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February 4, 2005

Inuit sign language not good enough for the courts

From: Nunatsiaq News, Canada - Feb 4, 2005

No translator means violation of constitutional rights


After nine months in legal limbo, a deaf man from Baker Lake has won conditional release from the Baffin Correctional Centre, but he could soon find himself in the same boat when he appears in court next month on a remaining charge of sexual assault.

Bobby Suwarak, now in his mid-thirties, has been deaf from the age of five or six, and has since used a mix of lip-reading and a unique form of sign language to communicate with his family and friends.

Since being charged with several criminal offences last spring, Suwarak has relied on a close childhood friend who learned the sign language from Suwarak's family, to serve as an interpreter in court.

But three successive defense lawyers have refused to represent Suwarak because they aren't convinced his signing system provides reliable communication.

The Canadian Charter of Rights and Freedoms guarantees all citizens a right to a fair trial, regardless of physical disability. That should guarantee Suwarak the right to a certified interpreter, but in this case, there's no such thing.

Suwarak once learned the American Sign Language alphabet from a book, but he can't read or spell well enough to use it. He tried going to elementary school for about a week one time, but, unable to communicate with his teacher, never went back.

This is not the first time the Nunavut Court of Justice has encountered a deaf person on criminal charges. Suwarak has made several court appearances in the last six years, and has been convicted twice.

This time, however, the courts have a problem: a diligent defense lawyer who wants to make sure that the courts don't proceed with a trial that may violate Suwarak's fundamental rights.

Tim Kavanagh, who was, until recently, a defense lawyer with legal aid in Rankin Inlet, believes that the temporary release is a victory.

In previous cases, David Kautaq, Suwarak's friend from Baker Lake, has served as his interpreter.

In 2000, Kautaq helped Suwarak to plead guilty on charges that won him two years less a day at BCC. As part of his rehabilitation, Kautaq was paid to move to Iqaluit, where he could work as a corrections officer, translate for Suwarak, and also help him through one-on-one lessons in math and reading at Nunavut Arctic College.

Yet Kavanagh, like two other lawyers, had doubts about his ability to communicate with Suwarak from their first encounter several years ago, and refused to represent him.

Instead, Kavanagh asked to be appointed a friend of the court so he could help move Suwarak's case through the system, and put a stop to a series of court appearances at which little was achieved.

Kavanagh later agreed with the assessment made by a hearing specialist who has met Suwarak several times, and concluded that Suwarak was speaking a sign language that the court has not yet recognized, but for which legal interpreters could and should be trained [See "Inuit Sign Language" on page 11].

That assessment, which got started before the creation of Nunavut, should have been on the public record, but had not been entered into the court for Suwarak's case.

In court last week, Kavanagh excluded the possibility of using Kautaq to interpret by cross-examining him.

"There are some things I can't interpret because there are some things that can't be said in Bobby's language," Kautaq said before the court. "I am very close to my limit."

In his application to the court, Kavanagh asked for a stay of all proceedings on the grounds that no certified interpreter was available.

The presiding judge did decide to drop several charges, but stopped short at sexual assault, for which Suwarak will reappear in court next month.

Last Thursday, Suwarak was released on an undertaking with several conditions, including that he complete a course in sign language or communication. Both he and his interpreter wonder how Suwarak will be able to fulfill that condition.

"We don't have anything like that in Baker Lake," Kautaq said.

After several years in legal aid in Nunavut, Kavanagh is leaving the territory for good this week, which may send Suwarak's case back to the drawing board, but Kavanagh hopes that the final charge will be stayed when Suwarak appears in court - again - without a certified translator.

In the meantime, Suwarak will return to Baker Lake with his interpreter Kautaq as his escort, and continue to get by with the only language he knows.

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