R. v. Beaulac

R. v. Beaulac
Collection
Supreme Court Judgments
Date
1999-05-20
Report
[1999] 1 SCR 768
Case number
26416
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 26416
Decision Content
R. v. Beaulac, [1999] 1 S.C.R. 768
Jean Victor Beaulac Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Commissioner of Official Languages,
the Association des juristes d’expression
française de l’Ontario and the Association
des juristes d’expression française du Manitoba Interveners
Indexed as: R. v. Beaulac
File No.: 26416.
1999: February 24; 1999: May 20.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Criminal law – Trial -- Language of accused -- Right to be tried by judge and jury who speak both official languages -- Interpretation of s. 530 of Criminal Code -- Meaning of expressions “language of the accused” and “best interests of justice” -- Factors to be considered in defining expression “best interests of justice” -- Criminal Code, R.S.C., 1985, c. C-46, s. 530(1) , (4) .
Criminal law – New trial -- Language of accused -- Right to be tried by judge and jury who speak both official languages -- Whether s. 530(4) rather than s. 530(1) of Criminal Code applicable when new trial ordered – Proper judge before whom application must be made and proper time for making application when new trial ordered -- Criminal Code, R.S.C., 1985, c. C-46, s. 530(1) , (4) .
Criminal law – Trial -- Language of accused -- Accused’s application to be tried by judge and jury who speak both official languages under s. 530(4) of Criminal Code dismissed -- Accused convicted following trial in English -- Whether Court of Appeal erred in upholding order dismissing accused’s application -- If so, whether s. 686 proviso of Criminal Code applicable -- Whether new trial to be held before judge and jury who speak both official languages should be ordered -- Criminal Code, R.S.C., 1985, c. C-46, ss. 530(4) , 686(1) (b).
Criminal law – Appeals -- Collateral attack -- Language of accused -- Accused’s application to be tried by judge and jury who speak both official languages dismissed -- Judge dismissing application at pre-trial conference not judge before whom accused tried -- Accused convicted following trial in English -- Whether Court of Appeal had jurisdiction to deal with language issue -- Whether rule against collateral attack applicable.
The accused was charged with first degree murder. His first trial resulted in a mistrial and his conviction at the second trial was overturned by the Court of Appeal and a new trial was ordered. Despite unsuccessful applications in the earlier proceedings, the accused applied again, during a hearing prior to his third trial, for a trial before a judge and jury who speak both official languages of Canada pursuant to s. 530 of the Criminal Code . The judge, who was not the judge before whom the accused would be tried, dismissed the s. 530(4) application. The trial proceeded in English and the accused was convicted. On appeal, the Court of Appeal dismissed the appeal from conviction, upholding the decision of the judge at the pre-trial hearing on the language issue. This appeal deals solely with the question of the violation of the accused’s language rights.
Held: The appeal should be allowed and a new trial to be held before a judge and jury who speak both official languages ordered.
Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.: The rule against collateral attack had no application in the present case and the Court of Appeal had jurisdiction to deal with the language issue. An order under s. 530(4) governs the judicial process itself, rather than the conduct of the parties, such that traditional concerns as to certainty and the need for the orderly administration of justice are not brought into play. The order would have been subject to review if it had been made by the trial judge, and the accused should not be penalized for having brought the application in a timely manner prior to the trial rather than at the trial proper.
Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. To the extent that Société des Acadiens stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. Language rights are a particular kind of right, distinct from the principles of fundamental justice. They have a different purpose and a different origin. When s. 530 of the Criminal Code was promulgated in British Columbia in 1990, the scope of the language rights of the accused was not meant to be determined restrictively. The amendments were remedial and meant to form part of the unfinished edifice of fundamental language rights.
Section 530(1) of the Code creates an absolute right of the accused to equal access to designated courts in the official language that he considers to be his own, providing the application is timely. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. This is a substantive right and not a procedural one that can be interfered with. When the application is not timely, s. 530(4) applies and confers on the trial judge a discretion to grant an application if he is satisfied that it is in the best interests of justice.
