R v Caesar, 2015 NWTCA 4
(a) his trial was unfair because Crown counsel included inappropriate remarks in his jury address, and
(b) the trial court failed to advise him of his right to apply for a trial in either official language, as required by s. 530(3) of the Criminal Code. The appeal is dismissed for the following reasons.
[…]
The appellant relies on R. v MacKenzie, 2004 NSCA 10, 221 NSR (2d) 51 and R. v Beaulac, [1999] 1 SCR 768 for the proposition that the failure to comply with s. 530(3) is a fatal error that undermines the trial. The appellant in MacKenzie, however, did have sufficient linguistic proficiency to instruct counsel in French. The breach in that case was substantive. While Beaulac identifies the right to a trial in one’s own language as being fundamental in nature, those comments should be read as relating to the substantive right to a trial, not the collateral right to notice of the right to apply for that option. When a trial is held absent compliance with the notice provision in s. 530(3), and there is no indication that the trial was unfair (for linguistic or other reasons), the curative power in s. 686(1)(b)(iii) is available.
The appellant argues that proficiency in either of the official languages is irrelevant, and that every accused is entitled to the notice under s. 530(3). That is true. But while proficiency in the language is not relevant to the entitlement to get notice, it is relevant to remedy. MacKenzie confirms that the finding of a breach of s. 530(3) leads to a consideration of the appropriate remedy. Here there has been no substantive effect on the fairness of the appellant’s trial. The Court is faced with the prospect of ordering a new trial, having the appellant elect a trial in English, and requiring the trial court, the witnesses, and the Crown to simply repeat the process. That could only serve to undermine the finality of criminal proceedings, undermine the jury verdict, and trivialize the importance of the right to a trial in one’s first language. (para 1, 8-9)
