COURT OF APPEAL FOR ONTARIO

DATE: 20060317

DOCKET: C39196

RE: HER MAJESTY THE QUEEN (Respondent) v. LUDLOW FREEMAN (Appellant)

BEFORE: DOHERTY, MOLDAVER and LAFORME JJ.A.

COUNSEL:

Kim Schofield and Daniel Stein for the appellant

Sandra Kingston and Lance Beechener for the respondent

HEARD: March 13, 2006

RELEASED ORALLY: March 13, 2006

On appeal from the conviction entered by Justice McCartney of the Superior Court of Justice dated October 25, 2002.

E N D O R S E M E N T

[1] The appellant argues that his right to an interpreter under s. 14 of the Charter was violated when he was not provided with a Patois interpreter.

[2] The appellant raises this issue for the first time on appeal.

[3] Section 14 speaks to an accused (or witness) who does not understand or speak the language in which the proceedings are being conducted. Section 14 is not engaged when an accused who does speak and understand the language in which the proceedings are being conducted has difficulty because of an accent or limited communications skill or some other similar reason, in understanding or answering questions. These difficulties may, in an appropriate case, raise fair trial issues under s. 11(d) of the Charter.

[4] We have examined the trial record and, in particular, the appellant’s lengthy evidence. There is no support for the assertion that he was unable to understand questions put to him. To the contrary, many of his answers demonstrate a keen understanding of the questions put to him and a careful response to those questions. Nor is there any reason to think that the appellant could not make himself understood. A few isolated indications by the trial judge or the court reporter that they did not hear or understand specific questions or answers, a common occurrence in virtually all trials, does not justify any concern that the accused’s evidence was not understood by the trial judge. The trial judge’s reasons indicate that he fully understood and appreciated the appellant’s evidence. He simply did not believe it.

[5] As the trial record amply demonstrates that the appellant did understand the proceedings and was able to make himself understood, the interests of justice are not served by receiving the fresh evidence directed at the question of whether the appellant was entitled to an interpreter. We have, however, reviewed that evidence and are satisfied that the result would have been the same had we considered it.

[6] We are, however, of the view that the verdict relating to the gun charge is unreasonable. The trial judge found that the car in question was used communally by the appellant, his wife and individuals at the barbershop where the appellant worked. In convicting the appellant on the gun charge, the trial judge did not indicate what evidence he was relying on to make the finding that the appellant had the requisite knowledge that the gun was underneath the front passenger seat of the car when the appellant was in possession of that car.

[7] Taking the Crown’s case at its highest, it established that the appellant was the primary user of the car at the relevant time, that he was driving it on the day in question, and that he had over $3,000 on his person, although it is conceded the money was to be used to buy a “new used car” and was not connected to any crime. In our view, while the evidence relied on by the Crown may give rise to a high degree of suspicion, it cannot reasonably support an inference that the appellant had the requisite knowledge, that is, that the gun was located under the passenger seat in the car he was driving. Accordingly, we would allow the appeal on the gun charge, quash that conviction and enter an acquittal.

[8] As for the conviction on the possession of marijuana charge, the Crown concedes and we agree that the conviction must be quashed. The Crown accepts that at the relevant time, that is when the appellant was charged, the provision creating the offence of possession of marijuana was of no force and effect: see R. v. Hitzig (2003), 2003 30796 (ON CA), 177 C.C.C. (3d) 449 (Ont. C.A.). The conviction on the marijuana charge is quashed.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“H.S. LaForme J.A.”