Lost in translation
Court case undermined by poor interpretation
by Doug Ashbury
NNSL (Nov 10/97) - A recent Court of Appeals decision has cast doubt on the effectiveness of Inuktitut translation in Northern courtrooms.
At the heart of the matter is translating the concept of "beyond reasonable doubt" from English into Inuktitut.
At a jury trial in May of 1996 an Igloolik man was found not guilty of sexual assault.
But the suspect will be re-tried because the NWT Court of Appeal ruled that translation of the judge's instructions into Inuktitut were confusing or incorrect.
"In our view, because of the translation problems encountered in this case, the interests of justice require a new trial, judges Ralph Hudson and Virginia Schuler said in their decision, released last month.
Inuktitut, though a sophisticated language, is a concrete, practical and descriptive language. An abstract European concept, like beyond reasonable doubt, can be difficult to translate.
For the appeal, the Crown brought in two translators to review the original Kaunak case transcripts -- Suzie Napayok-Hvatum and Elizabeth Qulaut.
Napayok-Hvatum, in her affidavit, said many of the concepts and words used by the judges in the Kaunak case "do not have direct translations."
The failure of the trial's interpreter to do justice to the testimony does not come as a surprise to those with experience in the field.
Napayok-Hvatum, who works for the Yellowknife Interpreter Bureau, which supplies interpreters for the NWT courts and legislature, worked as an interpreter and translator for 16 years. Though she is capable of translating in court, she had "an unpleasant experience in a community a few years ago and does not enjoy that type of work."
And In Images of Justice, a recently published book by Dorothy Harley Eber, Napayok-Hvatum said interpreter trainees sometimes delay taking the third module of legal interpreter training course.
Module three covers jury trials, expert witnesses and coroner's inquests.
Trainees delay because "it's too technical, too difficult, there's too much pressure -- a person has to be very strong to deal with it," she said.
Qulaut, in her affidavit, said that "confusion is due to the fact that some concepts used are not concepts that are traditionally associated with the Inuktitut language and so are very difficult to translate."
Appealing on grounds of confusing translation could be a first in the North, NWT chief crown prosecutor Pierre Rousseau said.
The North's top prosecutor for five years and a Crown counsel for three years before that in Iqaluit, Rousseau said he is not aware of a similar appeal in the NWT.
"(The Kaunak case) has to be rescheduled. It goes back to Supreme Court," he said.
The original jury included 10 people who spoke and understood English and Inuktitut, one person who spoke and understood Inuktitut only and one person who spoke and understood English only.
In the appeal, the Crown suggested the new jury should be comprised entirely of English-speaking members, a suggestion bound to upset the political status quo in the NWT.
Unilingual aboriginal-speaking jurors have only been serving on Northern juries since 1989, when then territorial justice minister Michael Ballantyne pushed ahead with the move despite considerable opposition in both territorial and federal governments.
Much of the opposition stems from the costs associated with fully bilingual trials.
Neither politics nor economics entered into the recent court decision however. Instead, the court ruled it was not satisfied that reasonable doubt was untranslatable.
"We do not understand the reference to there being no direct translation to mean that the meaning of the concepts and words cannot be got across by any means," the judges said.
Kaunak was found not guilty of sexual assault after a jury trial before Justice John Vertes.
The appellate decision was handed down by judges Hudson and Schuler, with judge Ronald Berger dissenting, on Oct. 22. A new trial date has not yet been set.