Canadian Refugee Procedure/RPD Rule 19 - Interpreters

The Refugee Protection Division simply would not be able to exist in its current form without interpreters. They are key professionals involved in the refugee claim process and over 90% of IRB hearings require interpretation services, with the Board providing interpretation in over 260 languages in some 40,00-60,000 procedures a year. It is said that Refugee Status Determination is not easy because it, by definition, involves determining the status of individuals from foreign countries, describing events elsewhere about which little is known, often speaking foreign languages, and with a range of different cultural beliefs and behaviours. Most refugees have suffered significant trauma, if not before flight, then as a result of flight. The process of status determination requires perpetual sensitivity to the unique predicament of the refugee. What is the role of the interpreter in seeking to ensure communication in such circumstances? What follows is a discussion of the laws and rules regarding interpreters at the Refugee Protection Division.

Charter of Rights and Freedoms

Section 14 of the Canadian Charter of Rights and Freedoms provides:

Interpreter 
14 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.

The standard of interpretation required by section 14 of the Charter of Rights and Freedoms varies between immigration and criminal proceedings. The text Refugee Law notes that "although there is a substantial jurisprudence establishing a Charter right to accurate interpretation in the context of criminal proceedings, there has been a notable reluctance by the Federal Court to extend such a comprehensive protection to refugee claimants." The authors note that "although the finding in R v Tran concerning the right to 'continuous, precise, impartial, competent and contemporaneous' interpretation has been applied to refugee proceedings, the Federal Court has also frequently lowered the threshold for waiver of the right." For the standard required in proceedings before the IRB, see Canadian Refugee Procedure/RPD Rule 19 - Interpreters#Legal standard for interpretation below.

Canadian Bill of Rights

Section 2(g) of the Canadian Bill of Rights concerns the right to interpretation:

2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... 
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

RPD Rule 19 - Interpreters

The text of the relevant rule reads:

Interpreters

Need for interpreter — claimant
19 (1) If a claimant needs an interpreter for the proceedings, the claimant must notify an officer at the time of the referral of the claim to the Division and specify the language and dialect, if any, to be interpreted.

Changing language of interpretation
(2) A claimant may change the language and dialect, if any, that they specified under subrule (1), or if they had not indicated that an interpreter was needed, they may indicate that they need an interpreter, by notifying the Division in writing and indicating the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Need for interpreter — protected person
(3) If a protected person needs an interpreter for the proceedings, the protected person must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Need for interpreter — witness
(4) If any party’s witness needs an interpreter for the proceedings, the party must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Interpreter’s oath
(5) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

History of this Rule

While previous versions of the Regulations and Refugee Protection Division Rules expressly required the Board to provide an interpreter when one was needed, the current Regulations are silent on this and the Rules now only indicate that if an interpreter is needed the claimant or witness must provide the requisite notice. This change does not alter the Board's obligation to provide interpretation as required by the Charter of Rights and Freedoms and the Bill of Rights.

To what extent is counsel obliged to use an interpreter in their private meetings with a claimant prior to hearing?

At times a question can arise about whether counsel is obliged to use an interpreter in their private meetings with a claimant prior to a hearing. For example, in Obasuyi v. Canada the claimant argued that their past counsel's failure to arrange for an interpreter to assist the claimant in her interactions with him amounted to professional incompetence. The court rejected this argument in the circumstances, noting that while "it may have been preferable or more prudent for [counsel] to arrange for an interpreter, in order to assist the [claimant] in recounting a difficult personal story," that is not the test and in this case the lawyer indicated that he was able to understand the claimant and the claimant did not request an interpreter. For more details about counsel competence, see: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#In what contexts will counsel incompetence render a hearing unfair?

What is the scope of the interpreter's role before the Board?

Interpretation must be made available for the substantive portions of the proceedings where the case is being advanced

The section 14 Charter right to interpretation applies to “proceedings”. RPD Rule 1 defines a proceeding at the RPD as including “a conference, an application or a hearing”: Canadian Refugee Procedure/RPD Rule 1 - Definitions#Commentary on the definition of "proceeding". To constitute a violation of section 14 of the Charter, a claimant must establish that a failure to provide interpretation occurred with regards to an aspect of the proceedings involving the individual's "vital interests". This will occur where the failure to provide interpretation occurred while the case was being advanced. To facilitate effective interpretation, Members are expected to not allow two participants to be talking at the same time.

