The Defence Toolkit – March 15, 2025: The Right to Interpretation

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Charter s.14 - Interpretation Rights | Overturning a Guilty Plea | Sentencing Principles

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Posted On 15 March 2025

This week’s top three summaries: R v Chen, 2025 ONCA 135: s.14 #interpreter, R v Nettleton, 2025 ONCA 155, GP and #arraignment, #penitentiary, R v Roshuk-Finch, 2025 ABCA 85: #step principle

R v Chen, 2025 ONCA 168

[March 6, 2025] Charter s.14 – The Right to Interpretation [Reasons by Pepall J.A. with A. Harvison Young and L. Sossin JJ.A concurring]

AUTHOR’S NOTE: The s.14 Charter right to an interpreter ensures that individuals who do not understand the language of court proceedings have the same opportunity to understand and be understood as if they were fluent in the language used. As a multicultural country, Canada enshrines this right as a constitutional guarantee.

In this case, the Court applied this guarantee, reviewed relevant case law, and overturned a conviction because the trial proceedings were translated into Cantonese, a dialect the accused did not understand, as he was a Taishanese speaker. This ruling reinforces the strict standard required for interpretation in court and highlights the importance of accurate language accommodations to uphold fair trial rights.

INTRODUCTION

[1] Section 14 of the Canadian Charter of Rights and Freedoms states that “[a] party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.”

[2] The appellant was charged with second degree murder. It is uncontested that he does not understand or speak English, the language of his criminal proceedings. A Taishanese1 interpreter was requested for the appellant. He had one interpreter for the first half of the trial and another interpreter for the second half. Two audits of the interpretation of the first half of the trial requested by the Ministry of the Attorney General (“MAG”) reported that the portions reviewed revealed an interpretation that was not Taishanese but 100 percent Cantonese.

[4] The appellant also applies for an order to adduce fresh evidence relating to the s. 14 ground of appeal including the Crown audits of the interpretation at trial, the differences between Taishanese and Cantonese, and the ineffective assistance of counsel ground of appeal. The Crown filed materials in response and consents to the admission of the fresh evidence. I would admit the fresh evidence as requested. While not directed at any issue litigated at trial, the proposed evidence “seeks to shed light on the validity of the trial process” and is admissible for that purpose: R. v. Saini, 2023 ONCA 445, 90 C.R. (7th) 212, at para. 34; R. v. S.T., 2024 ONCA 572, at para. 14. It is in the interests of justice to admit the fresh evidence.

[5] The respondent fairly and candidly concedes that there were shortcomings in the interpretation services provided to the appellant which should not have occurred and are properly the subject of criticism. What happened should not have. However, relying on: R. v. S.A., 2021 ONCA 434, 493 C.R.R. (2d) 105; R. v. L.C.T., 2012 ONCA 116, 288 O.A.C. 133; and R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, the respondent submits that s. 14 does not require interpretation to be perfect; there must be a real possibility that the appellant either did not understand or was misunderstood; any objection to the interpretation provided must be timely…

…respondent submits that the appellant has failed to meet his onus to show a reasonable possibility that he did not understand the interpreter…

[6] I disagree and for the following reasons, would allow the appeal on the ground relating to s. 14 of the Charter. As a result, there is no need to address the other two grounds of appeal.

[7] The appellant speaks Taishanese. He was born to a farming family in a rural village in the Guangdong province of China and immigrated to Canada in 2000. In China, he was a farmer and after moving to Canada, he worked making fortune cookies until he was 65. His education consists of a few years of elementary school “on and off” in the 1940s and 1950s. His instruction was in Taishanese and the language of the appellant’s village was Taishanese. He does not read or write in any language and is functionally illiterate. The appellant maintained that he can understand Cantonese “a little here, and a little there”. It is undisputed that the appellant has no English language capability. He does not speak nor understand English.

[9] Video surveillance showed the appellant getting off of his bicycle, engaging in a conversation with Ms. Liu, and then suddenly lunging and attacking her. After the attack, the appellant placed his bike against a wall and departed on foot. A passerby found Ms. Liu lying in the grass bleeding. Ms. Liu subsequently died and an autopsy revealed that she had sustained multiple blunt force injuries. Police recovered a metal bar with blood on it near Ms. Liu’s body that appeared to be from the appellant’s bicycle.

(1) Relevant Background and Fresh Evidence

(a) Police Interview and Preliminary Inquiry

[12] On October 16, 2014, the appellant was interviewed by Detective Worden. PC Liang, who speaks English and Cantonese, served as the appellant’s interpreter. The recorded interview revealed numerous references to a lack of understanding by PC Liang or the appellant…

[13]…He never expressed any confusion about the translation PC Liang provided. PC Liang maintained that the appellant understood Cantonese as did his wife, Bi Lian Chen. He testified that in the booking hall when the appellant wanted to use the washroom, he asked the appellant whether he spoke Cantonese, and the appellant said “yes”. The appellant never told PC Liang that he spoke Taishanese.

[14] Under cross-examination, PC Liang acknowledged that there was a dialect problem the two were having and that the appellant was having a hard time understanding everything PC Liang was saying and he did not understand 100 percent of what the appellant was saying.

[16] For his preliminary inquiry, a Taishanese interpreter was requested for the appellant. Verna Chong was his interpreter at his preliminary inquiry and for the second half of his trial. No issue is taken with her interpretation.

(b) The Trial

[19] Ms. Chong was unavailable for the commencement of the appellant’s trial which started on April 1, 2019. Anna Auyang was the interpreter provided by MAG for the trial before Ms. Chong was able to attend. She was one of only two conditionally accredited Taishanese interpreters on MAG’s registry at the time of trial, and there was only one fully accredited Taishanese interpreter. She interpreted from the second to the ninth day of the trial. This covered the Crown’s opening address and the proceedings relating to 12 witnesses.

