Bessette v. British Columbia (Attorney General)

Bessette v. British Columbia (Attorney General)
Collection
Supreme Court Judgments
Date
2019-05-16
Neutral citation
2019 SCC 31
Report
[2019] 2 SCR 535
Case number
37790
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
British Columbia
Subjects
Prerogative writs
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535
Appeal Heard: November 15, 2018 Judgment Rendered: May 16, 2019 Docket: 37790
Between:
Joseph Roy Éric Bessette
Appellant
and
Attorney General of British Columbia
Respondent
- and -
Commissioner of Official Languages of Canada and Fédération des associations de juristes d’expression française de common law inc.
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 97)
Côté and Martin JJ. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Rowe JJ. concurring)
Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535
Joseph Roy Éric Bessette Appellant
v.
Attorney General of British Columbia Respondent
and
Commissioner of Official Languages of Canada and
Fédération des associations de juristes d’expression
française de common law inc. Interveners
Indexed as: Bessette v. British Columbia (Attorney General)
2019 SCC 31
File No.: 37790.
2018: November 15; 2019: May 16.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for british columbia
Provincial offences — Trial — Language of accused — Right to be tried by provincial court judge who speaks official language of Canada that is language of accused — Accused charged with provincial driving offence in British Columbia — Provincial court judge dismissing application by accused for trial in French — Whether right to be tried by provincial court judge who speaks official language that is language of accused under Criminal Code extends to persons accused of certain provincial offences in British Columbia — Offence Act, R.S.B.C. 1996, c. 338, s. 133 — Criminal Code, R.S.C. 1985, c. C‑46, s. 530 .
Prerogative writs — Certiorari — Availability of remedy — Adequate alternative remedy — Superior court dismissing petition by accused for certiorari to quash order of provincial court judge dismissing application for trial in French — Whether determination of whether accused has right to trial in French amounts to jurisdictional issue giving rise to certiorari — Whether appeal following conviction by English‑speaking court constitutes adequate alternative remedy to certiorari.
The accused was charged with a provincial driving offence in British Columbia. He made an application to be tried in French, relying on s. 530 of the Criminal Code , which grants an accused the right to be tried by a provincial court judge who speaks the official language of Canada that is the language of the accused. The Crown contested the accused’s application, arguing that English is the only language of provincial offence prosecutions in British Columbia according to an old English statute received into the colonial law of the province (“1731 Act”). The provincial court judge accepted the Crown’s argument and dismissed the accused’s application. The accused unsuccessfully petitioned the Supreme Court of British Columbia for certiorari. The court found that the petition was premature, as an appeal following conviction represented an adequate alternative remedy to certiorari. The Court of Appeal dismissed the accused’s appeal, holding that the decision to refuse to engage in certiorari review attracted deference as it was discretionary in nature.
Held: The appeal should be allowed and the order of the Provincial Court quashed. The accused is entitled to stand trial in French.
The issue of whether the accused is entitled to be tried in French raises a jurisdictional question, and certiorari review is therefore available before the trial is heard. Superior courts generally do not intervene in ongoing criminal or quasi‑criminal proceedings in the provincial courts. This is because criminal appeals are statutory and, with limited exceptions, there are no interlocutory appeals. Interlocutory appeals are circumscribed in part because of concerns about judicial economy, delay, and the fragmentation of proceedings. For parties to criminal or quasi-criminal proceedings, pre‑ or mid‑trial certiorari is available for an alleged jurisdictional error by a provincial court judge. A jurisdictional error occurs where a court fails to observe a mandatory provision of a statute or acts in breach of the principles of natural justice. Whether the alleged error by the provincial court judge constitutes a jurisdictional error is a question of law reviewable for correctness.
Section 530 of the Criminal Code is a mandatory statutory provision. It dictates that the judge “shall grant” a French trial on application of the accused, provided the application is brought within the requisite time. If the provincial court judge erred in concluding that s. 530 does not apply to provincial offence prosecutions, the effect was that the judge failed to observe a mandatory statutory provision and thereby lost jurisdiction over the accused’s proceedings. As the accused’s petition to the superior court alleged a jurisdictional error by the provincial court judge, certiorari review by the superior court was available to the accused.
Superior courts retain a residual discretion to refuse certiorari review, even in the face of alleged jurisdictional errors. One of the discretionary grounds for refusing to engage in certiorari review is the existence of an adequate alternative remedy. Because certiorari review is a discretionary remedy, the court’s decision not to undertake it is entitled to deference on appeal. To interfere with the judge’s decision, the appellate court must be satisfied that the decision fails to give weight to all relevant considerations, rests on an error in principle, or is plainly wrong.
