Mohammadian v. Canada (Minister of Citizenship and Immigration) (C.A.) [2001] 4 F.C. 85
Date: 20010606
Docket: A-197-00
Neutral citation: 2001 FCA 191
CORAM: STONE J.A.
BETWEEN:
SOLIMAN MOHAMMADIAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard atToronto, Ontario, Tuesday, May 15, 2001
Judgment delivered at Ottawa, Ontario, on Wednesday, June 6, 2001
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SEXTON J.A.
Date: 20010606
Docket: A-197-00
Neutral citation: 2001 FCA 191
CORAM: STONE J.A.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
SOLIMAN MOHAMMADIAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
This is an appeal from an order of Pelletier J. dated March 10, 2000, whereby the appellant's application for judicial review of a decision of the Convention Refugee Determination Division (the "Refugee Division") determining the appellant not to be a Convention refugee, was dismissed.
BACKGROUND
Pelletier J. certified the following questions pursuant to section 83 of the Immigration Act (the "Act"):
Does the analysis developed by the Supreme Court of Canada R. v. Tran supra in relation to the application of s. 14 of the Charter to criminal proceedings apply to proceedings before the CRDD, and in particular:
1. Must the interpretation provided to applicants be continuous, precise, competent, impartial and contemporaneous?
2. Must applicants show they have suffered actual prejudice as a result of a breach of the standard of interpretation before the Court can interfere with the CRDD's decision.
3. Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of interpretation before the CRDD as a condition of being able to raise the quality of interpretation as a ground of judicial review?
The reference to "CRDD" is to the Refugee Division.
Most of the argument in this Court was addressed to the waiver of the right enshrined in section 14 of the Canadian Chart of Rights and Freedoms, an issue which I shall discuss below. Before this Court the appellant also questioned the competency of counsel at the hearing before the Refugee Division, an attack which Pelletier J. rejected. Further, the appellant attacked the Refugee Division's finding of lack of credibility based upon the appellant's failure to seek Convention refugee protection in other signatory countries through which he passed by land before arriving in Canada, and for delaying a claim for refugee status for some time after his arrival in this country. In my view, Pelletier J. did not err in his appreciation of the record upon which these aspects of the case were founded.
There is really no issue between the parties that, as Pelletier J. determined, the interpretation provided to applicants before the Refugee Division must be continuous, precise, competent, impartial and contemporaneous. In making this determination, Pelletier J., correctly in my view, adopted the reasoning of Lamer C.J. in R. v.Tran, supra, [1994] 2 S.C.R. 951 at 979, even though that case involved interpretation at a trial of criminal charges. Nor am I persuaded that Pelletier J. erred in finding that no proof of actual prejudice was required as a condition of obtaining relief from a breach of the section 14 right. In deciding as he did, Pelletier J. was guided by the reasoning of Lamer C.J. in Re v. Tran, supra, at 985-991, where the view was expressed that the rights protected by section 14 do not depend on actual prejudice to an accused. "It would be wrong", stated the Chief Justice, "to introduce into the assessment of whether a right has been breached any consideration of whether or not the accused actually suffered prejudice when being denied his s. 14 rights." I agree that Pelletier J. correctly applied this principle in the present case.
WAIVER
The major issue raised on this appeal boils down to whether the test for waiver of the section 14 right to the assistance of an interpreter is that which was articulated in R. v. Tran, supra, or some other test. Section 14 of the Charter reads:
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.
In approaching this issue it is well to keep in mind that, as Lamer C.J. observed in R. Tran, supra, the section 14 right does not require "perfection" of interpretation. He stated at 987:
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.
The circumstances require examination before this issue is addressed. The appellant, an Iranian Kurd, attended at the Refugee Division for three scheduled sittings. This is evident from paragraph 3 of his supporting affidavit where he stated:
The first sitting did not even start as the interpreter was a Turkish Kurd and we could not communicate at all in Kurdish (I was able to speak with him a little in English), so my case was re-scheduled. The second sitting was interpreted by an Iranian Kurd and I had no difficulties in comprehension or expression. At the third sitting, the interpreter was an Iraqi Kurd. I had great difficulty understanding him and in being understood by him.
It may be inferred from this evidence that difficulty in communicating through the interpreter at the first sitting caused the hearing to be re-scheduled. However, the appellant raised no objection to the quality of the interpretation at any time during the third sitting where he was represented by counsel. Indeed, no objection was raised by him during the ensuing period during which his counsel was preparing written representations to the Refugee Division on the merits of the claim, or in the representations themselves. His application for leave to bring the judicial review application in the Trial Division raised no concern with the quality of the interpretation. It was only when he filed his application record that a complaint in that regard was raised for the first time.
