3. Language Rights in the Courts
3.4 Language of charge to the jury in a bilingual trial
R. v. Oliynyk
This case77 raised the question of the language to be used by a judge in his or her charge to the jury in the context of a bilingual trial before the Supreme Court of British Columbia.
Three people were jointly charged with conspiracy to import and traffic in cocaine. Two of the accused and their counsel were unilingual Anglophones, while the third, whose mother tongue was French, requested a trial before a French-speaking judge and jury. The three accused opted for a bilingual trial pursuant to section 530 of the Criminal Code. In so doing, the following procedure was considered: if the accused Francophone decided to testify, he could do so in French, while his lawyer, who was bilingual, would have the option of addressing the jury and presenting his arguments in French. The Crown Attorney, the presiding judge and the members of the jury were bilingual. At issue was the language of the judge’s charge to the jury.
Counsel for the accused Francophone argued that the charge to the jury had to be entirely in French in order to respect his client’s language rights. He maintained that it would be unfair or inappropriate for the charge to be given half in English and half in French, or that the charge be translated. According to him, the accused Francophone had to be able to understand all of the judge’s charge to the jury in order for his language rights to be respected. Thus, he maintained that the charge as a whole should be delivered in both languages, although it would not be necessary for both versions to be identical.
For its part, the Crown brought up the risks involved in giving the charge to the jury in both languages, given the complexity of a conspiracy trial and the difficulty of saying exactly the same thing in English and in French. It suggested instead that the judge give the charge in the language in which the evidence had been presented. The charge to the jury would thus be given in both languages, but the same thing would not be repeated each time. An interpreter would be available for the Francophone accused as well as for Anglophone counsel and accused.
In reply, each of the accused made the argument that his right to a trial in the language of his choice would be infringed upon if he had to hear the judge’s charge, in whole or in part, in the official language that was not his own.
MacKenzie J. accepted the Crown’s proposition. She noted that the trial was taking place before a bilingual judge and jury in order to avoid, among other things, having the jury hear the charge twice. Relying on the Ontario Court of Appeal’s judgment in Sarrazin,78 she indicated that the language rights provided for in sections 530 and 530.1 of the Criminal Code, though fundamental, are not absolute, and must be applied in light of other principles, such as those underlying the holding of a joint trial.
Thus, in a bilingual trial such as this one, the judge indicated she had to find a balance between the language rights of the three accused and the interests of the administration of justice. She concluded that the duty of the judge and Crown counsel to speak and understand the language of the accused did not imply exclusive use of that language in the context of a bilingual trial where the co-accused elect to have their trials in different official languages. Furthermore, the fact that Anglophone witnesses gave testimony in English, and Francophone witnesses or other witnesses called by the defence gave testimony in French meant that the jury could evaluate for itself the nuances and subtleties of language that might change the meaning of the words spoken. In fact, this would allow for a better assessment of the credibility of witnesses and a better review of the evidence presented.
For these reasons, MacKenzie J. held that the final charge regarding English testimony would be given in English, and the final charge regarding French testimony would be given in French. The charge to the jury on questions of law would be in both languages, without it being necessary to repeat the same thing in each language. The judge thus dismissed the applications made by the accused.
