R. v. Singh, 2010 ONCA 11
CITATION: R. v. Singh, 2010 ONCA 11
DATE: 20100111
DOCKET: M38142 (C45215)
COURT OF APPEAL FOR ONTARIO
Moldaver, Simmons and Blair JJ.A.
BETWEEN:
Her Majesty the Queen Responding Party (Respondent)
and
Prabjot Singh Moving Party (Appellant)
Counsel: Joseph Wilkinson for the moving party Brian McNeely for the respondent Dennis W. Brown Q.C. and Jeremy Glick for the record holder, the Attorney General of Ontario
Heard: December 8, 2009
On motion by the appellant for an order for production of records to support a proposed application to introduce fresh evidence on appeal.
Reasons for Decision
Simmons J.A.:
[1] The moving party requests an order compelling disclosure of records in the hands of the Crown and the Ministry of the Attorney General relating to the interpretation services provided by five interpreters at his trial. He claims that the records will either provide evidence for a proposed application to introduce fresh evidence on appeal or assist him in generating such evidence.
[2] The records the moving party is asking for fall into three broad categories:
i) records in the hands of the Ministry of the Attorney General concerning the qualifications, competency and accreditation of the five interpreters who provided interpretation services at his trial;
ii) records in the hands of the Ministry of the Attorney General or the Crown concerning what I will call “who knew what when” about alleged systemic issues in relation to the quality of interpretation services at the Brampton courthouse; and
iii) copies of the audiotapes of the evidence of the witnesses at his trial who required interpretation services, which the moving party proposes to use to obtain an independent expert opinion concerning the adequacy of such interpretation services.
[3] In support of his request, the moving party relies on material indicating that the competency of one of the three Punjabi interpreters who provided interpretation services at his trial has been called into question in other cases and that the Twi interpreter provided for one of the witnesses at his trial was not accredited by the Ministry of the Attorney General.
[4] For the reasons that follow, I would dismiss the motion.
Background
i) The Moving Party’s Trial and Conviction
[5] Following a jury trial that lasted about three months, the moving party was convicted, on November 25, 2004, of the second degree murder of his former girlfriend.
[6] The victim died on July 7, 2001. At trial, the Crown alleged that the moving party killed the victim in a jealous rage and that he later confessed, on separate occasions, to his younger brother, to his older brother and to his father.
[7] Although the moving party’s father and older brother gave evidence at trial confirming the moving party’s confession to them, the moving party’s younger brother, Ranjit, recanted his preliminary inquiry evidence, and gave evidence at trial providing the moving party with an alibi for the afternoon of July 7, 2001.[^1] The recanted testimony proved to be false; Ranjit admitted at his subsequent perjury trial that he lied to protect his brother.
[8] The moving party did not testify at his trial.
ii) The Moving Party’s Request for an Interpreter at Trial
[9] The moving party’s mother tongue is Punjabi. On this motion, he acknowledges that he has been in Canada for a number of years, that he has completed some grade 10 courses in Canada and that he did not have the assistance of an interpreter at the preliminary inquiry, at any of his set date appearances in the Superior Court or during pre-trial motions in the Superior Court.
[10] The moving party claims that he requested a Punjabi interpreter for his trial, that the Crown argued that he did not require an interpreter and that the trial judge ordered that he be provided with an interpreter on an “as needed basis”.
[11] Nonetheless, the moving party also acknowledges that “[t]he defence conceded some degree of proficiency in English and asked that an interpreter be made available [at his trial proper] on an as needed basis.”
[12] The moving party has also acknowledged, by way of an Agreed Statement of Fact on this motion, that several witnesses would testify to his proficiency in English.
iii) Other Interpretation Services That Were Required at Trial
[13] In addition to the interpretation services provided for the moving party, interpreters were required for six witnesses at the trial proper and for one other witness on a pre-trial motion:
i) the moving party’s older brother and his father testified at trial through a Punjabi interpreter;
ii) the moving party’s younger brother, Ranjit, testified primarily in English at trial but also had a Punjabi interpreter present to assist him if required. Once again, the moving party claims that Ranjit asked for but was denied the opportunity to testify through a Punjabi interpreter. The trial transcript indicates that Ranjit used an interpreter at several points during his examination by Crown counsel but that he did not use an interpreter during cross-examination by the moving party’s counsel. The Crown points out that Ranjit testified in English at the preliminary inquiry and at his subsequent perjury trial;
iii) the deceased’s father and step-mother testified at trial through a Polish interpreter;
iv) a witness on a pre-trial motion testified through a Polish interpreter. Her evidence was not introduced at trial;
v) the deceased’s hairdresser testified through a Twi interpreter.
iv) The Interpretation Services That Were Provided
[14] Three Punjabi interpreters provided assistance to the moving party and to the Punjabi-speaking witnesses during the moving party’s trial: Manjeet Bhandhal, Manmohan Arora and Surjit Luthra.
