PotvinFootnote 1 raises the question, which over the years has been considered by the courts on more than one occasion, of the scope of the right conferred by section 530.1 of the Criminal Code and the rights that result therefrom. Specifically, at issue was an order giving an accused the right to be tried before a judge and jury who speak French.
In that case, the Court had ordered that the accused be tried before a judge and jury who speak French. Nonetheless, the preliminary motions were largely heard in English and the judge intervened primarily in English, the appellant being given a translation. During the hearing of the preliminary motions, the accused several times mentioned that he was not satisfied with the way the trial was proceeding. At the end of the fifth day of hearing on the preliminary motions, counsel for the defence interrupted the discussion between the judge and counsel for the Crown to ask that they speak in French. The judge then indicated that the Criminal Code did not require every word to be said in French. Finally, he rendered his decision on the preliminary motions in English, and no translation was entered in the record.
During the first five days of the trial, the eleven witnesses spoke only in English and the judge intervened several times, chiefly in that language. Since there was simultaneous interpretation, no transcript of the interpretation was entered into the record. On the sixth day, counsel for the defence submitted that the accused had applied for a trial in French, not a bilingual trial, stating that he could not hear or understand everything that was happening in the courtroom, nor was he able to determine the accuracy of the translation.
The trial judge dismissed the application, stating that he was satisfied the accused had a judge and jury who spoke French, in keeping with the requirements of the Criminal Code. Subsequently, both counsel made their final addresses to the jury in French, but the judge continued to speak chiefly in English, even making his charge to the jury partly in English and partly in French. Finally, the accused was acquitted of attempted murder but convicted on other charges. He appealed, claiming a breach of paragraphs 530.1(e) and (g) of the Criminal Code.Footnote 2
In its judgment, the Ontario Court of Appeal noted that the failure by the accused to make an objection during the first five days of testimony had to be considered in the context of the trial as a whole. In view of the problems the accused and his counsel had to confront in the preceding days, at the time of the preliminary inquiry, it was not surprising that counsel made no objection at the start of the trial. Accordingly, the Court refused to regard this omission as consent by the accused to a bilingual trial. The Court of Appeal noted that once an order has been made that a trial will take place in the accused’s official language, the proceeding must be consistent with requirements without the accused or his or her counsel being continually forced to argue the point. Consequently, it was up to the trial judge to ensure that the trial proceeded in French.
In the view of the Court, once an order is made pursuant to section 530 of the Criminal Code, paragraph 530.1(e) requires that the trial judge and counsel for the Crown speak the official language chosen by the accused, not simply have the ability to understand it. The Court said:
If it were enough for the judge and prosecutor to understand French, without it being necessary for them to use it during the proceeding, there would be little difference between, on the one hand, the right to a unilingual trial in the official language of one’s choice, and on the other, the right to the assistance of an interpreter already provided for in s. 14 of the Canadian Charter of Rights and Freedoms. The right to the assistance of an interpreter ensures that the accused will be able to understand his or her trial and make himself or herself understood, and that the trial will thus be fair: see R. v Beaulac, at para. 41. However, as noted by the Supreme Court in Beaulac, at paras. 25 and 41, "
language rights are . . . distinct from the principles of fundamental justice. . . .Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English."Footnote 3
Consequently, the Court of Appeal concluded that the language rights of the accused set out in paragraph 530.1(e) had been infringed. As no transcript of the interpretation was entered in the record during the first five days of testimony, allowing the accuracy of the interpretation to be determined, the Court of Appeal concluded that the language rights set out in paragraph 530.1(g) of the Criminal Code had also been infringed. Based on these conclusions, and the fact that the rights set out in sections 530 and 530.1 of the Criminal Code are important substantive rights, the Court of Appeal quashed the conviction and ordered a new trial.
Finally, with respect to the accused’s submission that the warrant regarding DNA analysis should have been in French, as the order for the trial to be held in French was made prior to the warrant being authorized, the Court held that this warrant was not part of the trial and, in any case, an accused does not have an automatic right to the translation of such documents filed at the trial.
- Footnote 1
R. v Potvin (2004), 69 O.R. (3rd) 654.
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- Footnote 2
Paragraphs 530.1(e) and (g) of the Criminal Code provides as follows: "
Where an order is granted under section 530 directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language that is the language of the accused or in which the accused can best give testimony, (...)"
(e) except where the prosecutor is a private prosecutor, the accused has a right to have a prosecutor who speaks the official language that is the language of the accused;
(g) the record of proceedings during the preliminary inquiry or trial shall include
(i) a transcript of everything that was said during those proceedings in the official language in which it was said,
(ii) a transcript of any interpretation into the other official language of what was said, and
(iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered.
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- Footnote 3
R. v Potvin (2004), 69 O.R. (3rd) 654 at para. 32.
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