[20] Ms. Auyang filed an affidavit …

…She admitted that she was never tested in the Taishanese language by MAG. She was unsuccessful in being accredited by MAG to interpret Cantonese but had been accredited for Cantonese by the Immigration and Refugee Board since 2013. Cantonese is her first language and was the language of instruction at her high school in Hong Kong where she grew up. She maintained that Taishanese is a dialect of Cantonese and, in her experience, people who speak Taishanese also speak Cantonese. The two “are very intertwined” and “[m]any of the common expressions are the same.” She described her own interpretation as “a mixture of Cantonese and Taishanese, but ‘heavier’ on the Cantonese side.” According to her, the appellant also spoke a “mixture” of the two, but she found it difficult to understand him given his mumbling and “baby talk”. She claimed to be in the habit of repeating things for him but it was “difficult to do so consistently given the pace of the proceedings.”

[22] In her cross-examination, Ms. Auyang said that during the trial, the appellant told her he could not hear well. She stated that the appellant confirmed that he understood the way she was speaking.

[23] In her affidavit, she stated:

In my interactions with Mr. Chen, he spoke a mixture of Cantonese and Taishanese. I found it difficult to understand him, as he mumbled and spoke in “baby talk” that was neither fully Cantonese nor fully Taishanese. It appeared to me that only Mr. Chen’s family members could completely understand him…

[24] In cross-examination, when asked whether she interpreted in Cantonese throughout the proceedings, she responded: “That’s my strongest dialect that I could do the best.” She said the appellant speaks some Cantonese but he primarily speaks in his dialect. She also used sign language with him. She “spoke Cantonese with a little bit of Taishan dialect in it”, “not fully Taishanese”. She acknowledged that she did not understand the appellant fully.

[25] She admitted that she asked the appellant in Cantonese whether he could hear and translated him as saying he could hear when in fact, he said he could not. She admitted she mistranslated him. Similarly, the instruction she gave him to push her if he could not hear was in Cantonese.

[26] Ms. Chong took over for the remainder of the trial. Ms. Chong listened to the audio recordings for the preceding days of the trial. For those that were audible, Ms. Chong stated that Ms. Auyang was not interpreting from English to Taishanese but to a very standard form of Cantonese. She stated that the appellant speaks a regionally distinct form of Taishanese that is very different from Cantonese. He would understand some words but not the entirety of the proceedings. For instance, on April 1, Ms. Auyang interpreted him as saying: “Now I can hear, now I can hear” when he actually said “I cannot hear.” On the same day, Ms. Auyang told him in Cantonese: “We want to know exactly at what time you can hear and at what time you cannot hear.” The appellant responded: “Only can hear some whenever, now does not work. I cannot hear.” However, Ms. Auyang interpreted this as: “Now it’s working.”

[27] Ms. Chong maintained that Ms. Auyang “never spoke one word Taishanese. It’s all in Cantonese.”

(c) MAG’s Interpretation Evaluation Assessments

[30] In response to the appellant’s allegations of errors identified by Ms. Chong, the Crown requested that the MAG Court Interpretation Unit (the “CIU”) obtain an Interpretation Evaluation Assessment.

[31] The CIU sent a five-minute segment of the trial recording for an Interpretation Evaluation Assessment to be done by Yuki Eng. Ms. Eng concluded that Ms. Auyang’s interpretation “was 100% in Cantonese”…

[33] The CIU also retained Wanru (Angie) Gong to perform an audit of Ms. Auyang’s interpretation. Ms. Gong was qualified for interpretation in 2018 or 2019. Ms. Gong also stated that the interpretation was “100% Cantonese” and “not…Taishanese at all…”

…Ms. Gong believes that Ms. Auyang should “speak louder” and “pay attention [to] numbers while doing interpretation”. Examples of errors on the assessment form she completed include:

 “At approximately 12:50 PM” was interpreted as “At approximately 12:13 PM”;

 “Approximately 27 years” was interpreted as “approximately 20 years”;

 “it was a palm print in blood in a bicycle seat” was interpreted as “it was a fingerprint in blood in a bicycle seat”;

 “We are talking about a minute and maybe 25 seconds later” was interpreted as “We are talking about at time of 10:45”;

 “we’re looking at the December 16 report that you prepared” was interpreted as “we’re looking at the [not clear about the month] 14 report that you prepared”.

[34] Ms. Gong was mostly unresponsive to the questions on cross-examination as she did not remember much about the case except that the interpreter was speaking in Cantonese.

(d) Expert Reports

[35] Genevieve Yuek-Ling Leung prepared an expert witness report dated July 31, 2023 for the Crown. She has a Ph.D. in Educational Linguistics from the University of Pennsylvania…

[36] She wrote that Taishan is a county-level city of Guangdong province in China. The area was agrarian and most people lived in villages with others of the same surname. Most people born and raised in Taishan speak Taishanese. Because of migration and intermarriage, many people in the region also speak some form of (standard or near-standard) Cantonese…

[39] Professor Leung was asked to what extent she expected Cantonese to be comprehensible to a monolingual Taishanese speaker, and she said that “it depends on social factors like education and interpersonal networks” and later added vocation and age of exposure to Cantonese. She opined that “for someone with limited schooling and whose life centered around the village or the countryside, or solely worked in communities with other Taishanese people, it is possible to live without much Cantonese exposure at all…”

[40] Jia Wang is the interim director of the China Institute at the University of Alberta…

…She described the Chinese language as follows:

Chinese is a cluster of languages spoken by the Han Chinese majority and some ethnic minority groups. Though often referred to simply as “Chinese”, many of the spoken varieties known as “fang yan” or dialects, are mutually unintelligible…

Taishanese, spoken primarily by residents of Taishan of Canton (Guangdong) Province and those migrated from the region, is known in China as a unique dialect that is difficult for non-speakers to understand…

(e) Evidence from the Appellant and Other Witnesses

[41] As part of the fresh evidence filed, the appellant was interviewed on May 20 and 27, 2021 and cross-examined on January 24 and February 27, 2024. In his interview he said he could not understand what was being said before Ms. Chong took over the interpretation at the trial but he did not remember much as the trial was so long ago. When asked whether he could speak Cantonese, he stated: “Well I cannot speak Cantonese, sometimes I could say something they may understand but I speak Taishan.” When asked if he had friends or family that only speak Cantonese, he said: “Cantonese, sometimes something understood, and sometimes not understood.”