When a new trial is ordered, the application should be made under s. 530(4) of the Code. While an accused ordered to face a new trial is in a position similar to that of an accused who is ordered to stand trial for the first time, as contemplated by s. 530(1) , it is possible that certain circumstances will have to be considered when a new trial is ordered. This is the main reason why, in a case of a retried accused, s. 530(4) must apply to this situation rather than s. 530(1) .
The “language of the accused” is very personal in nature; it is an important part of his cultural identity. Under s. 530 of the Code, an accused must be afforded the right to make a choice between the two official languages based on his subjective ties with the language itself and to freely assert which official language is his own language. An accused’s own language, for the purposes of s. 530(1) and (4) , is either official language to which that person has a sufficient connection. It does not have to be the dominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he will be able to assert that that language is his language, regardless of his ability to speak the other official language. The Crown may challenge the assertion made, but it will have the onus of showing that the assertion is unfounded. The court, in such a case, will not inquire into specific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused. It will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language. The assertion of language is a prerequisite to an application under s. 530(1) and s. 530(4) . Once entitlement is established and an application is made under s. 530(4) , the judge will be required to determine whether the best interests of justice will be served by granting the application.
In order to determine whether it is in the “best interests of justice” that a s. 530(4) application be accepted, the trial judge should consider, foremost, the reasons for the delay in bringing the application. He must then consider a number of factors that relate to the conduct of the trial. Consideration of the requirements of s. 530.1 will provide a good indication of the relevant matters. Mere administrative inconvenience is not a relevant factor. In the case of a retrial, the only relevant factors to consider under s. 530(4) are the additional difficulties caused by an untimely application. Lastly, since language rights are distinct from trial fairness, trial fairness is not to be considered and is certainly not a threshold that, if satisfied, can be used to deny the accused his language rights under s. 530. Generally, the best interests of justice will be served by accepting the accused’s application to be tried or retried in his official language. It is the denial of the application that is exceptional and that needs to be justified. The burden of this demonstration should fall on the Crown.
The Court of Appeal’s decision upholding the dismissal of the s. 530(4) application is based exclusively on the ability of the accused to speak English. The accused’s ability to express himself in English is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity. In the circumstances of this case, the application under s. 530(4) should have been accepted since no valid reason for refusing the application was raised. The violation of s. 530 constitutes a substantial wrong and not a procedural irregularity. Accordingly, s. 686(1)(b) has no application in this case and a new trial must be ordered. Since the language in which the new trial is to be held is the very object of this appeal, and since the accused has affirmed his request for a trial to be held before a judge and jury who speak both official languages of Canada, the accused’s application is granted.
Per Lamer C.J. and Binnie J.: It is not an appropriate case to revisit the Court’s constitutional interpretation of the language guarantees contained in s. 16 of the Canadian Charter of Rights and Freedoms and to re-assess the Court’s approach developed in Société des Acadiens. It is a well-established rule of prudence that courts ought not to pronounce on constitutional issues unless they are squarely raised for decision. This is not a constitutional case. It is a case of statutory construction. Section 12 of the Interpretation Act deems s. 530 of the Criminal Code to be remedial and requires it to be given such “fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. This principle of interpretation is sufficient to dispose of this appeal. On the statutory interpretation issue, there is agreement with the majority’s analysis of s. 530 .
Cases Cited
By Bastarache J.
Not followed: Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. Yancey (1899), 2 C.C.C. 320; Piperno v. The Queen, [1953] 2 S.C.R. 292; Saraga v. The Queen, Que. Sup. Ct., No. 500-01-01624L-876, November 18, 1988; R. v. Brown, Que. Sup. Ct., No. 700-01-3172-840, March 28, 1985, R.J.P.Q. 85-215; R. v. Lorentz-Aflalo, Que. Sup. Ct., No. 500-01-006114-877, October 8, 1987; referred to: R. v. Litchfield, [1993] 4 S.C.R. 333; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; R. v. Simard (1995), 27 O.R. (3d) 116; Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Haig v. Canada, [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Thomas, [1998] 3 S.C.R. 535; R. v. Bernardo (1997), 121 C.C.C. (3d) 123; Robin v. Collège de St‑Boniface (1984), 15 D.L.R. (4th) 198; Paquette v. The Queen in Right of Canada (1985), 40 Alta. L.R. (2d) 38; R. v. Tran, [1994] 2 S.C.R. 951.
