R. v Mackenzie

Year: 
2004
Categories: 
Legislative and judicial bilingualism
Court: 
Nova Scotia Court of Appeal
Citation: 
2004 NSCA 10
Province or Territory: 
Nova Scotia

The Nova Scotia Court of Appeal’s judgment in MackenzieFootnote 1 confirmed and restated the obligation that a justice of the peace or provincial judge has under subsection 530(3) of theCriminal Code to inform the accused of his or her right to a trial in the official language of choice. It also indicated the circumstances in which this right is applicable and the conditions of its application, and ruled on the remedies available if the right is infringed. Finally, it placed its analysis of the scope of subsection 530(3) of the Criminal Code in the more general context of the right to have a trial in one’s own language, set out in section 530 of the Criminal Code, and it summarized the way in which the right is to be treated.

Ms. MacKenzie was charged with speeding. When she appeared in the Provincial Court she was not represented by counsel and the Provincial Court judge did not tell her of her right to be tried in her own language. The Provincial Court proceedings took place in English and Ms. MacKenzie was convicted and sentenced to pay a fine.

Ms. Mackenzie subsequently appealed to the Nova Scotia Supreme Court as the court of appeal for summary convictions. That Court concluded there had been an infringement of subsection 530(3) of the Criminal Code and that the infringement contravened sections 15, 16 and 19 of the Canadian Charter of Rights and Freedoms (The Charter). Consequently, it held that the appropriate remedy under section 24 of the Charter was a stay of proceedings.

Subsequently, the Crown applied for leave to appeal this judgment, citing an error of law as to the remedy granted. The Crown acknowledged that there had been a breach of subsection 530(3) of the Criminal Code, but argued that the judge had not granted the appropriate remedy and that the holding of a new trial should have been ordered instead of a stay of proceedings.

Conditions for subsection 530(3) of Criminal Code to apply

The Crown admitted that subsection 530(3) of the Criminal Code had not been observed, but suggested at the appeal hearing that it was understandable that the Provincial Court judge did not take it into account since he possessed no documents indicating that Ms. Mackenzie was a Francophone.

The Court of Appeal made a point of noting that this argument is not relevant in applying the right conferred by subsection 530(3) of the Criminal Code. The only relevant condition for informing an accused of this right is that the accused is not represented by counsel. The Court of Appeal pointed out that an accused is not required to profess being Francophone before being informed of his or her right. The Court indicated that what makes it necessary to inform the accused under subsection 530(3) is that an unrepresented person is probably not aware of his or her right that the trial be held in either language. Accordingly, once this single condition—appearance without representation—exists, it is up to the judge to take the initiative in informing the accused of the right.

After analysing the applicable precedents, including Beaulac,Footnote 2 the Court of Appeal indicated how the more general right set out in section 530 of the Criminal Code should be treated and applied:

  1. Ms. MacKenzie has an absolute right under s. 530(1) to a trial in her own language. If "circumstances warrant" the court may order that the judge or jury be bilingual further to the concluding words of s. 530(1).
  2. Her right is not subsumed into her separate right to a fair trial. Section 530(1) states an independent right to access a public service that is responsive to her linguistic and cultural identity.
  3. It is for Ms. MacKenzie to decide whether English or French is her "own language" for trial provided only that she is capable of instructing counsel in her chosen official language.
  4. Ms. MacKenzie’s assertion of language is the prerequisite to the application under s. 530(1) for a trial in French.
  5. Effective notice is prerequisite to the assertion of language by an unrepresented accused. Because Ms. MacKenzie was unrepresented, the court was required to notify Ms. MacKenzie under s. 530(3) of her right to apply for a trial in either official language and the time within which that application must be made. Ms. MacKenzie’s right to notice is as absolute as are Ms. MacKenzie’s rights which flow from that notice. In Beaulac Justice Bastarache (para. 37) noted "the questionable value" of s. 530(3) because even when accused have counsel, the counsel may fail to advise their client of a right to a trial in either official language. Obviously there is no basis to dilute the required notice to unrepresented persons.
  6. On her first appearance, at the time of the required notice under s. 530(3), it was unnecessary that Ms. MacKenzie identify herself as French-speaking, or state her preference for French. If she was unrepresented, she was entitled to notice regardless of her actual or apparent proficiency in either French or English. If the Provincial Court judge neglects the notice then, if the Crown wishes to avoid the trial process inefficiency which has occurred here (two appeals, and a stay or new trial), Crown counsel should consider reminding the Provincial Court judge of s. 530(3).
  7. If Ms. MacKenzie applied for a French trial under s. 530(1), then the judge may determine whether French is "the language of the accused". When the accused chooses French or English, the inquiry is limited to whether she can instruct counsel in her chosen language. This is the only point when a judge assesses language proficiency. There is no such assessment before the notice under s. 530(3).Footnote 3[emphasis added]