[42] When asked how much of the trial he understood, the appellant replied that he did not “understand any, any day because I feel like I am a bull.” He said that neither the judge nor his lawyer asked him if he could understand and he could not hear what was being said. He maintained he said he could not hear but they didn’t do anything. He told his wife he did not understand.

[43] The appellant did not tell the interpreter that he did not understand nor did he tell his lawyer. He acknowledged he had difficulty hearing.

[45] The deceased’s son, Wan Peng Mei, gave evidence at trial, part of which the respondent relies on regarding the s. 14 ground of appeal. Mr. Mei stated that he had worked at the same place as the appellant and would drive him home most days. They spoke in the car. Mr. Mei stated that the appellant sometimes spoke in Cantonese and sometimes in Taishanese. When asked about this in crossexamination, the appellant maintained he spoke with the deceased’s son in Taishanese.

[46] The appellant’s wife, Bi Lian Chen, provided an affidavit and was crossexamined as part of the fresh evidence on appeal. She only speaks Taishanese. During the first half of the trial, she noticed that the interpreter was not fluent in Taishanese. She raised the issue with her son-in-law who in turn raised the issue with their lawyer, but she asserted that nothing was done until a second interpreter who could speak Taishanese started to interpret.

(3) Applicable Legal Principles

[57] The leading case in Canada on s. 14 of the Charter is Tran. In that decision, Lamer C.J. noted at pp. 960-61 that s. 14 confers on an accused “a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court”.

[58] He also described at p. 977 the purposes served by s. 14:

First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society’s claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.

[59] A party must have the same opportunity to understand and be understood as if they were conversant in the language being used in the proceedings: at pp. 977-78…

…“Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others…”

[60] To establish a breach of s. 14, first it must be clear that the accused was in need of interpreter assistance – they did not understand or speak the language used in court. In this regard, courts have an independent responsibility to ensure the accused understands the language and is understood. Establishing need is not normally an onerous step unless the issue of interpretation is being raised for the first time on appeal and/or there is some question as to whether it is being raised in bad faith: Tran, at p. 979.

[61] Second, the accused must show a departure from the standard of interpretation that is required to ensure that they have the same opportunity to understand and be understood as if they were conversant in the language used in court. This standard can be helpfully defined by reference to a number of criteria, including continuity, precision, impartiality, competency, and contemporaneousness: Tran, at p. 985; Rybak, at paras. 80-81. Precision and competency, which are the principal elements engaged on this appeal, must ensure that the interpretation is of a high enough quality to ensure that justice is done and seen to be done.

[62] Third, the accused must establish that the alleged lapse in interpretation occurred in the course of the proceeding itself when a vital interest of the accused was involved – i.e., when the case was being advanced: Tran, at pp. 979-80; Rybak, at para. 86.

[63] According toTran, the question is whether there is a possibility that accused parties may not have understood a part of the proceedings by virtue of their difficulty with the language used in court: at pp. 990-91. That said, the standard of interpretation under s. 14 is not perfection. The burden of proof is on the accused and the standard of proof is balance of probabilities. [Emphasis by PJM]

[64] Chief Justice Lamer described the question to be answered at pp. 990-91 of Tran:

Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right – namely, that of linguistic understanding – should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.

[65] A court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case: Tran, at p. 994.

[67] The absence of a timely objection does not constitute a waiver of the s. 14 right. Nor is it determinative of a s. 14 claim on appeal: R. v. Mitroi, 2018 BCCA 236, 362 C.C.C. (3d) 374, at para. 31. It can, however, be a very serious consideration in determining whether the accused has satisfied the burden of proving that interpreter assistance was required and that the interpretation provided fell short of the requisite standard. This is particularly relevant in situations where the accused needs only limited assistance from the interpreter and is able to follow the court’s direction that they speak up about interpretation problems, but fails to do so: Rybak, at paras. 94-96 and 101; L.C.T., at paras. 82- 85.

[68]…As the Saskatchewan Court of Appeal noted inR. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at para. 54: “a claimant who lacks comprehension or the ability to communicate may be totally unaware of deficiencies in the interpreter assistance provided.” This is one of the challenges associated with a lack of complaint. If the accused do not understand or speak English, how are they always to know whether something has been improperly interpreted?

(4) Application of Principles

[69] Applying these principles to this case, I will first summarize the context. The accused was 70 at the time of the offence and at the time of trial 4 1/2 years later, 74 years old. 3 He was diagnosed with late onset schizophrenia…

…As evident from the trial transcript, he also had some hearing impairment. He did not testify so there was no opportunity for the trial judge to observe the interaction between him and others while on the stand. His education consists of two years of intermittent elementary school in a village in China in the 1940s and 1950s and he is illiterate. He does not speak nor understand English. As such, he was dependant on the interpreter for his trial for second degree murder.