By Lamer C.J. and Binnie J.
Referred to: Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.
Statutes and Regulations Cited
Act to amend the Criminal Code, S.C. 1977-78, c. 36, s. 1.
Canadian Charter of Rights and Freedoms, ss. 14 ,16(1) , (3) .
Constitution Act, 1867, ss. 91 , 92 , 133 .
Criminal Code, R.S.C., 1985, c. C-46, ss. 278.1 to 278.9 [ad. 1997, c. 30, s. 1], 530 [am. c. 27 (1st Supp.), ss. 94 and 203 ], 530.1 [ad. c. 31 (4th Supp.), s. 94 ], 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)], (iv) [ad. c. 27 (1st Supp.), s. 145], (5) [am. idem], (8).
Interpretation Act, R.S.C., 1985, c. I-21, s. 12 .
Official Languages Act, R.S.C., 1985, c. 31 (4th Supp .), ss. 2 , 94 .
Authors Cited
Canada. Commissioner of Official Languages. The Equitable Use of English and French Before the Courts in Canada. Ottawa: Minister of Supply and Services Canada, November 1995.
Canada. House of Commons Debates, vol. V, 3rd sess., 30th Parl., May 2, 1978, p. 5087.
Canada. House of Commons Debates, vol. IX, 1st sess., 33rd Parl., May 6, 1986, p. 12999.
Canada. House of Commons Debates, vol. XIV, 2nd sess., 33rd Parl., July 7, 1988, p. 17220.
Cholewinski, Ryszard. “State Duty Towards Ethnic Minorities: Positive or Negative?” (1988), 10 Hum. Rts. Q. 344.
Jones, Peter. “Human Rights, Group Rights, and Peoples’ Rights” (1999), 21 Hum. Rts. Q. 80.
Oestreich, Joel E. “Liberal Theory and Minority Group Rights” (1999), 21 Hum. Rts. Q. 108.
Pelletier, Benoît. “Bilan des droits linguistiques au Canada” (1995), 55 R. du B. 611.
Riddell, Alan. “À la recherche du temps perdu: la Cour suprême et l’interprétation des droits linguistiques constitutionnels dans les années 80” (1988), 29 C. de D. 829.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 98 B.C.A.C. 271, 161 W.A.C. 271, 120 C.C.C. (3d) 16, [1997] B.C.J. No. 2379 (QL), dismissing the accused’s appeal from his conviction on a charge of first degree murder. Appeal allowed and new trial ordered.
David Griffiths, for the appellant.
William F. Ehrcke, Q.C., and Geoffrey R. Gaul, for the respondent.
Bernard Laprade and Michel Francœur, for the intervener the Attorney General of Canada.
Jean-Yves Bernard, for the intervener the Attorney General of Quebec.
Richard Tardif and Ingride Roy, for the intervener the Commissioner of Official Languages.
Nathalie Des Rosiers, for the intervener the Association des juristes d’expression française de l’Ontario.
Laurent J. Roy, Q.C., and Michel L. J. Chartier, for the intervener the Association des juristes d’expression française du Manitoba.
//The Chief Justice and Binnie J.//
The following are the reasons delivered by
1 The Chief Justice and Binnie J. -- We agree with the conclusion and with the analysis of s. 530 of the Criminal Code, R.S.C., 1985, c. C-46 , set out in the reasons of Bastarache J. However, with respect, we do not consider this to be an appropriate case to revisit the Court’s constitutional interpretation of the language guarantees contained in s. 16 of the Canadian Charter of Rights and Freedoms . It is a well-established rule of prudence that courts ought not to pronounce on constitutional issues unless they are squarely raised for decision. This is not a constitutional case. It is a case of statutory construction. Section 12 of the Interpretation Act, R.S.C., 1985, c. I-21 , deems s. 530 to be remedial and requires it to be given such “fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. This principle of interpretation is sufficient to dispose of this appeal.
