DATE: 20041014
DOCKET: C40703
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – HIEP THANH PHAM (Appellant)
BEFORE: WEILER, ROSENBERG JJ.A. and PARDU J. (ad hoc)
COUNSEL: Craig Parry for the appellant
Robert F. Goldstein for the respondent
HEARD: September 24, 2004
RELEASED ORALLY: September 24, 2004
On appeal from the conviction entered by Justice George Bourke Smith of the Superior Court of Justice, sitting without a jury, dated June 6, 2003 and the sentence imposed by Justice Smith dated September 12, 2003.
E N D O R S E M E N T
[1] On May 21, 2003 the appellant was convicted by Justice Bourke Smith of the Superior Court of Justice on charges of Possession for the Purpose of Trafficking and sentenced to eighteen months incarceration. The appellant appeals from conviction and from sentence.
- Did the trial judge err in refusing to order a mistrial?
[1] On May 21, 2003 the appellant and two other co-accused were arraigned. Counsel for the co-accused informed the court that all three men required an interpreter. An interpreter was provided. The appellant’s counsel, Mr. Kiefer, brought an application to exclude the evidence of the cocaine on the basis that the search violated the appellant’s s. 8 Charter rights. The application was dismissed. The appellant then pled guilty to the charge of possession for the purpose of trafficking.
[2] On June 6, 2003 the appellant’s sentence hearing took place. Mr. Kiefer asked to be removed from the record as the appellant had retained new counsel, Mr. Mattson. When asked if the interpreter was present, Mr. Kiefer stated that in his view the appellant did not require an interpreter. Mr. Kiefer was then discharged.
[3] Mr. Mattson, the new counsel for the appellant, then asked the trial judge to adjourn the sentencing proceedings as his client had “severe deficiencies in understanding the English language” and needed an interpreter. This request was granted. Mr. Mattson then asked the trial judge to strike the guilty plea and enter a conviction on the voir dire evidence, in order to preserve the appellant’s rights of appeal. This request was granted.
[4] On September 12, 2003 the appellant appeared for his sentencing hearing with new counsel, Mr. Smart. Mr. Smart brought a motion for mistrial based on an alleged violation of the appellant’s s. 14 Charter right to an interpreter. Mr. Smart submitted the appellant did not understand the nature of the arraignment and Charter proceedings. In support of the motion, Mr. Smart filed an affidavit from Mr. Mattson. In the affidavit, Mr. Mattson stated that his client had severe trouble understanding English. He also stated that his client informed him that the interpreter was sitting in between the two other co-accused, and the appellant could not hear the translation. The mistrial motion was dismissed and the appellant submits that the trial judge erred in doing so.
[5] The only evidence before the trial judge on whether the appellant was denied an interpreter was the affidavit of Mr. Mattson who was not counsel for that part of the trial. This affidavit was hearsay. The appellant did not file an affidavit or give evidence that he did not have the services of the interpreter who had been provided for the three co‑accused during the proceedings. No complaint was made about the adequacy of the interpretation during the Charter motion. On that record it was open to the trial judge to find that the appellant had not made out a breach of s. 14. We therefore have no basis on which to interfere with the trial judge’s decision to give no weight to the Mattson affidavit and not to declare a mistrial.
- Did the trial judge err in sentencing by overemphasizing the principles of general deterrence and denunciation?
[6] The appellant submits that the trial judge erred in principle when, in his reasons for sentence, he referred to the fact that Guelph was a university community although there was nothing to suggest that the appellant had any dealings with university students. In our opinion the trial judge was simply speaking at large about the harmful effects of cocaine and he did not err in principle.
[7] The sentence of 18 months imposed by the trial judge was within the range and it was open to the trial judge to find that this was not an appropriate case for a conditional sentence. The circumstances before us are identical to those before the trial judge. We would not interfere with the sentence.
[8] The appeal as to conviction and sentence is therefore dismissed.
“Karen M. Weiler J.A.”
“M. Rosenberg J.A.”
“G. Pardu J. (ad hoc)”