[70] The appellant’s need for an interpreter is uncontroverted and thus the first element required to satisfy a s. 14 breach as described in Tran is readily satisfied…

…As mentioned, the challenged interpretation occurred over the course of eight days of trial during which the Crown presented its opening statement and 12 witnesses testified. This leaves the second step that the appellant must satisfy to establish a breach of s. 14 of the Charter: He must show that the interpretation at his trial fell below the constitutionally guaranteed standard.

[71] The appellant was to have a Taishanese interpreter. Although Ms. Auyang was a conditionally accredited Taishanese interpreter, based on audio recordings they reviewed, the two external interpreters contracted by MAG’s CIU to audit the interpretation conducted by Ms. Auyang, both opined that her interpretation was “100% in Cantonese”. Ms. Chong viewed the appellant’s family as friends and considered the appellant to have been wrongfully convicted. Nonetheless, her interpretation was never disputed. She reviewed excerpts of Ms. Auyang’s trial interpretation and was also of the view that it was in Cantonese, not Taishanese.

[74] The experts, Dr. Leung and Ms. Wang, and Ms. Chong all rejected Ms. Auyang’s assertion that Taishanese and Cantonese were essentially the same language with some variation of tones and accents

[76] As Tran instructed, prejudice is not required to establish a breach of s. 14 although Saini, at para. 37 suggests that the number, quality and impact of the interpretation errors are relevant. See also S.A., at paras. 26-32.

[77] The record does disclose important errors. On April 1, 2019, an issue was raised by Ms. Auyang about the microphones. She said, “He couldn’t hear anything”. After the audio equipment was adjusted, the trial judge asked the appellant whether it was working now. According to Ms. Chong, the appellant said “I cannot hear”, yet Ms. Auyang interpreted him as saying “Now I can hear. Now I can hear.” Later that same day, during the segment of the audio that Ms. Eng was asked by the CIU to evaluate, Mr. Chen said, “With the interpretation, then I can hear. At the end of the conversation I couldn’t hear it clearly. I can hear it now after it’s fixed.” but Ms. Auyang added in the English translation “[i]nterpretation was ok.”

[80]…I am satisfied that the appellant has met his onus that on a balance of probabilities his s. 14 rights were breached. Chief Justice Lamer instructed in Tran, at pp. 990-91 that “the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.” This court’s decisions in S.A. and Saini have characterized this threshold as a “real possibility” of not understanding the proceedings. Given that the standard guaranteed by s. 14 is not one of perfection, in my view, this is a fair characterization. That said, on either description, the appellant has met his onus.

[84]…when I consider the whole of the record and the state of the appellant – a unilingual, non-English speaking, uneducated, unsophisticated, elderly accused who was diagnosed with late-onset schizophrenia and for whom a cognitive disorder could not be ruled out – I am persuaded that there was a real possibility that the appellant may not have understood the proceedings by virtue of his difficulty with the language used by the interpreter in court. I view this as a rather unique case. A failure to complain during the trial is not a bar to a s. 14 ground of appeal but will typically weigh very heavily against an accused. Here however, the appellant had an interpreter in his trial for second degree murder but not for the language he spoke and understood. [Emphasis by PJM]

[85] It remains to address whether, as the appellant submits, a voir dire into the qualifications of Ms. Auyang ought to have been conducted as suggested in Dutt.

[87]…a trial judge’s gatekeeping role includes being satisfied with the qualifications of the interpreter. Where there is legitimate reason to doubt the interpreter’s competence, the trial judge should conduct an inquiry into the interpreter’s qualifications: Tran, at p. 988; Rybak, at para. 83; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at para. 108.

[88] A trial judge should inquire into whether the proposed interpreter has been accredited or conditionally accredited by MAG. Neither the presence nor absence of accreditation can be considered dispositive of whether the interpretation provided is competent: Rybak, at para. 84; Singh, at para. 109. If a proposed court interpreter is not accredited or conditionally accredited by MAG, though discretionary, a trial judge should give serious consideration to conducting a voir dire. SeeR. v. Gadam, 2015 ONSC 7204, at para. 10. For lengthy and complex proceedings, it may be advisable to err on the side of caution. The greatest degree of confidence will be provided where an interpreter has been tested in both the language used in court and the language of the accused: Dutt, at para. 97. At the same time, a trial judge must always be mindful that court time be used efficiently and may consider a voir dire to be unnecessary.

[90] After the proceeding has begun, the trial judge and both counsel should remain alert to any interpretation problem that appears to arise. Some interpretation errors or lapses can be adequately cured by having the court reporter read back the relevant parts so that they can be re-interpreted: Tran, at p. 1010. The presiding judge may also offer to re-commence the hearing of an issue to cure the absence of an interpreter or any interpretation issue that has occurred: Rybak, at para. 45. At times, it may even be necessary to conduct a further inquiry into the interpreter’s competence: M.R., at paras. 34-40.

[91]…The need for a competent interpreter should be raised at the earliest opportunity so as to ensure that no difficulties subsequently arise.

[92] No voir dire was conducted into the competency of Ms. Auyang. At a minimum, it would have revealed that she was conditionally accredited and might have revealed that she was never tested in Taishanese…

[93] To close, as Lamer C.J. observed in Tran, at pp. 976-77, “a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system.” As I have concluded that the appellant’s s. 14 Charter right was breached, I would order a new trial. Under the circumstances, there is no need to address the remaining grounds of appeal.

DISPOSITION

[94] For these reasons, I would allow the appeal based on a breach of s. 14 of the Charter. In the circumstances, I would order a new trial.

