IV. Language Rights in the Criminal Trial Process
Page 15 of 42
The impact of the Supreme Court decision in Beaulac on the manner in which language rights should be interpreted has already been reviewed in Part I of this report. The Court also gave direction with respect to the specific provisions of the Criminal Code that recognize the right of an accused to be tried by a judge, or judge and jury, who speak his or her official language. That right, set out in subsection 530(1) of the Code, is unqualified when accused persons indicate their desire to be tried in their official language not later than the time when the case is set down for trial, the time of election or the time when the accused is ordered to stand trial (these three events being dependent on the nature of the charges).
Thus, when an accused makes a request within these time limits, the Code directs that “a justice of the peace or provincial court judge shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.” Should an accused make an untimely request to be tried in his or her official language, subsection 530(4) gives a judge the discretion to make a similar order if satisfied that it would be in the best interests of justice.
The facts in Beaulac pertain to a complex criminal prosecution for murder that included two mistrials, for reasons unrelated to language rights, and a third trial at which the accused was found guilty. A request for a trial in French was initially made several days into the first trial (when the accused became aware of his rights in this regard) but was refused by the presiding judge. When a mistrial was declared and a new trial ordered, the accused renewed his request to be tried by a judge and jury who spoke his official language. Though his request was denied, principally because of the conclusion that the accused was sufficiently fluent in English to ensure that his trial would be fair, he renewed it again at various times throughout the court processes in which he was involved.56 The refusal of all trial level judges to accept the request of the accused, which refusal was confirmed by the British Columbia Court of Appeal, set squarely before the Supreme Court of Canada the question of what factors should be considered in the exercise of judicial discretion under subsection 530(4) of the Criminal Code.
As already mentioned, the only guidance given explicitly to a judge when exercising discretion under subsection 530(4) is found in the standard “best interests of justice.” The Supreme Court emphasized that a judge, in applying this standard, must consider the purpose that lies behind the basic right of an accused to be tried in his or her official language, namely “to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity.”57 It is this underlying purpose that distinguishes the nature of language rights in the trial process from the universal right, which is applicable to all accused regardless of language, to a fair and equitable trial. This distinction must be kept in mind when interpreting the language rights in question, something that the British Columbia Court of Appeal had failed to do.
As the Supreme Court pointed out, the Court of Appeal (when dealing with the standard “best interests of justice”) had essentially considered whether an accused who understands both official languages is denied a fair trial if his request to be tried in his own official language is rejected (though he is provided interpretation as needed). In order to avoid the conclusion that French-speaking and English-speaking Canadians might have a more extensive right to trial fairness than those who possessed neither language, the Court of Appeal felt constrained to answer its hypothetical question in the negative. But its error consisted in not recognizing the distinction between the two types of rights, a distinction that had already been emphasized in a previous Supreme Court decision: “It would constitute an error either to import the requirements of natural justice into ... language rights ... or vice versa, or to relate one type of right to the other ... Both types of rights are conceptually different ... To link these two types of rights is to risk distorting both rather than reenforcing either.”58
The Supreme Court recognized that a judge should consider numerous factors when exercising discretion regarding an untimely application under subsection 530(4): “Among these factors are whether the accused is represented by counsel, the language in which the evidence is available, the language of witnesses, whether a jury has been empanelled, whether witnesses have already testified, whether they are still available, whether proceedings can continue in a different language without the need to start the trial afresh, the fact that there may be co-accused (which would indicate the need for separate trials), changes of counsel by the accused, the need for the Crown to change counsel and the language ability of the presiding judge.”59 However, the Court made it clear that mere administrative inconvenience is not a relevant factor. “The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the OLA by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the minority official language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages.”60
