ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-250
DATE: 2015-07-15

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 29, 30, July 2, 2015

TRANSLATION RULING #2

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

LEMON, J.

The Issue

[1] The defence have brought a motion 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”. After hearing argument, I ordered that “the Crown Attorneys in charge of this prosecution shall provide to both defence counsel:

Copies of all documentation (including emails and attachments) and other information in the possession of the Peel Regional Crown Attorney’s office or the Peel Regional Police in charge of this file with respect to the obtaining of certified translations from Rajinder Singh relating to the transcriptions of conversations or statements by Kulwant Litt or any other witnesses’ conversations or statements in this matter that were translated by Mr. Singh. Such documentation shall include any correspondence relating to the ordering and delivery of those translations, any follow-up inquiries with respect to the status of the transcriptions and any communications relating to the accuracy and potential revision of those transcripts. Such information shall include timelines for the ordering and production of the transcripts;
Documentation and information relating to any steps taken in this matter to assess the accuracy of the certified translations (as described in paragraph one) received by Peel or the Crown, as well as any steps taken to address issues pertaining to the accuracy of such translations;
The identity and qualifications of any interpreters or translators involved in the preparation of the certified translations set out in paragraph one; and
Any information known to the Crown or Peel in relation to problems or concerns affecting the production of the certified translations set out in paragraph one.

[2] This jury trial was then adjourned to allow the Crown to produce that information. I advised that written reasons were to follow and these are those reasons.

Background

[3] Ms. Punia is charged with second-degree murder of Poonam Litt.

[4] Mr. Punia is charged with being an accessory after the fact to that murder.

[5] The 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.

[6] Mr. 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, [1993] S.C.J. No. 22.

[7] At 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.

[8] The 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.

[9] One 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?

[10] The defence has requested a large amount of further production in relation to that issue. The first request as drafted in the Notice of Application was for the Crown to produce all materials in the possession of the Crown and the police relevant to the obtaining of certified translations in this matter and their quality. Without limiting the generality of this request:

(i) copies of all documentation and any other information relating to the ordering of certified translations in this matter, as well as any correspondence (including emails) relating to the ordering and delivery of the translations, any follow up inquiries with respect to the status of the transcription and any communications relating to the accuracy and potential revision of transcripts;

(ii) copies of all contracts or other documentation setting out the terms for the production of certified translations ordered by the police or the Crown in this matter, including the financial terms of such orders;

(iii) any policies or other documentation setting out standards to be applied by the Ministry in relation to the ordering of certified translations;

(iv) any policies, practices or other information relating to measures generally in place to ensure the quality of certified translations ordered by the police or the Crown;

(v) documentation and information relating to any steps taken in this matter to assess the quality of certified translations received by the police or the Crown, as well as any steps taken to address issues pertaining to the quality of such translations;

(vi) the identity of any translation companies or agencies who were involved in the preparation of certified translations ordered by the police or the Crown in this matter, as well the identity of interpreters and other persons who may have assisted such interpreters in the preparation of these translations;

(vii) documentation and other information pertaining to the selection of translation companies or agencies or individual interpreters for the preparation of certified translations for the police or Crown;

(viii) documentation and information relating to the qualifications of the numerous interpreters who certified translations prepared for the police or the Crown, as well as any individuals who may have assisted them in the preparation of these translations;

(ix) any information known to the Crown or police in relation to systemic problems or concerns affecting the production of certified translations ordered by the police or the Crown; and,

(x) any information known to the Crown or police in relation to problems or concerns affecting the production of certified translations ordered by the police or the Crown in this matter.

[11] By the end of argument, the request was reduced to;

The following physical or electronic documents in the possession of the Peel Region Crown Attorney’s office (“the Crown”) or the Peel Regional Police (“the police”), or available from other Crown or police agencies by means of reasonable request, in relation to certified transcripts of recorded communications involving Kulwant Litt:

i. Any written or electronic request or order made to an interpreter, translator or an agent/employee of a translation company for the review and/or production and certification of the certified transcripts of the following recorded communications:

(a) February 2012 recorded call between Mohan Thind and Kulwant Litt;

(b) Intercept session 106 – March 23, 2012;

(d) Intercept sessions 32 to 46 – April 9, 2012;

(e) Intercept sessions 80 and 81 – April 12, 2012 (Monte Carlo Hotel);

(f) Recording from Cst. Aujla’s recording device – April 12, 2012 (Monte Carlo Hotel).

ii. Any written or electronic communications between the Crown or the police and an interpreter, translator or an agent/employee of a translation company in relation to the status of the production of certified transcripts of the recorded communications listed above;

iii. Any written or electronic communications between the Crown or the police and an interpreter, translator or an agent/employee of a translation company in relation to any drafts, changes or revisions to and the final certification of the certified transcripts of the recorded communications listed above, including copies of any draft transcripts.