R v Nettleton, 2025 ONCA 155

[March 3, 2025] Guilty Plea: Importance of Arraignment and the Effect of Segregation and Possibility of a Federal Sentence on the Reliability of a Guilty Plea [Reasons by J. George J.A. with K. van Rensburg, and S. Gomery JJ.A. concurring]

AUTHOR’S NOTE: Arraignment requires an accused to enter a clear plea to each specific charge before the court. In this case, confusion arose because the charges were grouped together, and the accused’s plea was recorded as a general plea to “the other charges”. The Court found this insufficient to establish a valid guilty plea, especially for a self-represented accused.

Additionally, the case examined how lengthy segregation and the possibility of federal correctional placement—which is often preferable for remand prisoners—can impact the voluntariness of a guilty plea. The failure to conduct a proper plea comprehension inquiry under s. 606(1.1) of the Criminal Code further undermined the plea’s validity, leading to the conviction being overturned.

OVERVIEW

[1] On August 6, 2022, while the appellant was in custody at the Toronto South Detention Centre (“TSDC”), correctional officers found threatening letters outside the appellant’s cell addressed to the TSDC Security Deputy and to the Superior Court justice who was presiding over the appellant’s then-outstanding dangerous offender proceeding.

[2] The appellant was charged with two counts of intimidating a justice system participant contrary to s. 423.1(1)(b) of the Criminal Code and one count of uttering a threat to cause death to the TSDC Security Deputy contrary to s. 264.1(1)(a). Later that month, the appellant was charged on a separate Information with uttering a threat to damage property, and with mischief, both relating to his destruction of a laptop in his cell.

[3] Over the course of several pretrial court appearances, the appellant expressed a desire to plead guilty to the charges on the first Information – two counts of intimidation and one count of uttering a threat – and was prepared to accept the Crown’s proposed sentence. The appellant stated that he would not plead guilty to the mischief count on the second Information, and the Crown agreed to withdraw that charge.

[4] When the time came for arraignment, the trial judge read out three counts: one count of intimidating a justice system participant, the TSDC Security Deputy; one count of uttering a threat to cause death to the TSDC Security Deputy; and one count of uttering a threat to damage property. The appellant immediately objected, noting that he had not agreed to plead guilty to the mischief . Crown counsel agreed not to proceed with the threat to damage property count. The trial judge then asked the appellant for his plea, and the appellant affirmed that he would plead guilty. The appellant was never formally re-arraigned.

[5] The appellant was sentenced to three years’ imprisonment. At his request, the appellant did not receive any credit for the time he had spent in presentence custody. More than two months later, the trial judge, Crown counsel, and the appellant reconvened, and the trial judge imposed several ancillary orders.

[8] The Crown concedes that the appellant was not properly arraigned on the second intimidation count, but submits that this is a curable error under s. 686(1)(b)(iv) of the Criminal Code, since in the circumstances of this case no prejudice occurred…

[9] I would allow the appeal, set aside the guilty pleas entered by the appellant, and order a new trial. I agree with duty counsel that the appellant was found guilty of an offence for which he had not been properly arraigned,…

… Further, the fresh evidence, which I would admit, as well as red flags that would have been apparent even without that evidence, should have prompted the trial judge to conduct a more comprehensive plea inquiry.

PROCEDURAL HISTORY

First Call Court Appearances

[10] Following his arrest on August 8, 2022, the appellant repeatedly advised various justices of the peace and judges that he wanted to resolve his charges by pleading guilty:

Judicial Pretrial

[13] The appellant made two requests. First, he informed the Crown that he “would actually prefer not to be afforded any [presentence] credit”. Second, he asked that the count of mischief for the damage to the laptop be withdrawn: “I will plead to the uttering threats, I will plead to the intimidation charges, but I request that the mischief under for the laptop be withdrawn. That’s, that’s my position to enter a guilty plea”.

[14] The trial judge indicated that he would accept the appellant’s guilty pleas and adjourned the matter to November 28 for that purpose.

Pleas and Sentencing

[15] On November 28, 2022, the appellant appeared before the trial judge via Zoom. Before the appellant was arraigned and asked to enter his pleas, the trial judge conducted the following brief plea inquiry:

The court: Okay. So let me just – I want to say a few things on the record. Just to be absolutely fair to make sure you haven’t changed your mind between now and then [the judicial pretrial]. The first is, you don’t wish to have counsel to represent you. You wish to represent yourself?

The appellant: That is correct.

The court: Okay. And secondly, you’re aware of what I am likely to impose because that’s what you’re asking for and you don’t want me to give you any time off for the amount of time spent in pre-trial custody.

The appellant: Correct.

[16] Of note, during this brief inquiry the appellant was never asked whether he understood the essential elements of the offences to which he planned to plead guilty. Nor was he asked whether anyone was pressuring him to plead guilty, or had offered him anything in exchange for his pleas.

[17] The trial judge and the Crown then had this exchange:

The court: Okay. So, [Mr. Crown], on which charges is he to be arraigned?

The Crown: So, Your Honour, on the last [day] we discussed that, and [the appellant] said that his plea was contingent on the mischief charge being withdrawn. The Crown’s agreeable to that. So, so on the one Information he will be pleading to the two counts of intimidation of a justice system participant and one count of uttering threats, and on the other Information, which I will just pull up right now, he will be pleading to the uttering threats [to damage property], but not to the mischief under on that Information.

[18] After this exchange the clerk attempted to arraign the appellant, but because of some technical difficulties could not do so. The trial judge stepped in and read three counts to the appellant. He stated that the appellant was charged with: 1) on August 6, 2022, uttering a threat to cause death to the TSDC Security Deputy, contrary to s. 264.1(1)(a) of the Criminal Code; 2) on August 6, 2022, intimidating a justice system participant, namely the TSDC Security Deputy, contrary to s. 423.1(1)(b) of the Criminal Code; and 3) on August 29, 2022, uttering a threat to damage the personal property of the TSDC (the laptop), contrary to s. 264.1(1)(b) of the Criminal Code.