[15] Ms. Bhandhal was the primary Punjabi interpreter. She sat beside the moving party during most of the trial and also provided interpretation services for the moving party’s older brother who testified in Punjabi. She may have provided interpretation services to the moving party’s father, who also testified in Punjabi.[^2] She was available to provide assistance to the moving party’s younger brother, Ranjit, on the second day of his evidence and she may have been available to provide assistance to him on the third and fourth days of his evidence.[^3]
[16] Mr. Arora provided Punjabi interpretation services on the first day of Ranjit’s evidence.
[17] Mr. Luthra was available to provide Punjabi interpretation services to the moving party on November 10, 2004 during the evidence of a defence witness, Renu Sanghera.[^4]
[18] As noted above, the victim’s father and step-mother, and one additional witness on a pre-trial motion testified through a Polish interpreter, Mr. Andrew Mazur. Twi interpretation for the victim’s hairdresser was provided by Mr. Alex Barning.
v) The Moving Party’s Appeal
[19] The moving party filed a solicitor’s notice of appeal against conviction on April 18, 2006. Although the trial transcripts were fully filed on June 12, 2007, more than two years ago, the appeal has not yet been perfected.
vi) The Moving Party’s Motion Record
[20] In addition to the moving party’s notice of motion and notice of appeal, the moving party’s motion record consists of various letters between appeal counsel; a series of transcript excerpts from the moving party’s trial, from the summary conviction appeal proceedings in R. v. Sidhu (2005), 2005 CanLII 42491 (ON SC), 203 C.C.C. (3d) 17 (Ont. S.C.) and from the unrelated trial of R. v. Jughar Singh; as well as correspondence from a Brampton assistant Crown attorney, a Brampton court administrator and a Mississauga lawyer.
[21] None of these materials are identified or authenticated in an affidavit. Indeed, the moving party’s motion record does not contain any affidavit evidence at all.
[22] Finally, as part of his motion record, the moving party filed a draft notice of application to introduce fresh evidence on appeal relating to the interpretation services provided at his trial. The draft notice of application stipulates that the fresh evidence will be introduced in support of three arguments.
[23] First, an argument that the moving party was deprived of his s. 14 Charter rights because the main Punjabi interpreter provided to him was not competent to interpret and her level of interpretation fell below constitutional standards.
[24] Second, an argument that the manner and quality of interpretation provided at the moving party’s trial was generally incompetent and fell below constitutional standards both for the moving party and various witnesses at the trial.
[25] Third, an argument that, to the knowledge of the local Crown and the Ministry of the Attorney General, there were systemic problems with the quality of interpretation at the Brampton courthouse where the moving party’s trial took place and that the manner in which these problems impacted the moving party’s trial tarnished the appearance of fairness and resulted in a miscarriage of justice.
The Moving Party’s Position on this Disclosure Motion
[26] The moving party claims he is entitled to disclosure of the records noted in para. 2 above for three reasons.
[27] First, Ms. Bhandhal’s competence as a Punjabi interpreter has been questioned and may have been found wanting in at least three other cases: R. v. Singh (June 2003); R. v. Naranjan (December 2004); and R. v. Mann (January 2005). She was also the subject of a complaint in a fourth case, R. v. Sohi (January 2005).
[28] Moreover, although Ms. Bhandhal apparently passed Ministry of the Attorney General Punjabi accreditation tests on July 9, 2002 and again in 2005, Punjabi is not her mother tongue, she may not read Punjabi and she previously failed the accreditation test on August 10, 2001.
[29] Second, evidence given in R. v. Sidhu indicates that Mr. Barning was not an accredited interpreter at the time he provided interpretation services at the moving party’s trial.
