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«Karen Cohl and George Thomson December 2008 Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services ...»

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Some immigrants face cultural barriers to accessing services, in addition to language barriers, regardless of how long they have been in Canada. For example, one study conducted extensive interviews with 64 women who had been abused and who spoke neither English nor French.

Many of the women were reluctant to access services that did not recognize their cultures and

Sarah Wayland, p. 21.

value systems, including their faith traditions. The women did not understand “a model of help which offers women support as individuals, but offers nothing to help their children and their husbands.” 16 Not being able to communicate in one’s own language has inherent problems. When the language difficulties intersect with other factors, such as gender, race or ethnicity, and disability, the effects are magnified.

As the immigration class figures show, the need for language training and support is higher among women. However, many immigrant women are still unable to speak English five or more years after they arrive. A recent study focusing on the four largest language groups in which this is the case (Mandarin, Cantonese, Punjabi, and Urdu) identified significant barriers to their participation in language training. 17 These included financial hardship, lack of childcare, domestic responsibilities, pressure to pass on their first language to their children, and the experience of racism or discrimination in language classes. In addition to language barriers, patriarchal traditions, family obligations, a lack of independent income, and a lack of knowledge of or experience with social services can lead to social isolation. Women experiencing abuse are particularly at risk if they are also isolated from support systems and services because of language and cultural barriers.

Several notable studies have documented the far greater incidence of poverty among some ethno-racial communities (which include many language-minority groups), a persistent income gap between these communities and the general population (even where education levels are higher), and disproportionate contact with the criminal justice system. 18 A 2004 study commissioned by the Law Society of Upper Canada found that “visible minority” communities are significantly under-represented in the legal profession, and that fewer immigrants tend to join the legal profession compared with other fields. 19 Despite the legal duty to accommodate people with disabilities short of undue hardship, people with disabilities continue to face significant attitudinal, communication, and other barriers to obtaining information and services. For people who are Deaf, deaf-blind, oral deaf, deafened, or hard of hearing, barriers include common misperceptions about their abilities, a lack of understanding of their culture and communities, and a lack of appropriate communication accommodations.

People who are blind or have low vision also face considerable obstacles to obtaining legal information and services. The cost of technology, a lack of transportation, and a lack of legal information in accessible formats all act as barriers.

Any of the barriers described above can put people at risk of social isolation. As we learned in our research and through our consultations, isolation is not confined to people who live in rural or remote areas of the province and must overcome distance to obtain the legal help they Linda MacLeod and Maria Y. Shin.

Kenise Kilbride, et al.

18 See Michael Ornstein, Ethno-Racial Inequality in the City of Toronto; Avvy Yao-Yao Go; Grace-Edward Galabuzi.

19 Michael Ornstein, The Changing Face of the Ontario Legal Profession.

need. People can be just as isolated, by language, culture, and a range of other factors, in urban centres where services may be available down the street. Without special efforts to connect with people isolated in urban centres, vital services may remain out of their reach.

Urban areas can mimic rural or remote areas when the numbers of consumers in an urban area are relatively small…. Although Thunder Bay, for example, has a vital Deaf community, the consumer population is not as large as the population in areas of southern Ontario, and only one interpreter is available to serve a large region. Therefore, the Thunder Bay Deaf population does not necessarily have better access to legal interpreting services than someone in a geographically remote area. 20 Interpretation Communication between clients and legal and non-legal service providers who do not speak the same language is a challenge for both parties. Clients may be deterred by the difficulties and they may not trust in the process. Service providers may have trouble identifying client languages and needs and then locating the appropriate language assistance. Communicating with a client through an interpreter also places demands on organizations that provide legal information, referral or services. They may lack knowledge of how to work with interpreters effectively and may have difficulty maintaining rosters of interpreters, assessing their qualifications, and securing adequate resources to pay for professional interpreters. Further, as immigration and settlement patterns change, the linguistic and cultural make-up of catchment areas changes over time. In some communities, this can lead to interpreter shortages for languages suddenly in high demand. These difficulties become more acute in legal settings where special expertise is needed to communicate often complex legal concepts.

Access to interpreters during the legal process

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Legal interpreters are needed in a variety of settings, such as formal court or tribunal proceedings, meetings with legal professionals, and legal information sessions. Each legal setting places different demands on interpreters.

The first stage of the legal process often involves obtaining basic information and referral from non-legal organizations. Access to an interpreter depends on the organization. Some (such as the Findhelp 211 information and referral line) provide a combination of multilingual staff and

Consultation submission, The Canadian Hearing Society.

telephone interpreters for additional languages. Some ethno-cultural organizations rely on staff and volunteers to interpret as best they can. Other organizations offer no interpretation services and clients must rely on family or friends.

Depending on the legal problem, some people will meet with a legal professional. If the legal matter relates to domestic violence, interpreters may be available from one of the nine agencies funded by the Ontario Ministry of Citizenship and Immigration. These agencies provide spoken language interpretation in over 60 languages to shelters and social, legal, and health care services that work with victims of domestic violence.

People whose matters proceed to a court or administrative tribunal will also require an interpreter. Individual tribunals vary considerably in providing access to interpreters. At one end of the spectrum, some tribunals provide sign language and language interpreters in the required language and dialect at no cost. At the other end, they provide French interpreters only, leaving it to the parties to find a friend, family member or professional interpreter to interpret for them in other languages.