2 At paragraph 25, our colleague Bastarache J. undertakes an examination of constitutional language rights and proposes that “[t]o the extent that Société des Acadiens du Nouveau-Brunswick [Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549], at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected.” The reference is to that portion of the judgment of Beetz J. where he discussed s. 16 of the Charter and highlighted the political and historic origins of language rights in our Constitution and observed that:
The legislative process, unlike the judicial one, is a political process and hence particularly suited to the advancement of rights founded on political compromise.
. . .
If however the provinces were told that the scheme provided by ss. 16 to 22 of the Charter was inherently dynamic and progressive, apart from legislation and constitutional amendment, and that the speed of progress of this scheme was to be controlled mainly by the courts, they would have no means to know with relative precision what it was that they were opting into. This would certainly increase their hesitation in so doing and would run contrary to the principle of advancement contained in s. 16(3) .
In my opinion, s. 16 of the Charter confirms the rule that the courts should exercise restraint in their interpretation of language rights provisions. [Emphasis added.]
3 The foundation of Beetz J.’s caution, i.e., that language rights reflect a political compromise, was recently spelled out by this Court in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 79:
There are a number of specific constitutional provisions protecting minority language, religion and education rights. Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises.... [T]he protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated.... Similar concerns animated the provisions protecting minority language rights.... [Citations omitted.]
4 In Mahe v. Alberta, [1990] 1 S.C.R. 342, Dickson C.J., for a unanimous Court, stated at p. 365 that “Beetz J.’s warning that courts should be careful in interpreting language rights is a sound one”, a point of view that was reiterated by the Court in Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at pp. 851-52.
5 This is not to say that language rights are not to be given a purposive approach. On the contrary, it is clearly open to the Court, as Wilson J. put it in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1176, “to breathe life into a compromise that is clearly expressed”. In fact, the process envisaged by Beetz J. and the majority in Société des Acadiens, supra, is illustrated by the enactment of s. 530 itself, which addresses a particular aspect of language rights and develops a comprehensive statutory procedure to vindicate those rights in the context of a balanced recognition of the various interests at stake. A re-assessment of the Court’s approach to Charter language rights developed in Société des Acadiens and reiterated in subsequent cases is not necessary or desirable in this appeal which can and should be resolved according to the ordinary principles of statutory interpretation mentioned above.
6 On the statutory interpretation issue, we agree with our colleague’s analysis of s. 530 of the Code and we therefore agree with the disposition of the appeal he proposes.
//Bastarache J.//
The judgment of L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ. was delivered by
Bastarache J. —
1. General Introduction and Procedural History
7 This is the first time this Court has been called upon to interpret the language rights afforded by s. 530 of the Criminal Code, R.S.C., 1985, c. C-46 . This case concerns the right to be heard by a judge or a judge and jury who speak the official language of Canada that is the language of the accused, or both official languages of Canada. The unique circumstances of the accused provide an opportunity to clarify the scope of the right in ss. 530(1) and 530(4) of the Code and to determine the proper scheme of the legislation in cases where a new trial is ordered. For the purposes of this introduction, I will only mention that s. 530(1) creates an absolute right, while s. 530(4) subjects that right to the discretion of the trial judge.
8 The appellant, Jean Victor Beaulac, was charged in 1988 with first degree murder for an offence that occurred in 1981 and went unsolved for many years. He was subsequently tried three times in the Supreme Court of British Columbia for this same murder. His first trial ended in a mistrial because of a conversation between a juror and his wife who had overheard prejudicial information. The second trial resulted in the conviction of the appellant, but this conviction was overturned by the Court of Appeal on the basis of errors in the jury charge concerning the issue of self-induced intoxication. The third trial also ended in a conviction. The current appeal deals solely with the question of the violation of the accused’s language rights.
