R. v. Koaha (J.), (2008) 432 A.R. 343 (CA)

• Judge: Charbonneau, J.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: February 26, 2008
• Jurisdiction: Nunavut
• Citations: (2008), 432 A.R. 343 (CA);2008 NUCA 1

R. v. Koaha (J.) (2008), 432 A.R. 343 (CA);

      424 W.A.C. 343

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MR.122

Joe Koaha (appellant) v. Her Majesty the Queen (respondent)

(21-05-0008 CAS; 2008 NUCA 1)

Indexed As: R. v. Koaha (J.)

Nunavut Court of Appeal

Charbonneau, J.A.

March 26, 2008.

Summary:

The accused pleaded guilty to assaulting his wife and breaching a probation order and was sentenced to six months' imprisonment and one year's probation. The accused appealed the sentence and, on May 31, 2005, having served over just over a month of his sentence, was granted bail pending the appeal. The main ground of appeal was that the accused's s. 14 Charter rights were breached because of problems with the interpretation services provided when he testified at the sentencing hearing.

The Nunavut Court of Appeal, per Charbonneau, J.A., affirmed the fitness of the sentence and rejected the assertion that the accused's Charter rights were violated. However, the court allowed the appeal and varied the sentence to time served and three years' probation where, in the unusual circumstances of the case, nothing constructive would be accomplished by sending the accused back to jail.

Civil Rights - Topic 2803

Language - Assistance of an interpreter - In criminal proceedings - An accused asserted that his s. 14 Charter rights were breached because of problems with the interpretation services provided when he testified at the sentencing hearing - The Nunavut Court of Appeal, per Charbonneau, J.A., stated that "I acknowledge that because the proceedings were not audio-recorded, an independent review of the interpreter's work during this sentencing hearing cannot be conducted. It is not possible for [the accused] to hear back his answers in Inuinnaqtun, and verify through another interpreter whether those answers were adequately translated into English. It is also not possible for him to verify that the questions asked in English by his lawyer were correctly translated into Inuinnaqtun. ... There is little doubt that it would be a preferable practice to record these types of proceedings as a matter of course. There may be logistical reasons why this is not always possible, but any time an issue related to interpretation is raised on appeal, having a full record of the proceedings and of the interpretation would, obviously, be very helpful. If, on the face of the record, there appeared to be deficiencies with the interpretation, the absence of a more complete record of the proceedings may leave the reviewing Court with no alternative but to find that there was a breach of section 14 of the Charter. However, in the circumstances of this case, I am not satisfied that the record of the proceedings raises the type of concern that make the absence of an audio recording fatal." - See paragraphs 30 and 31.

Civil Rights - Topic 2803

Language - Assistance of an interpreter - In criminal proceedings - An accused asserted that his s. 14 Charter rights were breached because, inter alia, the interpreter was not sworn - The Nunavut Court of Appeal, per Charbonneau, J.A., stated that the decision in R. v. Tran (Q.D.) (S.C.C.) suggested that having the interpreter sworn was a prerequisite to finding that the services offered met the standard of protection guaranteed by s. 14 - However, the court was not persuaded that this was an absolute requirement irrespective of context - Interpreters were used on a regular basis during circuits of the Nunavut Court of Justice - Their services were the norm, not the exception - They were fully integrated in the court's daily workings - Here, when the accused said that he needed an interpreter, there was no need for an adjournment - The interpreter immediately began assisting him and the proceedings continued seamlessly, virtually without any interruption - That was not to say that the quality of an interpreters' work in Nunavut could not be challenged, or that the standards by which the quality of interpretation was assessed should be any lower than in other jurisdictions - People in Nunavut were entitled to the same constitutionally guaranteed standard of quality of interpretation as anyone else in Canada - But the differences in context were relevant in assessing a failure to swear in the interpreter constituted a s. 14 breach - That said, as a matter of practice, given the strong language used in Tran, it would be advisable for such a practice to be implemented for all proceedings where interpreters were used, especially if their services were used to assist witnesses, accused persons, or parties in non criminal proceedings - See paragraphs 32 to 37.

