18 September 2011

Supreme Court Releases Important Decision on Standard of Interpretation

The Supreme Court of British Columbia has released an important new decision, Luu v. Wang, on the degree of competency required of those who interpret English-language affidavits being sworn by non-English-speaking deponents.

The problem begins with the somewhat ambiguous provisions of Supreme Court Civil Rule 22-2(7) (Rule 10-4(7) of the Family Rules):
"If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit."
Since every document filed in court must be in English (SCCR 22-3(2), SCFR 22-1(2)), this rule is meant to explain how you deal with someone who needs to make an affidavit (a "deponent") but doesn't speak English. In a nutshell, a "competent interpreter" is required to read the affidavit to the deponent, who must then sign a certificate on the affidavit confirming that the rule has been complied with.

The problem in Luu was that rule doesn't define what "competent" means and doubt had been cast on the neutrality of the interpreter. This is what the certificate required by the Rules says:

ENDORSEMENT OF INTERPRETER

1. I have knowledge of the English and _____________ language and I am competent to interpret from one to the other.

2. I am advised by the person swearing or affirming the affidavit and believe that the person swearing or affirming the affidavit understands the _____________ language.

3. Before the affidavit on which this endorsement appears was made by the person swearing or affirming the affidavit, I correctly interpreted for the person swearing or affirming the affidavit from the English language into the _____________ language, and the person swearing or affirming the affidavit appeared to fully understand the contents.

Signature of Interpreter

This doesn't set an objective standard of competency either. It merely requires the interpreter to believe that he or she is competent to interpret and say so, and makes no demand that the interpreter be neutral.

The judge resolved the problem by referring to a 1994 criminal case from the Supreme Court of Canada, R. v. Tran, in which the court held that:
  1. the right to an interpreter is guaranteed by s. 14 of the Charter of Rights and Freedoms;
  2. the translation must be impartial, objective and unbiased; and,
  3. this right is "held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses."
Accordingly, the judge in Luu concluded that:

"Where, like here, a reasonable doubt has been raised about the interpretation, the Court is in a position to conduct an inquiry into the qualifications of the interpreter or to set into motion a new interpretation which complies with the qualifications that should be expected of all interpreters.

"Here, there are legitimate reasons to doubt the objectivity of the interpreter. In the circumstances, I am satisfied that the Plaintiff has raised sufficient doubt regarding the competency and neutrality of the interpreter that it is appropriate to require a new affidavit from SZ.

" There will be an affidavit prepared in the Mandarin language. That affidavit will set out the same content as the August 11, 2011 affidavit of SZ. The new affidavit will be endorsed by an interpreter other than his daughter, BZ. The new interpreter must be one who is a certified interpreter."

I don't think it is necessary to read Luu as requiring that all interpreters be certified, but where there are doubts about the competence and neutrality of an interpreter, the court will inquire into the interpreter's skills, objectivity and impartiality. Since this problem comes up quite frequently in family law cases, where affidavits are commonly interpreted by relatives, friends, neighbours, nannies and dog walkers, if an affidavit is particularly important, it is highly advisable to have it interpreted by a neutral third party at the very least, and interpreted by a professional interpreter at best.

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