Members should ensure that substantive exchanges between a Member and counsel are interpreted, but it is not necessary for purely logistical exchanges to be completely translated. The Board states that the claimant has hired counsel to deal with matters of evidence, adjournments, etc., and the panel’s remarks on these procedural issues should be directed to counsel. In Dhaliwal v. Canada, the Applicant complained that some exchanges between the member and counsel were not interpreted at all. The court rejected this argument, noting that "those conversations were purely about administrative matters, and the Supreme Court said in Tran that 'where a lack of or lapse in interpretation occurs in respect of some purely administrative or logistical matter which does not involve the vital interests of the accused, such as scheduling or agreeing to a recess, this will not be a violation of s. 14 of the Charter.'”

Furthermore, the right to interpretation may be waived, and in such circumstances, there is no need to provide an interpreter.

The right to interpretation may be waived either expressly or implicitly

The right to interpretation may be waived, and in such circumstances, there is no need to provide an interpreter. Waiver of the right to object to inadequate translation may be either explicit or inferred from conduct in refugee cases. This is so as the volume of workload before the Board necessitates a more flexible approach to waiver than that which is applied in the criminal context. This principle applies both where there are concerns about the quality of interpretation and where no interpretation was provided for some or all of a proceeding whatsoever: Baloch v. Canada. Where an applicant explicitly waives their right to interpretation, then, even if they have some subsequent communication difficulties, it will not be procedurally unfair for the panel to continue; the panel is not under an obligation to adjourn the hearing and call an interpreter despite a clear waiver of interpretation. For more context regarding concerns about quality of interpretation, see: Canadian Refugee Procedure/RPD Rule 19 - Interpreters#Legal standard for interpretation.

There are independent rules about official languages in Canada and the ability to proceed in French or English

Rule 19 of the RPD Rules concerns languages other than English and French. For commentary on English and French, including the potential need for interpreters in and between those languages, see the commentary to Rules 17 and 18: Canadian Refugee Procedure/RPD Rules 17-18 - Language of Proceedings.

Legal standard for interpretation

The right to an interpreter in a proceeding in another language is enshrined in section 14 of the Charter of Rights and Freedoms, and this right has been held to be generally applicable to a proceeding before the RPD. In order to comply with this Charter right, interpretation should be continuous, precise, impartial, competent and contemporaneous. This is defined by the Board as follows:

• Interpretation should be continuous, as in without breaks and complete.
• Interpretation should be precise, as close as can be to word-for-word and without summaries or changes in grammar and syntax; it should be in the first person. This should include the verbatim interpretation of legal jargon used by a Board Member. The French term for this requirement can also be translated as "faithful".
• Interpretation should be impartial; the interpreter is not a witness.
• Interpretation should be competent; the interpreter must take an oath and should his or her competence be in doubt, an inquiry into competence should be made.
• Interpretation should be contemporaneous; this is achieved through consecutive, rather than simultaneous, interpretation. The French term for this requirement can also be translated as "concurrent".

To put it another way, persons who do not speak and understand one of the official languages must be able to tell their story, and the interpretation must be of such quality that they are not impeached in their ability to make their case. The Board's Interpreter Handbook states that "The role of an interpreter ... is to provide a clear channel of communication. ... Whatever is said in one language should be interpreted faithfully and accurately into the other language using the exact equivalent meaning and structure." The underlying principle is that of linguistic understanding. This principle implies that where a person testifies through an interpreter, they should have the same opportunity to understand and be understood as if the person were conversant in English or French. In this way, the purpose of providing interpretation is to provide a "level and fair playing field." As the Supreme Court said in Tran, "interpretation must be of a high enough quality to ensure that justice is done and seen to be done."

