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Criminal - Language
MORE CASES
Part 2
. 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":I. Overview
[1] In Canada, s. 530 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), guarantees to every accused the right to be tried in the official language of their choice. This is a fundamental right of vital importance. It ensures equal access to the courts for accused persons who speak one of the two official languages and thereby assists in preserving the cultural identity of English and French linguistic minorities across the country.
[2] To make certain that an accused is able to choose the language of their trial in a free and informed manner, Parliament has imposed an informational duty for this purpose on the judge[1] before whom the accused first appears. This very important duty, set out in s. 530(3) Cr. C., requires the judge to ensure that the accused is advised of their right to apply for a trial before a judge or a judge and jury, as the case may be, who speak the official language of their choice, and of the time before which the application must be made.
[3] However, there may be cases in which accused persons are not duly informed of this fundamental linguistic right and of how it is to be exercised. This appeal is an example of such a situation, and it is a reminder that Canada’s linguistic minorities too often still experience difficulties in accessing justice in the official language of their choice.
[4] This appeal provides the Court with an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) Cr. C. when no decision on the accused’s language rights was made at first instance. Thus far, the lower courts are not in agreement on the framework to be applied. While some appellate courts find that such a breach in itself warrants a new trial, others, including the Court of Appeal in this case, instead take the view that the evidence in the record must make it possible to conclude that the breach in fact resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice. This Court is thus called upon to settle this debate.
[5] For the reasons that follow, I am of the view that a breach of s. 530(3) Cr. C. is an error of law warranting appellate intervention under s. 686(1)(a) Cr. C. According to the jurisprudence, an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, through a decision or an improper omission, as long as the error is related to the proceedings leading to the conviction and was made by a judge. A breach of s. 530(3) Cr. C. corresponds precisely to this definition. It involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction. A breach of s. 530(3) Cr. C., once established, has the effect of tainting the trial court’s judgment. It gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv) Cr. C.
[6] In addition to being in harmony with the scheme for conviction appeals, this framework strikes an appropriate balance. On the one hand, it takes into account and gives effect to the purpose of s. 530 Cr. C., which is to support the preservation and development of linguistic minorities across Canada by ensuring equal access to the courts in criminal proceedings. On the other, it prevents the risk that an accused who has been convicted will improperly take advantage on appeal, for an ulterior motive, of a breach of s. 530(3) Cr. C. that occurred at first instance. This is because the framework laid down gives the Crown an opportunity to persuade the court of appeal that the accused’s fundamental right to be tried in the official language of their choice was respected, despite the breach of s. 530(3) Cr. C. If the Crown succeeds, the appeal can then be dismissed. For this reason, the framework significantly limits the risk of language rights being instrumentalized on appeal — a highly objectionable practice that must be sanctioned to the greatest extent possible.
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[22] For the reasons that follow, I am of the view that the applicable framework must be based on the principles enunciated in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, and must also be in harmony with the logic and structure of s. 686 Cr. C. Simply showing that s. 530(3) Cr. C. was breached is sufficient to justify appellate intervention under s. 686(1)(a)(ii) Cr. C. A breach of s. 530(3) Cr. C. is an error of law and gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was infringed. The Crown can then rebut this presumption at the stage of the curative proviso analysis. If the Court of Appeal had applied the proper framework, it would have allowed Mr. Tayo Tompouba’s appeal, quashed his conviction and ordered a new trial.
IV. Analysis
[23] It is appropriate to begin the analysis with an overview of language rights, institutional judicial bilingualism, the rights guaranteed by s. 530 Cr. C. and the powers of a court of appeal hearing an appeal against a conviction.
A. Language Rights: Purpose, Nature and Interpretation
(1) Purpose and Nature
[24] The purpose of language rights is to “protect official language minorities in this country and to insure the equality of status of French and English” (Beaulac, at para. 41). These rights are “a fundamental tool” for the preservation and development of Canada’s two official language communities (Beaulac, at para. 25, citing Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 CanLII 119 (SCC), [1993] 1 S.C.R. 839, at p. 850; see also Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261, at para. 32; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at paras. 11 and 18). Neither “negative” nor “passive”, they are substantive rights that require positive action by the state to ensure that they are given effect (Beaulac, at paras. 20, 24 and 28; Mazraani, at para. 20; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535, at para. 38; Commission scolaire francophone des Territoires du Nord‑Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para. 111).