[30] Third, set in the context of a large-scale systemic problem with the interpretation services provided at the Brampton courthouse, which was known to the Crown and Ministry of the Attorney General, the quality of interpretation provided at the moving party’s trial undermined the appearance of fairness and resulted in a miscarriage of justice.
Discussion
[31] Leaving aside any issues concerning the propriety of the moving party’s material, the fundamental problem with the moving party’s motion is that he has failed to establish any air of reality to his claims that the quality of interpretation services provided at his trial was in any way deficient; that it resulted in a breach of his s. 14 Charter rights; or that it had any other adverse impact on the fairness of his trial.
[32] In R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 (Ont. C.A.), the appellant relied on fresh evidence demonstrating systemic issues with the interpretation services provided at the Brampton courthouse and an interpreter’s lack of accreditation by the Ministry of the Attorney General to support an argument that his s. 14 Charter rights were breached. Although this court stated that unaccredited interpreters “may only be used in situations of extreme emergency”, the court nonetheless concluded that the fresh evidence “lack[ed] a nexus to the proceedings at the appellant’s trial” and did not give effect to the ground of appeal depending on the fresh evidence.
[33] Watt J.A., speaking for the court, said the following at para 98 of Rybak:
What is lacking in the appellant’s fresh evidence materials, is a nexus between the systemic and accreditation flaws identified in the materials filed, and the interpreter assistance provided in this case: no affidavit of other evidence from the appellant, none from trial counsel and deafening silence in the trial record. Something supportive of this claim of constitutional infringement is necessary, but lacking. [Emphasis in the original; citations omitted.]
[34] The same can be said of the materials filed by the moving party on this motion. Even assuming that the material filed by the moving party demonstrates that Mr. Barning was not an accredited interpreter at the time he provided interpretation services at the moving party’s trial and that Ms. Bandhal’s interpretation skills have been found wanting in other cases, the material contains nothing to indicate that these potential concerns manifested themselves in any genuine problems at the moving party’s trial.
[35] In particular, I note the following:
i) the moving party has not filed any affidavit evidence from anyone to indicate whether he used the services of interpreters provided to him on a “standby basis” during his trial and if he did, whether he perceived any difficulties with those services;
ii) the moving party acknowledges that the transcripts of the trial do not reveal whether or how often he may have availed himself of the services of interpreters provided to him on a “standby basis” during his trial;
iii) although the moving party acknowledged, through his trial counsel, that he did not require full interpretation services and continues to acknowledge on this motion at least some degree of fluency in the English language, he has not filed any affidavit evidence from anyone to indicate whether he or anyone else perceived any difficulties with the Punjabi interpretation services provided to the Punjabi-speaking witnesses at trial. Further, the moving party has not filed any material on this motion that would in any way detract from the acknowledgment made through counsel at his trial that he did not require full interpretation services;
iv) the moving party acknowledges that, apart from one occasion on which his trial counsel raised a concern that Mr. Arora was summarizing Ranjit’s evidence rather than interpreting it, no issue was raised at trial concerning the competence or performance of any of the five interpreters who provided interpretation services at his trial;
v) the moving party has not pointed to any discrepancies between the evidence of witnesses who testified with the benefit of an interpreter at his trial and the pre-trial disclosure relating to the proposed evidence of such witnesses that might signal a potential interpretation problem;
vi) the moving party has not pointed to any portions of the transcript that indicate an interpreter may have sought clarification from a witness concerning their evidence (or vice versa), nor has he or anyone else filed an affidavit indicating there were any incidents at the trial suggesting that a witness or an interpreter may not have understood what the other was saying[^5];
vii) the moving party has not identified any contentious aspects of the evidence of the Twi or Polish speaking witnesses that could reasonably have had an adverse impact on the fairness of the trial had there been an interpretation problem[^6]; and
viii) the moving party acknowledges that he does not have any information that would suggest that Mr. Mazur or Mr. Luthra were not accredited or were incompetent.
[36] In R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.), Doherty J.A. noted, at para. 23, that while the Crown’s disclosure obligations remain in force following a conviction, “the resolution of disclosure disputes on appeal will require a somewhat different analytical framework” than that which applies during trials. This is because the presumption of innocence is no longer in play and also because, unless successful on appeal, the accused will have exhausted his right to make full answer and defence.