The Federal Court has stated that "an interpreter auditing a hearing recording can always find instances of interpretation that are not perfect." This will not suffice to show that the interpretation fell below the standard expected. Although the standard of interpretation is high, it need not be so high as to be perfect. What is important is whether the claimant understood the interpretation and was able to adequately express themself through the interpreter. If a breach of this standard is shown, it is not necessary to show actual prejudice or harm. As Mr. Justice J.D. Denis Pelletier has observed, “requiring proof of prejudice as a condition of obtaining a remedy for infringement of a constitutionally protected right undermines the constitutional protection”. While actual prejudice need not be demonstrated, the applicant must show that the interpretation errors were consequential (i.e., they must be real, significant, serious, substantial, or non-trivial), material to the decision maker’s findings, and related to the applicant’s ability to answer questions or present the refugee claim.

Where a panel of the Board makes a general finding that a claimant lacked credibility, then reviewing bodies have had little difficulty concluding that pervasive interpretation challenges were material. However, the fact that an interpreter added some words that were not said, mistranslated some of the Board’s questions, and frequently intermingled English words in interpreting to the claimant in another language does not necessarily mean that a decision should be set aside if the portions of the hearing where interpretation was problematic are unrelated to the negative credibility determinations: Sherpa v. Canada.

An interpreter can be asked to translate short documents

The Board's Interpreter Handbook informs the Board's contractors that "in some cases, [you will be asked to translate] short documents submitted before, during, or after IRB proceedings." The Interpreter Handbook includes the following details on the scope of what is called "sight translation" that the Board may expect of an interpreter: "As an IRB interpreter, you may be asked to translate aloud a variety of documents for the tribunal. The most common of these documents are identification documents such as passports, drivers' licenses, national identification cards and birth certificates. You may also be asked to sight translate handwritten personal letters, newspaper articles, police or medical reports and other legal documents. In order to give as accurate and precise a translation as possible, and depending on the size and complexity of the document, it is better to request a brief amount of time to review the document ahead of time in order to prepare a rough written translation and/or solve some translation problems beforehand." For more about translation of documents, see RPD Rule 32: Canadian Refugee Procedure/Documents#RPD Rule 32 - Language of Documents.

In what ways is an interpreter expected to provide cultural, not just linguistic, interpretation?

The Board's Interpreter Handbook has a section on "What is the role of an interpreter at the IRB?" It states that an interpreter is to "provide a clear channel of communication between decision-makers and the individuals appearing before the IRB with culturally, linguistically diverse backgrounds." As such, through these statements the Board is indicating that issues of cultural difference are likely to arise in some cases and that an interpreter's role is to provide a clear channel of communication in order to overcome both linguistic and cultural differences. What are examples of how an interpreter should do this? The most straightforward examples of when an interpreter is expected to do this are where it overlaps with their role to interpret a claimant's utterances. In the words of the academics Jennifer Bond and David Wiseman, "it is essential that interpretation ... take into account nuances of social and cultural idiom and contextual background." Other examples of the interpreter's role in overcoming cultural difference go beyond the strictly linguistic. For example, the IRB's Handbook states that an interpreter may use a calendar to convert dates from other countries, something expected where the other country uses a different calendar system. Finally, as discussed in the following section of this page, where an evident misunderstanding has arisen between a panel and/or one or more parties as a result of differing cultural inferences, the interpreter may properly note this for the record.

That said, the interpreter's role in providing cultural interpretation is properly quite limited. The terms of their contract with the Board provide that interpreters are not to provide any "explanation":

INTERPRETER SERVICE CONTRACTORS shall take all reasonable care to faithfully and accurately interpret or translate what is stated in the source language into the target language, having regard primarily to meaning and secondarily to style, without any paraphrasing, embellishment, omission, explanation, or expression of opinion, using the same person as in the source language and the closest natural equivalent of the source language. [emphasis added]

