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Criminal - Language. R. v. S.T.
In R. v. S.T. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal where language interpretation were at issue (though not applied to allow the appeal):[13] The appellant testified at trial through a Tamil interpreter, while the complainant testified in English. The appellant’s first ground of appeal is that the quality of the interpretation during the first part of his evidence-in-chief fell below constitutional minimum standards guaranteed by s. 14 of the Canadian Charter of Rights and Freedoms. He seeks to adduce fresh evidence in the form of an affidavit from a different Tamil interpreter identifying a number of translation errors.
[14] We would admit the fresh evidence, which “seeks to shed light on the validity of the trial process”, and accordingly need not be subjected to the usual Palmer criteria: see R. v. Saini, 2023 ONCA 445, at para. 34; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
[15] However, we would not give effect to this ground of appeal. Some issues did arise with the interpretation that was provided during the first part of the appellant’s testimony, which led the trial judge to have a different interpreter brought in to assist with the balance of his evidence. However, as Lamer C.J.C. noted in R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 987, “it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection”. The interpretative errors that were made during the first part of the appellant’s testimony were relatively minor, and were often corrected or clarified later on. We are not persuaded that the quality of the interpretation fell below the standard required by s. 14 of the Charter. . 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 sets out the procedures for a CCC 530 language rights appeal where it is raised for the first time on appeal (ie. 'fresh law'), particularly in the CCC 686(1)(a,b) context:E. Framework That Applies Where a Breach of Section 530(3) Cr. C. Is Raised for the First Time on Appeal
[78] The proper framework must be based on the principles enunciated in Beaulac — which, as explained above, further the protection of accused persons’ language rights — and must also be in harmony with the scheme for conviction appeals, and particularly with the logic and structure of s. 686 Cr. C.
(1) What the Accused Must Show to Justify Appellate Intervention
[79] The question of what an accused in the same situation as Mr. Tayo Tompouba must show to justify appellate intervention under s. 686(1)(a) Cr. C. has a decisive impact on the outcome of the appeal. The answer to this question depends on how a breach of s. 530(3) Cr. C. is characterized, that is, as an error of law (s. 686(1)(a)(ii) Cr. C.) or as a miscarriage of justice (s. 686(1)(a)(iii) Cr. C.).
[80] If a breach of s. 530(3) Cr. C. is an error of law under s. 686(1)(a)(ii) Cr. C., as Mr. Tayo Tompouba suggests, simply showing that the breach occurred will be sufficient to justify appellate intervention. Showing this will give rise to a presumption that the breach of s. 530(3) Cr. C. caused prejudice, a presumption that the Crown can then rebut at the stage of the curative proviso analysis (see Khan, at para. 23; Coughlan, at pp. 574‑75 and 582; Vauclair, Desjardins and Lachance, at No. 51.238). In the context of the language rights protected by s. 530 Cr. C., the prejudice in question is, of course, related not to the fairness of the trial or the reliability of the verdict, but rather to the violation of the accused’s fundamental right to be tried in the official language of their choice (Beaulac, at para. 53).
[81] On the other hand, if a breach of s. 530(3) Cr. C. cannot be characterized as an error of law, it is the miscarriage of justice framework that must apply, as the Crown and two of my colleagues maintain. The onus will then be on the accused to show that the breach of s. 530(3) Cr. C. caused them prejudice that gave rise to a miscarriage of justice (see Wong, at paras. 5 and 39, per Moldaver, Gascon and Brown JJ., and at paras. 44, 79 and 85, per Wagner J., dissenting; Coughlan, at pp. 574‑77). In such a case, no presumption will apply in the accused’s favour. In other words, the accused will have to prove not only a breach of s. 530(3) Cr. C. but also a violation of their fundamental right to be tried in the official language of their choice.
[82] In my opinion, a breach of s. 530(3) Cr. C. is an error of law under s. 686(1)(a)(ii) Cr. C., with the result that an accused need only disclose the breach in order to justify appellate intervention under s. 686(1)(a) Cr. C. The question of whether the error of law was prejudicial to the accused and, if so, to what extent, is important. But this question arises in connection with the application of the curative proviso, and the onus is then on the Crown to persuade the court of appeal that the error was not prejudicial to the accused (Khan, at para. 23; Coughlan, at pp. 574‑75; Vauclair, Desjardins and Lachance, at No. 51.238). Before broaching this aspect of the analysis, I will explain why a breach of s. 530(3) Cr. C. constitutes an error of law under s. 686(1)(a)(ii) Cr. C. and not, as the Crown and two of my colleagues suggest, a miscarriage of justice.
