II- LANGUAGE RIGHTS IN THE COURTS
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The use of French and English in the court system is based on several constitutional provisions applicable to certain courts across Canada. In fact, the use of both official languages is specifically guaranteed in the courts created by the federal Parliament and the provincial courts of New Brunswick, Quebec and Manitoba pursuant to section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870. Although provincial courts in the other provinces are not subject to these provisions, this does not mean they have no obligations in this area.
The constitutional powers of the federal and provincial governments include the adoption of complementary legislation and policies on constitutional rights involving the use of both official languages in the courts.
In particular, for criminal proceedings, the federal government has used this power inter alia to make amendments to the Criminal Code to give accused persons the right to be tried in French or English throughout Canada. These amendments, which are found in sections 530 and 530.1 of the Criminal Code, apply to all provincial courts hearing criminal proceedings.
Essentially, subsection 530(1) of the Criminal Code gives accused persons the absolute right to have their trials in the official language they consider to be their own, provided they apply at the proper time. The right is an absolute one, not simply a procedural right that may be departed from. To allow an accused who is not represented by counsel to file such an application, the judge before whom the accused first appears is required to advise him or her of the right (subsection 530(3)). Finally, even when the accused makes no application or does so beyond the specified deadlines, the judge may use discretion to make such an order (subsection 530(4)). The purpose of section 530 of the Criminal Code is thus, as the Supreme Court of Canada pointed out in Beaulac, to "to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity".33
The order made pursuant to section 530 of the Criminal Code has certain implications mentioned in section 530.1 of the Criminal Code regarding, inter alia, the right to use that language orally in pleadings or other documents during the preliminary inquiry and the trial, the right to give evidence in that language, the right to have the judge presiding over the hearing speak the same language as the accused, the right to have the prosecutor speak the same language as the accused, a requirement that the court shall make interpreters available, the right to have the record contain a transcript of everything that was said in the original official language and a transcript of the interpretation, as well as any documentary evidence in the official language in which it was tendered; and a requirement that the court will make judgments, including any reasons, available in writing in the official language of the accused.
For civil proceedings, certain provinces have adopted specific legislation on the question of access to the courts in the minority language, but their content and the rights they confer on litigants vary widely.34 For its part, the Parliament of Canada has adopted Part III of the Official Languages Act, which guarantees the use of both official languages in federal judicial and quasi-judicial tribunals. These provisions deal, inter alia, with the right of any person to use either official language in all cases before the courts and in the resulting pleadings, the right that the judge hearing the case will directly understand the official language of the parties, the right for any witness to be heard in the official language of his or her choice without suffering prejudice thereby, the right to interpretation services, the right that the federal government will use the official language of the civil party in pleadings and processes, and the right that decisions, including any reasons given therefore, will be made available simultaneously in both official languages in certain cases, and at the earliest possible time in other cases.
The rights and obligations contained in these constitutional and legislative provisions are designed to ensure that both official languages receive equal treatment in the administration of justice. Recourse to the courts has often proven necessary to clarify their scope and ensure that they are observed. In the two years covered by this report, several courts have had to rule in this area, both in criminal and in civil proceedings.
2.1 Criminal proceedings
Right to trial in language of accused
R. v. Potvin
Potvin35 raises the question, which over the years has been considered by the courts on more than one occasion, of the scope of the right conferred by section 530.1 of the Criminal Code and the rights that result therefrom. Specifically, at issue was an order giving an accused the right to be tried before a judge and jury who speak French.
In that case, the Court had ordered that the accused be tried before a judge and jury who speak French. Nonetheless, the preliminary motions were largely heard in English and the judge intervened primarily in English, the appellant being given a translation. During the hearing of the preliminary motions, the accused several times mentioned that he was not satisfied with the way the trial was proceeding. At the end of the fifth day of hearing on the preliminary motions, counsel for the defence interrupted the discussion between the judge and counsel for the Crown to ask that they speak in French. The judge then indicated that the Criminal Code did not require every word to be said in French. Finally, he rendered his decision on the preliminary motions in English, and no translation was entered in the record.
During the first five days of the trial, the eleven witnesses spoke only in English and the judge intervened several times, chiefly in that language. Since there was simultaneous interpretation, no transcript of the interpretation was entered into the record. On the sixth day, counsel for the defence submitted that the accused had applied for a trial in French, not a bilingual trial, stating that he could not hear or understand everything that was happening in the courtroom, nor was he able to determine the accuracy of the translation.
The trial judge dismissed the application, stating that he was satisfied the accused had a judge and jury who spoke French, in keeping with the requirements of the Criminal Code. Subsequently, both counsel made their final addresses to the jury in French, but the judge continued to speak chiefly in English, even making his charge to the jury partly in English and partly in French. Finally, the accused was acquitted of attempted murder but convicted on other charges. He appealed, claiming a breach of paragraphs 530.1(e) and (g) of the Criminal Code.36
In its judgment, the Ontario Court of Appeal noted that the failure by the accused to make an objection during the first five days of testimony had to be considered in the context of the trial as a whole. In view of the problems the accused and his counsel had to confront in the preceding days, at the time of the preliminary inquiry, it was not surprising that counsel made no objection at the start of the trial. Accordingly, the Court refused to regard this omission as consent by the accused to a bilingual trial. The Court of Appeal noted that once an order has been made that a trial will take place in the accused’s official language, the proceeding must be consistent with requirements without the accused or his or her counsel being continually forced to argue the point. Consequently, it was up to the trial judge to ensure that the trial proceeded in French.
In the view of the Court, once an order is made pursuant to section 530 of the Criminal Code, paragraph 530.1(e) requires that the trial judge and counsel for the Crown speak the official language chosen by the accused, not simply have the ability to understand it. The Court said:
If it were enough for the judge and prosecutor to understand French, without it being necessary for them to use it during the proceeding, there would be little difference between, on the one hand, the right to a unilingual trial in the official language of one’s choice, and on the other, the right to the assistance of an interpreter already provided for in s. 14 of the Canadian Charter of Rights and Freedoms. The right to the assistance of an interpreter ensures that the accused will be able to understand his or her trial and make himself or herself understood, and that the trial will thus be fair: see R. v. Beaulac, at para. 41. However, as noted by the Supreme Court in Beaulac, at paras. 25 and 41, "language rights are . . . distinct from the principles of fundamental justice. . . .Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English."37
Consequently, the Court of Appeal concluded that the language rights of the accused set out in paragraph 530.1(e) had been infringed. As no transcript of the interpretation was entered in the record during the first five days of testimony, allowing the accuracy of the interpretation to be determined, the Court of Appeal concluded that the language rights set out in paragraph 530.1(g) of the Criminal Code had also been infringed. Based on these conclusions, and the fact that the rights set out in sections 530 and 530.1 of the Criminal Code are important substantive rights, the Court of Appeal quashed the conviction and ordered a new trial.
Finally, with respect to the accused’s submission that the warrant regarding DNA analysis should have been in French, as the order for the trial to be held in French was made prior to the warrant being authorized, the Court held that this warrant was not part of the trial and, in any case, an accused does not have an automatic right to the translation of such documents filed at the trial.
