Wed PM Panel: Language Rights and Access to Justice

The afternoon panel focused on language rights and access to justice and addressed the importance of being a part of system changes

Wednesday Afternoon Panel
Christopher Stone, Debra Russell, Tanya Lee, & Raj Anand

Mr. Raj Anand, Former Chief Commissioner of the Ontario Human Rights Commission

  • Language access as a human rights issue
    • Canada Health Act
      • Protect, promote and restore health services
      • Canadian health care services still full of accessibility issues
    • Linguistic barriers also an issue with court
      • Affected groups:  Deaf/Hard of Heraing, minority official language groups, First Nations/ immigrants
    • Solutions need to be multi-faceted: legal challenges, professional and ethical standards, and addressing wages and terms of employment
  • Importance of Language
    • Recognized even by lawyers
    • Ford v. Quebec
      Ford v Quebec

      • Changing demographics in Canada (those who have a mother tongue other than English and French increased from 17% to 38% in 10 years)
      • Doesn’t collect statistics on LEP
  • Human Rights Protection
    • Ontario Human Rights Code and Canadian Human Rights Act
      • Right to equal treatment to services and access
      • Neither laws specifies language as a prohibited ground of discrimination
    • Case law says language itself is not a protected ground, but because human rights laws are designed to protect against adverse impacts
      • Language is a feature of defining ethnicity which is protected
    • Legal Precedents from Supreme Court of Canada:
      • Espinoza – group of people were denigrated with people who did not speak English; ethnicity could be culturally and linguistically defined with a primary identifying factor being language (1995)
      • Segula – Employed for 18 years.  Last four years her language was commented on during job evaluation.  Where language competency is not required for the job, this can be the basis of discrimination. (1995)
      • Other recent Cases show it is difficult to prove that language is a proxy for ethnic origin or citizenship:
        • Sheshgelani (2012) Boss was screamed at her “You don’t understand English.”  But court didn’t find that the complainant did meet the requirements of proving that language was used as proxy for ethnicity.
        • Nemati (2010):  differential discipline and ultimately terminated from employer for similar conduct of English speaking employees did not receive the same discipline.
        • Eldridge (1997):  Question was whether a provincial government’s failure to provide funding for sign language interpreters for Deaf persons when they receive medical services violated their equality rights under the Canadian Charter of rights of freedom.
          • Opinion written by Justice LaForest:
            • Effective communication an integral part of the provision of medical services.
            • Miscommunication can lead to misdiagnose and maltreatment.
            • Question of how this case is applied to immigrants and other minority language speakers – this issue was ducked by the Justice’s opinion.
        • Eldridge applied in Canadian Association for the Deaf (2006)
          • Court found failure to provide sign language interpreters was discriminatory and order that interpreters were to be provided upon request and paid for by the federal government.
        • Decisions affecting the Francophone community
          • Case in 2001 reversed a decision to close the Montfort Hospital in Ottawa
          • Gigilotti – affirmed closing of community college
          • So, mixed bag
        • The First Nations community
          • Lower health status and life expectancy than non-Aboriginal Canadians.
          • Greatest need for interpretation services in Western Canada
          • Very small number of Aboriginal doctors (approximately 150-200 doctors)
        • Immigrant community
          • Language barriers to health care consistently identified in Canada and worldwide
            • 20.6% of Canadians are foreign born
            • 72.8% of new immigrants report mother tongue other than English or French
            • Significant differences between language groups in perception of their health status
            • 15% of immigrants in 2001 cited language barriers (the third rated obstacle after cost and waiting lists)
            • 2013 study cited “time since “immigration” as significant factor accessing Ontario specialist care
            • Inferior treatment, greater risk of misdiagnosis, injury or death for patients with limited English or French
        • Court Interpretation
          • Section 14 of Charter:
            • Party or witness in any proceeding 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.
            • R v Tran (1994):  a party has same basic opportunity to understand and be understood as if he were conversant in the language of the proceeding
            • R v. Sidhu (2005) Standard is not perfection  but “continuous, precise, impartial, competent, and contemporaneous.”
              • Justice Casey Hill’s procedural conclusions led to 2008 overhaul in Ontario
                • Court can require audible consecutive interpretation services (rather than simultaneous services)
                • Also required that 2 interpreters to meet the Chapter 14 mandate
                • Cannot be waived by the participant
          • Takeaways
            • Wage and working conditions improvements are needed to ensure that human rights mandates are met
            • Working alone in full-day trials is highly irregular and inconsistent with expectations for court interpreters
            • Professionalization of the interpreter function
            • An Unfinished story
              • Legal rights
              • professional and economic status
              • and funding in healthcare area