[83] As I explained above, the jurisprudence establishes that an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, as long as it is related to the proceedings leading to the conviction and was made by a judge — whether the trial judge, another judge or a justice of the peace. In addition, the error in the application of a legal rule may result from either a decision that is wrong in law or an improper omission. It may also concern a procedural or a substantive legal rule. When these three elements are present, the trial court’s judgment is tainted by an error of law under s. 686(1)(a)(ii) Cr. C., which allows prejudice to be presumed and may justify quashing the conviction.
[84] Failure by the judge before whom the accused first appears to carry out their informational duty under s. 530(3) is an error in the application of a legal rule (Arradi, at para. 39; Khan, at para. 22; Coughlan, at pp. 574‑75). By erroneously failing to apply an imperative legal rule of general application, the judge commits what I have termed an “improper omission”. In addition, because this irregularity is related to the proceedings leading to the conviction and is committed by a judge, it has the effect of tainting the trial court’s judgment so as to provide a basis for appellate intervention under s. 686(1)(a)(ii) Cr. C.
[85] Finally, although this is not determinative, I think it helpful to note that my conclusion is echoed in the jurisprudence on language rights, in which this Court has stated that a judge’s failure to take a litigant’s language rights into account constitutes an error of law (see Mazraani, at para. 48).
[86] This conclusion is also supported by the purpose of s. 530, as interpreted and applied in Beaulac. In that case, as I said earlier, this Court reduced the onus on an accused who seeks to exercise their fundamental right to be tried in the official language of their choice late by stating that a presumption applies in the accused’s favour, and also specified that the Crown bears the burden of rebutting this presumption (paras. 42 and 56). Similarly, characterizing a breach of s. 530(3) Cr. C. as an error of law reduces the onus on the appellant by triggering a presumption in their favour once the breach has been established, while also giving the Crown an opportunity to rebut the presumption by showing that the appellant’s fundamental right to be tried in the official language of their choice was not violated.
[87] The Court of Appeal was therefore correct to characterize a breach of s. 530(3) Cr. C. as an error of law. However, it erred in stating that, to succeed on appeal, an accused in the same situation as Mr. Tayo Tompouba must show not only that the breach occurred but also that their fundamental right to be tried in the official language of their choice was violated.
(2) What the Crown Can Show to Have the Appeal Dismissed Nonetheless
[88] Contrary to what Mr. Tayo Tompouba argues, there is nothing that precludes the application of one of the curative provisos in s. 686(1)(b) Cr. C., provided that the Crown shows that the accused’s fundamental right to be tried in the official language of their choice was not violated.
[89] A breach of s. 530(3) Cr. C. is an error that results in the court losing jurisdiction over the proceedings (Bessette, at para. 27; Munkonda, at paras. 131‑33). The Crown can therefore rely on the curative proviso in s. 686(1)(b)(iv) Cr. C. and try to show that no prejudice was caused by the error (Khan, at para. 16; Vauclair, Desjardins and Lachance, at No. 51.246). Thus, once a breach of s. 530(3) Cr. C. has been established, the Crown can argue that, notwithstanding this error of law, the appeal should nonetheless be dismissed on the ground that it did not in fact cause prejudice to the accused — in other words, that the error did not result in a violation of the accused’s fundamental right to be tried in the official language of their choice. If the Crown succeeds, the presumption that the error of law caused prejudice to the accused is rebutted and the court of appeal hearing the case can apply the curative proviso (see Khan, at para. 16; Coughlan, at pp. 574‑75 and 582).
[90] It is useful to note three routes that the Crown can take to show that the accused’s fundamental right was not violated and that it is therefore appropriate to dismiss the appeal on the ground that the appellant did not suffer any prejudice as a result of the breach of s. 530(3) Cr. C. First, the Crown can argue that the appellant does not have sufficient proficiency in the official language they were unable to choose at first instance — in other words, that the appellant does not have the ability to instruct counsel and follow legal proceedings in that language — such that they cannot avail themself of their fundamental right (Beaulac, at para. 34). Second, the Crown can show that, even if the appellant had been duly informed of their right and had sufficient proficiency in the language they were unable to choose, they would in any event have chosen to be tried in the language in which their trial was conducted. Lastly, the Crown can show that the appellant had timely knowledge of their fundamental right otherwise than through notice under s. 530(3) Cr. C., such that it can be concluded that the appellant chose English or French in a free and informed manner. In each case, the applicable standard of proof is that of the balance of probabilities (see R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 34, per Binnie J., dissenting; Esseghaier, at para. 54).