[25] In the judicial context, language rights must be distinguished from guarantees related to procedural fairness. As Bastarache J. reiterated in Beaulac, language rights are a “particular kind of right, distinct from the principles of fundamental justice”, in that they are not meant to “enforce minimum conditions under which a trial will be considered fair” (paras. 25 and 47). Rather, their purpose is to ensure that everyone has “equal access to a public service that is responsive to [their] linguistic and cultural identity” (para. 45; see also MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460, at pp. 500‑501; Mazraani, at paras. 20 and 46; Bessette, at para. 38).
[26] This distinction is especially important in criminal law cases. It means that the harm caused by a violation of an accused’s language rights during criminal proceedings can in no way be tempered by the fact that the accused was still able to make full answer and defence. In practical terms, this means that where the accused’s language rights were violated, the fact that the violation had no impact on trial fairness will not be relevant to the remedy granted (Beaulac, at paras. 41 and 47; Mazraani, at para. 46).
(2) Interpretation
[27] Since Beaulac, it has consistently been held that language rights, both those that are constitutional and those that are statutory in nature, must in all cases be interpreted liberally and purposively, in keeping with their purpose, which is to support the preservation and development of Canada’s two official language communities (para. 25; see Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 27; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, at para. 23; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, at para. 31; Mazraani, at para. 20; P. W. Hogg and W. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 56:12).
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[34] Section 530 Cr. C. is another example of a provision enacted “to advance the equality of status or use of English and French” (see Beaulac, at paras. 22 and 34; Gruben, at pp. 350‑51 and 370‑71). This section supplements the constitutional minimum guaranteed through the combined effect of s. 133 of the Constitution Act, 1867 and s. 19(1) of the Charter. It goes beyond the constitutional right to speak in the official language of one’s choice by also giving every accused the right to choose the official language they wish to speak and in which they wish to be understood by the judge or the judge and jury, without the use of interpretation or translation services (see Beaulac, at para. 28; Bessette, at para. 20).
[35] I now turn to the language rights guaranteed by s. 530 Cr. C.
C. Language Rights Guaranteed by Section 530 Cr. C.
[36] The purpose of s. 530 Cr. C. is to “provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity” (Beaulac, at para. 34; see also para. 56; Bessette, at para. 38). In particular, this section guarantees to every accused the fundamental right to be tried in the official language of their choice (s. 530(1) and (4) Cr. C.) and the right to be advised of this right (s. 530(3) Cr. C.), as can be seen from its wording at the time of Mr. Tayo Tompouba’s first appearance:[2]530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than
(a) the time of the appearance of the accused at which his trial date is set, if
(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or
(ii) the accused is to be tried on an indictment preferred under section 577,
(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or
(c) the time when the accused is ordered to stand trial, if the accused
(i) is charged with an offence listed in section 469,
(ii) has elected to be tried by a court composed of a judge or a judge and jury, or
(iii) is deemed to have elected to be tried by a court composed of a judge and jury,
a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.
(2) On application by an accused whose language is not one of the official languages of Canada, made not later than whichever of the times referred to in paragraphs (1)(a) to (c) is applicable, a justice of the peace or provincial court judge may grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada in which the accused, in the opinion of the justice or provincial court judge, can best give testimony or, if the circumstances warrant, who speak both official languages of Canada.
(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.
(4) Where an accused fails to apply for an order under subsection (1) or (2) and the justice of the peace, provincial court judge or judge before whom the accused is to be tried, in this Part referred to as “the court”, is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language or, if the circumstances warrant, who speak both official languages of Canada. (1) Fundamental Right To Be Tried in the Official Language of One’s Choice
[37] Subsections (1) and (4) of s. 530 set out two frameworks governing the exercise of the same fundamental right, that is, the right of every accused to be tried in the official language of their choice. In Beaulac, this Court clarified the nature of and manner of exercising the right guaranteed to every accused under these two subsections, which until then had been interpreted inconsistently by the courts (see Gruben, at p. 373, citing R. Soublière, “Les perpétuels tiraillements des tribunaux dans l’interprétation des droits linguistiques” (2001), 4 R.C.L.F. 1).
