Federal Court Decisions

     IMM-2642-96

Between:

     SANDRO NAHUN FLORES BANEGAS,

     Applicant,

     - and -

     MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MCGILLIS, J.

         The applicant has challenged by way of judicial review the decision of the Immigration and Refugee Board ("Board") that he was not a Convention refugee. The principal issue to be determined on this application is whether the Board erred in law by failing to ensure that the interpretation provided for the applicant at his hearing conformed to the principles of fundamental justice and the requirements of section 14 of the Canadian Charter of Rights and Freedoms ("Charter").

         The applicant was represented by counsel at his hearing before the Board. The hearing lasted one day, and an interpreter assisted the applicant at all times during the proceedings. At the outset of the hearing, the presiding member of the Board confirmed that the applicant and the interpreter understood each other. The presiding member also requested the applicant to inform the Board if he did not understand the interpretation at any time. Neither the applicant nor his counsel advised the Board of any problems concerning the interpretation at the hearing. An examination of the transcript reveals that, on several occasions, the interpreter asked the applicant to repeat his answer, principally because he was speaking softly. On at least two occasions, the interpreter corrected mistakes made by counsel in referring inaccurately to evidence in his questions. On one occasion, the applicant indicated that he did not understand the question, and the interpreter rephrased it. At one point, the interpreter inaccurately translated the year in which an event allegedly occurred, but she corrected herself almost immediately. Throughout the hearing, the applicant's answers were responsive to the questions posed.

         In his affidavit filed in support of his application for judicial review, the applicant did not state that he did not understand the interpretation or that he was in any way prejudiced by it. Indeed, his affidavit is silent with respect to the question of the interpretation.

         The applicant also filed in these proceedings an affidavit of an expert witness, Yolanda Hobrough, who is certified as an interpreter and a translator. Ms. Hobrough listened to a recording of the hearing and read the transcript. After comparing the transcript and the tapes, she wrote a report outlining the errors made by the interpreter at the hearing. In her report, Ms. Hobrough stated, among other things, that grammatical structures were often incorrect, the meaning of some answers was compromised, and the English translation was sometimes unclear and confusing. However, she noted that "only a few" of the mistakes would "radically alter the content of the main message". She concluded in her report that "... the quality of the interpretation provided in the course of this hearing cannot be considered competent, precise or complete." In order to support the conclusion in her report, Ms. Hobrough provided a detailed comparison of the transcript and the tapes. An examination of that comparison reveals that the vast majority of the "errors" highlighted by Ms. Hobrough are patently trivial matters which did not prevent the applicant from responding appropriately to the questions asked. In her report, Ms. Hobrough described one area of the interpretation which constituted, in her opinion, "... probably the most serious errors on part of the interpreter in the hearing." In that example, the interpreter did not understand the Spanish word for "Deputy Returning Officer", and translated it as "... president of the one of the voting boxes." The presiding member intervened and stated "I think we call them scrutineers." Despite the problem in terminology, the entire exchange on that subject, which was not fully set out by Ms. Hobrough in her report, reveals that the activities of the applicant at the voting station and his subsequent electoral responsibilities were accurately conveyed to the Board. That example was the only "serious" error described by Ms. Hobrough.

         In determining whether the principles of fundamental justice or the section 14 Charter right to the assistance of an interpreter were breached, reference must be made to the jurisprudence. In Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388 (F.C.A.), Stone, J.A. provided the following guidance at page 392 of the decision:

"[13] In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well he might have done had he been able to communicate to the Board in the English language. Natural justice demanded no less. Manifestly, however, he was unable to do so upon points of key importance to his claim because of the poor quality of the translation. I have no doubt that this circumstance prejudiced the appellant in the proceedings to review important aspects of the Board's decision on a record which is plainly deficient."

In the decision Tran v. Her Majesty the Queen, [1994] 2 S.C.R. 951, the Supreme Court of Canada enunciated the principles applicable in the criminal law context to the right to interpreter assistance guaranteed by section 14 of the Charter. Lamer, C.J., writing for the Court, expressly indicated at page 8 of the judgment that:

... the discussion of section 14 of the Charter which follows relates specifically to the right of an accused in criminal proceedings, and must not be taken as necessarily having any broader application. In other words, I leave open for future consideration the possibility that different rules may have to be developed and applied to other situations which properly arise under s. 14 of the Charter -- for instance, where the proceedings in question are civil or administrative in nature.

