by Dawn Shaw-Biswas

Canada is becoming an ever increasingly complex society. It is virtually impossible for most Canadians not to interact with people who are different from themselves. Yet despite our sometimes obvious differences we often make assumptions, based on our own cultural experiences, which lead us into conflict with one another. Since each of us is bound to his or her own cultural and social reality, we often do not realize when a misunderstanding has occurred. In the litigation context this can be disastrous.

Most of us have anecdotal evidence of communications gone awry. Consider for example when you look someone in the eye hoping to engender trust and give offense instead; when the touch you intend to reassure is taken as an insult; when your public praise of an employee is not appreciated but rather is interpreted as overt criticism. While usually well intentioned, this type of miscommunication can create fear and mistrust.

In the early part of this century, our courts began to recognize the need for language interpretation. Beginning with the English Court of Criminal Appeal in R. v. Lee Kun [1916] 1K.B. 337, the notion of understanding court proceedings became intimately bound to the notion of an Accused’s right to be present at his trial. In R. v. Lee Kun, Lord Reading opined that an accused was not truly present at his trial if he could not comprehend what was going on. (This principle has since been codified in Section 650 of the Canadian Criminal Code)

Later in the century, our Supreme Court of Canada held that the ability to understand and be understood was a minimal requirement of due process - Societe des Acadiens du Nouveau - Brunswick Inc. v. Association of Parents for Fairness in Education District 50 Branch [1986] I.S.C.R. 549, 27 D.L.R. (4th) 406, 69 N.B.R. (2d) 271. Other S.C.C. decisions such as R. v. Reale (1973) 13 C.C.C. (2d) 345, [1973] 3 O.R. 905 CC.A.) aff d. (7:2) 22 C.C.C. (2d) 571, [1975] 2 S.C.R. and R. v. Tran (1994) 92 C.C.C. (3d) 218, 170 N.R. 81 reflect how this principle has evolved to become a right now enshrined in our Charter of Rights and Freedoms (Sec. 14).

Despite the availability of competent court interpreters, it is becoming increasingly evident that language interpretation is only part of the picture. Communication is laden with nuances of expression and body language borne of cultural values and religious convictions. These elements shape our communications and add context to the words we use, yet many of them escape literal translation. With the assistance of those schooled or experienced in anthropology, folklore and intercultural communications, we can receive a much clearer message from a speaker than when we simply listen to words.

These experts, called “cultural interpreters”, can be a valuable resource for lawyers. Cultural interpreters can offer assistance with everything from solicitor-client relations to in-court testimony. The use of cultural interpreters, particularly in the litigation context, is on the rise in British Columbia.

First Nations were the ground breakers in the use of cultural interpreters in the courtroom. Their success in this regard is evidenced by the increasing importance BC family courts are placing on this type of expertise in determining what is “in the best interests of” aboriginal children. Similarly, at the first trial in R. v. O’Connor [1994] 42 B.C.A.C. 105 evidence was introduced (in an unprecedented step by the Crown) to alert the trier of fact to the pitfalls involved in assuming that the First Nations witnesses in that case shared the same cultural and social reality simply because they spoke the language of the Court.

However, it is not only cases involving First Nations litigants which have benefited from the use of cultural interpreters. In the case Lian v. Money (1994) 9 B.C.L.R. (2d) 16 (S.C.) the B.C. Supreme Court made a landmark ruling that the surviving parents in a Family Compensation Case were entitled to compensation for loss of support of their adult daughter. The success in their claim was due in large part to evidence led regarding their culture’s expectation that their daughter would have supported them had she not been killed [Whereas historically the Act had not provided for compensation for loss of a child’s support].

These cases demonstrate that sometimes something above and beyond the very literal translation usually employed by court interpreters is required in order for justice to be done.

While language interpretation is a right in this country, cultural interpretation is not. Although judicial support for the use of cultural interpreters is growing, not all judges appreciate this type of expertise. For those counsel trying to tender a cultural expert at their next trial, assistance may be found within the Charter [namely Sec. 15 (equality rights), Sec. 25 (aboriginal rights) and Sec. 27 (preservation and enhancement of multicultural heritage)] but there is currently no law which requires the Court to admit this type of evidence.

Counsel must be thoroughly prepared to address the issues of 1) relevance 2) necessity 3) exclusionary rules and 4) the qualifications of their expert (for which there are currently no set guidelines) in order to meet the threshold for admissibility of this expertise. History has taught us that change is usually an uphill battle and what is strange and unfamiliar is usually met with great resistance. With time, however, what once seemed foreign may prove to be even the most conservative judge’s greatest ally.

Dawn Shaw-Biswas is a member of the Equality and Diversity Committee at the Canadian Bar Association, British Columbia Branch.

This article was published in the August 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.