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June 3, 2005

Court orders language training for deaf accused

From: Nunatsiaq News, Canada - Jun 3, 2005

Lawyer says interpretation impedes a fair trial


While a defence lawyer argues that a deaf man with no education and no recognized sign language cannot receive a fair trial, the Nunavut Court of Justice thinks otherwise.

Last week the court revealed plans to hire a team of professionals to build a customized language training program that will prepare Bobby Suwarak of Baker Lake and his interpreter to "participate meaningfully in his trial."

Suwarak was charged with sexual assault and breaking and entering last March. He was in Iqaluit last week for the continuation of a constitutional challenge launched by Tim Kavanagh in January.

Kavanagh, formerly a defence lawyer in Rankin Inlet, has asked the Crown to stay the charges. He believes that putting Suwarak on trial without a certified interpreter will violate his Charter right to a fair trial.

He's also arguing that David Kautaq, a Baker Lake man who has been called several times to interpret for Suwarak in court, is not qualified for the job.

In a sworn affidavit submitted to the court in January, Kautaq agrees.

Kautaq grew up with Suwarak and learned to communicate with him using what he calls "gestures and charades" learned from Suwarak's family. He says he is the person best able to communicate with Suwarak outside of his immediate family, but also says that his is not comfortable interpreting in court.

"I have acted as interpreter for the Applicant at the request of this Honourable Court due to pressure from various parties to assist the applicant and facilitate court proceedings," Kautaq says in the affidavit.

Kautaq has completed his Grade 10 equivalency. Suwarak, Kautaq says, cannot read or write beyond a Grade 1 level. Neither have any legal training.

In the affidavit, Kautaq describes several deficiencies in his communication system:

"I do not believe that I have the ability to effectively communicate concepts such as guilty and not guilty to the applicant.

"For example, in order to communicate 'guilty,' I would use gestures to mimic hands clasped around jail bars in front of the face or wrists pressed together as if in handcuffs; to communicate 'sexual assault' I would use gestures mimicking sex with a woman, and the woman saying 'no,' and then pushing the woman down; I do not have a system of gestures to express a criminal offence of 'break and enter' if there is nothing broken at the time an entry occurred.

"I do not have an idea how to express the concept of 'beyond a reasonable doubt.'"

The court proposes to fix these problems by hiring Bonnie Heath, who runs a language interpretation service in Winnipeg and who has experience with at least one client in a similar situation - a Filipino witness who used home sign language.

Heath would coordinate the training with a certified American Sign Language interpreter and a man who currently provides Inuktitut legal interpretation for the circuit court in Baker Lake.

Kavanagh, who refused to represent Suwarak on grounds that he couldn't communicate with him, is now acting as amicus curae or "friend of the court" on Suwarak's behalf.

"The court had been alerted to the problem and they didn't do a thing," Kavanagh said in an interview last Wednesday.

The affidavit, filed by director of court services Heather Daley, includes no syllabus, no instructor credentials, and doesn't specify when the program will start, how long it will take, or how it will be assessed.

Even if the program does work within a reasonable time frame, Kavanagh said, the interpreter is still a friend of the accused, and hence, biased.

By proposing the customized training program, the court is also ignoring expert testimony that Suwarak is in fact communicating through Inuit Sign Language, which is widely used and should be recognized and made available through interpretation for future deaf accused, or victims.

Crown prosecutor John Solski responded to the argument by calling on three witnesses who had worked with Suwarak in the past, but two of those witnesses admitted communication was imperfect.

Tom Boyd served as Suwarak's defence counsel between 1996 and 1999 with Kautaq's help.

In court last Tuesday, he testified that Kautaq had made it clear from the beginning that the material was difficult, but conscious of the fact that it was "the best we had," Boyd proceeded to represent Suwarak in court.

Boyd also, in 1999, made a simultaneous application to the superior court of the Northwest Territories to have the case thrown out on the grounds that interpretation was impossible. Before that case was resolved, however, Boyd opted to make a joint submission with the territorial Crown that resulted in special training that was to help Suwarak improve his literacy skills.

Cecily Phelan, who once served as a social worker in Baker Lake and a probation officer for Suwarak, said that she "always had the feeling he [Suwarak] understood" what she and Kautaq were saying, but also said that their conversations were limited to "pretty superficial stuff."

Suwarak's trial date is currently set for Oct. 4 in Baker Lake. Justice Earl Johnson will hand down his decision in the next several months.

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