Some commentators have called for Board interpreters to take on more of this cultural interpretation role. For example, Barsky provides examples of cases where potential pitfalls in the refugee's claim were 'saved' when an interpreter offered a cultural explanation, such as a comment on the relative cost of items, different concepts of time, or the different meaning of words in different cultures. Generally, it would appear that, where an interpreter comments on such issues, they are going beyond their appropriate role and treading into prohibited "explanation" or the "expression of opinion". The reason to be cautious with allowing interpreters to take on a cultural authority role is 1) that it risks treading onto the role of counsel, or the Member, and their respective choices when making, or investigating, a case; 2) such interventions could be perceived as favouring one party or another in a proceeding, thereby compromising the neutral role of the interpreter; and 3) as the academic Ahmad observes, "allowing interpreters to act as cultural brokers risks essentializing the [claimant's] cultural background, and this is further complicated because their information is influenced by their own subjective experiences." Interpreters are evaluated by the Board for their linguistic proficiency, not their cultural or country conditions expertise, and they should not necessary be accepted as experts on such. Specifically, the IRB accreditation process is comprised of three tests (a hearing simulation, a sight translation, and an official language test); candidates must get a mark of 70% on all tests to be successful. Furthermore, the Board's Interpreter Handbook notes that in "exceptional circumstances" where the claimant speaks a very rare language or dialect, non-accredited interpreters may be used.

When is an interpreter expected to speak out, ask a question, or point some matter out to the Member?

The Board's Interpreter Handbook has a section on the role of an interpreter at the IRB. It notes that "in addition to overcoming the barrier of language between IRB decision-makers and IRB clients, the interpreter plays a key role in helping the IRB perform its core mandate: making well-reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance with the law. As such, through these comments the Board is signalling that the role of the interpreter extends to playing a role in ensuring that proceedings are fair and that decisions are well-reasoned. The starting-point is described by Acton as "the expectation that interpreters will primarily interpret the meaning of one language to another, imparting as little personal intervention on the interpreted meaning as possible. However, recognizing that interpretation is not a straightforward process, if interpreters must step outside this primary role, they should make it clear where their subjectivity begins."

The appropriate scope of this role can be illustrated or informed by industry codes of conduct about the proper role of interpreters. For example, the Chartered Institute of Linguists, an international organization that offers interpreter accreditation and professional development, has a Code of Conduct that sets clear standards for member interpreters. It notes that interpreters are permitted to intervene to ask for clarifications; point out misunderstandings, including cultural inferences; and signal conditions that may impair interpretation, such as inadequate breaks or seating arrangements. The following provides some comment on these tasks:

• Ask for clarification: As a best practice (even if not a legal requirement) an interpreter should ask a speaker for clarification or reformulation if a question is overly complicated. In doing so, the interpreter should put on the record in both languages what they are doing and ask for permission from the Member, if relevant.
• Point out misunderstandings, including cultural inferences: For example, where an evident misunderstanding has arisen between a panel and/or one or more parties, the interpreter may properly observe and note this.
• Signal conditions that may impair interpretation, such as inadequate breaks or seating arrangements.
• Make corrections: The IRB Interpreter Handbook advises interpreters to correct themselves immediately if they realize that they have made a mistake or if a mistake is pointed out.

To what extent is an interpreter expected to reflect the tone, register, and demeanour of the person testifying?

The Board Interpreter Handbook instructs interpreters to "try to use the same tone and level of language as the person speaking." Robert Gibb and Anthony Good state that this can be a complex task, as a competent interpreter is required to balance the obligation to translate an applicant's answers honestly, while exercising independent judgment on a range of matters, including "how to negotiate different registers of speech without potentially damaging the perceived credibility of an applicant's ... narrative" (register being the level of formality in language, something usually determined by the context in which it is spoken or written).

Interpreters are under a duty of confidentiality

Interpreters are under a duty of confidentiality. It is a good practice to note this for the benefit of the claimant. This is emphasized in the contract that each interpreter signs before commencing work at the Board, which states "[Interpreters] shall keep confidential all information gained in the course of providing services to the [Board]. More specifically, [Interpreters] shall not, either within or outside the [Board] premises, discuss, report on, or give an opinion concerning any matter for which they provide services to the [Board]." The UNHCR Handbook emphasizes the importance of confidentiality in creating an atmosphere of trust in the refugee status determination process: "It will be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence it is, of course, of the utmost importance that the applicant’s statements will be treated as confidential and that he be so informed." For this reason, it may be advisable to underscore to the claimant that the proceedings are confidential.

