



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 appellants 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] 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
    interpreters 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.