[37] Doherty J.A. stated that in the appellate context what is necessary is that the Crown’s disclosure obligation “recognize and give full value to an accused’s broad right of appeal and the rationale underlying those rights.” Accordingly, “[t]he Crown's disclosure obligation on appeal must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal.”
[38] In the specific context of a production motion made in support of an application to introduce fresh evidence on appeal to which the Palmer criteria applies, Doherty J.A. concluded that two conditions must be fulfilled to warrant an order for production:
To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence. The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it.
[39] I agree with the moving party that the second prong of the Trotta test does not strictly apply in a case such as this where the proposed fresh evidence relates to the integrity of the trial process and there is therefore no question concerning the admissibility of the proposed fresh evidence. However, I do not agree that this means that the second prong of the Trotta test should simply be eliminated.
[40] The second prong of the Trotta test is aimed at requiring that the moving party show a reasonable possibility that a production order will assist in developing a successful ground of appeal. Considered in that context, the problem with the moving party’s material is that he has failed to demonstrate even an air of reality to his claim that some form of interpretation problems existed in his case in circumstances where it is reasonable to believe that he should be able to do so.
[41] In particular, there is nothing in this record to suggest that the appellant would not be able to identify at least the possibility of a problem with the Punjabi interpretation at his trial if such a problem existed. Further, there is nothing in this record to suggest any lack of competence, qualifications or accreditation on the part of the Polish interpreter; nor is there anything to suggest that any problems arose with the interpretation of the evidence of the witnesses who spoke Polish or Twi. Finally, even if the moving party could not reasonably be expected to identify a problem with the Twi or Polish interpretation, there is nothing in this record to suggest that their evidence was other than peripheral such that any problem with its interpretation is capable of giving rise to a miscarriage of justice on the facts of this case.
[42] Further, the moving party’s requests for records relating to the qualifications, competency and accreditation of the interpreters and “who knew what when” will do nothing to assist in establishing a nexus between interpretation problems that may have existed in other cases and the quality of interpretation in this case.
[43] Although the moving party’s requests for copies of the audio recordings of the evidence of certain witnesses is at least directed toward obtaining records that could demonstrate an interpretation problem in this case, as I have said, on the record before us, there is simply no air of reality to the moving party’s claim that any such problem existed.
[44] In the end, the moving party’s requests appear to be no more than a fishing expedition that will inevitably have the effect of creating unnecessary expense and further delaying this appeal that has already dragged on for an inordinate period of time.
[45] The motion is dismissed.
RELEASED: January 11, 2010 “JS”
“Janet Simmons J.A.”
“I agree M.J. Moldaver J.A.”
“I agree R.A. Blair J.A.”
[^1]: At the request of the Crown, the trial judge ruled that Ranjit’s preliminary inquiry evidence was admissible for the truth of its content.
[^2]: Although the transcript makes it clear that the moving party’s father testified through an interpreter, it does not specify who the interpreter was.
[^3]: Although the transcript makes it clear that an interpreter was present on the third day of Ranjit’s evidence, it does not specify who the interpreter was. The transcript makes no reference to the presence of an interpreter during the fourth day of Ranjit’s evidence. The third and fourth days of Ranjit’s evidence were devoted largely to his cross-examination by the moving party’s trial counsel. He did not resort to the assistance of an interpreter during such cross-examination.
[^4]: It is not clear whether Mr. Luthra provided interpretation services for Mr. Sanghera or was simply available to assist the moving party.
[^5]: At para. 27 of his factum, the moving party also alludes to an incident at his trial during which another Punjabi interpreter entered the courtroom and apparently gave some indication of displeasure with Ms. Bhandal’s interpretation. However, no evidence was adduced on this motion from the other Punjabi interpreter to explain the nature of any concerns she may have had.
[^6]: The Twi-speaking witness was the victim’s hairdresser. She gave evidence concerning the victim’s failure to attend a 6:00-6:30 p.m. hair appointment on July 7, 2001. The victim’s Polish-speaking father testified about her background and confirmed that the moving party was upset when he discovered the victim was working at a massage parlour. The victim’s Polish-speaking step-mother testified that the victim received telephone calls on the afternoon of July 7, 2001 and left their apartment sometime before 2 p.m.