Ontario Court of Justice

Date: 2014-03-28

Court File No.: Toronto: 4817 998 11-70010910-00

Between:

Her Majesty the Queen

— and —

Ashenafi Alemayohu Kahsay

Before: Justice William R. Wolski

Heard on: December 19, 2013

Reasons for Judgment on voir dire released on: March 28, 2014

Counsel

Jennifer Lofft — counsel for the Crown

Paul Calarco — counsel for the defendant Ashenafi Alemayohu Kahsay

WOLSKI J.:

[1] This is the second voir dire conducted into the competency and qualifications of an interpreter in the Tigrinya language. The interpreter proffered by the Crown is Mr. Paulos Seyoum. He is originally from Ethiopia, educated in Italy in dentistry and a recent immigrant to Canada. His curriculum vitae has been filed as an exhibit on the voir dire. He is the first, and only, Tigrinya interpreter to score well enough on the Ministry of the Attorney General interpretation test; register a pass; and be qualified by those examinations.

[2] Mr. Calarco on behalf of his client asserts that despite his passing grade, there is still an inherent error factor and a mathematical calculation of somewhere in the area of 30%. Accordingly, notwithstanding the passing grades of Mr. Seyoum, the Court ought not to find him constitutionally appropriate or competent to interpret in court proceedings.

[3] Having heard the evidence of the witnesses on this voir dire and, on the consent of Mr. Calarco and Ms. Lofft, the evidence of previous witnesses on the first voir dire in relation to the standards in the industry with regard to qualifying interpreters, I must disagree with Mr. Calarco. Mathematical precision is not required in the industry for interpretation. No system is ever perfect. No interpreter is ever perfect. Requiring someone to score mathematically perfect grades or within a minor percentage of a perfect score, is not what is required under the Charter right as guaranteed to a defendant. Nor is perfection required to find an interpreter competent under the Charter.

[4] The evidence establishes that the Ministry of the Attorney General sought expert assistance in creating a testing procedure to define a level of competence that would meet the Charter Rights. Interpretation is not equivalent to word-for-word perfection from one language to another. A specific English word cannot possibly be translated into Tigrinya if there is no equivalent word in that language. Similarly, a word in Tigrinya may not be perfectly suitable for exact translation into an English language word. That is to be expected. Languages evolve by a peoples experiences and in higher educational institutions. Not all languages are borne from the same place. Conversational Tigrinya in Ethiopia is not the language in Ethiopia in institutes of higher learning. However, the language is a spoken language, a language of the people; of a particular portion of the population of that country. Precise translation is not required for interpretation. As stated by the Supreme Court of Canada, in the case of R. v. Tran, [1994] S.C.J. No. 16:

However, it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection. As Steele explains, at p. 242:

Even the best interpretation is not "perfect", in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness.

In this respect, it may be helpful to note the conceptual distinction that exists between "interpretation", which is primarily concerned with the spoken word, and "translation", which is primarily concerned with the written word. In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.

[5] I am satisfied on the basis of all of the evidence adduced on this voir dire that Mr. Seyoum is a competent interpreter in the Tigrinya and English languages to provide interpretation services to this defendant and this Court during the trial.

Released: March 28, 2014

Signed: "Justice Wolski"