[91] To discharge its burden, the Crown can rely on the evidence already in the record or seek leave to adduce fresh evidence. For example, the Crown might seek leave from a court of appeal to file in evidence transcripts from other criminal cases against an English‑speaking accused who was tried in English, where the transcripts indicate that the accused does not have sufficient proficiency in French (see R. v. Deutsch (2005), 2005 CanLII 47598 (ON CA), 204 C.C.C. (3d) 361 (Ont. C.A.), at paras. 45‑47).
[92] In this regard, I note that the cardinal principle governing the admissibility of fresh evidence is that of the interests of justice (see s. 683(1) Cr. C.; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 63, quoting Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 28). According to Palmer, the discretion to admit fresh evidence is ordinarily exercised by weighing various factors, namely due diligence, relevance, credibility and the impact on the result (see p. 775; Hay, at para. 63; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7). In the rare cases where an accused appeals their conviction and raises a breach of s. 530(3) Cr. C. for the first time, when no decision on the accused’s language rights was made at first instance, it stands to reason that it will generally be in the interests of justice to admit any evidence that makes it possible to determine whether the accused’s fundamental right was in fact violated.
[93] If the Crown fails to show that the accused does not have sufficient proficiency in the language they were unable to choose, that the accused would in any event have chosen to be tried in the language in which their trial was conducted or that the accused chose that official language in a free and informed manner, it will be presumed that the breach of s. 530(3) Cr. C. resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice and thus caused the accused prejudice that was too significant for the conviction to be upheld. As Vauclair, Desjardins and Lachance have noted, in cases where an error results in a violation of the [translation] “fundamental right . . . to be tried by a court that understands the language of the accused”, the Crown will not be able to cure the violation “through the application of subparagraph 686(1)(b)(iv) of the Code” (No. 51.246). Indeed, in Beaulac, this Court established that a conviction entered following a hearing in which this fundamental right was breached can never be saved by the application of a curative proviso (see paras. 53‑54). The Court of Appeal therefore erred in law in stating that the onus was on Mr. Tayo Tompouba to establish a violation of his fundamental right to be tried in the official language of his choice at the stage of the curative proviso analysis, rather than on the Crown to prove the contrary.
(3) This Framework Helps Prevent the Risk of Instrumentalization
[94] It is apparent from the Court of Appeal’s reasons that it was particularly concerned about the risk of instrumentalization that might arise from a framework that reduces the onus on an appellant in the same situation as Mr. Tayo Tompouba. Similarly, the Crown opposes any framework under which it would bear the burden of showing that the accused’s fundamental right was not violated in cases where the issue of language rights was not argued at first instance. The Crown submits that, in such cases, there is little if any evidence in the record concerning the appellant’s language proficiency and the reasons for the delay in their application. The Crown might therefore have difficulty persuading a court of appeal that it would be appropriate to apply the curative proviso. The Crown notes that it is possible that several pieces of evidence that may be relevant to showing that there was no violation of the accused’s fundamental right to be tried in the official language of their choice will be known only to the accused and will accordingly be out of its reach, notably as a result of solicitor‑client privilege. In short, the Crown argues that if it is required to make this showing for the purposes of the curative proviso analysis, accused persons who were not given notice under s. 530(3) Cr. C. will gain an undue tactical advantage by raising their language right for the first time on appeal.
[95] In this regard, like the Court of Appeal, I stress the importance of preventing language rights violations from being instrumentalized on appeal. As this Court stated in Mazraani, it is entirely improper for a party to try to take advantage of a violation of their language rights for purely tactical purposes (paras. 38‑39 and 52). Such a practice is objectionable and must be sanctioned as far as possible. That being said, I am of the view that the applicable framework strikes an appropriate balance between the constitutional importance of language rights in Canada and the risk of these rights being instrumentalized on appeal.
