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Language - Criminal Code. 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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