R v Badr, 2017 ONSC 171
In at least two cases decided in this jurisdiction, R. v. Seevnivasam, [2004] O.J. No. 4888 and R. v. Martin, unreported April 20, 2005, the Court granted the application where there was a pre-existing s. 530 order. In both cases, the applicant called evidence regarding the number of persons whose "mother tongue" was not English. In both, the court concluded that evidence of "a significant percentage of prospective jurors in our region whose mother tongue is not English, creates an air of reality for the requested challenge pursuant to s. 638(1)(f)." They also held that "self-assessment by a potential juror is not a sufficiently reliable measure of linguistic competency": noted at para. 25 of Leon. (para 12)
In my view, s. 530(1), either on its own or in combination with s. 638(1)(f) of the Code, does not create an automatic right, in every case, for an accused to challenge prospective jurors for cause with respect to their linguistic competency. (para 13)
One of the reasons for this is that there are mechanisms in place for the pre-screening of prospective jurors about their ability to speak and understand English. For example, the questionnaire sent to prospective jurors requires them to indicate whether they can read, speak and understand English. Second, the preliminary remarks to a jury panel inform prospective jurors to advise the trial judge, when they are given an opportunity to do so, whether they have any difficulty understanding the language of the trial. (para 14)
It may be suggested that allowing an accused to challenge prospective jurors on their language competence is necessary to independently evaluate a prospective juror's assertion that he or she had a sufficient understanding of English to impartially render a true verdict in the case. (para 15)
However, there is no evidence before me suggesting that there is a need for such independent evaluation or assessment. Neither is there any evidence suggesting that prospective jurors habitually overstate or misrepresent their competency in the English or French language to enhance their chances of being selected as a juror. On the contrary, the very converse may be true. The unfortunate reality is that may persons, at least in this jurisdiction, seek to be excused from jury duty on the basis of their limited knowledge of the English language. (para 16)
