Language Rights 1999 - 2000
Page 17 of 42
3. R. v. LeA recent decision67 of the Ontario Superior Court of Justice also cited and quoted Beaulac, although it distinguished the circumstances of the case before it from the latter and declined to order a new trial for a technical breach of subsection 530(2). That subsection deals with the situation of an accused person whose language is neither French nor English. It recognizes the discretion of a judge to order that such an accused be tried in the official language in which, in the opinion of the judge, the accused can best give testimony, if an accused makes an application within the same time limits that apply to an accused whose language is either French or English.
The circumstances of the case pertain to an accused who was arrested and brought before a justice of the peace the same day. The accused was Vietnamese in origin, though the evidence indicated that she spoke both English and French with reasonable competence. The justice of the peace remanded her in custody to the next day, when a bail hearing was to take place, without informing her of the language rights set out in section 530. From the next day forward the accused was always represented by counsel. Her preliminary inquiry took place in English and she was eventually ordered to stand trial. Her counsel brought an appeal to have the order committing her for trial on five drug-related charges quashed, alleging a number of legal errors, one of which was the failure to inform the accused of her right to make an application regarding the language of trial pursuant to the provisions of section 530.
The Court acknowledged that the justice of the peace before whom the accused had first appeared had not informed the accused of her right to make an application under subsection 530(2). However, it pointed out a number of factors that militated against concluding that this technical breach rendered all subsequent proceedings null and void. First, the accused’s first appearance had been limited to only one of the five charges eventually laid. Second, the accused had been represented by counsel at all subsequent proceedings, beginning with the bail hearing the next day, and at no time was there any reference made to possible language rights under section 530.
While the Beaulac decision had been heavily relied upon by the accused’s counsel on appeal, the Court pointed out that it had not disposed of the issue of the consequences of failing to meet the requirements of subsection 530(3) of the Criminal Code, especially in circumstances similar to those now being considered. It did not seem to quarrel with the reasoning or conclusions reached in Beaulac, although the extracts it chose to reproduce from the judgment seemed unrelated to issues raised by subsection 530(2) of the Code. For example, the Ontario court reproduced the discussion in Beaulac about how to identify or determine the official language of an accused.68 This is a matter relevant to subsections 530(1) and (4), but does not seem related to the particular circumstances of an accused who would fall within the scope of subsection (2). In any event, the Court accepted that the language rights in section 530 must be interpreted “rationally, purposively and contextually.” When such an approach was applied to the facts in the case before it, the Court concluded that any error committed was purely procedural and did not justify declaring the preliminary inquiry null and void.
