ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-250
DATE: 2015-07-02
AMENDED: 2015-07-07

BETWEEN:

HER MAJESTY THE QUEEN

Kelly Slate and Veronica Puls, on behalf of the Crown

• and -

MANDEEP PUNIA and
SKINDER PUNIA

Robert Richardson and Eric Neubauer, on behalf of the Accused Mandeep Punia
Peter Copeland and Kendra Stanyon, on behalf of the Accused Skinder Punia

HEARD: June 30, 2015

AMENDED - TRANSLATION RULING #1

Publication restricted pursuant to s. 648(1) of the Criminal Code.

AMENDED Notice: page 5, line 2 “cross-examined by the Crown” replaced with “examined by the Crown in the absence of the jury.”

LEMON, J.

1Ms. Punia is charged with second-degree murder.

2Mr. Punia is charged with being an accessory after the fact to that murder.

3The principal witness for the Crown or, perhaps, for the defence is Kulwant Litt. Mr. Litt is the father of Ms. Punia. He is the father-in-law of Mr. Punia. He was the father-in-law of the deceased, Poonam Litt. Mr. Litt's son was Poonam's husband.

4Mr. Litt is also charged with being an accessory after the fact to murder as well as, apparently, perjury. He has given a number of recorded statements to the police. He has also spoken to others about these events and those conversations have been intercepted by the police. He has testified over a number of days at the preliminary inquiry. Some of what he has said inculpates the accuseds. Some of what he has said exculpates the accuseds. As was anticipated, his evidence before the jury was that he knew nothing about the death of Poonam Litt. Accordingly, the Crown has brought an application pursuant to section 9 of the Canada Evidence Act and the principles of R. v. K.G.B. 1993 116 (SCC), [1993] 1 S.C.R. 740.

5At this point, Mr. Litt has testified before the jury and has also been examined by the Crown in the absence of the jury. The Crown has filed a number of transcripts of what was said by Mr. Litt. The defence has yet to cross-examine Mr. Litt.

6The defence wishes to cross-examine Mr. Litt on various transcripts. Mr. Litt speaks only Punjabi. All of the statements have been translated. Only some of the transcripts have been certified. It appears that some of those certified transcripts have only recently been certified and provided to the defence. The defence had at least one of the Crown’s certified transcripts reviewed by its translators.

7One transcript in particular is in issue at the present time. It relates to a phone call between Mr. Litt and Mohan Thind which I will refer to as the Thind transcript. It is agreed by the Crown that there are material discrepancies between the defence translation and the Crown translation of the Thind transcript. The question is, however, which one is correct?

8As a result of those discrepancies, the defence has brought an application for further disclosure from the Crown. In brief, that application requests “disclosure of all materials in the possession of the Crown and the police relevant to the obtaining of certified translations in this matter and their quality”. At present, we are only part way through the argument on that issue.

9The Crown submits that without a determination that the Thind transcript is in error, there is no nexus between that transcript and the defence request. Accordingly, says the Crown, there needs to be a finding that the Thind transcript as put forward by the Crown is in error.

10Therefore, as a preliminary matter, the Crown has sought a ruling before being required to respond to the defence application for disclosure. First, she asks that I order a neutral third-party to review the two translations. If that third-party confirms various alleged errors in the Crown translation, then she concedes that will cause concerns with respect to a number of other translations carried out by the same translator who did the Thind transcript. That would also lend support to the defence application. Alternatively, if no errors were to be found by the neutral third-party, I should dismiss the application, rely on the Crown transcript and move forward with the trial.

11Secondly, even without that third-party assessment, the Crown submits that if I am satisfied that there are no material discrepancies between the two transcripts, or that the Crown translation is accurate, then I need not hear further with respect to the present defence application. She asks that I make that ruling before being required to respond to the defence application.

12The defense disputes both requests.

13The trial has been delayed and the jury has been out for about 3 1/2 weeks. My ruling on these two matters affects what will happen next in the proceedings. Accordingly, at the end of argument on those two points, I ruled that I would not order a third-party review of the transcripts. I also expressed the view that I had real doubts and real concerns about the Thind transcript. I could see the defence concern about the transcripts in the state that they are at present. The Crown requested reasons before proceeding with her response to the defence application and these are those reasons.

14Although the court has authority to call its own witnesses, that authority should only be “exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused”. See: R. v. Finta, 1994 129 (SCC), [1994] 1 SCR 701. I do not see that this is one of those rare circumstances.

15The Crown submits that if an independent third-party reviewed the Thind transcripts and found concerns with the Crown version, then she would have concerns about the balance of that translator’s work. If that is the simple answer to the Crown’s concerns about the Crown evidence then the Crown should resolve its own concerns.

16At present, I have three different experienced translators providing, apparently, their best efforts. There has been no attack on their credentials or their neutrality. I have no reason at the present time to reject their opinions. There is no certainty that a fourth will assist me. Full argument has not been completed on their respective efforts. Indeed, the defence application for further information may or may not assist in the determination of whether the translations to date are accurate or not. These are not the circumstances that I should request a further witness.

17With respect to the second issue, I took the Crown’s submission to be that if I found nothing wrong with the present Crown translation, then I need not hear further with respect to the application. Certainly she is right that if there were no significant differences between the two transcripts, I would not need to call on the Crown to make submissions. For example, one of the concerns put forward by the defence is that, in one instance, the speakers are reversed. That occurs regularly in our transcripts. The jury is regularly educated as to that possibility in the standard jury charge. If that were the only concern for the defence, I would agree with the Crown that I need not inquire further.

18Here, however, there are material discrepancies that cause me concern. Argument has not been completed about what I should do about those concerns. Argument has not been completed as to whether I should order further disclosure from the Crown to resolve or confirm those concerns. In due course, it appears that I may have to make a finding on whether the Crown version is accurate, the defence version is accurate or whether that will be something for the jury to decide. My only determination on the Crown’s simple threshold question, is that, at this point, on the record that I have, the submissions should continue with respect to the defence application.

Lemon J.

Date: July 7, 2015
Amended