In the instant case, the superior court judge erred in exercising his discretion not to engage in certiorari review and consider the substantive issues raised in the accused’s petition. Had he properly recognized the jurisdictional nature of the dispute, the impact of his decision on the accused’s language rights, and the desirability of deciding the language of trial question before the start of the trial, he should have concluded that an appeal from conviction would not represent an adequate alternative remedy to certiorari review. As the violation of the accused’s trial language right is a harm in itself, an appeal following a conviction by an English‑speaking court cannot represent an adequate alternative remedy to deciding, before the trial has taken place, whether the accused is in fact entitled to this fundamental right. Had the accused been acquitted after an English trial, he would have had no opportunity to have his claimed language rights vindicated, as there is no right to appeal an acquittal under the Offence Act. Putting the accused through a trial which may well be a nullity also risks putting the accused to undue legal expense as it gives rise to a potential ground of appeal and the prospect of the appeal court having to order a new trial. As there was no basis for the superior court to exercise its discretion to decline certiorari review, it ought to have decided the merits of the accused’s petition.
Section 530 of the Criminal Code applies to the accused’s prosecution. Section 133 of British Columbia’s Offence Act incorporates s. 530 of the Criminal Code without heed to the 1731 Act. Because the Offence Act applies to proceedings under the Motor Vehicle Act, and neither the Motor Vehicle Act nor the Offence Act make provision for the language of trials, s. 530 of the Criminal Code applies as if it were enacted in and formed part of the Offence Act itself. By virtue of its incorporation into the Offence Act, s. 530 enjoys the same status in that Act as it does in the Criminal Code . Therefore, s. 530 of the Criminal Code implicitly repeals the 1731 Act in respect of Offence Act trials.
The wording of ss. 3(1) and 133 of the Offence Act cannot reasonably be read as prioritizing other, more removed legislation, such as the 1731 Act. These two provisions have clear functions. Section 3(1) sets the scope of the Offence Act as applying to “proceedings”, “[e]xcept where otherwise provided by law”. The terms “[e]xcept where otherwise provided by law” refer to situations where other, more particularized legislation displaces the application of the Offence Act. They do not mean that a particular provision of the Offence Act will not apply to “proceedings” if that particular provision contradicts another law in effect in British Columbia. For its part, s. 133, or the incorporation provision, dictates that any gaps in the Offence Act are to be filled with the provisions of the Criminal Code , adapted to fit the Offence Act context. It is only where the Offence Act or the particularized legislation creating the offence fully provides for a matter that incorporation of Criminal Code provisions is precluded. Put in terms of hierarchy or order of operations, ss. 3(1) and 133 of the Offence Act direct courts to (1) look to the particularized legislation creating the offence in question (in this case, the Motor Vehicle Act); (2) provided the particularized legislation does not direct otherwise, apply the Offence Act; (3) where the Offence Act is silent on the matter in question (or makes only partial provision for the matter), look to the Criminal Code ; and (4) if the matter is not addressed in any of the preceding legislation, turn to other sources of law, including other British Columbia legislation. In this case, these steps lead directly to the incorporation of s. 530 of the Criminal Code into the Offence Act.
Cases Cited
Applied: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804; distinguished: R. v. Prince, [1986] 2 S.C.R. 480; considered: Moore v. The Queen, [1979] 1 S.C.R. 195; referred to: Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774; R. v. Corbett, 2005 BCSC 1437, 24 M.V.R. (5th) 310; R. v. Laflamme, B.C. Prov. Ct., No. 19739, February 17, 1997; Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. Johnson (1991), 3 O.R. (3d) 49; R. v. Beaulac, [1999] 1 S.C.R. 768; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87; R. v. Plummer, 2018 BCSC 513, 25 M.V.R. (7th) 117; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713; R. v. Arcand (2004), 73 O.R. (3d) 758; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6; Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; Anderson v. Victoria (City), 2002 BCSC 1466, 9 B.C.L.R. (4th) 75; Central Okanagan (Regional District) v. Ushko, [1998] B.C.J. No. 2123 (QL); Vancouver (City) v. Wiseberg, 2005 BCSC 1377; R. v. Ambrosi, 2012 BCSC 409; R. v. 0721464 B.C. Ltd., 2011 BCPC 90; Samograd v. Collison (1995), 17 B.C.L.R. (3d) 51; Application to Destroy the Dog “Tuppence”, 2004 BCPC 27; Little v. Peers (1988), 22 B.C.L.R. (2d) 224; R. v. Singh, 2001 BCCA 79, 149 B.C.A.C. 215; Commissioner of Official Languages (Can.) v. Canada (Minister of Justice), 2001 FCT 239, 194 F.T.R. 181; R. v. Trow (1977), 5 B.C.L.R. 133; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Curragh Inc., [1997] 1 S.C.R. 537.
