January 23, 2019
Information No. 18-10748
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
NARINDER TOOR
R U L I N G
BEFORE THE HONOURABLE JUSTICE H. AMARSHI
On January 23, 2019, at BRAMPTON, Ontario
APPEARANCES:
T. Kim
Counsel for the Crown
G. Henderson
Counsel for Narinder Toor
WEDNESDAY, JANUARY 23, 2019
R U L I N G
On September 7, 2018, police attended 84 Wood Valley Drive in Brampton. They had been called by a social worker who deals with high risk children who had attended the home and had some concerns about the safety of the complainant, Kawaldeep Kaur. Ms. Kaur lived at the home with her husband, the accused, Narinder Toor. The couple have twins, aged nine-months, at the time of the September call for police assistance. Constable Strain, and his partner, from Peel Regional Police first attended. It soon became clear that there was a language barrier and a request was made for a Punjabi speaking officer to attend. As a result, Officer Simrata Soodan attends at the home just after 12:00 p.m. A CAS worker also attends. He takes a statement from Ms. Kaur in Punjabi and translates it into English. The statement outlines two separate incidents of assault. One involved an alleged incident in July at the home after a garage sale and a second incident on August 31, in the couple’s kitchen. During her examination-in-chief, the complainant denied being assaulted by Mr. Toor. When asked specifically about a physical altercation in July, she testified that some words were exchanged but nothing much happened. This is inconsistent with the statement she had given Constable Soodan. Her position did not change after reviewing her statement with the interpreter during a break. She had not brought her glasses to court and it was agreed by the parties that the interpreter could read her statement to her. The Crown sought to make an application under section 9(2) Canada Evidence Act, otherwise referred to as the Milgaard Procedure, for ruling that she be permitted to cross-examine the witness on her prior statement. As part of the voir dire on this issue, the Crown entered the statement taken by Officer Soodan as an exhibit. Mr. Henderson reasonably conceded that her previous statement to the officer is inconsistent with her testimony in court, but argued that the complainant had not adopted her statement in her evidence, and therefore the onus was on the Crown to prove the statement was reduced to writing. The threshold is a balance of probabilities. The Crown called Constable Soodan in support of the application. He testified that he had been a police officer with Peel Regional Police for approximately 12 months. The officer took the statement in Punjabi and transcribed it in a three-page document in English. He testified that he came to Canada from India when he was 12, where he spoke Punjabi and Hindi, and that Punjabi was his mother tongue. He said that he was very confident in his speaking, reading and writing ability in that language, and had translated the Peel Crime Stoppers brochure, in Punjabi. By way of language ability, he testified that he attended Punjabi classes on Saturday’s while growing up with a goal of improving his language skills. As part of those skills, there was a translation component, where the students would be required to translate English into Punjabi. In addition, he attended daily religious classes in Punjabi for a seven or eight-year period, while growing up. He described in some detail how he took Ms. Kaur’s statement, which is in a question and answer format. Ms. Kaur refused to attend at the division to make a video statement. The officer decided to take a written statement. He described the content as being taken verbatim, in that, he documented both his questions and the complainant’s answers verbatim. At the end of the statement, there is the following notation; “Statement read/explained to Kawaldeep in Punjabi to advise and reiterate her statement” which means, according to the officer, that when the statement was completed, he read the statement back to the complainant, verbatim, translating it back from English into Punjabi and confirming her responses. Her signature is at the bottom of each page and he observed her signing the pages. Ms. Kaur agreed, in her evidence, that it was her signature on the bottom of each of the pages, although she initially testified that she did not think the signature on the first page was hers. Constable Soodan agreed he had no specialized Punjabi language training, and neither was he trained, nor tested, in live translation. And further, he self-identified as a Punjabi speaking officer on a roster at the police division. There was no formal designation or vetting process to be included on the roster of foreign language speakers, at the division. He further conceded during a thorough cross-examination that he did not recall if he shaped or edited the responses. This last concession was a concerning one. Any statement where the statement taker is involved in refashioning or directing the speaker’s response, undermines the accuracy and veracity of the statement. Constable Soodan, however, did elaborate and testify that he did not fill in any of the blanks in the case, nor made his own judgments. Further, he said if the witness goes off-topic, he would transcribe the iteration, including his own attempts to direct the witness back to the topic at hand.