9 Section 530 was declared in force in British Columbia on January 1, 1990. Thus, it was not in force until after the January 1989 preliminary hearing at which this accused was ordered to stand trial for the first time. In fact, the first application for a trial before a judge and jury who speak both official languages of Canada was made by the appellant on October 30, 1990 during a voir dire, five days into the first trial, but was denied by Skipp J. After the mistrial ruling, the appellant applied for a retrial before a court composed of a judge and jury who spoke both official languages of Canada. Macdonell J. dismissed the application with written reasons on February 11, 1991: [1991] B.C.J. No. 277 (QL). An application for leave to appeal to the Supreme Court per saltum was dismissed without reasons. Although Macdonell J.’s reasons are not directly on appeal, they were relied upon in the subsequent rulings and are therefore highly relevant. Macdonell J. considered what was in the best interests of justice. As discussed later in these reasons, this is the criterion governing the exercise of the judge’s discretion under s. 530(4) of the Code. Macdonell J. assessed the appellant’s fluency in English based on the transcripts of his evidence at the first trial, which was held in English. He found that his English was not the most refined, but that his message gets across clearly and forcefully. He concluded that no injustice would result from a new trial in English. He also commented on the logistical difficulties connected with mounting a complete trial in French in British Columbia. He finally mentioned that the appellant was in custody and that it was the general policy to proceed with trials of people in custody as quickly as possible. In all of the circumstances, Macdonell J. found that it was not in the best interests of justice that the appellant be tried before a judge and jury who speak both English and French.
10 The application for a trial before a judge and jury who speak both official languages of Canada was renewed, but dismissed by Rowles J. on June 18, 1991. I note here that she was not the “judge before whom the accused is to be tried”, as prescribed by s. 530(4) . She decided that s. 530(1) does not apply to a retrial before dealing with the application of s. 530(4) . The second trial was heard by Murray J. who dismissed yet another application on October 7, 1991. The conviction of the accused was overturned by the Court of Appeal, which declined to rule on the language of proceedings in its decision of January 21, 1994: (1994), 40 B.C.A.C. 236.
11 During the pre-trial hearing of July 4, 1994, the accused applied again for a trial before a judge and jury who speak both official languages of Canada. Owen‑Flood J., who, like Rowles J., was not the judge before whom the accused would be tried, dismissed the application. The trial proceeded in English and the appellant was convicted. The Court of Appeal assumed that the order made pursuant to s. 530(4) was an order pertaining to the judicial process and that it could therefore be attacked collaterally under the principles articulated in R. v. Litchfield, [1993] 4 S.C.R. 333. It dismissed the appeal from conviction on October 29, 1997, upholding the decision of Owen‑Flood J. on the language issue: (1997), 120 C.C.C. (3d) 16. It is this decision that is currently under appeal. The respondent did not argue against the appellant’s appeal on the basis of the rule against collateral attack. Although it is not technically necessary to deal with this latter issue, I would lift the uncertainty of the Court of Appeal’s decision by saying that the order under s. 530(4) governs the judicial process itself, rather than the conduct of the parties, such that traditional concerns as to certainty and the need for the orderly administration of justice are not brought into play. The order would have been subject to review if it had been made by the trial judge, and the appellant should not be penalized for having brought the application in a timely manner prior to the trial rather than at the trial proper. I would therefore conclude that the rule against collateral attack had no application in the present case and that the Court of Appeal had jurisdiction to deal with the language issue.
2. Relevant Constitutional and Legislative Provisions
12 Criminal Code, R.S.C., 1985, c. C-46
530. (1) On application by an accused whose language is one of the official languages of Canada, made not later than
(a) the time of the appearance of the accused at which his trial date is set, if
(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or
(ii) the accused is to be tried on an indictment preferred under section 577,
(b) the time of his election, if the accused elects under section 536 to be tried by a provincial court judge, or
(c) the time when the accused is ordered to stand trial, if the accused
(i) is charged with an offence listed in section 469,
(ii) has elected to be tried by a court composed of a judge or a judge and jury, or
(iii) is deemed to have elected to be tried by a court composed of a judge and jury,
a justice of the peace or provincial court judge shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.
. . .
(4) Where an accused fails to apply for an order under subsection (1) or (2) and the justice of the peace, provincial court judge or judge before whom the accused is to be tried, in this Part referred to as “the court”, is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language or, if the circumstances warrant, who speak both official languages of Canada.
. . .
