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Language - Criminal Code. R. v. Dartiguenave
In R. v. Dartiguenave (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a verdict of not criminally responsible (NCR).
In this important Court of Appeal official language election case, the primary issue was whether the appellant defendant was improperly denied a trial in French [under CCC 530] - an issue which the court reviews extensively and thoughtfully:[1] Pierre Dartiguenave appeals the verdict of not criminally responsible rendered on November 3, 2021. The Crown concedes that the appellant was not advised of his right to request a trial in French pursuant to s. 530(3) of the Criminal Code, R.S.C., 1985, c. C-46. It argues, however, that this error of law did not prejudice the appellant.
[2] In my view, the appellant expressed his choice for a French trial and never waived it in a free and informed manner. His language choice was not respected at his trial. It follows that the appellant suffered prejudice as a result and that a new trial is required.
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(1) An accused has the right to a criminal trial in the official language of their choice
[55] Section 530 of the Criminal Code guarantees every accused whose mother tongue is English or French the right to be tried in the official language of their choice. A person can accordingly request a criminal trial in English or French, and the courts must ensure that this choice has been respected. The subsections of s. 530 relevant to this case read as follows:530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than the time of the appearance of the accused at which their trial date is set, a judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace 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.
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(3) The judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace 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) If an accused fails to apply for an order under subsection (1) or (2) and the judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace 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 ... 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 .... [56] As stated by Bastarache J. in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, para. 34, the purpose of s. 530 is to give equal access to the courts for accused persons who speak one of Canada’s official languages in order to assist official language minorities in preserving their cultural identity:The language of the accused is very personal in nature; it is an important part of his or her cultural identity. The accused must therefore be afforded the right to make a choice between the two official languages based on his or her subjective ties with the language itself. The principles upon which the language right is founded, the fact that the basic right is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and the substantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language. [57] The rights conferred by s. 530 are not intended to “enforce minimum conditions under which a trial will be considered fair”, but rather to ensure that everyone has “equal access to a public service that is responsive to [their] linguistic and cultural identity”: Beaulac, at paras. 45 and 47, and the other authorities cited in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 193, at para. 25. Subsection 530(1) “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, 37, and 56, as summarized in Tayo Tompouba, at para. 38.
[58] The accused does not need to make a formal motion; the exercise of the choice of language is not subject to any mandatory formality. If the accused makes their choice within the time limit set out in s. 530(3) and if the Crown does not adduce evidence that the accused does not have sufficient command of the chosen language to exercise their right to it, the trial must be conducted in the official language of the accused’s choice.
[59] Courts must be vigilant and proactive with respect to the accused’s right to a trial in the official language of their choice and the mandatory nature of s. 530(3) of the Criminal Code. If a judge or justice of the peace “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”: Tayo Tompouba, at para. 45.[4] In practical terms, as explained by the Supreme Court at para. 44: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 (CanLII)). [60] Even if an accused, although duly informed of their right to a trial in the official language of their choice, does not make a request under s. 530(1), s. 530(4) gives the court the power to order that the accused be tried in the accused’s official language if it is in the best interests of justice to do so.
[61] The rights guaranteed under s. 530 of the Criminal Code are not limited to the right conferred by s. 530(1) to 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.” If an order is granted under s. 530, the accused has, among other things, the following additional rights:. At the request of the accused, the Crown is required to translate any part of any information or indictment drafted in the other official language and to provide the accused with a written copy of the translation as soon as possible (s. 530.01(1));
. the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial (para. 530.1(a));
. the accused is entitled to have a Crown prosecutor at trial who speaks the same official language as the accused or both official languages, as the case may be (para. 530.1(e));
. the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial (para. 530.1(f));
. the record of proceedings during the preliminary inquiry or trial shall include “a transcript of everything that was said during those proceedings in the official language in which it was said; a transcript of any interpretation into the other official language of what was said, and any documentary evidence that was tendered during those proceedings in the official language in which it was tendered” (para. 530.1(g));
. any trial judgment, including any reasons given therefor, issued in writing in either official language, shall be made available by the court in the official language that is the language of the accused (para. 530.1(h)). [62] A breach of s. 530(3) is an error of law under subpara. 686(1)(a)(ii) of the Criminal Code, with the result that an accused need only disclose the breach in order to justify appellate intervention under s. 686(1)(a) of the Criminal Code: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, para. 16, and Tayo Tompouba, at para. 82. The court’s failure to inform the accused of their rights under s. 530 at the first appearance gives rise to a presumption of a violation of the accused’s fundamental right to be tried in the official language of their choice. At para. 90 of Tayo Tompouba, the Supreme Court set out three possible ways that the Crown can show that the appellant did not suffer prejudice as a result of the breach of s. 530(1):I. It can prove that the appellant does not have sufficient proficiency in the official language they were not given the opportunity to choose, that is, that the appellant does not have the ability to instruct counsel and follow legal proceedings in that language;
II. It can show that, even if the appellant had been duly informed of their right, they would in any event have chosen to be tried in the language in which their trial was conducted;
III. It can show that the appellant knew about their language rights even though they did not have notice under s. 530(3), such that it can be found that the appellant chose the language of trial in a free and informed manner. [63] The standard of proof in each case is the balance of probabilities: Tayo Tompouba, at para. 90 and the authorities cited therein.
