R v Wilkins, 2016 ONSC 2966
The applicant is an English-speaking accused. He is charged with possession of heroin for the purpose of trafficking and simple possession of a drug called buprenorphine. He applies pursuant to s. 638(1)(f) of the Criminal Code to challenge each prospective juror for cause on the basis that they do not speak the official language of Canada in which his trial is to be held. In this case that language is English.
Although the accused would be tried in English in this jurisdiction absent an election by him to have his trial conducted in French, he requested and obtained an order pursuant to s. 530(1) of the Criminal Code from the judge presiding at his preliminary inquiry directing that his trial be conducted in English.
The accused submits that because he has obtained an order pursuant to s. 530(1) he is automatically entitled to challenge each prospective juror for cause pursuant to s. 638(1)(f) without showing more.
Alternatively, having filed census data which shows that this region of Ontario is very multicultural and that the "mother tongue" of over 45 percent of the population is neither English nor French, he submits that by that evidence, in combination with the s. 530(1) order, he has shown enough to permit a challenge for cause of each prospective juror in respect of their ability to speak and understand English.
On the facts of this case I conclude that the application is animated by concerns about trial fairness and not by concerns about the accused’s right to equal access to justice in the official language of Canada of his choice. This is significant because s. 638(2) specifies that: "No challenge for cause shall be allowed on a ground not mentioned in subsection (1)." A challenge for cause on the basis of language competence does not fit within any of the other clauses of s. 638(1).
Taking a purposive approach and recognizing that language rights are substantive in nature, I conclude that s. 638(1)(f) was enacted to assist in ensuring that an accused having a trial anywhere in Canada has a full opportunity to have their trial conducted in the official language of their choice or, in appropriate cases, a bilingual trial, where that would not occur in the normal course in the jurisdiction where the trial is to be held. In enacting s. 638(1)(f) Parliament recognized that, in circumstances where s. 530 is being put to its intended use, some additional tools must be available to ensure that equality of access to justice in either official language is achieved. Section 638(1)(f) does not authorize a procedure by which an accused, who will have a trial in the official language of their choice in the normal course, may question prospective jurors about trial fairness issues related to their language competence. That is how the accused is trying to use the provision in this case and I conclude that it is a misuse of the provision, although well intentioned.
(para 2, 4, 10, 11, 26, 27)