Two additional affidavits were filed in support of the application. That of Mostafa Fateh, an Iranian Kurd, is to the effect that he too had difficulty in understanding the interpreter when he testified at the hearing. Again, however, Mr. Fateh raised no objection during his testimony to the quality of the interpretation.
The third affidavit is that of Chris Yousefi, an Iranian Kurd and a landed immigrant in Canada, who did not testify at the hearing. However, some time after the hearing Mr. Yousefi listened to the tapes of the third sitting. He stated in his affidavit that the interpreter was not interpreting precisely, either from English to Kurdish or from Kurdish to English. Mr. Yousefi was able to point to several words and phrases in the testimony of the appellant and Mr. Fateh that in his view were not correctly interpreted. However, these appear to have been of a relatively minor character.
In R. v.Tran, supra, Lamer C.J. made it clear, at 995, that the section 14 right "is one held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses". He cautioned, however, that his discussion of the section 14 right related to the right of an accused, stating at 961:
At the outset, I would like to make it very clear that the discussion of s. 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.
He then went on, at 996-97, to articulate the following test of waiver by an accused of the section 14 right:
Where waiver of the right to interpreter assistance is possible, the threshold will be very high. In Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, this Court made it clear per Lamer J. (as he then was) that to be valid, waiver of a statutory procedural right has to be clear and unequivocal and must be done with full knowledge of the rights the procedure was enacted to protect and the effect that waiver will have on those rights. This standard for a valid waiver has subsequently been adopted in the context of the Charter, specifically with respect to s. 10(b), which guarantees the right to retain and instruct counsel upon arrest or detention: see, e.g., R. v. Evans, [1991] 1 S.C.R. 869, per McLachlin J., at pp. 892-94. In the specific case of waiver of the s. 14 right to interpreter assistance, I would add to existing safeguards the following condition. The waiver should be made personally by the accused, if necessary following an inquiry by the court through an interpreter to ensure that the accused truly understands what it is he or she is doing, unless counsel for the accused is fluent in the accused's language or has communicated with the accused through an interpreter before coming to court and satisfies the court that the nature of the right and the effect on that right of waiving it have been explained to the accused.
As the point at issue was free of authority, Pelletier J. was left to determine whether or not the R. v. Tran, supra, test for waiver could be appropriately assimilated to a proceeding before the Refugee Division. In the end Pelletier J. chose to apply a different test. He was of the view that waiver results if an objection to the quality of interpretation is not raised by the claimant at the first opportunity during the hearing. His conclusion on this aspect of the case appears at paragraphs 27- 29 of his reasons, where he stated:
27. For these reasons, I find that some but not all elements of the Tran decision apply to proceedings before the CRDD. The framework for analysis as to whether a s. 14 violation has occurred, the elements of the standard of interpretation to be expected and the absence of a requirement for proof of prejudice as a condition precedent to gaining access to the Court's remedial power are applicable to refugee proceedings. However, complaints about the quality of interpretation must be made at the first opportunity, that is, before the CRDD, in those cases where it is reasonable to expect that a complaint be made.
28. It will be a question of fact in each case whether it is reasonable to expect a complaint to be made. If the interpreter is having difficulty speaking the applicant's own language and being understood by him, this is clearly a matter which should be raised at the first opportunity. On the other hand, if the errors are in the language of the hearing, which the applicant does not understand, then prior complaint may not be a reasonable expectation.
29. In this case, I find that the question of the quality of the interpretation should have been raised before the CRDD because it is obvious to the applicant that there were problems between him and the interpreter. His affidavit refers to the difficulty he had in understanding the interpreter and says that at times he did not understand what was being said. This is sufficient to require him to speak out at the time. His failure to do so then is fatal to his claim now. The applicant's assertion that he did not know he could object to the interpreter is not credible given that the first hearing was adjourned because he and the interpreter could not communicate. Clearly, the CRDD has shown it was alive to the issue of interpretation. As a result, I do not have to engage in an analysis of whether all the elements of Tran have been met since, even if they have, the applicant's failure to make a timely complaint in the circumstances where it was reasonable to expect him to do so means that relief is not available to him.
In coming to this conclusion, Pelletier J. had regard to the common law test for waiver. As was made clear in In Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103 (C.A.), leave to appeal was dismissed (1986), 72 N.R. 17n, waiver of a right to object may be inferred from a person's conduct. MacGuigan J.A. put it this way at 112:
However, even apart from this express waiver, AECL's whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object
The decision in that case was recently applied in Zundel v. Canada (Canadian Human Rights Commission) (2000), 195 D.L.R. (4th) 399 (F.C.A.).