The following physical and electronic documents in the possession of the Crown or the police, or available from other Crown or police agencies by means of reasonable request, in relation to certified transcripts of police interviews of certain witnesses and accused persons:

(a) Kulwant Litt – February 11, 2009; July 18, 2009; March 20, 2010; May 13, 2010; April 12, 2012, April 30, 2012;

(b) Manjinder Litt – February 11, 2009; July 17, 2009; March 30, 2010; April 10, 2010; April 20, 2010;

(c) Supinder Litt – February 11, 2009; July 17, 2009; April 10, 2010; April 23, 2010; April 12, 2012; April 24, 2012; May 23, 2012; May 29, 2012; May 31, 2012; June 12, 2012; July 25, 2012;

(d) Bhupinder Punia – May 8, 2012; May 9, 2012; May 10, 2012;

(e) Mohan Singh Thind – April 17, 2012; May 16, 2012;

(f) Mandeep Punia – February 11, 2009; July 18, 2009; July 19, 2009; March 20, 2010; March 31, 2010; April 12, 2010; April 21, 2010; May 13, 2010; April 14, 2012; and,

(g) Skinder Punia – February 11, 2009, July 19, 2009; March 20, 2010; May 13, 2010; May 29, 2012; May 30, 2012.

iii. Any written or electronic communications between the Crown or the police and an interpreter, translator or an agent/employee of a translation company in relation to any drafts, changes or revisions to and the final certification of the certified transcripts of the police interviews listed above, including copies of any draft transcripts.

[12] The defence asks, and I order, that the balance of the filed application be withdrawn without prejudice to a further and better application.

Analysis

[13] The defence made clear in submissions that they do not request any productions from third parties; I need not consider issues related to documents from other individuals.

[14] The Crown makes no objection with respect to any privilege issues.

[15] The defence raises concerns with respect to the timing of these productions and other issues related to the professionalism of the Crown attorneys at this time. On this record, I can make no determination of either of those issues and they do not form part of my analysis. It appears to me that the discrepencies in the transcripts came as a surprise to all counsel, even at this late stage in the trial. I cannot determine who is at fault for that turn of events.

[16] The following chart sets out the discrepancies between the original police translation, the Crown certified translation and the defence certified translation of the Thind transcript.

Line(s)

Crown Certified Transcript

Defence Certified Transcript

Disclosed Police Transcript

9-13

The girl said, now “There are my fingerprints on it, umm?”

“My fingerprints, my fingerprints have appeared on her clothes”

Then the girl is now saying that there are her fingerprints on it.

The finger my fingerprints are on her clothes.

Then the girl is now saying I think they are saying there are fingerprints

The finger my fingerprints are on her clothes

He then told me that you have to come along […]

Everyone told me to come along […]

… It is quite far off, too much. The Wal-Mart was at 15 km.

I was in Walmart for about ten (10) fifteen to twenty (20)

I was in Walmart for about ten (10) fifteen (15) to twenty (20)

[…] They are very cruel, eh, Buddy!

[…] they are really very cruel and brutal

They are really (mumbles) brutal

[…] I had also put them through a little to their parents as well, to talk

[…] I tried to talk to their parents a little bit too

I said, “You did not meet”. I asked them to meet. I asked them to meet me.

I didn’t see them I told them to come see me

He is a “lumberdaar”, is a revenue department agent. His son, know, as Billoo…Billoo.

The head of village […] The head of village has a son named Billu Billu (ph)

I said this, I said, “You are responsible for this”. Yours…like, when we look at the background, they are both the sons of aunts.

They are both cousins […] (unintelligible)

109

Umm. No, what I’m saying…what I’m saying to you is, how can she, how can Deep do it by herself, alone. He should also have done something on his part.

Kulwant, that’s what I’m saying to you how did Deep alone do it by herself (stutters) he must have also done something

Kulwant that’s what I’m saying to you how did Deep alone do it by herself (stutters) he must have also done something

111

I say he should also have done something on his part…Like, did only Deep do it by herself. The son-in-law has to be with her.