Statutes and Regulations Cited
Act for consolidating in One Act certain Provisions usually contained in Acts for regulating the Police of Towns (U.K.), 1847, 10 & 11 Vict., c. 89.
Act for further improving the Police in and near the Metropolis (U.K.), 1839, 2 & 3 Vict., c. 47.
Act for the Establishment of County and District Constables by the Authority of Justices of the Peace (U.K.), 1839, 2 & 3 Vict., c. 93.
Act respecting Summary Proceedings before Justices of Peace (Summary Convictions Act), R.S.B.C. 1948, c. 317, s. 4(1).
Act respecting Summary Proceedings (Summary Convictions Act, 1955), S.B.C. 1955, c. 71, s. 102.
Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language (G.B.), 1731, 4 Geo. II, c. 26, preamble.
Act to amend the Act for the Establishment of County and District Constables (U.K.), 1840, 3 & 4 Vict., c. 88.
Act to amend the Acts relating to the Metropolitan Police (U.K.), 1856, 19 Vict., c. 2.
Act to provide for the Regulation of Municipal Corporations in England and Wales (U.K.), 1835, 5 & 6 Will IV, c. 76.
Act to render more effectual the Police in Counties and Boroughs in England and Wales (U.K.), 1856, 19 & 20 Vict., c. 69.
Application of Provincial Laws Regulations, SOR/96‑312, Part VIII, s. 3.
Armoured Vehicle and After‑Market Compartment Control Act, S.B.C. 2010, c. 8, s. 12(9).
Canadian Charter of Rights and Freedoms .
Contraventions Act, S.C. 1992, c. 47 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 450(2) , 530 , 810 , 849(3) .
Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 74(3).
Interpretation Act, R.S.B.C. 1996, c. 238, ss. 1 “enactment”, 32, 44.
Interpretation Act, R.S.C. 1985, c. I‑21, s. 11 .
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 2(1).
Justices of the Peace Act 1361 (Eng.), 1361, 34 Edw. 3, c. 1.
Law and Equity Act, R.S.B.C. 1996, c. 253, s. 2.
Legal Profession Act, S.B.C. 1998, c. 9, s. 85(4).
Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 95(1).
Offence Act, R.S.B.C. 1996, c. 338, ss. 1 “proceedings”, 2, 3(1), 5, 102, 109, 132(2)(a.4), 133.
Summary Convictions Act, R.S.B.C. 1960, c. 373, ss. 101, 102.
Voluntary Blood Donations Act, S.B.C. 2018, c. 30, s. 21(1).
Authors Cited
Black’s Law Dictionary, 6th ed. by Henry Campbell Black, St‑Paul, Minn.: West Publishing Co., 1990.
British Columbia. Legislative Assembly. Official Report of Debates of the Legislative Assembly, 2nd Sess., 29th Parl., March 10, 1971, p. 646.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Goepel and Fenlon JJ.A.), 2017 BCCA 264, 351 C.C.C. (3d) 448, [2017] B.C.J. No. 1358 (QL), 2017 CarswellBC 1871 (WL Can.), affirming a decision of Blok J., 2016 BCSC 2416, 372 C.R.R. (2d) 54, [2016] B.C.J. No. 2727 (QL), 2016 CarswellBC 3656 (WL Can.), dismissing an application for certiorari against a decision of Gulbransen Prov. Ct. J., 2015 BCPC 230, [2015] B.C.J. No. 1837 (QL), 2015 CarswellBC 2440 (WL Can.). Appeal allowed.
Jennifer Klinck, Sara Scott, Darius Bossé and Casey Leggett, for the appellant.
Rodney G. Garson and Rome Carot, for the respondent.
Isabelle Bousquet and Élie Ducharme, for the intervener the Commissioner of Official Languages of Canada.
Francis Lamer, for the intervener Fédération des associations de juristes d’expression française de common law inc.
