R. v. Tayo Tompouba

Background

Trial decisions

The violation of Mr. Tayo Tompouba’s language rights was raised for the first time before the British Columbia Court of Appeal, which ruled that a new trial was not appropriate for the violation of the right to be notified of one’s right to a trial in the language of their choice. Although the breach of subsection 530(3) of the Criminal Code constituted an error of law under subsection 686(1)(a)(ii) of the Criminal Code, the Court deemed that the evidence was insufficient to conclude that the error was prejudicial. It therefore applied one of the curative provisos in subsection 686(1)(b) of the Criminal Code to dismiss the appeal.

It is the opinion of the Court of Appeal that Mr. Tayo Tompouba had failed to meet the onus of proving that the judge’s failure to comply with the obligation set out in subsection 530(3) of the Criminal Code had also resulted in the violation of his fundamental right to be tried in the official language of his choice, in accordance with subsection 530(1) of the Criminal Code.

Ruling

A majority of the Supreme Court of Canada allowed Mr. Tayo Tompouba’s appeal and ordered a new trial in French. The Court concluded that the Court of Appeal made reviewable error in declining to order a new trial.

Writing for the majority, Chief Justice Wagner confirmed that the violation of subsection 530(3) of the Criminal Code was an error of law warranting appellate intervention under paragraph 686(1)(a) of the Criminal Code. This error of law taints the trial court’s judgment and gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated. The Crown can rebut this presumption for the purposes of the analysis under the curative proviso in subparagraph 686(2)(b)(iv) of the Criminal Code.

The Crown may argue that the Court of Appeal should dismiss an appeal on the ground that the error or irregularity was not prejudicial to the accused. This framework gives the Crown an opportunity to persuade the Court of Appeal that the accused’s fundamental right to be tried in the official language of their choice was respected, despite the breach of subsection 530(3) of the Criminal Code. If the Crown succeeds, the appeal can then be dismissed.

Applying this analytical framework to the facts, the majority concluded that the Court of Appeal erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of subsection 530(3) of the Criminal Code, that his fundamental right to be tried in the official language of his choice had in fact been violated at first instance. If the Court of Appeal had applied the proper legal framework, it would have found that Mr. Tayo Tompouba had proved that a reviewable error had been made and that the Crown had failed to establish that the appellant’s fundamental right was not in fact violated despite the breach of subsection 530(3) of the Criminal Code.