[19] The appellant immediately reminded the trial judge that he had not agreed to plead guilty to mischief (which is related to the threatening to damage property count). Crown counsel responded:

[T]hat is fine. I don’t completely disagree that those two counts are, are related. So given that there’s going to be a joint recommendation here on the far more serious counts, the Crown’s content to not proceed on the threatening to damage property. That is fine…

[20] The trial judge confirmed that the second Information, which charged the appellant with mischief and threatening to damage property, would be withdrawn. The trial judge then asked the appellant for his plea “on the other charges”, and the appellant responded, “the plea’s guilty, Your Honour.” [Emphasis by PJM]

There is significant confusion around what the appellant pleaded guilty to

[27] As discussed above, there were serious procedural irregularities in the appellant’s arraignment and pleas. Three counts were read to the appellant at the arraignment: one count of intimidation, one count of uttering threats to cause death and one count of uttering threats to damage property. The last of these was then withdrawn by the Crown. The trial judge then asked the appellant what his plea was “on the other charges”. The appellant pleaded guilty. The facts relating to the two counts of intimidation and one count of uttering threats to cause death were read out to the appellant and he admitted them. The Information and warrant of committal show that he was convicted of and sentenced on these three charges.

[28] However, the appellant was never re-arraigned on the count of intimidating a justice system participant in relation to the Superior Court justice. For this reason, and despite the pre- and post-trial discussions, the recorded conviction on the second count of intimidation of a justice system participant simply cannot stand. The appellant was not arraigned on that charge, and it was not made explicit that it was included in the “other charges” when the trial judge asked for his plea. I note further that the trial judge did not expressly identify the counts on which the appellant had been found guilty. He stated only that “[o]n the admitted facts, I’ll make findings of guilt on the charges upon which you have been arraigned.” [Emphasis by PJM]

[30] …The appellant was not formally arraigned on the second intimidation charge, and therefore could not have been found guilty of it.

[31] It would damage the integrity of the criminal justice system if an accused person could be convicted of an offence for which they were not arraigned or tried. In the circumstances, the appellant could have only properly been convicted of one count of intimidating the TSDC Security Deputy and one count of threatening death to the TSDC Security Deputy

The plea inquiry was insufficient and resulted in prejudice to the appellant

[36] Section 606(1.1) of the Criminal Code provides that:

A court may accept a plea of guilty only if it is satisfied that

a) the accused is making the plea voluntarily;

b) the accused understands

i) that the plea is an admission of the essential elements of the offence,

ii) the nature and consequences of the plea, and

iii) that the court is not bound by any agreement made between the accused and the prosecutor; and

c) the facts support the charge.

[37] Although the plea inquiry has been described as mandatory: R. v. G. (D.M), 2011 ONCA 343, 105 O.R. (3d) 481, at para. 42, by virtue of s. 606(1.2), the failure to “fully inquire” into the conditions in s. 606(1.1) “does not affect the validity of the plea.” When someone seeks to strike a guilty plea, and a complete inquiry was not undertaken, the question is whether allowing the plea to stand would amount to a miscarriage of justice: R. v. McIlvride-Lister, 2019 ONSC 1869, at para. 37. [Emphasis by PJM]

[38] The appellant’s insistence on not receiving credit for the 112 days he had spent in presentence custody was a red flag that should have alerted the trial judge to the possibility that the appellant’s guilty plea was motivated by something other than an acknowledgment of guilt. In R. v. Hanemaayer, 2008 ONCA 580, 239 O.A.C. 241, at paras. 17-20, this court held that although the plea was voluntary, informed and unequivocal, the appellant had pleaded guilty due to the “powerful inducement” of a reformatory instead of a penitentiary sentence, and the guilty pleas were set aside: see also R. v. Kumar, 2011 ONCA 120, 273 O.A.C. 130, at para. 34. [Emphasis by PJM]

[39] At the proceeding on September 8, 2022, the appellant asked the Crown “to see if my willingness to enter a voluntary guilty plea and what would be a joint submission, if [the Crown] would be willing to go on some type of record as supporting or like aiding a Federal like remand as part of my guilty plea.” As noted above, the judge explained that neither the court nor the Crown could promise that, but did say that if the appellant’s sentence was longer than two years he would automatically serve federal time.

[40] Then, at the proceeding on September 22, 2022, the appellant stated that he did not want to “languish in provincial” or spend another “six months rotting in provincial”. The judge (not the trial judge) asked, “Oh, you’re trying to go to the penitentiary? Is that what’s happening here”? She told the appellant and the Crown that she would not support “a joint recommendation between [the Crown and] a self-represented accused for three years when [she knew] nothing about [the appellant’s] personal circumstances”.

[41] The trial judge did not demonstrate this same caution, when the circumstances cried out for it, which I find irretrievably taints these plea proceedings.

The fresh evidence

[42] As noted above, the appellant filed a motion to introduce fresh evidence on appeal. Duty counsel did not take a position, and the Crown did not make any submissions, on this motion. I will address it nonetheless, as it bears on the fundamental question of whether sufficient steps were taken to ensure the integrity of the plea proceedings. As this court held in R. v. Faulkner, 2018 ONCA 174, at para. 87, even where a guilty plea is valid, appellate courts “retain discretion, exercisable in the interest of justice, to receive fresh evidence to explain the circumstances that led to the plea and to demonstrate that a miscarriage of justice has occurred”.

