II- LANGUAGE RIGHTS IN THE COURTS
Page 11 of 22
2.2 Civil proceedings
Right to an interpreter and language rights when client and counsel are not using same official language
Taire v. Canada (Minister of Citizenship and Immigration)
The judgment of the Federal Court in Taire51 raises inter alia the question of the right to an interpreter under section 14 of the Charter and of the language rights under section 19 of the Charter and Part III of the Official Languages Act where clients and counsel are not using the same official language.
Ms. Taire filed an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board that she was not a Convention refugee. Ms. Taire alleged that, in addition to the members of the Division erring in assessing her credibility, she had not been given a fair hearing because of the absence of an Uvwie-French interpreter.
The hearing took place in English, a language Ms. Taire understands and in which she had done her primary and secondary schooling in Nigeria. Further, Ms. Taire and her counsel did not object to the hearing being in English. However, with the approval of the Court and his client, counsel for the applicant chose to make his oral arguments in French.
In her application for judicial review, the applicant alleged she had made a request for an Uvwie-French interpreter. The lack of such an interpreter created an awkward situation for herself and her counsel and she was subsequently denied a fair hearing. She said that the breach of her rights seriously undermined her credibility and the potential assistance of counsel in this case. Finally, she noted that under section 133 of the Constitution Act, 1867 her counsel had the right to use English or French in court.
In its judgment, the Federal Court acknowledged that the applicant’s counsel did have the right to use the official language of his or her choice in court, but the failure to provide the interpreter requested in this case did not deprive the applicant of a fair hearing. The Court in fact accepted the respondent’s arguments that the applicant’s claims confused the right to an interpreter, guaranteed in section 14 of the Charter for a party or a witness, and the language rights conferred on everyone by section 19 of the Charter and Part III of the OLA.
1) Right to interpreter guaranteed in section 14 of Charter
The Court first expressed the view that the applicant suffered no prejudice because of English being used at the hearing, since she spoke and understood that language. In its view, "the adverse credibility findings are due not to language, but to the content and form of the applicant’s testimony." The Court accepted the respondent’s position that it was not the applicant who needed a French interpreter, but her counsel, and the latter did not have such a right under section 14 of the Charter or under Rule 17(1) of the Convention Refugee Determination Division Rules, as this right applies to a party or a witness, not counsel, who does not understand or speak the language of the hearing. Consequently, the Federal Court concluded that section 14 of the Charter had been observed in the circumstances.
2) Right to use official language of choice in courts established by Parliament
Regarding the right to use the official language of choice in courts established by Parliament, guaranteed by Part III of the OLA and section 19 of the Charter, the Court held that counsel and his client had waived these rights. In support of this conclusion, it accepted the respondent’s arguments. In the submission of the respondent, under section 15 of the OLA, the applicant could have requested simultaneous French-English interpretation for the part of the hearing in which her counsel was addressing the Court in French. She could have also chosen to proceed in French and requested interpretation from French into English. Finally, the applicant clearly chose not to exercise either of these rights before the proceedings were conducted so the panel could make the necessary arrangements. Consequently, the Court dismissed the applicant’s arguments relating to language rights. As it also dismissed all the arguments regarding assessment of the applicant’s credibility by members of the Division, the Court dismissed the application for judicial review.