[38] Discussing s. 530(1) Cr. C., this Court stated that it guarantees to every accused an absolute right to equal access to the courts in the official language of their choice, provided that the accused’s application is timely and that they are able to instruct counsel and follow the proceedings in the chosen language (Beaulac, at paras. 28, 31, 34 and 37). To exercise this absolute right, the accused need only “assert” which official language is their own language. The judge will then have to grant the accused’s application unless the Crown shows that the assertion is unfounded (para. 34). Where the Crown challenges the accused’s assertion, the judge should not inquire into specific criteria to determine a dominant cultural identity or into the personal language preferences of the accused. The judge will only verify that the requirements of s. 530(1) Cr. C. are met (para. 34). In short, where the accused’s application is timely and there is no evidence establishing that their proficiency in the chosen language is insufficient for them to exercise their right, the accused has an absolute right, guaranteed by s. 530(1) Cr. C., to choose the official language to be used and understood by the judge or the judge and jury before whom they will be tried (para. 56).
[39] In contrast, where an accused’s application to be tried in the official language of their choice is untimely — that is, made outside the period specified in s. 530(1) Cr. C. — the accused’s right is then subject to the judge’s discretion. Under s. 530(4) Cr. C., the judge may grant the accused’s application only if satisfied that doing so is in the best interests of justice. In Beaulac, this Court stated that there are, however, significant constraints on this judicial discretion. In particular, because of the central importance of language rights in Canadian society, there is a presumption in the accused’s favour that granting their application is in the best interests of justice. In practice, therefore, granting an application under s. 530(4) Cr. C. should be the rule and denying it should be the exception (Beaulac, at paras. 42 and 56).
[40] To justify the denial of such an application, the Crown must rebut this presumption. It must show that granting the accused’s application is not in the best interests of justice and, for this purpose, make arguments based on both the reasons for the delay and the difficulties caused by the lateness of the application (Beaulac, at paras. 37, 40, 42 and 44). With regard to the reasons for the delay, this Court specified that the later the application is made, the better the reason for the delay must be in order for the application to be accepted. That being said, there is no burden on the accused: even if the accused provides no explanation for the delay, this will not necessarily be fatal. At most, it will merely facilitate the Crown’s task of justifying the denial of the accused’s late application (paras. 43 and 56). As for the difficulties caused by the lateness of the application, the Court set out the relevant factors relating to the conduct of the trial, includingwhether the accused is represented by counsel, the language in which the evidence is available, the language of witnesses, whether a jury has been empanelled, whether witnesses have already testified, whether they are still available, whether proceedings can continue in a different language without the need to start the trial afresh, the fact that there may be co‑accuseds (which would indicate the need for separate trials), changes of counsel by the accused, the need for the Crown to change counsel and the language ability of the presiding judge. [para. 38] Mere administrative inconvenience, on the other hand, is of no relevance (para. 39).
[41] The result is a framework conducive to the protection of the accused’s language rights. Even where the accused decides to exercise their fundamental right to be tried in the official language of their choice late, even as late as during the trial on the merits, the presumption applies in the accused’s favour. The burden of persuading the court that the accused’s application must be denied falls on the Crown (Beaulac, at paras. 42 and 56).
[42] Finally, it should be noted that it is well settled that the violation of this fundamental right constitutes significant prejudice for which the appropriate remedy is normally a new trial. In Beaulac, this Court stated that the erroneous denial of an application under s. 530(1) or (4) Cr. C. violates the accused’s right to be tried in the official language of their choice and will always cause prejudice to the accused. It follows that where this fundamental right of the accused was violated, the Crown can never successfully rely on either of the curative provisos in s. 686(1)(b) Cr. C., even if the violation had no impact on trial fairness or on the accused’s ability to make full answer and defence (Beaulac, at paras. 52‑54; Bessette, at para. 38). Therefore, where there was an infringement of an accused’s fundamental right to be tried in the official language of their choice, a new trial will generally be the fair, appropriate and proportionate remedy (see Beaulac; Mazraani, at paras. 47‑48).