The judgment of the Court was delivered by
Côté and Martin JJ. —
I. Overview
[1] Mr. Bessette was charged with a provincial driving offence in British Columbia. Before the start of his trial in Provincial Court, he asked to be tried in French. Were he being prosecuted for a criminal offence in the very same court, the Criminal Code, R.S.C. 1985, c. C-46 , would unquestionably have given him the option of being tried in English or French. This appeal asks whether the Criminal Code provision for trials in either official language of Canada extends to persons accused of certain provincial offences in British Columbia.
[2] Based on a principled interpretation of the relevant statutory provisions, we conclude that accused persons in Mr. Bessette’s position are entitled to be tried in either official language. We are also of the view that this important question merited proper consideration at the outset of the trial. As such, the provincial court judge’s decision not to honour Mr. Bessette’s request for a trial in French was immediately reviewable by the superior court on a petition for certiorari.
[3] We would therefore allow the appeal, quash the order of the Provincial Court, and order that Mr. Bessette is entitled to be tried in French.
II. Context
A. Facts
[4] The appellant, Mr. Bessette, was charged with “driving while prohibited”, an offence under s. 95(1) of British Columbia’s Motor Vehicle Act, R.S.B.C. 1996, c. 318.
[5] Prior to the anticipated start of his trial in Provincial Court, Mr. Bessette made an application to be tried in French, relying on s. 530 of the Criminal Code . That provision grants an accused the right to be tried by a provincial court judge who speaks the accused’s official language. Mr. Bessette argued that s. 530 applies to his prosecution because the Motor Vehicle Act and British Columbia’s Offence Act, R.S.B.C. 1996, c. 338, are silent as to the language of trials. Meanwhile, s. 133 of the Offence Act dictates that gaps in that Act are to be filled with the provisions of the Criminal Code relating to offences punishable on summary conviction. Section 530 is one such provision of the Criminal Code .
[6] The Crown contested Mr. Bessette’s application, arguing that English is the language of provincial offence prosecutions according to An Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language (G.B.), 1731, 4 Geo. II, c. 26 (“1731 Act”). This English statute forms part of British Columbia law by virtue of s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253 (Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774, at para. 41; see also paras. 14-17). As its full title says, the 1731 Act directs that proceedings in British Columbia courts be conducted in English.
[7] The provincial court judge accepted the Crown’s argument and dismissed Mr. Bessette’s application, holding that British Columbia law does not provide for French-language trials of provincial offences.
[8] Instead of proceeding to trial in English, Mr. Bessette brought a petition in the Supreme Court of British Columbia (i.e., British Columbia’s superior court) for judicial review of the provincial court judge’s decision. (In British Columbia, an application for judicial review takes the form of a petition: Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 2(1).) He asked the superior court judge to quash the provincial court judge’s ruling and order that his trial be conducted in French.
[9] A judge of the Supreme Court of British Columbia dismissed Mr. Bessette’s petition on the grounds that there were no exceptional circumstances warranting departure from the general rule against pre- or mid-trial intervention by superior courts in criminal or quasi-criminal matters. In essence, the court held that his petition was premature and that he should instead wait to challenge the language of his trial through an appeal of the trial decision if he was ultimately convicted.
[10] Mr. Bessette appealed. The Court of Appeal for British Columbia held that the superior court judge’s decision was entitled to deference and dismissed Mr. Bessette’s appeal.
[11] The Supreme Court of British Columbia and the Court of Appeal for British Columbia therefore did not consider it necessary or appropriate to decide the substantive question of whether a person accused of a provincial offence in British Columbia has the right to be tried in French. They disposed of the case on the basis that the provincial court judge’s decision (that British Columbia law does not provide for French-language trials of provincial offences) was not the type of decision which should be reviewed by a superior court on an interlocutory basis.
[12] Mr. Bessette now appeals to this Court. Among other relief, he asks for an order that his trial, which has yet to take place, be conducted in French.
B. Relevant Statutory Provisions
[13] At the centre of this dispute is the British Columbia Offence Act, as it governs prosecutions of offences under provincial statutes such as the Motor Vehicle Act (Offence Act, ss. 1 (definition of “proceedings”), 2, 3(1) and 5; see also R. v. Corbett, 2005 BCSC 1437, 24 M.V.R. (5th) 310, at paras. 3-4; Interpretation Act, R.S.B.C. 1996, c. 238, s. 1 (definition of “enactment”)). Both the Motor Vehicle Act and the Offence Act are silent on the language of trials. Because of this silence, s. 133 of the Offence Act becomes the focal point of this dispute. That provision incorporates certain Criminal Code provisions where a matter is not provided for in the Offence Act. Section 133 and other relevant provisions of the Offence Act state as follows:
Definitions
1 In this Act:
. . .