[43] The evidence consists of an affidavit sworn by the appellant on February 7, 2024, which explains his state of mind at the time he entered his guilty pleas, and includes institutional documents substantiating his claims. The affidavit discloses that the appellant suffers from a mental health condition that requires medication, and that he had not been taking his medication before entering the pleas. He had been in segregation for most of the 35 months leading up to his pleas, with very little meaningful human contact. The appellant explained further that he was induced to plead guilty by correctional officers who had implied that he would be better off if he could get a transfer to a federal institution and who provided advice on how to do so. [Emphasis by PJM]

[44] While this information was available and could have been tendered when the appellant entered his guilty pleas, I would still admit it. The due diligence requirement is not as stringently applied in criminal cases as in civil cases, and should not in these circumstances bar admission. The proposed evidence is credible in that it is reasonably capable of belief – the Crown did not present evidence to contradict it nor did it seek to cross-examine the appellant. And there is no question that 1) if this evidence had been before the trial judge, he would have engaged in a more comprehensive plea inquiry, and 2) if accepted, the evidence would have called into question the validity of the appellant’s pleas. This evidence bears upon both questions before us: 1) whether the appellant’s guilty pleas are valid, and 2) even if they are, would allowing them to stand give rise to a miscarriage of justice.

[47] I am of the view that the fresh evidence calls into question the validity of the appellant’s guilty pleas, and that to maintain them risks a miscarriage of justice.

CONCLUSION

[58] In light of the fresh evidence, and given the cumulative effect of all the above noted deficiencies and procedural irregularities, the appellant’s guilty pleas must be struck.

[59] For these reasons, I would allow the appeal, set aside the convictions, and order a new trial.

R v Roshuk-Finch, 2025 ABCA 85

[March 6, 2025] Sentencing: The Step Principle Defined and Mitigation for a Guilty Plea in Drug Treatment Court [Ritu Khullar C.J.A., Dawn Pentelechuk, Jolaine Antonio JJ.A.]

AUTHOR’S NOTE: The step principle is not a formal sentencing principle, but rather a logical framework for sentencing progression. The Court ruled that it cannot be applied mechanically or in a way that undermines proportionality, which remains the primary sentencing principle. Notably, the step principle should not be applied when an offender has been convicted but not yet sentenced for a prior offence. Misapplying it is an error in principle, allowing an appellate court to reassess sentencing without deference to the trial judge.

Additionally, the Court found it wrong to deny mitigating credit for a guilty plea simply because it was a requirement for entry into Drug Treatment Court, even if the offender did not complete the program. This reinforces the principle that guilty pleas should be recognized as mitigating factors in sentencing.

Introduction

[1] The appellant pleaded guilty in April 2023 to various offences contained in four informations: three counts of possession of stolen property over $5000 (s 355(a) of the Criminal Code); unauthorized possession of a firearm (s 91(1)); robbery (s 344(1)(b)); possession of a weapon (bear spray) for a dangerous purpose (s 88(1)); and failure to comply with a release order (s 145(5)(a)). Following his guilty pleas, the appellant was accepted into the Drug Treatment Court in Calgary (the Program). His sentencing was adjourned pending completion of the Program.

[2] Approximately one month later, in late May 2023, the appellant was terminated from the Program and directed to turn himself into the Grande Prairie RCMP the following day. He failed to do so. Shortly after, the appellant was charged with two counts of motor vehicle theft, failing to comply with a release order, failing to surrender himself in accordance with an order, and obstructing a peace officer (the additional offences). The appellant was also charged with other offences that the Crown later withdrew.

[3] The appellant was readmitted into the Program in November 2023 and completed 71 days of treatment.

[4] In February 2024, the appellant pleaded guilty to the additional offences and was sentenced for both sets of offences. The sentencing judge imposed a global sentence of 1175 days, less 71 days for attending the Program and 552 days in enhanced credit for time served in remand, leaving 552 days to serve. A lifetime weapons prohibition and DNA order were also imposed.

[5] The appellant appealed his sentence arguing the sentencing judge erred in denying the appellant mitigation credit for his guilty pleas on the original offences, erred in her application of the step or jump concept to a youthful offender’s first adult sentencing, and erred in failing to give proper effect to the principles of totality and restraint, and to Gladue factors.

[6] Following the sentence appeal hearing, we allowed the appeal, substituting a global sentence of 22 months less 552 days of enhanced remand credit, with reasons to follow. These are those reasons.

The Sentencing Hearing

[7] The appellant is Métis and was 18-19 years old at the time of these offences.

[8] While the appellant waived his right to a formal Gladue report, his counsel alluded to the various Gladue factors that impacted his moral blameworthiness and why he may have acted the way he did. The appellant experienced dislocation at a very young age and lacked a good role model growing up. He was apprehended from his biological parents at the age of two. He remained in foster care until he was five years old, when an aunt and uncle adopted him and his two older siblings. The appellant’s stability was further compromised at age nine, when his adoptive father died, and his adoptive mother was seriously injured in an accident.

[9]…At the age of 13, his biological mother encouraged him to run away from his adoptive mother, making unkept promises to him such as living in a home where he would have his own bedroom. In reality, however, the home was a onebedroom trailer in a rural field. Instead of love and support, the appellant’s biological mother took overt steps to influence him in a negative direction at a formative stage in his life. She gave her 13-year-old son methamphetamine and a gun with instructions to shoot anyone who entered the trailer, while she and her boyfriend left him alone. Not surprisingly, the appellant became involved with drugs, addictions and the youth criminal justice system. As his adoptive mother poignantly wrote in a letter to the sentencing court:

You have no idea how heartbreaking it is to have your son sit in your room on the floor and tell you that the only time he has felt useful, hopeful and worthwhile since he was 13 was when he was in EYOC [youth detention] and able to sell his art and have the profits go to digging wells in Africa.

[10] The appellant’s adoptive mother described him as intelligent, artistic, hard-working and very caring and polite when not using substances. She remained fully supportive of him and hoped he would be granted a conditional sentence.