(2) Right To Be Advised of This Fundamental Right
[43] Section 530(3) Cr. C. enshrines the accused’s right to be advised of their right to be tried in the official language of their choice and of the time before which an application for this purpose must be made. Parliament’s intention was that the safeguarding of this fundamental right be ultimately entrusted to the judge before whom the accused first appears. To begin with, s. 530(3) Cr. C. explicitly states that the judge must ensure that the accused is advised of their fundamental right and of the time limit for exercising it. In addition, it is implicit in the language of s. 530(3) Cr. C. that if the first appearance judge finds that the accused has not been properly informed, or if they have the slightest doubt in this regard, they must take the necessary steps to ensure that the accused is informed of their fundamental right and of how it is to be exercised. While this last point is not clear from the language of s. 530(3) Cr. C., it is nonetheless the interpretation that must be adopted in light of the legislative intent. This two‑pronged duty — which requires the judge to ensure that the accused is duly informed of their fundamental right and of how it is to be exercised and, where the circumstances so require, to take the necessary steps to inform the accused thereof — is what I refer to as the judge’s “informational duty”.
[44] Section 530(3) Cr. C. states that the judge before whom an accused first appears “shall ensure” (“veille” in the French version) that the accused is “advised” (“avisé” in the French version) of their right and of the time limit for exercising it. The use of these terms in each language version indicates that Parliament intends judges to “make certain” that every accused is informed of their right and of how it is to be exercised so that the accused can avail themself of the right in a timely manner (Canadian Oxford Dictionary (2nd ed. 2004), sub verbo “ensure”; The Dictionary of Canadian Law (5th ed. 2020), sub verbo “ensure”; Le Grand Robert de la langue française (electronic version), sub verbo “aviser”; Grand Robert & Collins (electronic version), sub verbo “advise” and “aviser”). In other words, the judge must display [translation] “vigilance” and “actively take care” to ensure that the accused is duly informed of their right and of how it is to be exercised (Le Grand Robert de la langue française (electronic version), sub verbo “veiller”). The judge cannot presume what the accused’s choice is or assume that the accused has been or will be advised of their right and of how it is to be exercised. The judge must ensure, in a proactive and systematic manner, that the accused is properly informed, irrespective of the fact that the accused seems to be a member of a linguistic minority or that the accused may have been or may be informed of this right by another person, such as their counsel. In short, the judge must take the steps needed to “have no doubt” that the accused is well aware of their right and of how it is to be exercised (Mazraani, at para. 34; see also paras. 25, 32, 38, 44 and 60; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485, at para. 12; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466, at para. 49).
[45] It should be noted here that if the judge finds that the accused has not been properly informed, or if there remains any doubt about this in their mind, the judge must ensure that the accused is informed of their right and of how it is to be exercised. While it is true that this is not explicitly stated in the provision, this interpretation is nonetheless the one most in keeping with the legislative intent as revealed by the provision’s purpose and the legislative history. I will start by looking at the purpose of s. 530(3) Cr. C. The primary purpose of this provision is to help protect the accused’s fundamental right to choose the official language in which they wish to be tried by ensuring that the accused has, at the proper time, the information required to exercise this right. In the context of language rights, the jurisprudence establishes that when it comes to protecting the right to choose an official language, it is essential that this personal choice be a free and informed one (Mazraani, at paras. 42 and 44). Ultimately, the goal of s. 530(3) Cr. C. is therefore to make sure that information about the accused’s fundamental right and how it is to be exercised is conveyed to the accused in a timely manner in order to help the accused make a free and informed choice of official language. This requires the first appearance judge to take the necessary steps to ensure that the accused is informed of their right and of how it is to be exercised where the judge finds that the accused has not been properly informed or where the judge has any doubt in this regard.
