3. Language Rights in the Courts
3.3 Holding a bilingual trial when co-accused ask to be tried in different official languages
R. v. Sarrazin
In Sarrazin,72 the Court of Appeal for Ontario had to decide whether sections 530 and 530.1 of the Criminal Code allowed it to order a bilingual trial in the context of a joint trial, when the co-accused asked to be tried in different official languages.
The three co-accused for murder in this trial were Francophones. Two of the accused, whose counsel were Anglophone, requested a trial in English, while the third, whose counsel was Francophone, requested a trial in French. The trial judge chose to hold a bilingual trial, at which the Crown addressed the jury in French in its opening statement and in English in its closing address. The judge addressed the Anglophone counsel in English and the Francophone counsel in French, and alternated between the two languages in his communications with the jury. In oral arguments, examinations and other communications, the Anglophone counsel spoke in English while the Francophone counsel spoke in French. Of the 38 witnesses, 29 testified in English and 9 in French. Simultaneous interpretation was available for everyone except the judge and jury.
At the end of the trial, two of the accused were convicted of, among other things, second-degree murder, and the third was convicted of manslaughter. Each filed an appeal against the guilty verdicts, arguing among other things that their language rights had not been respected.
On appeal, the appellants argued that the bilingual trial had infringed upon their right to have their trial conducted in the official language of their choice, given that the judge and prosecutor did not speak the accuseds’ language of choice for lengthy intervals. They maintained that the trial judge should have ordered separate trials, in English for the appellants wishing to have a trial in English, and in French for the appellant wishing to have a trial in French. The Ontario Court of Appeal dismissed the appellants’ arguments in this regard, ruling instead that the trial judge had not erred in holding a bilingual trial. However, a new trial was ordered on other grounds.
1) Section 530 of the Criminal Code
The Court began its analysis by considering the concept of a “bilingual trial,” to determine whether sections 530 and 530.1 of the Criminal Code permitted a trial to be held where the judge and counsel used both official languages, or simply a trial held in one language before a bilingual judge and jury. It indicated that the concept of a “bilingual trial” meant a trial before a judge and jury who speak English and French, during which the two languages are used interchangeably, depending on who is speaking and the context. Therefore, the judges and prosecutors in a bilingual trial must themselves be bilingual, but others can use the official language of their choice and use translation and interpretation services as needed.
The Court noted that section 530 of the Criminal Code provides for three types of trials, a trial before a judge sitting alone or a judge and jury who speak: (a) the official language of the accused, (b) the official language in which the accused can best give testimony, or (c) both official languages, if circumstances warrant. Relying on the Supreme Court’s judgment in Beaulac,73 and in particular the Supreme Court’s conclusion that section 530.1 applies to bilingual trials,74 the Court of Appeal considered that the combined effect of these provisions was a trial following a bilingual procedure. Accordingly, the right of the accused to a trial in the official language of his or her choice does not mean that the judge and prosecutor must only use that language if the circumstances require that a bilingual trial be held.
2) Whether circumstances required a bilingual trial to be held
The Court noted that the rule of law governing the holding of separate trials in joint venture enterprises or conspiracy cases is well established: it is in the best interest of justice that the persons accused of conspiracy be tried jointly, unless it can be proven that a joint trial would result in an injustice.75 In support of this rule, the Court mentioned several reasons, including the risk of inconsistent verdicts, savings for the parties concerned and society as a whole, and inconvenience to the witnesses. It is with regard to these principles that the Court considered the appellants’ request for separate trials in different official languages.
While recognizing that the language rights provided for in sections 530 and 530.1 of the Criminal Code are fundamental, the Court also noted that they are not absolute. Thus, they cannot prevail in every case over the principles applicable to the separation of co-accused. Rather, the Court stated the following:
. . . the decision whether to grant severance, and separate language trials, is a matter of discretion to be exercised in the circumstances of each case, in accordance with the principles enunciated in Beaulac with respect to language rights, and the principles that govern severance with respect to severance.76
The Court’s analysis of the factors relevant to both language rights and separate trials allowed it to determine that the circumstances at hand warranted a joint trial. Consequently, it concluded that the trial judge had not erred in ordering a bilingual trial. Given that the trial judge’s decision was discretionary and deserved great deference, the Court of Appeal dismissed this ground of appeal.
