R. v. Boalag, 2019 NLCA 35

Sofyan Boalag (applicant/appellant) v. Her Majesty the Queen (respondent) (17/98) Indexed As: R. v. Boalag 2019 NLCA 35 4 C.A.N.L.R. 479 Court of Appeal of Newfoundland and Labrador Welsh J.A. May 28, 2019

Summary: The appellant applied under

section 684 of the Criminal Code for an appointment of counsel for his conviction and sentence appeal. The appellant was convicted of several offences, including sexual offences. He was declared a dangerous offender and sentenced to an indeterminate sentence. Held: Application allowed. Welsh J.A.: The appellant does not have the means to engage legal counsel for his appeal, and he has been refused legal aid by Legal Aid NL. It is desirable in the interests of justice that the appellant should have legal assistance for his appeal. The imposition of an indeterminate sentence is a very serious consequence.

The appellant has limited ability with the English language and with legal concepts. In the absence of counsel, all the possible issues on appeal may not be identified and adequately addressed. Counsel: Appearing on his own behalf, the applicant/appellant; Lisa Stead, for the respondent; Jessica Pynne, for the Attorney General. This application was heard before Welsh J.A. and judgment rendered orally on May 28, 2019.

The following memorandum of disposition was filed on May 30, 2019 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] This is an application by Sofyan Boalag for the assignment of counsel pursuant to

section 684 of the Criminal Code . The application was granted at the hearing. [ 2 ] On September 23, 2016, following application of the Kienapple principle, Mr. Boalag was convicted of three counts of sexual assault with a weapon committed against three different victims, two counts of robbery, one count of possession of a prohibited weapon, one count of overcoming resistance to the commission of an offence by attempting to choke the victim, and one count of resisting arrest. On November 9, 2017, following an application by the Crown, Mr.

Boalag was declared a dangerous offender and sentenced to concurrent indeterminate terms of imprisonment ( 2017 NLPC 0113A00338 , 2017 CarswellNfld 430 ). [ 3 ] In considering the criteria relevant to the application of

section 684 of the Code , I was satisfied that Mr. Boalag does not have the means to engage legal counsel for his appeal, and that he has been refused legal aid by Legal Aid NL. [ 4 ] Further, I was satisfied that it is desirable in the interests of justice that Mr. Boalag should have legal assistance for his appeal.

The imposition of an indeterminate sentence is a very serious consequence. Mr. Boalag has limited ability with the English language and with legal concepts. I am not satisfied that, in the absence of counsel, all the possible issues on appeal would be identified and adequately addressed. While the trial judge provided comprehensive reasons for her decisions, I am not satisfied that the Court would be in a position to effectively hear and decide the appeal without the assistance of counsel. [ 5 ] In the result, I granted Mr. Boalag’s application. Application allowed.