Ms. Tanya Lee, Director, Access to Justice Fund, Law Foundation of Ontario

  • Commissioned research report to describe barriers for people with linguistic barriers
  • Lack of qualified interpreters
  • Focus on three features
    • Community Legal Settings ~
      • Most people don’t end up in court
        • Focused on entry points to legal system
        • Could be in health care settings
        • Domestic violence center
        • Funded training for frontline staff at Canadian Hearing Society so they can give appropriate referrals
      • Training of Interpreters about legal sectors
        • Provide confidence and boost likelihood
        • Training of Deaf and ASL interpreters to work with victims of domestic violence
          • Gave knowledge about what parts of the system might be encountered
          • Ontario network of language interpreter services – to produce online training on family law, immigration law – will have online assessments
            • Important to have it be accessible to rural interpreters
            • Also fits in to schedules
        • Education of legal professionals
          • professionals may use unqualified people
          • Sometimes a financial concern
          • Sometimes an issue of not having a realization that there is such a thing as a qualified interpreter
        • Hopeful that these projects will make a difference in increasing access to justice for people who don’t speak English or French

Dr. Debra Russell, Director, Western Canadian Centre of Deaf Studies, University of Alberta

  • Emphasize that continue to be an active practitioner which informs research
  • Question:  Low cost services, justice systems sometimes forget that poor quality has a price too – how can the industry as a whole mobilize to ensure basic levels of quality?
    • Ways to think about creating system change
    • Gary Malkowski, first elected Deaf Member of Parliament who has provided exceptional leadership
    • Need consistent message about standards that we want justice systems to understand
    • Present with evidence that is based on research in our communities
    • Meetings at systemic level – look at who has the power in the system to implement systemic change;  Do we have the conversations with the right people?
    • Training:
      • Conferences like Critical Link look at combining training for spoken and signed language interpreters
      • Divided we fall, united we stand
      • Use strengths of both communities to build on current evidences and practices
      • Work in Northern Labrador with Inuit Interpreters – interpretation is interpretation.
        • at those training, Judge, lawyers and administrators are a part of it
      • Need to understand how to use the different modes of interpreting, CI, SI, blends
      • Pay grids reflect current industry practices and balance the options
        • Needs to be some basis for finding equity
        • Signed language interpreters need to be careful not to price ourselves out of the market
      • Be the ChangeNeed to translate our research and not only have it in interpreting journals but also have it be in legal circles as well
      • Need to recognize that we are working systemically
      • Each of us are responsible for being change agents

Dr. Christopher Stone, Coordinator, MA in Interpretation, Gallaudet University

  • Interpreting practice has been in the UK so talk is from a UK experience
  • Current situation in UK is “horrendous state of flux” (See posting about a presentation on the UK situation)
  • Quest for low-cost services whilst maintaining quality
    • Have national registers in UK for both spoken and signed languages
      • 12 months ago had very satisfactory practices (though not perfect)
      • Situation rapidly changed
    • People who are natural citizens (but can’t hear) are afforded more rights compared to immigrant communities
    • Had a national agreement was ensuring that appropriately qualified and registered interpreters were used in courts
      • Not cost driven
    • Then a company bid for services
    • Legal professionals want to have good quality services
      • Important for professionals to understand the lived experiences of clients and need communication and language to make that happen
      • Lawyers are applied linguists
        • Lawyers and judges proved to be allies for interpreters in UK
        • Recognize that the service provided is no longer the quality that they are used to
      • More cost-effective ways of delivering service is not always to cut wages
      • Economy is bad, and interpreters are willing to have their wages trimmed, but not cut back 20 years
      • We all need to find allies – to create systemic change
        • Need to have local solutions to engage with police forces & justice to create momentum for change
        • We need to demonstrate what quality is and make sure that these systems want to continue that high level of quality
      • Issue is systemic in terms of calendar
        • Potential of scheduling court cases requiring interpreters to be done when interpreters are available
        • Not about putting interpreters first, but about putting access to justice first.
      • We need to ask the question “What does access to justice look like in the countries that we live in?