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[72] The full range of rights related to the right to a trial in the official language chosen by the accused informs the content of the duty incumbent upon a judge or justice of the peace under s. 530. The existence of these rights also gives meaning to what the Crown must show in order to establish that the breach of s. 530(3) was not prejudicial to the appellant. An accused cannot exercise a free and informed choice to waive their rights if they are unaware of the nature and extent of the rights in question.
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[75] A court should not favour one language in order to give the impression that it is the only official language and that the second language must be accommodated: R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646, at para. 62. In Tayo Tompouba, at para. 115, the Supreme Court furthermore emphasized that an accused’s bilingualism should not, in itself, constitute evidence that they would have chosen a trial in their second language:[The fact that the accused] is bilingual is of only limited assistance in determining whether he would have chosen a trial in English if he had been duly informed of his right. Indeed, attaching too much weight to this factor would be contrary to Beaulac, in which the Court cautioned against any analysis tending to restrict the language rights of bilingual Canadians, especially given that official language minorities in fact have the highest incidence of bilingualism.... ....
[89] I recognize that, given their current workloads, justices of the peace and judges of the Ontario Court of Justice are faced with Herculean tasks. The volume of work has increased significantly in the wake of the COVID-19 pandemic.
[90] Notwithstanding these circumstances, all Ontario courts are required to ensure that the language rights of accused persons under s. 530 are respected. Perhaps the time has come for a standard script that a judge or justice of the peace could read out at the first appearance of an accused person, in order to advise them of their right to request a trial in the official language of their choice, the time limits for making such a request and, if necessary, a summary of the scope of the rights at issue.
[91] An accused person does not have the right to demand that pretrial appearances (save for a preliminary hearing) be conducted in the official language of their choice. That being said, during an appearance in a criminal case before an Ontario court where it is obvious that an accused is more comfortable communicating in French than in English, and it therefore appears that the accused might prefer a trial in French, the judge or justice of the peace should verify whether an order under s. 530 has already been made. If such an order is not clearly on the record, the court must consider whether such an order should be made. At a pretrial hearing in this case, the court and the Crown’s representative repeatedly acknowledged that the appellant’s trial should be conducted in French. It appears that they assumed that the trial would be conducted in that language, despite the absence of an order or unambiguous endorsement to that effect.
[92] Courts must be alert to the need to protect the language rights of the accused at appearances leading up to trial. In this case, as soon as the appellant expressed his desire to make submissions in French on July 2, 2021, an order under ss. 530(3) or (4) should have been considered. In general, courts must be vigilant to developments in a case that heighten the need to protect language rights. Here, there were two important developments: the accused made the decision to represent himself, and his mental health was called into question.
[93] Finally, courts must avoid pointing out to an accused who is invoking their language rights that providing services in French would cause delays or inconvenience and they should avoid reflexively favouring the use of English. They must be proactive to ensure that there are no delays when an accused has chosen to be tried in French. . R. v. Poobalasingham
In R. v. Poobalasingham (Ont CA, 2020) the Court of Appeal consider the status of language rights in Canada in the context of the criminal code:Section 530 of the Criminal Code
[60] Section 530 of the Criminal Code is not part of Part XX, Jury Trials, but rather is contained in Part XVII, Language of Accused. At the time of the relevant proceedings in this case, s. 530(1)(c) of the Criminal Code provided:530(1) On application by an accused whose language is one of the official languages of Canada, made not later than …(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. [61] While the wording has changed since the appellants’ trials, the substance of this provision remains the same: see Criminal Code, s. 530(1). And this language permits of no doubt: an order directing that the trial of an accused be before a judge and jury who speak the official language of the accused is mandatory, provided the accused’s application is timely.
[62] Section 530 is a language rights provision. Section 530(1) creates an absolute right of an accused to equal access to designated courts in the official language which that accused considers their own. It requires that criminal courts be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. The right is substantive, not procedural. It brooks no interference: R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, at paras. 23, 25 and 28.
[63] The purpose of s. 530 is to provide equal access to the courts to accused who speak one of Canada’s official languages “in order to assist official language minorities in preserving their cultural identity”: Beaulac, at para. 34; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646, at para. 49.
[64] Language rights are a particular kind of right. They are distinct from the principles of fundamental justice. Language rights are meant to protect official language minorities and to ensure the equal status of English and French. They are “not meant to support the legal right to a fair trial, but to assist [an] accused in gaining equal access to a public service that is responsive to [their] linguistic and cultural identity”: Beaulac, at paras. 23, 25, 41, 45 and 53; Munkonda, at para. 59; and Bessette v. British Columbia (Attorney General), 2019 SCC 31, 376 C.C.C. (3d) 147, at para. 38.
[65] This court addressed an application under s. 530 by an English-speaking accused in R. v. Leon, 2014 ONCA 813 – albeit in the context of a discretionary order under s. 530(4). This court agreed with the trial judge that “there was no basis to make a s. 530 order, since the accused was already scheduled to have a trial in English”: Leon, at paras. 3-4.
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