Civil Rights - Topic 2803

Language - Assistance of an interpreter - In criminal proceedings - The accused appealed his sentence for assault and breach of probation, asserting that his accused's s. 14 Charter rights were breached because of problems with the interpretation services provided when he testified at the sentencing hearing - The Nunavut Court of Appeal, per Charbonneau, J.A., rejected the assertions - As soon as he requested an interpreter one was provided - No explanation was given why he did not raise any issue about his ability to understand questions, or the proceedings generally, from that point on - The accused had difficulties answering some questions, but it was far from clear that those difficulties were caused by interpretation problems - Many offenders in the accused's position would have had trouble answering those questions - Generally speaking, the accused's answers were responsive to the questions and were logically connected to them - Further the transcript of the cross-examination of the accused on his affidavit showed that he gave largely consistent answers in two proceedings where questions and answers were being translated by different interpreters - The assertions in the affidavit that "he thought he understood some of the questions" and tried to answer them, that "it seems now that he may have been guessing at some of the answers" and that "he may have not understood some of the questions", were simply insufficient, in the face of the record of the proceedings, to establish a breach of his s. 14 rights - See paragraphs 10 to 31 and 38.

Civil Rights - Topic 2808

Language - Assistance of an interpreter - Right to - General - [See second Civil Rights - Topic 2803 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - The accused pleaded guilty to assaulting his wife and breaching a probation order - The Crown sought a jail term of 30 to 90 days - The sentencing judge imposed six months' imprisonment and one year's probation - The accused appealed, asserting that there was a contradiction in the sentencing judge's reasons, in that she stated that she accepted the range suggested by the Crown, but then imposed a sentence that was twice as long as the high end of that range - The accused asserted that this suggested that the sentencing judge misapprehended the Crown's position and that this justified appellate intervention - The Nunavut Court of Appeal, per Charbonneau, J.A., rejected the assertions - The sentencing judge's reasons did not show that the judge misunderstood the Crown's position, but that she was surprised that the accused had never been imprisoned before and that but for that fact, she would have imposed a longer sentence - While the sentence was higher than the Crown's range, it was not so high as to suggest that the judge misunderstood the Crown's position - In any event, as the accused conceded, the Crown's position was only one of the many factors to be considered - This was the fourth conviction in a seven year period for assaulting his wife - The accused was convicted for an assault on the wife and placed on probation just a few months before the current assault - Despite a number of adjournments to allow the accused to seek counselling, he had taken no convincing steps to follow through - The sentence was not demonstrably unfit - See paragraphs 4 to 9.

Criminal Law - Topic 5849.14

Sentencing - Considerations on imposing sentence - Post-sentencing conduct pending appeal - The accused pleaded guilty to assaulting his wife and breaching a probation order and was sentenced to six months' imprisonment and one year's probation - The accused appealed and, after serving over just over one month of his sentence, was granted bail pending the appeal - The Nunavut Court of Appeal, per Charbonneau, J.A., affirmed the fitness of the sentence and rejected an assertion that the accused's Charter rights were violated - The court stated that ordinarily the appeal would be dismissed and the accused would have to serve the remaining portion of his sentence - However, returning the accused to jail almost three years after his sentencing hearing and almost four years after the commission of the offences raised issues - During the several years preceding the sentencing, the accused had demonstrated a chronic inability to stay out of trouble and abide by court orders - His compliance with the terms of his release while on bail was in sharp contrast with his earlier behaviour - Crown counsel conceded that this should not be completely ignored - There were serious concerns about allowing the passage of time to serve as a reason to reduce an otherwise fit sentence - Each case had to be examined on its own facts - Here the delay was inordinate - The Crown did not forcefully argue that the sentence should stand or that the delays should be laid at the accused's feet - The court concluded that, in these unusual circumstances, nothing constructive would be accomplished by returning the accused to jail - Accordingly, the court allowed the appeal and varied the sentence to time served and three years' probation - See paragraphs 40 to 45.

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See Criminal Law- Topic 5849.14 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served (incl. appeal delay) - [See Criminal Law - Topic 5849.14 ].

Cases Noticed:

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81, consd. [para. 10].

Counsel:

Peter Harte, for the appellant;

Rachel Furey, for the respondent.

This appeal was heard on February 26, 2008, by Charbonneau, J.A., of the Nunavut Court of Appeal, who filed the following reasons for judgment at Iqaluit, Nunavut on March 26, 2008.