Interpreters are not required to perform clerical duties

It used to be the case that in the Refugee Status Advisory Committee process, which preceded the establishment of the Immigration and Refugee Board, that interpreters were classified at a low clerical level within the civil service structure and that they were required to perform clerical duties in addition to their interpretation functions. The report of Rabbi Plaut that preceded the founding of the IRB was sharply critical of this: "It is not surprising that qualified interpreters are not attracted to this position with its low rate of pay and the unskilled clerical duties which must be performed as part of their function", he wrote. He recommended that this be reformed in order to improve the quality of interpretation in the refugee process, something which has been done.

Who can interpret?

Does an interpreter need to be accredited by the Board?

The IRB Interpreters Handbook states: "Non-accredited interpreters may be retained in very exceptional circumstances and only where it is necessary to safeguard the fundamental rights of the subject of the proceedings. This may happen in cases where the individual appearing before the IRB only speaks a very rare language or dialect".

Requests for an interpreter who is not from a particular community or who is of a particular gender

The Board's gender guidelines quote with approval a paper that states that decision-makers should be sensitive to the fact that "if a claimant's culture dictates that she should suffer battering silently, the use of an interpreter from her community may also intimidate her." Furthermore, the Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB state that the Board has a broad discretion to tailor procedures to meet the particular needs of a vulnerable person, and, where appropriate and permitted by law, the IRB may accommodate a person's vulnerability by various means, including by providing a panel and interpreter of a particular gender.

Such requests should be made at the earliest available opportunity. The IRB Interpreter Handbook notes that "Interpreters are scheduled on an on-call basis and may be booked for a hearing up to three weeks in advance." It is a best practice to make any specific requests for the interpreter prior to this point.

The Board is bound by the Canadian Human Rights Act. This act prohibits discrimination on the basis of "race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered." As such, the Board should not make distinctions on these grounds (for example, entertaining a request from a claimant not to have an interpreter who is "from" a particular country) without good reason. That said, research on the role of interpreters in legal proceedings discusses the way that characteristics such as sex, age, ethnic identity, and appearance can both generate or diminish trust, so such "protected grounds" may be important occupational requirements in the refugee context. James C. Hathaway notes, for example, that "claimants may have difficulty trusting an interpreter who comes from their own country because, rationally or irrationally, the interpreter may be suspected of being associated with the alleged agent of persecution."

Conflicts of interest for interpreters

The Board's Standard Interpretation Service Contractor Clauses and Conditions includes a detailed section regarding potential conflicts of interest. It requires that "INTERPRETER SERVICE CONTRACTORS shall avoid, and where it arises, shall, without delay, disclose to the case management officer, clerk or BOARD official directing the proceeding, as the case may be, any real, potential, or apparent conflict of interest in relation to any matter for which they provide services to the BOARD."

A claimant is entitled to an interpreter which provides linguistic understanding, not their language or dialect of choice

The requirement to provide an interpreter who provides linguistic understanding cannot be relaxed when there is difficulty in finding an interpreter who can interpret in the language that the applicant understands. That said, a claimant is entitled to an interpreter which provides linguistic understanding, not their language or dialect of choice. In Bykov v. Canada, the IRB had been unable to provide a Tchouvache interpreter, but had supplied a Russian interpreter. Mr. Bykov understood Russian and had had ten years of Russian education. Mr. Justice Teitelbaum held that the applicant understood Russian well enough for the purposes of the hearing and that the IRB was not obligated "to provide an interpreter with the exact dialect of the applicant."

Furthermore, the Board must be alert to circumstances where an interpreter speaks a different dialect of a language and this will impede linguistic understanding. Rule 19(1) instructs a claimant to provide notice of the language and dialect that they require interpretation in. At times, issues have arisen about just what a dialect is. For example, is the difference between Arabic as spoken in Libya and Arabic as spoken in Iraq a matter of dialect or accent? The RAD has noted that, where questions of this nature arise, it is a best practice for the panel to confirm with the interpreter whether they have provided interpretation services for someone who speaks the dialect in question in the past. That said, the mere fact that the claimant and interpreter are from different localities and have different accents does not mean that the interpretation is not sufficiently precise and competent to convey the claimant’s words on the material points of concern; in Sherpa v. Canada the interpreter acknowledged during the hearing that the claimant was having difficulty understanding her because they were from different localities and had different accents, but the court nonetheless accepted that the interpretation provided met the applicable standards.

