L’Observatoire international des droits linguistiques

[21]      Translation is a necessity in Canadian criminal trials when an accused person or a witness does not speak the official language in which the accused elects to proceed. Translation might be convenient for one or another participant in a trial but the necessity to provide translation does not serve the convenience of any participant.^[24] It serves the paramount, if not exclusive, interest that is expressed in the choice of the accused.^[25]The Court affirmed in Beaulac^[26] that the guarantee of linguistic choice in an official language has an independent value that is distinct from considerations of procedural fairness. Tayo Tompouba reiterates this affirmation.^[27] This has led Canadian courts to affirm that the rights of linguistic choice ensured by the Criminal Code are virtually absolute.^[28]

[22]      The priority afforded to the interest and choice of the accused is an essential element of that person’s right to make full answer and defence. It is difficult, perhaps impossible, for that right to be effective if the accused cannot understand the proceedings at trial in an official language of his or her choice. Language is the medium of intelligence that is essential to any concept of full answer and defence. Without it the accused cannot meaningfully be present at trial.^[29] Without the benefit of language, the accused cannot be expected to meet the prosecution’s case, cannot competently instruct counsel or make informed choices about the conduct of the proceedings. In those circumstances the accused is not present at the trial.^[30]

[23]      The fundamental purpose of the right to trial in the official language of choice is to ensure that the accused understands the proceedings in the official language of choice with respect to any issue and any aspect of the trial that could affect the disposition of the case.^[31] This right of choice is vital to understanding the case for the prosecution from beginning to end, the options of the defence, the evidence, interlocutory questions, objections, submissions and the possibility of appeal – among other matters. It seeks to ensure that the accused can understand relevant information and effectively communicate information to others.

[24]      Section 530 guarantees the right of the accused to choose whether a trial will be conducted in one official language or both languages. That right of choice belongs to the accused and to no other participant in the trial.^[32] That right must be exercised by the accused and not by counsel or the trial judge. Convenience and expediency are not reasons that can compromise this right.^[33]

[25]      The choice of the language of trial is a preliminary matter that must be resolved to ensure the fullest understanding of the proceedings according to the choice of the accused. Section 530(1) provides that the election is made “[o]n application of the accused.” Section 530(3) and 530(4) make clear that the court shall inform the accused of the choice that he or she may make and that the court may make an order in the interests of justice for the benefit of the accused in the absence of an application. There is jurisprudence that a formal application is not necessary but if an application is made an order “shall be granted” that records the election.^[34] This jurisprudence might remain sustainable but after Tayo Tompouba the formal requirements for taking a valid election are necessary. The standard of strict compliance with section 530 that is announced in Tayo Tompouba concerning the role of the judge at the time of the election suggests strongly that the better practice in the absence of a formal application would be for the exchange between the judge and the accused to be recorded and for the election to be formally noted in the procès-verbal at the direction of the judge.

[26]      To meet the requirements of section 530 the court must be assured that the accused is informed of the election that may be made with respect to the language of trial and to that end the court must make an order that records the election. The court must be satisfied that the election is made personally by the accused.^[35] This can only be achieved by an exchange between the judge and the accused,^[36] whether or not the accused is represented by counsel.^[37] The court must also be satisfied that the accused is informed of the consequences of the election that are enumerated in section 530.1. Section 530(3) imposes a continuing obligation on the court and although section 530(5) permits a subsequent variation of the initial election and order concerning the language of trial it is subject to the same requirements that the variation is an informed choice by the accused.

[27]      In Tayo Tompouba the Supreme Court emphasised the purpose of the linguistic rights guaranteed by section 530 of the Criminal Code^[38] and reiterated that their importance is distinct from considerations of procedural fairness or the constitutional protections afforded by section 14 of the Charter.^[39] The Court made clear three points in detail that will determine the present appeal. First, non-compliance with that provision of the Code is a ground of appeal against a finding of guilt. Second, non-compliance is presumptively an error of law and prejudicial to the accused if the breach is attributable to the judge before whom the accused appears and relates to the proceedings that resulted in a finding of guilt. Third, the prosecution cannot rely in appeal on a curative proviso to excuse the error of law unless it rebuts the presumption that the breach prejudiced the accused.

[28]      In the present case there were various breaches of the appellant’s linguistic rights under section 530 of the Code. The judge did not comply with section 530(3) because he failed to inform the appellant of those rights. He did not ask the appellant if he was aware of the guarantees provided by the Code, including the fundamental right to choose the official language of the trial. He allowed counsel, in the absence of the appellant, to elect for a trial in English but then allowed the trial to proceed in both official languages. In the absence of a timely express choice by the appellant, the judge did not subsequently raise the issue in accordance with section 530(4). What occurred in this trial was a convenient arrangement in which the services of the interpreter could be required if and when the accused signalled the need. As the judge noted in the preliminary discussions, the interpreter would be on stand-by and provide translation on a part-time basis.

[29]      The trial was not conducted in English. It proceeded in English and French in an exercise of compromise, convenience and accommodation. This occurred despite non-compliance with the requirements of sections 530. It also proceeded despite non-compliance by the judge and counsel with many requirements of section 530.1, which caused serious and substantial breaches of the appellant’s linguistic rights. The appellant made no application and the judge made no order for a bilingual trial. In these circumstances it is unnecessary to examine how translation would be provided to the appellant because he was not informed of the choice he was entitled to make.^[40]

[30]      The accused was not present during the preliminary exchanges before the presentation of evidence, including exchanges between counsel and court concerning arrangements for translation. There was no discussion with the accused himself concerning those arrangements or his level of understanding in French. There was no formal order to record the election of the accused to proceed under section 530 of the Criminal Code and only the prosecutor announced that the trial would be conducted in English.^[41] There is no discussion of equipment to record anything translated in the course of the trial. The prosecution case was presented entirely in French and the defence case entirely in English. At no point does the transcript disclose that the appellant interrupted either the testimony of a witness or any representations to seek the assistance of the interpreter. The transcripts include no translation in English of anything said in French or indeed anything said by the interpreter. At no point during the trial does the transcript show that the accused was asked if he understood anything said in French.

[31]      In short, non-compliance with section 530 of the Code is clear and must be characterized as an error of law that presumptively caused prejudice to the appellant.^[42]The judge did not explain the right or the consequences of the election in a direct exchange with the appellant, did not record the election, did not make an order for a trial in English in accordance with the appellant’s election or ensure that the trial was conducted in the appellant’s language of choice. This is not what the law allows. In these circumstances, the rights of the appellant under section 530 were not respected. What occurred must be characterized as an error of law that presumptively caused prejudice to the appellant.^[43]

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Conclusion