The Court Services Division of the Ministry of the Attorney General provides language and sign language interpretation services in criminal and child protection matters and in other specified proceedings and circumstances (e.g., if fee waivers apply or if ordered by the court). However, in some cases, parties or witnesses may not be able to secure the assistance of an interpreter.

Quality and cost of interpretation Interpreters must be highly skilled and have some knowledge of the fields they work in, such as health care or legal settings. Ensuring quality in legal interpretation can be a challenge because of the various ways in which interpreters receive training and assessment and because of the lack of consistent standards for interpretation in legal settings.

There is no standard accreditation process for interpreters. Although accreditation processes exist for court interpreters and some tribunals, even there we heard that service can be inconsistent. Through a private statute passed in 1989, registered members of the Association of Translators and Interpreters of Ontario have the exclusive right to use such designations as “Certified Translator” and “Certified Court Interpreter.” 21 However, the statute does not affect the right of non-members to describe themselves as translators or interpreters or to practise those occupations.

Many interpreters are freelance and work part time, sometimes for more than one agency.

Although community college programs include interpretation in a legal setting as part of their certificate courses, there are no education programs in Ontario that specialize in legal interpretation. The lack of full-time jobs makes it a field without a clear career path.

As we learned in our consultations, legal professionals and others serving low-income clients often rely on community agency staff and volunteers, clients’ family members and friends, and bilingual volunteers or students to provide interpretation. These supports are more readily

Association of Translators and Interpreters of Ontario, www.atio.on.ca.

available, but there are obvious drawbacks to using untrained interpreters for legal matters.

The quality of interpretation may be questionable, and other issues can arise, such as a lack of confidentiality and privacy (particularly when family members are interpreting) and potential conflicts of interest.

The major reason we found for both legal and non-legal organizations not using professional legal interpreters is cost. Legal Aid Ontario, for example, covers limited language interpretation for clients on certificates, but calls upon lawyers to “consider whether a friend or family member of the client can attend and assist the client with language issues without charge to legal aid.” 22 Working with a client through an interpreter takes more time, and legal aid fee structures often do not reflect this.

Telephone interpretation Some organizations have found commercial telephone interpreter services to be a convenient and relatively affordable way to access interpreters for a wide array of languages. Telephone interpretation also provides anonymity for the client. Other organizations report that the cost of telephone interpretation is still high. They have also noted that the interpreters can be located far from the area of service, possibly outside the country, and may lack the contextual knowledge necessary for interpreting in Ontario settings.

Even if quality is high, telephone interpreters cannot use body language and other non-verbal cues to assist the client. For clients who are particularly vulnerable and for some legal needs (such as the examination of documents), the assistance of an in-person interpreter is preferable.

Sign language interpretation The Canadian Hearing Society’s Ontario Interpreting Services provides community interpreting services throughout the province and advises clients to book interpreters two to four weeks in advance. There is an acute shortage of qualified American Sign Language and langue des signes québécoise interpreters across Canada. The shortage is even more severe in rural communities, especially in northern Ontario. In addition to the issue of supply, The Canadian

Hearing Society cites the following barriers:

• A lack of specialized training or ongoing professional development that addresses the unique needs of the justice system

• A lack of screening or qualifying activities to determine the required skills, knowledge, and attitude of interpreters working in legal settings

• The absence of a clear communication access policy framework in the Ontario government.

Many legal service providers and some administrative tribunals simply do not provide sign language interpreters for people who are Deaf. In our consultations, some legal service

Legal Aid Ontario, Tariff and Billing Handbook, pp. 6–20.

providers expressed frustration with the lack of sufficient funding to pay for sign language interpreters. Advocates told us that interpreter and intervener budgets are critical for all services that interact with Deaf or deaf-blind people.

While remote sign language interpreting shows promise, access in Ontario remains limited. One method (“Video Remote Interpreting”) allows communication between a person who is Deaf and a hearing person in the same location, connected to a sign language interpreter through videoconference. Although access to this type of remote interpretation is available, with limited capacity, within The Canadian Hearing Society, it is not broadly available. Another method (“Video Relay Service”) allows a person who uses sign language to place or receive a relay call to communicate with a hearing person through an on-line video interpreter. Video Relay Service is available in the US but not yet in Canada. Further, as noted in the community interpreting report for Industry Canada, hiring Canadian sign language interpreters to meet the needs of the US video relay market can further reduce the supply in high-need areas such as Toronto. 23 Translation of legal materials Multilingual public legal education and information materials are vital to providing basic legal information in plain language for vulnerable clients and for the legal and non-legal organizations working with them. We heard frequently that these materials are most useful when intermediaries such as community workers and settlement workers who speak the client’s first language can deliver the materials to clients. Workers can explain the materials, reinforce key points, and answer questions.

Translating public legal education and information materials is not an easy task. The range of topics and the number of languages can be daunting. Translations must be legally accurate, up to date, culturally sensitive and relevant, and written in plain language. The translation must not only accurately reflect the meaning of the source text, but also read naturally in the target language. Translators have the additional challenge of translating technical terms that may not exist in other languages.

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