Analysis - I agree with Mr. Henderson, there is little or no weight I can attach to Ms. Kaur’s evidence. She did not accept the statement in any meaningful way. She did however agree that it was her signature on the document, which was confirmed by the officer. The application in this case, therefore, must turn on the evidence of Constable Soodan. A quick review of the authorities, reveals that this issue, surprisingly, has not been considered very often, and the authorities date back a number of years. However, I will make some reference to the legal cases, because they provide some assistance. In R. v. Vivar, 2004 CanLII 34315 (ON SC), [2004] O.J. No. 9, a decision from Justice Dambrot, in Superior Court, and Dambrot is spelled D-A-M-B-R-O-T. In Vivar, the officer recorded what was said in his notebook, but did not record any of the questions asked or what prompted the comments when the witness was watching a video tape. Despite his efforts to document as accurately as he could, the notes were summaries of what was said, and not verbatim, and, accordingly, Justice Dambrot ruled, not a statement reduced to writing. In R. v. Cassibo, from 1982 CanLII 1953 (ON CA), 1982, O.J. No. 3511. In that case, the statement that was made to the police was not signed nor acknowledged by the witness at the time of the interview, nor anytime afterwards, and was deemed by the court in Cassibo, not to be a statement in writing or reduced to writing. I did however find the Ontario Court of Appeal decision R. v. Carpenter (No. 2) (1982)1982 CanLII 3308 (ON CA), 1 C.C.C.(3d) 149, of some assistance. In fact, I recall reading R. v. Carpenter (No. 2) on another issue when I was an articling student, but it looks like it stood the test of time on this issue before us. In R. v. Carpenter (No. 2), the Court held that the police notes were a statement reduced to writing. In that case, which has some similarities to the case at hand, the statement was taken verbatim at the time the witness spoke to police, translated from French to English, although it was not signed by the witness, nor read to him. Three months later, it was read to the witness and he said something along the lines, or he conceded something to the fact that if it’s written there, it must be the truth. The Court of Appeal held that the statement, despite not being signed was a statement reduced to writing. The distinction for the Court of Appeal, appears to be that, in that case, the statement was taken verbatim, contemporaneous to the conversation. And, that’s the situation in this case. I accept that the statement was taken verbatim and contemporaneous to the question and answer. It was taken at the complainant’s home on the day of the allegation and not some time afterwards. There is an indicia of accuracy. Constable Soodan reviewed the statement with the witness once it was complete, translating the English statement back into Punjabi. Her signature is on each page. The officer came across as thoughtful and careful in his understanding of his role as a translating officer to document the allegations and not to supplement, influence or direct certain responses. The fact that Constable Soodan was not a formally trained interpreter, without some form of accreditation, did not give me concern, about the accuracy of the statement. The content of the statement is not particularly complex when compared to, for example, translating a technical document, which may require a certain level of expertise. Constable Soodan has been speaking Punjabi since he was a child in his mother tongue. He came to Canada when he was 12. He was educated here and is also a proficient and articulate English speaker, from what I gathered from his evidence. He supplemented his Punjabi language skills while growing up, by taking classes on the weekend, including a translation component. I appreciate that translators must make word choices during a live interpretation to convey the perceptions and utterances from a foreign language speaker. The standard need not be of perfection, but the statement reduced to writing needs to be an accurate, faithful and fulsome documentation of the witness evidence, which I’m satisfied was the case here. In this context, I’m satisfied the Crown has met their onus and has proven the statement.