I said he must have also done something Deep couldn’t have done it on her own the son-in-law must have been with her.

I said he must have also done something Deep couldn’t have done it on her own the son-in-law must have been with her

128

First, she did it. Maybe, they had already planned it up front. How do I know about it Buddy!

First she first did it she was the first now buddy I don’t know about them

135 to 142

(speakers reversed as compared to defence and police transcript)

(speakers reversed as compared to Crown transcript)

141

[…] She used to go with the son.

She used to go at different times.

She used to go at different times

149

[…] Dad, you walk down from there! Why do you drop off the vehicle?” […]

[…] daddy why do you walk back in the cold why do you drop off the vehicle

[…] why do you walk back in the cold why do you drop off the vehicle

178

[…] I said, “Go by yourself.”

He was going alone […]

210

It just so happened, Mohan, when the fight occurred, this sister-fucking thing took just a minute, or mere seconds, sister-fucking…

By the way, Mohan, one minute you’re saying that there must have been a fight but this sister fucking thing happened within minutes or mere seconds

She got beaten within a minute you’re saying that there must have been a fight but this fucking happened within minutes and seconds

260

[…] She turned out to be so frigging dirty!!!

[…] the sister fucker ruined the symbol of her brother’s love

[17] The Crown acknowledges that the discrepancies at lines 19, 75, 109, 111, 128, 141, and 210 are material discrepancies for the purposes of the section 9 and the KGB application. I agree that those differences could play into arguments for both the Crown and the defence.

[18] While the Crown submits that I should consider only the two certified translations, I prefer the defence view that, in looking at all three translations, the Crown translation raises real concerns about its reliability. With apparently well-qualified translators for both sides, I cannot make a determination of which translation is correct. Indeed, I am not asked to make that determination in this application. However, on all of the evidence filed, a further inquiry will be of assistance to both the Crown and the defence.

[19] In my view, given the significance of the transcript to the Crown’s KJB application, the quality of the work carried out by Mr. Singh is concerning. There is no record however to suggest concerns about any other translator, or any other transcript than the ones prepared by Mr. Singh.

[20] I agree with the defence that the disclosure requested is likely relevant to the issues in the Crown’s application and, perhaps, the trial. The further disclosure as ordered will assist the defence in understanding the process by which the translations were obtained, how the quality of the translations were assessed and the manner in which revisions to the translations were obtained. It will assist the defence in assessing the quality of the translations disclosed by the Crown and in making decisions as to whether additional defence certified translations ought to be sought. The productions will also assist the defence in determining what evidence may need to be adduced relating to both the Crown’s current application and at trial.

[21] To put it in terms of the Crown submission, I find that there is a nexus between the documents as ordered to be produced and the issues in the KGB application. The reliability of the Singh translations of Mr. Litt’s statements is relevant to the analysis of their admissibility. This inquiry relates to that reliability.

[22] Filed with this application was another example of Mr. Singh’s work. It was two certified copies of the same conversation. It showed several changes that, while not significant to the issues between the parties, showed sloppy work that raised concerns about the rest of his work.

[23] The Crown requested a further certified transcript of this transcript which was already certified. An explanation for that apparently redundant step was provided but it will be better explained by any correspondence or further information as ordered.

[24] I am not yet certain which transcripts of which witnesses Mr. Singh may have prepared and accordingly all of his work might need review.

[25] It appears from the information filed in the application that Mr. Singh had the assistance of other individuals. Their qualifications and their involvement in the Singh transcripts will be of assistance.

[26] I agree with the defence that the speed at which the transcripts were prepared would also be relevant in determining the quality of the work.

[27] To be clear, this order is only with respect to the concerns raised by the work carried out by Mr. Singh in this prosecution. Any further disclosure request seems calculated to “create needless controversy and waste valuable resources rather than to assist the accused in making full answer and defence”. (See: R. v. Girimonte, 1997 1866 (ON CA), [1997] O.J. No. 4961, 105 O.A.C 337 ( Ont. C. A.).

Lemon J.

Date: July 15, 2015

COURT FILE NO.: CR-14-250
DATE: 2015-07-15

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
HER MAJESTY THE QUEEN

and –

MANDEEP PUNIA and
SKINDER PUNIA

TRANSLATION RULING #2

DATE: July 15, 2015

R. v. Punia, 2015 ONSC 4569

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TRANSLATION RULING #2

The Issue

Background

Analysis

This Proceeding

Judge

Counsel

Parties

Areas of Law