See also: Canadian Refugee Procedure/Interpreters#Legal standard for interpretation.

Best practices regarding locating the interpreter with the claimant during videoconference hearings

Interpreters may be present in person, on the phone, or may appear at a hearing by videoconference. The Board policy is that in hearings that take place via videoconferencing from an IRB office, "as a usual practice, the interpreter is located in the hearing room with the claimant". This practice emerged from a recommendation included in an independent review the Board commissioned of the use of videoconferencing in refugee proceedings, which recommended:

Make it the usual practice to locate the interpreters in the claimant's room with the claimant. Exceptions could be made where an interpreter in the required language is not available close to the location of the claimant's room. It is apparent from the survey evidence that it is not impossible to have reasonable interpretation services with the interpreter in the member's room, but the advantages in terms of putting claimants at ease, and facilitating the efficiency of the translation are sufficiently clear that having the interpreters with the claimant as a regular rule is clearly desirable.

Board management accepted this response, while reserving for itself the discretion to depart from this practice, as follows: "The Board will adopt this recommendation and ensure that, as a usual practice, the interpreter is located in the hearing room with the claimant. However, as the choice to use videoconferencing always requires a balancing of fairness and efficiency, the Board retains a discretion to depart from the norm of locating the interpreter with the claimant when it is not practical to do so (for example, for reasons of interpreter availability or cost)."

An interpreter may change during a hearing

The interpreter is not "seized" with a case. The panel may swear in any new interpreter after satisfying itself, of course, that the interpreter is competent to do the job and otherwise acceptable. A new interpreter may come into a case at any point during the proceedings.

What should be done if there are concerns about the quality or accuracy of interpretation?

Members should intervene if a witness and interpreter are not working together effectively

Where interpreters are providing consecutive interpretation, an altered manner of speaking is usually required when working with them, as one counsel describes in a report on point:

Speaking through an interpreter is not intuitive, so I think it’s something I’ve picked up. It’s being able to speak in a way that can be interpreted, and the big thing is stopping every, like I’m doing now, stopping every two sentences.

Members should inquire if they have suspicions that the interpreter is not interpreting accurately; the following Citizenship and Immigration Canada recommendation to officers conducting interviews for the Overseas Selection and Processing of Convention Refugees Abroad Class would apply equally to IRB Members: "If at any time the officer is not satisfied that an interpreter is translating accurately, the officer should verify their suspicion by rephrasing the answers that have raised doubts, and ask the applicant to confirm that the officer has understood correctly."

Members should also ensure that all conversations between the claimant and the interpreter are interpreted back into the language of the proceeding, French or English. At times an interpreter will converse with a claimant in order to ask clarifying questions. The fact that an interpreter is doing this should be put on the record and the content of the conversations should be interpreted. The Board should insist that this be done. Where it is not, it is an error, as noted by the RAD with this example from one case: "In his affidavit Mr. XXXX further states that 'there were many conversations between Mr. XXXX (the appellant) and Mr. XXXX (the interpreter at the first hearing) that were not translated back to English.' This evidence further establishes that the interpretation provided for the appellant at his first RPD hearing was flawed." They should be done, equally, where it is a witness or claimant who is initiating such conversations. In a Masters Thesis on the topic of interpretation in refugee hearings, one interviewee notes that "good interpreters will let the lawyers and Board Members know if the client is trying to have side conversations with an interpreter in a hearing".

It is a best practice for the Board to record hearings

In the case of Toussaint v. Canada the refugee claimant’s testimony was not contained in the transcript of the hearing presumably because the recording equipment was not turned on after an early off-the-record discussion. The missing testimony representing most of the hearing. The Federal Court noted that a failure by the Board to produce a transcript of the evidence taken before it may constitute a denial of natural justice if a reviewing court is unable to properly dispose of the issues raised. This is particularly applicable where there is a subsequent challenge to the interpretation provided. For example, in one case the RAD remitted a matter where interpretation issues were raised on appeal based on the following reasoning: "In the case at hand, the RAD is unable to fully assess the issue of interpretation since a good portion of the principal Appellant’s testimony, whose claim it is that he did not understand the interpreters at the hearing, is missing from the recording of the hearing. The RAD is unable to fully consider the RPD’s observation that the principal Appellant freely answered questions from both interpreters and it did not appear that he did not understand since the RPD’s questioning of the principal Appellant is missing from the recording of the hearing." See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decision.