Despite his caveat that the analysis applied specifically to criminal proceedings, Lamer, C.J. nevertheless discussed in broad terms the purposes served by the section 14 Charter right to the assistance of an interpreter. In particular, he noted at page 977 of the judgment that:

...the underlying principle behind all of the interests protected by the right to interpreter assistance under section 14 is that of linguistic understanding. The centrality of this principle is evident not only from the general jurisprudence dealing with interpreters, but also more directly from the language of s. 14 itself, which refers to "not understand[ing] or speak[ing] the language in which the proceedings are conducted". The level of understanding protected by s. 14 will, therefore, necessarily be high. Indeed, it has been suggested that a party must have the same basic opportunity to understand and be understood as if he or she were conversant in the language of the court. For example, in the immigration case, Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.), Stone J.A. stated at page 392:

" In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well he might have done had he been able to communicate to the Board in the English language. Natural justice demanded no less. [Emphasis added.]"

Although the Supreme Court of Canada adopted the analysis in Tung v. Canada (Minister of Employment and Immigration), supra, concerning the requisite level of linguistic understanding, it rejected, for the purposes of the criminal law, the requirement that prejudice must also be established. In that regard, Lamer, C.J. stated at page 995 that the denial of "...proper interpretation while the case is being advanced is in itself prejudicial and is a violation of section 14." In the immigration context, the jurisprudence flowing from the decision in Tung v. Canada (Minister of Employment and Immigration), supra, has required an applicant to establish that he has suffered prejudice by virtue of the problems arising from the interpretation. [See Mosa v. Minister of Employment and Immigration, April 19, 1993, Court file A-992-92 (F.C.A.).]

         Counsel for the applicant submitted that the principles enunciated by the Supreme Court of Canada, in Tran v. Her Majesty the Queen, supra for criminal law proceedings ought to be extended to apply in the immigration context, particularly with respect to hearings conducted before the Board.

         Given the facts of the present case, it is unnecessary for me to decide that interesting question. If I were to apply the prejudice test in Tung v. Canada (Minister of Employment and Immigration), supra, I am satisfied on the basis of the evidence in the record that the applicant has suffered no prejudice by virtue of the interpretation provided to him. In particular, none of the alleged errors in interpretation affected in any manner the various inconsistencies in the applicant's evidence which gave rise to the adverse finding of credibility. Alternatively, if I were to adopt the more expansive approach in Tran v. Her Majesty the Queen, supra, I am not satisfied on the balance of probabilities that the applicant was denied proper interpretation. During the course of his hearing, the applicant indicated that he understood the interpreter, gave responsive answers to the questions posed and made no objection, either personally or through his counsel, to the quality of the interpretation. More importantly, the applicant did not state in his affidavit that he did not understand the proceedings. With respect to the evidence of Ms. Hobrough, it is important to recognize that the vast majority of the examples which she gave to support her conclusion that the interpretation was not competent were trivial in nature. In Tran v. Her Majesty the Queen, supra, Lamer, C.J., noted at page 985 that "... [w]hile the standard of interpretation under s. 14 will be high, it should not be one of perfection." Furthermore, in discussing the criteria to be applied in assessing the interpretation, Lamer, C.J. stated the following at page 987 with respect to precision:

However, it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection. As Steele explains, at page 242:

"Even the best interpretation is not "perfect", in that the interpreter can never convey the evidence with a sense of nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness."

In this respect, it may be helpful to note the conceptual distinction that exists between "interpretation", which is primarily concerned with the spoken word, and "translation", which is primarily concerned with the written word. In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.

In the present case, Ms. Hobrough, who is a trained interpreter and translator, reviewed and analysed both the tape recording and the transcript. In my opinion, the plethora of minor matters given in her report as examples of errors on the part of the interpreter indicates that she searched for inconsistencies by conducting a microscopic examination of the oral evidence and the written transcript. Furthermore, having had access to the written text and ample time for reflection and comparison, she applied in her analysis the higher standard for translation, rather than the lower standard for interpretation, described by Lamer, C.J. in Tran v. Her Majesty the Queen, supra, at page 987.

         In the circumstances, I am not satisfied on the basis of the evidence in the record that the applicant was denied his right to interpretation guaranteed by section 14 of the Charter, or that the interpretation afforded to him breached any of the principles of fundamental justice. In my opinion, the interpretation in this case was "... of a high enough quality to ensure that justice [was] done and seen to be done." [See Tran v. Her Majesty the Queen, supra, at page 988.]

         The other grounds raised by counsel for the applicant do not have merit. In my opinion, the decision of the Board was reasonably open to it on the evidence. My intervention in this matter is therefore not warranted.

         The application for judicial review is dismissed. The case raises no serious question of general importance.

                             __________________________

Judge

June 30, 1997

Ottawa, Ontario