The arguments on both sides may be briefly summarized. According to the appellant, the test for waiver developed in R. v. Tran, supra, has equal application to a case of this kind involving as it does a claim for refugee status by a person who asserts a well-founded fear of persecution in his homeland. Moreover, Rule 17(2) of the Convention Refugee Determination Division Rules, SOR/93-54 requires that the interpreter provided to assist the party or witness at a hearing before the Refugee Division take an oath or make a solemn affirmation "to interpret accurately any statements made." The respondent, on the other hand, asserts that a proceeding before the Refugee Division is materially different from a trial of criminal charges where the burden is on the Crown to prove the accused guilty as charged beyond a reasonable doubt. By contrast, in an administrative proceeding of this kind the burden is on the claimant to establish his claim for refugee protection on a balance of probabilities. Moreover, a refugee claimant, unlike a person charged with a criminal offence, would not be subject to a period of imprisonment in the event that his or her claim for refugee status should fail.
As was pointed out by Lamer C.J. in R. v. Tran, supra, at 977, "the underlying principle behind all of the interests protected by the right to interpreter assistance under s. 14 is that of linguistic understanding", a principle which he found to be evident from the general jurisprudence dealing with interpreters. Although in his view the level of understanding protected by section 14 "will...necessarily be high", Lamer C.J. cautioned that the principle of linguistic understanding should not be so elevated as to give unfair advantages. As he put it at 978:
At the same time, however, the principle of linguistic understanding which underpins the right to interpreter assistance should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings, be it English or French, are given or seen to be given unfair advantages over those who are fluent in the court's language. Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others.
While these views were made in a criminal law context, I can see no reason why they should not be applied in the present case. It is well to remember that the Refugee Division is but a part of the largest administrative tribunal in Canada. Since its creation in 1989, the Refugee Division has seen its case load increase exponentially to the point where in 1999-2000 alone it was facing a fresh case load addition of some 31,000 refugee claims, a phenomenon apparently not limited to Canada.[1] If the appellant's belated complaint about the quality of the interpretation is accepted, the important work of the Refugee Division in hearing and disposing of Convention refugee claims in a timely fashion would become rather more difficult. The Refugee Division is called upon yearly to dispose of an increasing volume of Convention refugee claims, a high percentage of which are of individuals whose native language is neither of Canada's official languages. It must surely be in the interests of the individual and of the public that refugee claims be processed as soon as is practicable. Neither the individual nor the public interest is served when the refugee determination process is unnecessarily delayed, provided acceptable safeguards are adhered to in order to prevent a breach of the section 14 right.
As Pelletier J. observed, if the appellant's argument is correct a claimant experiencing difficulty with the quality of the interpretation at a hearing could do nothing throughout the entire hearing and yet be able to successfully attack the determination at some later date. Indeed, where a claimant choses to do nothing despite his or her concern with the quality of the interpretation, the Refugee Division would itself have no way of knowing that the interpretation was in any respect deficient. The claimant is always in the best position to know whether the interpretation is accurate and to make any concern with respect to accuracy known to the Refugee Division during the course of the hearing, unless there are exceptional circumstances for not doing so.
As I have indicated, in light of his experience at the very first sitting of the Refugee Division the appellant appears to have been well aware of his right to the assistance of a qualified interpreter. When his conduct during the whole of the third sitting and for some time afterward is weighed with his undoubted knowledge of his right, it is difficult to construe that conduct as other than a clear indication that the quality of interpretation was satisfactory to him during the hearing itself. In my view, therefore, Pelletier J. did not err in determining that the appellant had waived his right under section 14 of the Charter by failing to object to the quality of the interpretation at the first opportunity during the hearing into his claim for refugee status.
DISPOSITION
I conclude that the analysis developed by the Supreme Court of Canada in R. v. Tran, supra, generally applies to a proceeding before the Refugee Division and accordingly that the numbered questions certified by Pelletier J. should be answered as follows:
- Question #1 Yes
- Question #2 No
- Question #3 Yes
I would dismiss the appeal.
"A.J. STONE"
J.A.
"I agree
Marshall Rothstein J.A."
"I agree
J. Edgar Sexton J.A."
[1] Statistics taken from the Immigration and Refugee Board's "Report on Plans and Priorities" (2000-2001 Estimates) at 1, 2, 13, as tabled in Parliament by the Minister of Citizenship and Immigration.