[96] First, while a breach of s. 530(3) does not ipso facto entail a violation of the accused’s fundamental right to be tried in the official language of their choice, the proposed framework does create a presumption in the accused’s favour that this right was violated if s. 530(3) Cr. C. was breached. As this Court stated in Mazraani, a person’s choice with regard to their language rights must be free and informed (paras. 42, 44 and 73). Where the judge, the ultimate guardian of language rights, fails to comply with the mechanism established by Parliament to ensure that this choice is free and informed — that is, the informational duty set out in s. 530(3) Cr. C. — it is entirely legitimate and fair to presume, in the absence of evidence to the contrary, that this purpose has not been achieved.
[97] Next, the framework laid down permits the Crown, at the stage of the curative proviso analysis, to rebut the presumption that the accused’s fundamental right to be tried in the official language of their choice was violated as a result of the breach of s. 530(3) Cr. C. If the Crown does so, the appeal can then be dismissed. This significantly limits the risk of language rights being instrumentalized for tactical purposes, because the framework makes it possible for the Crown to impede accused persons seeking to use a breach of s. 530(3) Cr. C. for purely tactical purposes on appeal. The Crown can oppose, for example, accused persons who do not have sufficient proficiency in the official language they were unable to choose; bilingual accused persons who would in any event have chosen to be tried in the language in which their trial was conducted; and accused persons who had timely knowledge, otherwise than through notice under s. 530(3) Cr. C., of their right to be tried in the official language of their choice, such that it can be concluded that they chose the language of their trial in a free and informed manner.
[98] It is, of course, not possible to prevent all risks of abuse. Even given the Crown’s ability to adduce fresh evidence, it is impossible to completely avoid appeals in which the Crown will have difficulty showing that the accused’s fundamental right was not in fact violated by the breach of s. 530(3) Cr. C. In such circumstances, it is possible that accused persons may take advantage on appeal, for purely tactical purposes, of a violation of their language rights that occurred at first instance. Upon reflection, however, these risks and difficulties are tempered by three considerations.
[99] First, the difficulties encountered by the Crown arise only in cases in which the judge did not carry out their informational duty under s. 530(3) Cr. C. Where the judge did carry out that duty, the accused remains free to raise on appeal, for the first time, the violation of their right to be tried in the official language of their choice. The onus will then be on the accused to prove that violation so as to justify appellate intervention at the stage of the analysis under s. 686(1)(a) Cr. C. No presumption will apply in the accused’s favour in the absence of a breach of s. 530(3) Cr. C.
[100] Second, this type of situation can easily be prevented, including by introducing systematic practices to ensure that the informational duty under s. 530(3) Cr. C. is fulfilled in every case, as some provinces have already done (see R. v. Vaillancourt, 2019 ABQB 859, at para. 6ee) (CanLII)). Similarly, the Crown can play an active role in preventing this type of situation by reminding the judge, at the accused’s first appearance, to perform the duty imposed by s. 530(3) Cr. C., as the Nova Scotia Court of Appeal properly noted in MacKenzie, at para. 15(6).
[101] Finally, the burden imposed on the Crown and the challenges encountered by the Crown in discharging it are no different than those taken on by the Crown at first instance under the Beaulac framework. Where an accused files a late application under s. 530(4) Cr. C. at first instance, a presumption arises in the accused’s favour that the application should be granted (Beaulac, at paras. 42 and 56). The Crown bears the burden of rebutting this presumption (paras. 42, 44 and 56). The Crown then faces the same problem described above, namely that several pieces of evidence that may be useful to it are out of its reach, notably as a result of solicitor‑client privilege.
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(3) Conclusion
[128] I am of the view that a breach of s. 530(3) Cr. C. is an error of law under s. 686(1)(a)(ii) Cr. C. Mr. Tayo Tompouba has therefore succeeded in establishing a ground for appellate intervention under s. 686(1)(a) Cr. C. In keeping with the logic and structure of s. 686 Cr. C., this breach is presumed to have resulted in a violation of his fundamental right to be tried in the official language of his choice. The burden was on the Crown to rebut this presumption by showing that the breach of s. 530(3) Cr. C. did not in fact cause such prejudice to Mr. Tayo Tompouba. However, the Crown has failed in this regard: the evidence on the question is, at best, inconclusive. In light of the uncertainty and doubt that remain, this Court has no choice but to conclude that the breach of s. 530(3) Cr. C. is an error of law that caused significant prejudice to Mr. Tayo Tompouba. Given this conclusion, it is unnecessary to decide the alternative ground of appeal based on a breach of s. 530(4) Cr. C. . 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.
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