[46] The legislative history of s. 530(3) Cr. C. also shows that a principle of caution must always guide the judge who has to ensure respect for the accused’s right to be advised of their language rights protected by s. 530 Cr. C., such that the slightest doubt must lead the judge to take the necessary steps to ensure that the accused is duly informed. The previous version of this provision imposed an informational duty on the judge only in cases where the accused was self‑represented. It was thus presumed that counsel would properly inform their clients of their language rights (see Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 33, 3rd Sess., 30th Parl., May 31, 1978, at pp. 5‑6; Gruben, at p. 379). In 2008, in response to criticisms by courts and other interested institutions and bodies that this presumption was unfounded in practice, Parliament amended s. 530(3) Cr. C. to extend the application of the judge’s informational duty to all accused persons, regardless of whether they were self‑represented or represented by counsel (see Beaulac, at para. 37; An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), S.C. 2008, c. 18, s. 18; House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 65, 1st Sess., 39th Parl., May 2, 2007, at pp. 2‑3; Commissioner of Official Languages, The Equitable Use of English and French Before the Courts in Canada (1995), at pp. 102‑4).
[47] This amendment is important. It amounts to legislative recognition of a principle of caution requiring judges to avoid presuming, without verifying in a diligent and proactive manner, that an accused has been duly informed of their right and of how it is to be exercised prior to their first appearance. While this principle of caution applies in relation to accused persons who are represented by counsel, notwithstanding the fact that counsel generally have an ethical duty to inform their clients of their fundamental right to be tried in the language of their choice, I am of the view that the principle applies with even greater force in relation to accused persons who are not represented by counsel and to those who were purportedly informed of their right by another person or in another way prior to their first appearance.
[48] The amendment also reflects the legislative intent to make the judge the ultimate guardian of the fundamental right of every accused to be tried in the official language of their choice, and thus the ultimate guardian of the free and informed nature of the accused’s choice of official language. By imposing a duty on the judge to play an active role in ensuring respect for this fundamental right, this legislative amendment enshrines the principle of active offer when it comes to language rights (see Debates of the Senate, vol. 144, No. 14, 2nd Sess., 39th Parl., November 21, 2007, at pp. 274‑75). It recognizes that in a context as intimidating as that of a criminal trial, where the accused’s freedom is at stake, it is important that it be the person in a position of authority, namely the judge, who protects the accused’s language rights under s. 530 Cr. C. by being vigilant, cautious and proactive, particularly to alleviate any fear associated with the exercise of these rights and to help ensure that the choice is a free and informed one (see R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 691, at para. 62; see also Office of the French Language Services Commissioner of Ontario, Active Offer of Services in French: The Cornerstone for Achieving the Objectives of Ontario’s French Language Services Act (2016), at pp. 10‑11).
[49] It follows from the foregoing that a first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge’s informational duty. Such a failure by the judge constitutes a breach of s. 530(3) Cr. C. and violates the accused’s right.
[50] Finally, I note that the consequences of a breach of s. 530(3) Cr. C. will differ depending on when the breach is raised. When it is raised at first instance outside the periods specified in s. 530(1) Cr. C., the accused can file a late application under s. 530(4) Cr. C. The judge’s failure to comply with s. 530(3) Cr. C. will then be a relevant factor in the accused’s favour that the judge hearing the application must consider when assessing the diligence displayed by the accused in exercising their fundamental right. As Mainville J.A. of the Quebec Court of Appeal wrote: “Should the duty under s. 530(3) . . . Cr.C. not have been satisfied, it would be more difficult to refuse a late application” (Dhingra, at para. 51).
[51] Where the breach of s. 530(3) Cr. C. is raised for the first time on appeal, as in this case, the consequences of the breach are a subject of disagreement among the courts, with respect to both the applicable framework and the appropriate remedy. Some appellate courts find that a breach of s. 530(3) Cr. C. in itself causes very significant prejudice to the accused, which requires that a new trial be held (see MacKenzie, at paras. 3, 11, 69 and 82‑83; R. v. Deveaux (1999), 1999 CanLII 3182 (NS SC), 181 N.S.R. (2d) 81 (S.C.)). Others, including the Court of Appeal in this case, instead take the view that such a breach cannot justify a new trial on its own in the absence of evidence in the record from which it can be concluded that the breach resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice or other significant prejudice (paras. 106 and 125‑26; see also R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392, at paras. 8‑10).
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