Court clarifies how appellate courts assess breaches of right to trial in official language of choice
In a ruling highlighting the importance of access to justice in both of Canada’s official languages, the Supreme Court of Canada has clarified the legal framework for language rights in criminal proceedings.
In Franck Yvan Tayo Tompouba v. His Majesty the King, released Friday morning, the court’s majority ruled a man not informed of his right to a French trial will be retried on his sexual assault charges.
“Today’s decision in Tayo Tompouba is a landmark judgment on access to justice in both official languages in Canada,” says Jonathan Laxer, counsel for Tayo Tompouba. “It ensures that individuals have a meaningful right to a trial in the official language of their choice.”
“The Court recognized that an individual can only choose a trial in the other official language if they are advised of that right,” he says “The Court has provided a useful framework that ensures that this right is complied with going forward.”
The right of Canadians to be tried in the official language of their choice is contained in s. 530 of the Criminal Code. The accused must make an application at the appearance at which their trial date is set. Under s. 530(3), the judge has an obligation to ensure an accused is advised of their right to apply for an order that they are tried in the official language of their choice.
A court convicted the bilingual Tompouba of sexual assault in an English language trial in British Columbia. He appealed, arguing he should be tried in French, and that he was not given that option. Tompouba did not apply for a French trial but argued that the trial judge failed in his obligation under s. 530(3) to ensure he had an opportunity to exercise his right to one.
The SCC’s decision was split, with two of the seven justices in dissent.
The majority described the proper analytical framework that a Court of Appeal must apply when a person appeals their conviction because they were not informed of their right to a trial in the official language of their choice and no decision on their language rights was made at first instance.
The majority said s. 530(3) involves a duty to ensure an accused is informed of their language rights and how they can be exercised. A trial judge breaching their s. 530(3) duty has committed an error of law and an appellate court can intervene. The Crown can then apply the curative proviso under s. 686(1)(b)(iv) of the Criminal Code, under which the Crown can rebut the presumption that the accused’s language rights have been violated by demonstrating that the violation did not cause prejudice.
The Canadian Bar Association (CBA) intervened in the case to advocate for the importance of official language rights in criminal proceedings, having access to justice in both official languages, and the significance of a lawyer’s ethical duty to advise clients about their official language rights. The CBA’s intervention also focussed on the necessity of protecting solicitor-client privilege when judges inquire about a person’s official language rights.
“The majority gave a strong endorsement of the importance of official language rights,” says Connor Bildfell, who acted for the CBA with Michael Feder and Lindsay Frame.
The SCC built on its 1999 decision in R. v. Beaulac, he says, which had given a “liberal and purposive interpretation” of official language rights.
“It takes Beaulac a step further and reinforces the importance of official language rights and access to justice in both official languages.”
The majority confirmed that, in addition to the right to be tried in the official language of their choice, an accused also has a right to be informed of that right, says Bildfell. Failure by the first-appearance judge to fulfill that right is an error of law warranting appellate intervention and possibly a new trial.
“That's a strong endorsement of the importance of official language rights in criminal proceedings. It's not an error that can be easily shrugged off. It's a serious error that, in the majority's view, undermines official language rights as enshrined in the Criminal Code.”
However, says Bildfell, the majority missed an opportunity to provide a caution that when ensuring that an accused has been advised of their official language rights, the judge is not making inquiries that intrude into solicitor-client privilege.
