raise the issue, although the judgment does not specify exactly what the Respondent suggested the claimant do.  Justice Phelan disagreed.  In a particularly interesting passage he stated that:

[g]iven the dependent position an applicant is in before the Board, and the total dependency of counsel on the translation, it is not reasonable to expect the Applicant to have done more.

Finally, a Board Member’s statement that the translation was adequate will be given very little weight if that Board Member does not speak the language that was being translated: Coya v. Canada (Citizenship and Immigration).

Was the Mis-Translation Material 

In order for a translating error to cause a breach of natural justice the mistranslation must be material.  For example, mistranslating “evidence” as “proof” is not sufficient to cause a breach of natural justice.


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