3.4 Language rights of the accused
Page 11 of 21
Denver-Lambert c. R.109
In this case, the Court of Appeal of Quebec examined the right of an accused to be tried before a judge and jury in his or her official language pursuant to section 530(4) of the Criminal Code.110
Mr. Denver-Lambert and Mr. Lévesque were accused of murdering two individuals. On April 24, 2004, Mr. Denver-Lambert’s preliminary inquiry took place, and was conducted in French. The pre-hearing conference, held October 4, 2004, was also conducted in French. His trial was scheduled for October 26, 2004. When Mr. Denver-Lambert met with his lawyer in early October 2004, he informed his lawyer that he had difficulty following the debates during the pre-hearing conference. At this point, Mr. Denver-Lambert’s lawyer informed him of his right to be tried in the official language of his choice. Mr. Denver-Lambert’s lawyer filed a motion requesting that his client be tried in English. The trial judge denied the motion on the grounds that Mr. Denver-Lambert’s request was submitted late in the trial process and that the reasons for the delay were not genuine, given his knowledge of the French language and the fact that since his first appearance all of the proceedings had been conducted in French. Mr. Denver-Lambert was subsequently found guilty on two counts of first-degree murder.
Mr. Denver-Lambert appealed the guilty verdicts on several grounds, including that the trial judge erred in rejecting his application to be tried in English, contrary to the requirements of section 530(4) of the Criminal Code. The Court of Appeal began its analysis by outlining the application of section 530(4), as determined by the Supreme Court of Canada in R. v. Beaulac.111 The Court explained that the first step in the application of section 530(4) is to determine the language of the accused. To this end, the only applicable criterion is whether the accused has sufficient knowledge of his chosen official language in order to instruct counsel and to follow the proceedings. Other factors, such as the accused’s linguistic abilities in the other official language or the language of the proceedings conducted thus far are not relevant in this determination, nor should the Court seek to examine the personal linguistic preferences of the accused or to identify a dominant cultural identity. The Court explained that the Crown may challenge the assertion made by the accused, but the Crown would then have the burden of demonstrating that the assertion is unfounded.
The Court of Appeal then explained that the right provided in section 530(4) is discretionary, and that, as a second stage in the analysis, the Court must determine whether the best interests of justice will be served by granting the application. It explained that there is a presumption that the application should be granted, and that any denial of the application is exceptional and needs to be justified. In this determination, the reasons for the delay in the application, including the moment when the accused first became aware of his or her rights, are of foremost importance. Once the reasons for the delay have been examined, the trial judge must consider a number of factors related to the trial process (i.e. what are the difficulties that could arise as a result of granting a request under section 530(4)).
The Court of Appeal found that the trial judge had erred in the application of section 530(4) of the Criminal Code. With regard to the first stage of the analysis, which involves the determination of the language of Mr. Denver-Lambert, the trial judge applied the wrong criteria. Factors such as Mr. Denver-Lambert’s abilities in French, the language of the proceedings conducted thus far, personal linguistic preferences and dominant cultural identity should not have been considered. In regards to the second stage—whether the interests of justice would be served by granting the application—the Court of Appeal found that the trial judge should have taken into account the moment when Mr. Denver-Lambert became aware of his right under section 530(4). Furthermore, it is the Crown that has the burden of proving that granting the application would not be in the best interests of justice, and in the absence of any specific proof to that effect, the trial judge should have granted the application.
The Court of Appeal allowed the appeal, set aside the guilty verdicts and ordered a new trial.
Dow v. R.112
In this case, the Quebec Court of Appeal had to determine whether the appellant was deprived of his right to an English-language jury trial, as provided for in sections 530 and 530.1 of the Criminal Code,113 and whether his right to an interpreter under section 14114 of the Charter had been violated.
Bertram Dow, the appellant, a unilingual Anglophone, was tried for second-degree murder before a Superior Court judge and jury composed solely of English-speaking persons. The jury found him guilty of second-degree murder, and the appellant was sentenced accordingly. The verdict was appealed on several grounds, including that the appellant was deprived of his right to an English-language trial and of his right to have the entirety of the transcript of the trial in English, as provided for in sections 530 and 530.1 of the Criminal Code and section 14 of the Charter. The Crown argued that neither section 530 nor 530.1 of the Criminal Code applied since counsel for the appellant never made an application on his behalf as contemplated by section 530(1) of the Criminal Code. In the alternative, the Crown argued that even if section 530.1 of the Criminal Code was applicable, the appellant had waived any such rights.
A. Infringement of rights pursuant to the Criminal Code and the Charter
Hilton J.A., writing for the Court of Appeal, first considered whether the conduct of the trial before the Superior Court respected the appellant’s rights as provided for in section 530.1 of the Criminal Code and section 14 of the Charter.
