IV. Language Rights in the Criminal Trial Process
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1. R. v. Beaulac (cont.)
In recognizing that numerous factors must be considered when dealing with an untimely application, the Supreme Court also pointed out that the best interests of justice are usually better served by accepting the application, in particular in cases involving a retrial. It should therefore fall generally to the Crown to demonstrate that the request of an accused is unreasonable in the circumstances of any given case. When a retrial has been ordered the presumption in favour of an accused is very strong, and the Crown would have to present cogent reasons establishing exceptional circumstances to override the basic right to a trial in the official language of an accused.61
It was clear, in the case at bar, that the British Columbia Court of Appeal had based its decision on the ability of the accused to speak and understand English. This concern about the fairness of the trial process was a fatal error, for “[i]f the right of the accused to use his or her official language in court proceedings was limited because of language proficiency in the other official language, there would in effect be no distinct language right.”62 As to relevant considerations under subsection 530(4) of the Code, the Crown had presented no evidence related to special circumstances to show that the trial process would have been adversely affected by acceding to the request of the accused. Moreover, the accused had not been responsible for the untimeliness of his original application to be tried in his own official language, and had diligently renewed his request at every opportunity in the subsequent judicial process.63
Despite the errors of law that had occurred in the lower courts, the Crown argued before the Supreme Court that the circumstances did not warrant overturning a guilty verdict against the accused. It relied on provisions in the Criminal Code designed to avoid the setting aside of convictions when only relatively minor or harmless errors of law had been committed. This characterization of the breach of language rights in the case at bar was unacceptable to the Supreme Court. It found that the violation of section 530 amounted to a substantive wrong and not a procedural irregularity. An effective remedy was therefore necessary. Accordingly, the judgment of the British Columbia Court of Appeal was set aside and a new trial ordered, to be held before a judge and jury who spoke both official languages of Canada.
The decision of the Supreme Court in Beaulac was cited and widely quoted by the Nova Scotia Supreme Court in R. v. Deveaux.64 The facts pertain to an unrepresented accused who appeared before a provincial court judge charged with assault. The charges were read, he pleaded not guilty, and the judge set a date for trial without advising the accused of his rights under section 530 of the Criminal Code. Subsection 530(3) requires a justice of the peace or provincial court judge before whom an unrepresented accused first appears to advise him of his right to make an application regarding the language of trial.65 At his trial (where the accused was represented by counsel) the proceedings were conducted in English and he was found guilty as charged. His conviction was appealed on the grounds that the provincial court judge before whom he had first appeared had failed to inform him of his rights under section 530 of the Criminal Code.
The Nova Scotia Supreme Court pointed out that a provincial court judge was statutorily obliged to inform an accused of his right to make an application regarding the language of trial (the subsection in question using the word “shall”). It also referred to the reasoning in Beaulac to the effect that the ability of an accused to speak both official languages was irrelevant to the proper interpretation of section 530 and that, in applying section 530, a judge must give full effect to its underlying purpose. It found that the rights set out in section 530 were meant to ensure equal access of both official language groups to the criminal courts in Canada, in order to assist official language minorities to preserve their cultural identity. It also adopted the Supreme Court’s ruling in Beaulac that language equality should be interpreted substantively.66 Given the breach of the substantive rights under subsection 530(3), the Court followed the decision in Beaulac, found that the error committed did not amount to a procedural irregularity, and ordered a new trial.
