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Constitution (Non-Charter) - Language [s.133]. R. v. Tayo Tompouba
In R. v. Tayo Tompouba (SCC, 2024) the Supreme Court of Canada allowed an appeal from a BC Court of Appeal which "erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C. [SS: 'Language of Accused'], that his fundamental right to be tried in the official language of his choice had in fact been violated".
Here the court discusses Charter and other constitutional language provisions:[28] This appeal relates to institutional judicial bilingualism, which ensures equal access to the courts for members of Canada’s linguistic communities (see Beaulac, at para. 28; Bessette, at para. 20). The inextricable link between institutional judicial bilingualism and the protection of linguistic minorities, as well as the importance of these two concepts, are reflected in Canada’s constitutional fabric (see Conseil scolaire francophone de la Colombie‑Britannique, at para. 12, per Wagner C.J., and at paras. 188‑89, per Brown and Rowe JJ., dissenting; J. D. Richard, “Le bilinguisme judiciaire au Canada” (2001), 42 C. de D. 389, at p. 395).
[29] First of all, the Constitution Act, 1867 sets out limited positive rights that protect the use of English and French in certain federal and Quebec institutions, including judicial institutions:133 Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. [30] In addition, echoing s. 133 of the Constitution Act, 1867 and strengthening the constitutional protection provided to linguistic minorities across the country, ss. 16 to 20 of the Canadian Charter of Rights and Freedoms set out a series of legal guarantees that ensure institutional bilingualism at the federal level. These guarantees are not subject to the notwithstanding clause in s. 33 of the Charter (see R. J. Sharpe and K. Roach, The Charter of Rights and Freedoms (7th ed. 2021), at pp. 433‑34).
[31] In this case, it is ss. 16 and 19 of the Charter that should be focused on specifically. After stating, in the first subsection, that English and French are the official languages of Canada and that these two languages have “equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada”, s. 16 specifies, in the third subsection, that Parliament and the legislatures remain free at all times “to advance the equality of status or use of English and French”. As for s. 19, it specifically guarantees, in the first subsection, the right to use either English or French in, or in any pleading in or process issuing from, any federally established court (see Sharpe and Roach, at p. 433).
[32] The combined effect of s. 133 of the Constitution Act, 1867 and s. 19(1) of the Charter is to guarantee to every person the right to speak in the official language of their choice in judicial proceedings at the federal level and in Quebec (Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 CanLII 66 (SCC), [1986] 1 S.C.R. 549, at pp. 574‑75; R. v. Mercure, 1988 CanLII 107 (SCC), [1988] 1 S.C.R. 234, at p. 297‑98, per Estey J., dissenting; Hogg and Wright, at § 56:9; Sharpe and Roach, at p. 433). This guarantee is a “constitutional minimum” that can be supplemented by federal and provincial legislation in order to advance the equality of status and use of English and French by conferring additional linguistic guarantees (see s. 16(1) and (3) of the Charter; Jones v. Attorney General of New Brunswick, 1974 CanLII 164 (SCC), [1975] 2 S.C.R. 182, at pp. 192‑93; MacDonald, at p. 496; Reference re Manitoba Language Rights, 1992 CanLII 115 (SCC), [1992] 1 S.C.R. 212, at pp. 222‑23; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774, at para. 56; Sharpe and Roach, at p. 432).
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