SUPERIOR COURT OF JUSTICE - ONTARIO

Court File: 16/11
DATE: 20120306

RE: Her Majesty The Queen, Appellant v. Suthagaran Gnamuththu, Respondent

BEFORE: Trotter J.

DATE HEARD: January 11, 2012

COUNSEL:
David E. Mitchell, Counsel for the Appellant
Peter Connelly, Counsel for the Respondent

ENDORSEMENT

[ 1 ] This Crown appeal seeks to challenge the exercise of discretion by a very experienced trial judge (Mr. Justice W. Horkins of the Ontario Court of Justice) concerning the competence of a court interpreter who one of his colleagues had just recently found to be lacking. This occurred in the context of a prosecution on charges of impaired operation of a motor vehicle ( Criminal Code , s. 253(1)( a )) and refusing to provide a breath sample ( s. 254(5) ).

[ 2 ] A year before the trial date, the Respondent requested the assistance of a Tamil interpreter. On the morning of trial, the Crown advised that an interpreter, who had been conditionally accredited by the Province, was present, but that she would have to leave at 1 p.m. for personal reasons. After a brief break in the proceedings, the Crown (who was not Mr. Mitchell) raised the issue of whether the accused was really in need of an interpreter, given his apparent proficiency in English. This was based on the Crown’s discussion with the officers involved in the case who did not think the Respondent required an interpreter. After another break, the Crown advised the trial judge that another conditionally accredited interpreter had arrived and could stay for the entire day. However, just a month earlier, this interpreter was found not to be properly qualified by Madam Justice M. Bloomenfeld of the Ontario Court of Justice in R. v. Sivanandamoorthy (November 4, 2010 (unreported ruling). Without conducting his own inquiry, the trial judge was not prepared to proceed with this interpreter because he thought that to do so would infringe the Respondent’s rights under s. 14 of the Charter .

[ 3 ] In the end, the Crown requested an adjournment. It was refused. The trial judge was of the view that the interpreter issue should have been sorted out before the trial date and that the Crown’s decision to challenge the Respondent’s need for an interpreter was essentially a response to the unavailability of a qualified interpreter. The Respondent was arraigned, entered pleas of not guilty and the Crown called no evidence. He was acquitted.

[ 4 ] The Crown attacks the trial judge’s ruling on two bases. First, the Crown still maintains that the Respondent was never in need of an interpreter in the first place. I reject this submission outright. The trial judge was entitled to accept the representations of the Respondent’s counsel, Mr. Connelly, that an interpreter was required. As Mr. Connelly told the trial judge, he would not receive instructions from the Respondent on any important issue without the assistance of an interpreter. The trial judge’s conclusion was amply supported on the record before him: R. v. Rybak (2008), 2008 ONCA 354 , 233 C.C.C. (3d) 58 (Ont. C.A.), at paras. 72 to 78 . As an aside, I too share the trial judge’s concern that this issue was raised at trial as a response to the absence of a qualified interpreter.

[ 5 ] The trial judge did not err in refusing the Crown’s request for an adjournment. The trial judge’s decision, which is entitled to great deference, was driven by the specific events that transpired before him that morning. One interpreter had to leave court early, with no proper explanation being offered. The trial judge was advised that the second interpreter had just recently been found to be unqualified by his colleague Bloomenfeld J. in R. v. Sivanandamoorthy , supra . [1] I note that, in her ruling, Bloomenfeld J. did not equate accreditation with competence; she engaged in her own appraisal of the interpreter’s skills, measured against the requirements of s. 14 of the Charter . There was no indication in the proceedings before W. Horkins J. that this interpreter’s situation had changed in the meantime. While the trial judge did not refer to Bloomenfeld J.’s decision in his Ruling, it was a factor that he was entitled (but not required) to take into account. Moreover, the trial judge was right – in a busy trial court such as the Ontario Court of Justice, trial judges are not required to re-invent the wheel with every interpreter. There will be cases when a voir dire is required, [2] but this was not one of them.

[ 6 ] The trial judge did not err in refusing to conduct a trial with the interpreter that was offered at the last minute. His refusal to grant an adjournment was reasonable.

[ 7 ] The Crown’s appeal is dismissed.

TROTTER J.

Released: March 6, 2012

[1] After making her ruling, Bloomenfeld J. adjourned the trial. Her ruling on the interpreter issue was pivotal to the subsequent decision of Lipson J. who stayed the proceedings because of an infringement of s. 11( b ) of the Charter : see R. v. Sivanandamoorthy , [2010] O.J. No. 5719 (C.J.) .

[2] Indeed, in a subsequent decision, W. Horkins J. recognized when it is necessary to go further and conduct a full voir dire and when it is not: R. v. Wong , [2011] O.J. No. 2325 (Ont. C.J.), at paras. 38 to 39 .