Appropriate remedy where subsection 530(3) not observed

As the Nova Scotia Supreme Court granted the remedy pursuant to section 24 of the Charter (the provision dealing with remedies in the event of a breach of any provision of the Charter), the Court of Appeal considered whether there had been a breach of the Charter. The Court of Appeal concluded in this regard that there had been no breach of the Charter, and, in particular, of the right to equality guaranteed in section 15, since "language" is not an analogous ground to the grounds mentioned in subsection 15(1).Footnote 4 As to the language rights guaranteed in sections 16 to 23 of the Charter, the Court of Appeal held that subsection 19(1)Footnote 5 had not been infringed, as the latter only applied to courts "established by Parliament" and that the Provincial Court which tried Ms. Mackenzie was not a court "established by Parliament". The same is true of subsection 16(1),Footnote 6 which only applies to "institutions of the Parliament and government of Canada", and the Provincial Court is not an institution of Parliament or of the executive. Finally, the Court of Appeal considered there had been no infringement of subsection 16(3) of the Charter,Footnote 7 because, although this made intra vires the provisions of legislation by Parliament or a provincial legislature to promote progress towards equality of status or use of French or English, such as section 530 of the Criminal Code, it did not thereby give them constitutional status or incorporate them into the Charter. Finally, despite the quasi-constitutional nature of section 530 of the Criminal Code, which requires broad and liberal interpretation, its infringement is not a basis for relying on subsection 24(1) of the Charter.

As there had been no infringement of the Charter, only an infringement of subsection 530(3) of the Criminal Code, the Court of Appeal noted that the available remedy would lie either in section 686 of the Criminal Code or in the rules laid down by the courts regarding the discretion to stay proceedings in cases where there had been a breach of the rules of natural justice.

Regarding section 686 of the Criminal Code, the Court noted that this provision sets out possible remedies where an appeal is allowed (directing a judgment or verdict of acquittal to be entered or ordering a new trial), and it contains no express reference to a stay of proceedings. On the rules laid down by the courts regarding the discretion to stay proceedings where there has been a breach of the rules of natural justice, the Court of Appeal noted that nothing in the record suggested that the Provincial Court had deliberately failed to give a notice pursuant to subsection 530(3), or that Nova Scotia judges acted in this way systematically. It confirmed there had been a breach of subsection 530(3) of the Criminal Code, but there had been no abuse of process or denial of Ms. Mackenzie’s rights to fundamental justice and a fair trial under section 7 and paragraph 11(d ) of the Charter. It accordingly concluded that a stay of proceedings was not an option and the Court should have ordered a new trial to be held. Consequently, the Court of Appeal quashed the stay of proceedings and ordered a new trial.

Footnotes

Footnote 1

R. v MacKenzie (2004), 221 N.S.R. (2d) 251, 2004 NSCA 10.

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Footnote 2

R. v Beaulac, [1999] 1 S.C.R. 768.

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Footnote 3

R. v MacKenzie (2004), 221 N.S.R. (2d) 251, 2004 NSCA 10 at para. 15.

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Footnote 4

Paragraph 15(1) of the Charter provides as follows: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

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Footnote 5

Paragraph 19(1) of the Charter provides as follows: "Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament."

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Footnote 6

Paragraph 16(1) of the Charter provides as follows: "English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada."

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Footnote 7

Paragraph 16(3) of the Charter provides as follows: "Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French".

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Date modified:
2020-09-18