Parties are obliged to raise concerns about interpretation issues at the earliest reasonable opportunity

Parties are obliged to raise any issues about the quality of interpretation at the earliest reasonable opportunity. Failure to do so results in a waiver of the right to object to the interpretation on judicial review, and by analogy also on appeal to the RAD. As the Federal Court stated in Singh v. Canada regarding a failure to object to interpretation issues during a hearing, "waiver of a right to object can be inferred from a party’s conduct. Where a party, with knowledge of his or her rights, fails to object at the earliest opportunity, that will be construed as a waiver.” This obligation to raise interpretation issues at the earliest reasonable opportunity is usually reinforced by the Member's instructions to the claimant at the beginning of the hearing, wherein it is customary for a panel of the Board to communicate to a claimant that they have an obligation to stop the proceeding and alert the RPD panel and their counsel if they either did not understand the interpreter’s statements or had reason to believe that the interpretation was in some way incorrect.

The fact that a party must raise issues about the quality of interpretation at the earliest reasonable opportunity does not necessarily mean that they need to be raised immediately during the hearing. Interpretation issues may be raised after the fact where the claimant could not reasonably have known of the interpretation issue until afterwards. For example, RAD Member Richard Jackson noted that in one case before him "the Appellant does not speak English well, while his counsel before the RPD did not speak Tamil, and therefore neither could reasonably be expected to have been aware of the interpretation issues, until subsequent to the rejection of his refugee claim, and the RAD therefore finds that the Appellant has not waived his right to object to the interpretation on appeal." Whether or not such issues should be raised during the hearing will be dependent on the circumstances, including:

• the language(s) that the claimant speaks;
• whether the claimant was asked to acknowledge at the start of the hearing that they understood the interpreter;
• whether the claimant was represented by counsel or unrepresented;
• the language(s) that counsel speaks;
• whether the claimant had an observer present at the hearing who was fluent in both languages and able to assess the quality of interpretation;
• whether the claimant had difficulty understanding the interpreter during the hearing; and
• whether the issue only became apparent subsequent to the hearing upon an audit or closer examination of the proceedings.

An example of how these factors were applied was in Dhaliwal v. Canada, a case where counsel did speak the language in question, and had raised issues about several small interpretation issues that were addressed on the spot, the failure to raise other issues at the hearing was held to constitute a waiver of the right to object to the quality of interpretation at the hearing:

I agree with counsel for the Respondent that Mr. Dhaliwal waived his right to object to the quality of interpretation at his hearing. ... The Applicant was represented by a Punjabi speaking counsel, who took no issue with the calibre of interpretation at the IAD hearing. During Mr. Dhaliwal’s five hour IAD hearing, counsel raised concerns six times about possible misinterpretations or words that may not have been clear or heard. Each concern was addressed by the interpreter or the IAD member, who asked the Applicant on multiple occasions to slow down, to repeat inaudible answers and to answer in segments to allow for accurate and complete interpretation. The member took every step to ensure that the interpretation was accurate, and counsel appeared to be satisfied that her concerns had been addressed. Never did she complain about the quality of interpretation at the hearing, in her lengthy written submissions to the IAD after the hearing or in her reply.

As explained by the Federal Court, "there is a powerful argument in favour of [the requirement that claimants raise concerns with interpretation at the first opportunity] arising from judicial economy. If applicants are permitted to obtain judicial review of adverse decisions by remaining silent in the face of known problems of interpretation, they will remain silent. This will result in a duplication of hearings. It seems a better policy to provide an incentive to make the original hearing as fair as possible and to avoid repetitious proceedings. Applicants should be required to complain at the first opportunity when it is reasonable to expect them to do so."