[11] In addressing the court, the appellant accepted full responsibility and expressed remorse for his actions:

The Sentencing Decision

[13] Although neither the Crown nor defence counsel alluded to the step or jump concept at the sentencing hearing, the sentencing judge nevertheless employed the “step principle”, which is sometimes invoked when sentencing for repeated or similar offences. The sentencing judge applied this concept to the possession of stolen property and theft charges “in relatively shallow increments . . . so as to respect the totality principle and this accused’s diminished moral culpability as a result of the Gladue factors”.

[14] As noted, the sentencing judge imposed a global sentence of 1175 days, less credit for time in the Program and enhanced credit for time in remand.

Analysis

Failure to give proper effect to the original guilty pleas

[16] The Crown at the sentencing hearing suggested that while it was appropriate to consider granting the appellant credit of 71 days for his participation in the Program, mitigating credit for pleading guilty was not mandatory or automatic. The sentencing judge accepted this argument. She credited the appellant 71 days for his time in the Program but did not otherwise treat his guilty pleas to the original offences as mitigating.

[17] In our view, this was an error in principle. Reducing the appellant’s global sentence by only 71 days does not properly account for the distinct mitigating features of the appellant’s guilty pleas to the original offences.

[18] The appellant’s participation in the Program warranted mitigating credit because it demonstrated significant efforts toward rehabilitation, even though he did not complete the Program: R v McDonald, 2015 ABCA 108 at paras 36-37; see also R v Salama, 2018 ABCA 227 at para 15. The 71-day deduction credited the appellant for his commitment to recovery and the considerable success he had while in the Program. A representative from the Program highlighted the appellant’s accomplishments while in treatment:

 he was awarded the role of peer mentor for his dedication to recovery, positive attitude, willingness to help newcomers, his role model behaviour, and his focus on recovery;

 he attended 64 recovery meetings;

 he completed the Thorpe lecture series comprised of 43 lessons;

 he completed Thorpe’s individual counselling sessions and began working with a psychologist; and

 he received positive feedback from the justice in the course of his treatment.

[19] The fact that entry into Drug Treatment Court requires a waiver of the right to trial and a guilty plea does not negate the mitigating effect of the guilty plea itself. The guilty pleas to the original offences have mitigating effects that are distinct from the appellant’s accomplishments during treatment. The guilty pleas not only reflected an early acceptance of responsibility and saved the time and resources that would have been required if the appellant proceeded to trial, but they also evidenced early commitment and concrete action towards rehabilitation…

Misapplication of the step concept

[20] As this Court explained in R v Cardinal, 2017 ABCA 396 at paras 24-25, the “step or jump principle” is not a principle of sentencing at all, but a concept that suggests a form of logical progression should be applied to sentences. To the extent this concept is thought to justify an increase in sentence, it should not be applied mechanically or reflexively. Application of the concept cannot undermine proportionality, the primary principle of sentencing. The logical progression concept is usually invoked to limit the increase in sentence for a repeat offender. It generally serves the principle of restraint. If there is a basis to increase a sentence for a repeat offence, the increase should not be a large “jump”.

[23] While the sentencing judge properly considered the appellant’s youth criminal record, she needed to also consider that the sentencing in question was the first time the appellant was to be sentenced as an adult: R v Lavallee, 1995 ABCA 85 at paras 3-4.

[24] The longest global youth sentence the appellant received was 360 days in closed custody. As the sentencing judge noted, the appellant’s last conviction for possession of stolen property over $5000 was in June 2021—two and half years before the sentencing in question—for which he received a youth custodial sentence of 120 days. The global sentence of 1175 days imposed was a significant jump that does not properly reflect the principle of restraint. [Emphasis by PJM]

[25] We also observe that the step concept is generally understood to apply from one sentencing to the next, not to various convictions captured within a single sentencing. The general rule is that before an increase in sentence can be imposed for a repeat offence, that offence must have been committed after conviction and sentencing for the initial offence: R v Skolnick, [1982] 2 SCR 47 at 58-59, 138 DLR (3d) 193 [Skolnick]; R v MV, 2023 ONCA 724 at paras 63-64. The rationale for applying the step concept is absent when the offender has not had the effect of the earlier sentence to deter their conduct: Skolnick at 54. [Emphasis by PJM]

[26] The sentencing judge erred in applying these principles. The appellant committed the additional offences after pleading guilty to the initial offences. However, he had not yet been sentenced for the initial offences, nor had he served any part of the sentences for those offences. The rationale for the step concept was not engaged. It was therefore an error to increase the sentence for the subsequent repeat offences on the basis of the step concept.

Inadequate Gladue analysis

[27] The sentencing judge’s decision to apply the step concept to increase the sentences for possession of stolen property and theft also bled into her assessment of the appellant’s Gladue factors. A proper Gladue analysis achieves a proportionate sentence: R v Swampy, 2017 ABCA 134 at para 26. While there was no Gladue report, submissions were made respecting Gladue factors which the sentencing judge accepted impacted the appellant’s moral culpability “to some degree”…

…functional and contextual reading of her reasons is devoid of any indication that the sentencing judge engaged in the necessary analysis with respect to all the charges the appellant was being sentenced for. As this Court stated in R v Rabbit, 2023 ABCA 170 at para 47:

To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.

[28] The sentencing judge’s reasons fall short of this required level of analysis.

Conclusion

[29] Having concluded the sentencing judge made errors in principle that affected the sentence, it is open to us to sentence afresh…

…We conclude a proportionate global sentence in these circumstances is 22 months’ imprisonment, less 552 days of enhanced credit for pre-sentence custody, leaving a balance which has been satisfied by time served. The lifetime weapons prohibition and DNA order remain.

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