3.5 The right to testify in the official language of one’s choice
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R. v. T.D.M.121
In this appeal, the Court of Appeal for the Yukon Territory had to determine whether a witness at a criminal trial in that territory had the right to testify in the official language of his or her choice.
In this case, G.A. reported to the police that he had seen T.D.M. engaging in sexual activity with T.D.M.’s infant daughter. Following an investigation, T.D.M. was charged with sexual touching and sexual assault of his infant child. G.A. made a statement to the police in English and testified in English at the preliminary inquiry, although his mother tongue was French. The judge who presided over the preliminary inquiry commented that G.A. appeared to have "a problem understanding the more nuanced questioning of the lawyers and making himself clearly understood in his answers."122
At the beginning of the trial, the Crown indicated that G.A. would be testifying with the use of an interpreter, meaning that he would be giving his evidence in French and would be cross-examined through the interpreter. Counsel for the accused objected, arguing that cross-examining through an interpreter would impair his ability to confront the witness. The trial judge held that, where there is some proficiency in the English language, the witness should attempt to communicate in English with the assistance of the interpreter when required, and directed the witness to testify in English. Although G.A. did not require the assistance of the interpreter during the Crown’s examination-in-chief and re-examination, he did however require assistance eight times during the cross-examination. Once the trial was over, the trial judge acquitted the accused, stating that he was not prepared to accept the Crown witness’s testimony.
The Crown appealed the acquittal, arguing that the trial judge erred in not permitting G.A. to testify in French, as is provided for under section 5 of the Languages Act.123 The Crown argued that a new trial should be ordered given that G.A.’s credibility was the critical factor during the trial and that there was a real possibility that, had G.A. testified in French, the verdict would not have been the same.
The Court of Appeal consulted both the French and English versions of section 5 and considered the language of similar legislation before determining that any person has the right to testify in either official language in courts established by Yukon’s Legislative Assembly. The Court then considered whether section 5 of the Languages Act, a territorial law, could apply to proceedings relating to a federal offence. Relying on the Supreme Court of Canada’s decision in Jones v. Attorney General of New Brunswick,124 the Court held that the Yukon Territory has the authority to enact legislation in relation to the administration of justice, including legislation giving a witness the right to use either French or English in a criminal proceeding, subject to the doctrine of paramountcy: "when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility."125 The Court concluded that the trial judge had erred in denying G.A. his right to testify in French, and found that the right of a witness to testify in the official language of his or her choice pursuant to section 5 of the Languages Act does not conflict or is not incompatible with the right of the accused to choose the language of his or her trial pursuant to Part XVII of the Criminal Code.
The Court then considered whether a new trial should be ordered pursuant to section 686(4)(b)(i) of the Criminal Code. Referring to the Supreme Court of Canada’s decision in R. v. Sutton,126 the Court explained that, in order to overturn an acquittal, the Crown must satisfy the Court that the verdict would not necessarily have been the same had the errors not occurred. In this case, the Court of Appeal did not believe the outcome of the trial was affected by the fact that G.A. was directed to testify in English. The trial judge’s concerns with respect to the veracity of G.A.’s testimony were grounded in the substance of his testimony, and not his linguistic abilities. Consequently, the appeal was dismissed.
