Thursday, February 18, 2010

The Shafia Hearing (continued)

This is a continuation of the preceding post. Please read the other one first.
The photo shows the Frontenac County Court House in Kingston.

The Canadian Charter of Rights and Freedoms, which forms part of the Constitution, states,
A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance of an interpreter.
But it says nothing about the quality of the interpretation. That matter has been left to the courts. The landmark ruling was handed down in 1994, when the Supreme Court, in a 72-page (!) judgement, ruled in essence that
The constitutionally guaranteed standard of interpretation is not one of perfection... However, the translation must be continuous, precise, competent and immediate... An accused who does not understand and/or speak the language of the proceedings - be it English or French - has the right at every point in the proceedings in which the case is being advanced to receive interpretation which meets this basic standard.
So the accused’s conviction in that case was quashed on grounds of inadequate interpretation and a new trial ordered. And as the accused was a Vietnamese speaker, it became clear that the “basic standard” applied no matter what language was involved.

Because of this and other cases, the justice administrations have become sensitive to the danger. When the languages are only English and French, there is minimal risk because there are almost always judges or lawyers present who can, and indeed do, monitor. Several of my court interpreter contacts have gone through the experience of being challenged by one of the lawyers who are adequately bilingual (or think they are), and the judge having to decide who’s right. But when it’s a foreign language, it’s a very different situation. Who will be the judge?

Most of the media report the Shafia family’s language as being Farsi. This is misleading, because the language of the accused is indeed a kind of Farsi, but what’s widely spoken in Afghanistan is a dialect of Farsi called Dari (the dialect spoken by the Bookseller of Kabul and mentioned in my October 11 post). The statement by one reporter that “Farsi is a dialect of Persian” is also misleading. Farsi is the modern form of the Persian language spoken throughout Iran. We shall see a possible consequence of the difference in a moment.

For some of the documents in the case, we already know from the media that the police are taking no chances
Translations of interviews and police wiretaps and surveillance tapes have proven difficult and time-consuming. All translations must be peer-reviewed by two additional translators to ensure accuracy.
Time-consuming but a wise precaution. Perhaps the transcripts of the interpretation in court will be double-checked the same way.

I’m certainly for the courts being obliged to use tested and qualified interpreters, and all the more so in a murder trial. On the other hand, I have some sympathy for the justice officials when they have to find qualified interpreters for a distant language like Dari. It’s clear from the reports that the ones they found for the preliminary hearing were not yet Expert Interpreters. Here are my reasons for saying so:

1. When the hearing started, the interpreters didn’t interpret. When this was brought to the judge’s attention, they said they thought they only had to translate what the accused and the witnesses said, not the legal arguments submitted by the lawyers. The judge had to instruct them to translate everything. It’s natural to think that there‘s no point in translating something that would go over the accused’s head even in his or her own language, but Canadian procedure is clear about this and an experienced court interpreter would know it. (The question of not interpreting legal argumentation came up at a sensational trial I was at in Germany many years ago, so it‘s a widespread issue.)

2. At an earlier hearing,
Shafia [the father] appeared to become impatient and apparently swore in Farsi. The interpreter reacted with a smile but didn't translate what was said for Chiang [the presiding magistrate].
Again I sympathize, but the interpreter ought to have translated it, or at least conveyed Shafia’s anger.

3. At four o’clock on the first day of the preliminary hearing, the interpreters told the judge that they couldn’t go on because they were having trouble understanding the dialect. I suspect that this was because they had been hired as Farsi interpreters and were faced with Dari. If so, they should have known they would have trouble.

4. Simultaneous interpretation is being used. It's understandable that the court wants to save time by using simultaneous; one witness yesterday spent five hours on the stand and being interpreted. But if the interpreters aren't experienced in simultaneous, they will have additional difficulty. Yesterday the judge had to intervene repeatedly to ask the witness to slow down for the interpreters.

Canadian Charter of Rights and Freedoms, section 14.

Supreme Court of Canada. Quoc Dung Tran v. Her Majesty The Queen
(R. v. Tran, [1994] 2 S.C.R. 951).

Rob Tripp. Spectators denied canal killing evidence. CanCrime blog, February 6, 2010.

Paul Schliesmann. Sides dig in for the long haul. The Whig-Standard, Kingston (“Canada’s oldest newspaper“), circa October 10, 2009. Cited by Rob Tripp.

Rob Tripp. Translators play key role in preliminary hearing. Whig Standard, February 13, 2010.

Rob Tripp. Battery woes plague hearing. Whig-Standard, February 18, 2010.

Brian Harris. Observations on a cause célèbre: court interpreting at the Lischke trial. In L'Interprétation auprès des tribunaux, ed. Roda P. Roberts, Ottawa, Éditions de l’Université d’Ottawa, 1981, pp. 189-201. Out of print but some libraries have it. I don’t have a copy in Valencia.

Photo: Photo Travel Pages.

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