He noted that the indictment was drafted in English, and the appellant elected to be tried before a jury composed exclusively of English-speaking persons. He then described his findings regarding the conduct of the trial, both in the presence of the jury and outside the presence of the jury. When in the presence of the jury, the trial was conducted as an English-language trial, with the exception of three instances involving discussion between the trial judge and counsel. During these instances, interpretation was not provided for the appellant, and consequently the transcript of what was said was in French. Outside the presence of the jury, the conduct of the trial was quite different. There were several exchanges between the trial judge and counsel that took place in French only, with simultaneous rather than consecutive interpretation, and sometimes with no interpretation at all.115 During the voir dires, both counsel asked questions of the witnesses in French, and these questions and any answers of witnesses who testified in French were also translated using simultaneous interpretation. The trial judge rendered several interlocutory judgments in French, again with simultaneous interpretation for the appellant. On some occasions, counsel for the appellant addressed the trial judge in French, with the Crown and trial judge initially participating in English, but then switching to French. In such instances, there was no consecutive interpretation when French was used.
Hilton J.A. explained that such circumstances show that some aspects of section 530.1 of the Criminal Code were not respected. Moreover, Hilton J.A. pointed out that the absence of any interpretation at all would necessarily engage consideration of section 14 of the Charter.
B. Requirement of an application pursuant to section 530(1) of the Criminal Code
Hilton J.A. rejected the Crown’s first argument according to which sections 530(1) and 530.1 did not apply to the appellant’s trial because his counsel never made an application.
He stated that Quebec had a "long, rich and salutary tradition of providing English language criminal jury trials to Anglophones that pre-dates the adoption and coming into force of sections 530 and 530.1."116 He added that section 530(1) of the Criminal Code does not have any practical effect in Quebec in this regard and reiterated that "whatever may be the practice outside Quebec, it has never been necessary to make such an application in Quebec for the trial of an Anglophone to take place before an English-speaking jury with a trial judge and Crown prosecutor able to fully participate by using the English language."117
Furthermore, he explained that, in light of the objective of substantive equality, the proposition that a criminal trial should take place in the official language of the province’s linguistic majority, absent an application and an order granting such an application, cannot be seriously entertained.
Finally, Hilton J.A. explained that, to the extent that section 530(1) of the Criminal Code speaks of an "application," this requirement is satisfied once the Sheriff is instructed to summon English-speaking jurors. In this case, although the record did not contain a specific indication of a direction to the Sheriff to summon an array of English-speaking jury candidates, at some point the Sheriff would have been so instructed and this would have been done with the knowledge of the Crown and the appellant’s counsel. He concluded that the appellant was thus entitled to the rights provided for under section 530.1 of the Criminal Code.
C. Waiver of rights under section 530.1 of the Criminal Code
Hilton J.A. also rejected Crown counsel’s argument that the appellant had waived his rights under section 530.1 of the Criminal Code.
The Crown’s argument was largely based on the answers given by the appellant to the trial judge on two occasions, both in response to a question by the trial judge as to whether the appellant minded if the trial judge and counsel had certain discussions in French. On both occasions, the appellant answered that he did not mind. Referring to the test set out in R. v. Tran,118 Hilton J.A. explained that, in order for an accused to validly waive his or her language rights at a criminal trial, assuming it is possible to do so, the accused must know and understand what rights are being waived, as well as the consequences of such waiver. Furthermore, regarding the right to the assistance of an interpreter found in section 14 of the Charter, the Supreme Court of Canada in R. v. Tran held that any waiver should be made personally by the accused, and if necessary following an inquiry by the Court through an interpreter to ensure that the accused truly understands what it is he or she is doing.
Hilton J.A. explained that in this case there was nothing in the record to suggest that this test had been met, or that the appellant’s answer to the trial judge’s questions constituted a valid waiver of his rights under section 530.1 of the Criminal Code and section 14 of the Charter. He also stressed that the issue of convenience for the trial judge and counsel is not a valid reason for asking an accused to waive his or her rights, and stated the following: "[t]he presence of an interpreter is for the benefit of French-speaking witnesses, the accused and the jury, but not for that of the trial judge and Crown counsel, who must conduct themselves as if there was no interpreter present in the courtroom."119
Finally, Hilton J.A. commented on the Crown’s argument that the conduct of defence counsel in speaking French, knowing there was no consecutive interpretation and failing to insist on the appellant’s rights in a timely manner, amounted to a waiver. He explained that defence counsel had conceded they were unaware of the extent of the appellant’s language guarantees, and therefore could not have knowingly waived the appellant’s rights by their conduct. He also added that, given the intrinsically personal nature of language rights, in order for defence counsel’s conduct to constitute a waiver of the appellant’s rights, some indication is required that counsel were acting as they did with the full knowledge and understanding by the appellant of the consequences of such conduct. He pointed out that in the present case there was no such evidence on record.
As such, the Court found that the appellant’s rights under section 530.1 of the Criminal Code and section 14 of the Charter had been violated, and that the violation could not be remedied. Consequently, the Court allowed the appeal, set aside the conviction, and ordered that a new trial be held. Hilton J.A. also noted that this was the third time since 2005 that the Court allowed an appeal and ordered a new trial because of a failure to respect the language rights of an accused, and stated that trial judges and the Crown "have every interest in being alert to the existence of these rights by acting to protect them to avoid orders for new trials, even if […] defence counsel do not fully assert them."120
