COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jesuthasan, 2013 ONCA 779

DATE: 20131223

DOCKET: C54270

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesuthasan Santhanarasa

Appellant

Michael Dineen and Victoria Rivers, for the appellant

Frank Au, for the respondent

Heard: November 28, 2013

On appeal from the conviction entered on October 6, 2010 by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant submits that the trial judge erred in ruling that part of the proceedings at trial could be translated simultaneously rather than consecutively, and requests a new trial.

[2] The appellant was charged and convicted of aggravated assault. The victim was stabbed in the abdomen. The appellant’s position at trial was that he was not responsible for the stabbing. The incident occurred at a birthday party. Eyewitnesses to the event testified in Tamil, the language of the accused, with consecutive interpretation into English. However, the trial judge permitted an English-speaking crime scene officer whose photographs were entered into evidence to testify with simultaneous interpretation. His evidence was uncontroversial. The submissions and charge were also interpreted simultaneously.

[3] The appellant submits that this was wrong for two reasons:

a) Simultaneous interpretation is more difficult than consecutive interpretation, and the voir dire into the competence of the interpreter did not establish a facility in both modes.

b) The process of simultaneous interpretation does not permit a record to be made that would allow an assessment after the trial of the accuracy of the simultaneous interpretation.

[4] In R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 989, the court indicated that both simultaneous and consecutive interpretation could satisfy the requirement of contemporaneity:

To meet the constitutionally guaranteed standard of protection under s. 14 of the Charter, interpretation must take place contemporaneously with the proceeding in question. Here, it may be useful to keep in mind the distinction between “consecutive” (after the words are spoken) and “simultaneous” (at the same time as words are spoken). While it is generally preferable that interpretation be consecutive rather than simultaneous, the overriding consideration is that the interpretation be contemporaneous. [Emphasis added.]

[5] Here the trial judge embarked on a hearing for the purpose of assessing the competence of the interpreter. Her conclusion that the interpreter was “competent and qualified” “by way of her education, training and experience” to interpret the proceedings and “met the standard set by R. v. Tran” was reasonable on the evidence before her. An independent review of the consecutive interpretation, admitted as fresh evidence, confirmed that there were only a few minor errors and that the interpreter met the standard for competence.

[6] During the competency voir dire, neither Crown nor defence counsel questioned the interpreter about the differences in abilities required for simultaneous as opposed to consecutive interpretation or about the interpreter’s experience and ability in providing simultaneous interpretation. The trial judge was not obliged to go further. The evidence before her was sufficient for her to conclude that the interpreter could competently do both. There is no evidence from the appellant suggesting that he had any difficulty with the interpretation at trial.

[7] Having regard to the qualifications of the interpreter, and the uncontroversial nature of the evidence interpreted simultaneously, the trial judge did not err in allowing this to take place.

[8] The additional time required for consecutive interpretation, particularly in the context of a jury trial, the difficulty of finding qualified interpreters to meet the needs of the courts, and the difficulty of creating a record of simultaneous interpretation are all factors which could properly bear on this decision. It may be that technological changes would now permit at least provision of an audio digital record of simultaneous interpretation, however the whispered and simultaneous nature of the activity may make even that difficult. If possible, it would be better to have a record of the simultaneous interpretation; however, the absence of that record, without more, does not make the simultaneous interpretation explicitly permitted in R. v. Tran insufficient.

[9] For these reasons, the appeal is dismissed.

“M. Rosenberg J.A.”

“Paul Rouleau J.A.”

“G. Pardu J.A.”