Notes
Page 38 of 42
56 For a more complete summary of the history of the trial process see para. 7-11 of the Supreme Court decision: R. v. Beaulac, [1999] 1 S.C.R. 768. For a review of the decision of the British Columbia Court of Appeal see: Language Rights in 1997, pp. 16-17; Commissioner of Official Languages; Public Works and Government Services Canada, Cat.No. SF31-34/1998; ISBN 0 662-63335-0.
58 Cited in Beaulac at para. 41. The previous decision was MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, at pp. 500-501. The Supreme Court in Beaulac pointed out that “[t]he right to make full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his trial. But this is already guaranteed by s. 14 of the Charter, a section providing for the right to an interpreter ... The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages.” At para. 41.
63 In cases of retrial, the issue arises as to when is the most appropriate time to make a request to be tried in the minority official language. The Supreme Court suggested that would be done ideally at the conclusion of any appeal hearing where a new trial is ordered. To facilitate matters the Supreme Court recommended that appeal courts routinely ask accused persons if they wish to make an application under section 530 where “there are obvious signs that this is a possibility.” It went on to say: “If no application is made at the time when the new trial is ordered, it would be appropriate for the accused to make an application before or at the time when the trial date is set. This application must be considered timely under s. 530(4) in the case of the retried accused. The provision makes it clear that the accused can apply for a trial in his official language at a later time, but delays constitute important factors to be weighed by the judge exercising the discretion.” At para. 51.
64 R. v. Deveaux, [2000] 181 N.S.R. (2d) 81.
65 Subsection 530(3) reads: “The justice of the peace or provincial court judge before whom an accused first appears shall, if the accused is not represented by counsel, advise the accused of his right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.”
66 Without giving any reasons, the Court also declared that the failure to respect the provisions of subsection 530(3) was a violation of sections 15, 16 and 19 of the Charter. See para. 15 and 16 of its decision.
67 R. v. Le, Ontario Superior Court of Justice, [2000] O.J. No. 246/Court File No. 5024F.
68 In Beaulac the Supreme Court concluded: “An accused’s own language, for the purposes of s. 530(1) and (4), is either official language to which the person has a sufficient connection. It does not have to be the dominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he will be able to assert that that language is his language, regardless of his ability to speak the other official language. The Crown may challenge the assertion made, but it will have the onus of showing that the assertion is unfounded. The court, in such a case, will not inquire into specific criteria to determine a dominant cultural indentity, nor into the personal language preferences of the accused. It will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language.”