530.1 Where an order is granted under section 530 directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language that is the language of the accused or in which the accused can best give testimony,
(a) the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused;
(b) the accused and his counsel may use either official language in written pleadings or other documents used in any proceedings relating to the preliminary inquiry or trial of the accused;
(c) any witness may give evidence in either official language during the preliminary inquiry or trial;
(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language that is the language of the accused;
(e) except where the prosecutor is a private prosecutor, the accused has a right to have a prosecutor who speaks the official language that is the language of the accused;
(f) the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;
(g) the record of proceedings during the preliminary inquiry or trial shall include
(i) a transcript of everything that was said during those proceedings in the official language in which it was said,
(ii) a transcript of any interpretation into the other official language of what was said, and
(iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered; and
(h) any trial judgment, including any reasons given therefor, issued in writing in either official language, shall be made available by the court, in the official language that is the language of the accused.
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
. . .
(b) may dismiss the appeal where
. . .
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;
. . .
(5) Where an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, the following provisions apply:
(a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;
(b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or provincial court judge, as the case may be, acting under Part XIX, other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge who tried the accused in the first instance;
(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and
(d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.
. . .
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
Official Languages Act, R.S.C., 1985, c. 31 (4th Suppl .)
2. The purpose of this Act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Constitution Act, 1867
133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
Canadian Charter of Rights and Freedoms
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
. . .
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
3. Legislative Interpretation
(a) The Constitutional Background
13 Before I get to the specific statutory questions raised in this appeal, it will be helpful to consider the constitutional background that has been so important to the recent interpretation of official language provisions.
14 The power to make laws with regard to the use of official languages has not been formally inscribed in ss. 91 and 92 of the Constitution Act, 1867 . It is an ancillary power to the exercise of legislative authority over a class of subjects assigned to Parliament or to provincial legislatures. But the backdrop against which language provisions have been examined remains the language rights that are established by the Constitution.
15 In 1975, when this Court confirmed that language guarantees in s. 133 of the Constitution Act, 1867 were minimal provisions and did not preclude the extension of language rights by either the federal or the provincial legislatures (Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, at pp. 192-93), a purposive and liberal approach to the interpretation of language rights was adopted. This approach was re-affirmed and expanded in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), and Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2). In Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, the Court wrote, at p. 739:
If more evidence of Parliament’s intent is needed, it is necessary only to have regard to the purpose of both s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 , which was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike. [Emphasis added.]
16 In 1986, three decisions dealing with language rights in the courts appeared to have reversed the tendency to adopt a liberal approach to the interpretation of constitutional language guarantees: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, and Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449. In those cases, the majority of the Court held that s. 133 of the Constitution Act, 1867 guarantees a limited and precise group of rights resulting from a political compromise, and that, contrary to legal rights incorporated in ss. 7 to 14 of the Charter , they should be interpreted with “restraint” (Société des Acadiens du Nouveau-Brunswick, at p. 580). The majority judgments went on to say that progression towards equality of official languages is a goal to be pursued through the legislative process. The Court held that the right to use one’s language in s. 133 does not impose a corresponding obligation on the State or any other individual to use the language so chosen, other than the obligation not to prevent those who wish to do so from exercising those rights; see Société des Acadiens du Nouveau-Brunswick, at pp. 574-75. In dissent on the constitutional question, Dickson C.J. wrote, at p. 560: “In interpreting Charter provisions, this Court has firmly endorsed a purposive approach.” Noting the willingness of the Court to expand the definition of the words “Acts” and “Courts” in Blaikie No. 1 and Blaikie No. 2, Dickson C.J. re-affirmed, at p. 563, that the purpose of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 was based on equality. He then quoted from the Reference re Manitoba Language Rights, supra, at p. 744:
Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right of Franco-Manitobans to use their own language. The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.
17 Immediately after the trilogy, the Court seemed to depart from its restrictive position. While this more liberal approach to language rights was not always directed at s. 133 of the Constitution Act, 1867 or the similar provisions of s. 23 of the Manitoba Act, 1870, the new language cases are significant because they re-affirm the importance of language rights as supporting official language communities and their culture. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 748-49, the Court wrote:
Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is, as the p