An interpreter may discuss and explain their interpretation during the hearing in response to questions from the Member or challenges from a party

It is within the proper scope of an interpreter's role during the proceeding to discuss or explain their interpretation when the Member provides permission to do so. The Board Interpreter Handbook states that "if your interpretation is challenged by counsel or by the person who is the subject of the proceedings, you should be able to explain your choice of words if requested." However, absent a specific invitation from the Member to explain their interpretation, the interpreter should refrain from doing so, as per the terms of their contract which prohibit "explanation":

INTERPRETER SERVICE CONTRACTORS shall take all reasonable care to faithfully and accurately interpret or translate what is stated in the source language into the target language, having regard primarily to meaning and secondarily to style, without any paraphrasing, embellishment, omission, explanation, or expression of opinion, using the same person as in the source language and the closest natural equivalent of the source language. [emphasis added]

Members may provide a claimant with the opportunity to make submissions on interpretation issues in post-hearing submissions

In some cases, a claimant or counsel will note at the hearing that there were some interpretation issues. A good practice in such circumstances was exemplified in Khatun v. Canada where the Member indicated that counsel could obtain a recording of the hearing and provide evidence of any translation issues in post-hearing submissions. None were provided. As such, where the claimant subsequently attempted to make arguments on judicial review about inadequate interpretation, the argument was dismissed on the basis that it should have been made before the original panel.

Post-hearing evidence is expected to demonstrate that interpretation was inadequate

There will be cases where the interpretation provided does not meet the legal standard required. Indeed, when the Board first introduced an accreditation test in 1991, 40% of interpreters who were already working for the IRB failed. Evidence used to demonstrate that interpretation was inadequate will usually take the following form where it is submitted post-hearing:

• A statement from a certified interpreter: When a claimant wishes to demonstrate that interpretation has not met the above standard, it is usual for them to go to a certified interpreter to obtain a transcript of the hearing. Interpreters that have been certified by the IRB and that have provided interpretation services in past RPD hearings will, of course, meet this standard. In contrast, where a claimant submits a statement from someone who is not a certified interpreter but merely suggests that they know both languages, less weight should be accorded to the statement. For example, Member Leonard Favreau commented in one case that "the RAD finds that it can give little weight to this affidavit in establishing that the interpretation was flawed. Although the affiant claims to be a “professional interpreter” the RAD notes that he has not provided any evidence that he has been certified by any organization as an interpreter."
• A transcript which highlights errors: The certified interpreter will usually then set out in an affidavit any errors that they identify in the transcript that can be attributed to interpretation problems caused by the interpreter at the hearing. For example, this was the type of evidence placed before the RAD in X (Re), 2017 CanLII 143144 (CA IRB), a decision concerning the (in)adequacy of interpretation at the Refugee Protection Division. In contrast, the mere assertion of errors without this type of side-by-side comparison has been held to be insufficient evidence to establish that the above standard was not met, e.g. Member Leonard Favreau of the RAD commented in one case: "Although the Appellant has submitted that it was flawed interpretation that resulted in the RPD attributing statements to him that he did not make, he has not submitted adequate evidence to establish that there actually were any interpretation errors. In light of the allegation of flawed interpretation, it is reasonable to expect that the Appellant could provide a side by side comparison of the interpretation conducted by the board certified interpreter and the Appellant’s certified interpreter, to demonstrate the specific interpretation errors that were made, rather than just relying on his own unsupported declaration."

A party can also request that the Board's interpreter unit conduct an audit. The Board will generally do spot audits of a portion of the hearing. The way the conclusions of such audits are often framed is typified by the following excerpt from a RAD decision: "according to the IRB audit, 'Problems and discrepancies were not serious in general; however some serious inaccuracies occurred.'” The IRB audit also noted “Some of the (in)-accuracies resulted in creating confusion on both sides.” Where the Board orders such an audit, it must disclose it to the parties for comment, as it would with any other evidence it receives and wishes to place on the record: Vakulenko v. Canada.

Evidence tainted by inadequate or faulty interpretation should be set aside

If the evidence has been tainted by inadequate or faulty interpretation, then it should be set aside and should not be placed on the record. However, where a claimant experienced challenges understanding questions without an interpreter, and subsequently switched to using an interpreter, this does not mean that all of the earlier testimony need be set aside. If there is an objection to the interpretation of a particular question, the Board should clearly explain whether the testimony is being set aside or relied upon, and how.