“proceedings” means
(a) proceedings in respect of offences, and
(b) proceedings in which a justice is authorized by an enactment to make an order;
. . .
Offence punishable on summary conviction
2 An offence created under an enactment is punishable on summary conviction.
Application to proceedings
3 (1) Except where otherwise provided by law, this Act applies to proceedings as defined in section 1.
. . .
General offence
5 A person who contravenes an enactment by doing an act that it forbids, or omitting to do an act that it requires to be done, commits an offence against the enactment.
. . .
Application of Criminal Code
133 If, in any proceeding, matter or thing to which this Act applies, express provision has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable on summary conviction apply, with the necessary changes and so far as applicable, as if its provisions were enacted in and formed part of this Act.
[14] The two statutes competing to govern the language of Offence Act trials are the Criminal Code , which provides for trials in the accused’s official language of choice, and the 1731 Act, which provides only for English trials. Their relevant provisions are:
Language of accused
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,
. . .
a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice 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.
(Criminal Code, s. 530 )
. . . [T]o protect the lives and fortunes of the subjects of that part of Great Britain called England, more effectually than heretofore from the peril of being ensnared or brought in danger by forms and proceedings in courts of justice, in an unknown language, be it enacted . . . that . . . all writs, process, and returns thereof and proceedings thereon, and all pleadings, rules, orders, indictments, informations, inquisitions, presentments, verdicts, prohibitions, certificates, and all patents, charters, pardons, commissions, records, judgments, statutes, recognizances, bonds, rolls, entries, fines and recoveries, and all proceedings relating thereunto, and all proceedings of courts leet, courts baron, and customary courts, and all copies thereof, and all proceedings whatsoever in any courts of justice . . ., and which concern the law and administration of justice, shall be in the english tongue and language only, and not in Latin or French, or any other tongue or language whatsoever . . .
(1731 Act, preamble)
As set out above, there is no dispute that the 1731 Act remains in force in British Columbia. It applies because of s. 2 of British Columbia’s Law and Equity Act, which states as follows:
Application of English law in British Columbia
2 Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.
III. Judicial History
A. Provincial Court of British Columbia (Gulbransen Prov. Ct. J.) — 2015 BCPC 230
[15] The provincial court judge dismissed Mr. Bessette’s application for a trial in French. He held that s. 530 of the Criminal Code could not be incorporated into the Offence Act to displace the 1731 Act because this latter Act already forms part of British Columbia law. The judge adopted the reasoning of an earlier decision of the Provincial Court of British Columbia, R. v. Laflamme, B.C. Prov. Ct., No. 19739, February 17, 1997, which held that it is settled law that English is the language of the courts in British Columbia; s. 133 of the Offence Act is intended to incorporate procedural provisions of the Criminal Code , not substantive ones; and to read s. 133 as allowing for trials in French would be a “political” decision. The judge hearing Mr. Bessette’s application also expressed some discomfort with the idea that a federal statute like the Criminal Code could impose language obligations on a purely provincial matter (namely, the prosecution of provincial offences).
B. Supreme Court of British Columbia (Blok J.) — 2016 BCSC 2416, 372 C.R.R. (2d) 54
[16] The Supreme Court of British Columbia dismissed Mr. Bessette’s petition for prerogative relief on the basis that it was premature. In its view, the provincial court judge’s decision would, if necessary, be reviewable by way of appeal after trial. Put differently, an appeal represented an adequate alternative remedy to certiorari — the prerogative writ which permits the superior court granting it to review the decision of the judge below. As explained in Skogman v. The Queen, [1984] 2 S.C.R. 93, at pp. 98-100, to grant certiorari is to undertake judicial review (or “certiorari review”).
[17] In coming to this conclusion, the superior court judge made the following assessments (based on the factors set out in R. v. Johnson (1991), 3 O.R. (3d) 49 (C.A.)): (a) the Provincial Court had the competence to make the ruling it did; (b) it was not apparent that the ruling resulted in an “ongoing significant” infringement of Mr. Bessette’s rights; (c) judicial economy, and the principles against delay and fragmentation of proceedings, strongly militated against considering the merits of Mr. Bessette’s petition; (d) the Provincial Court was not implicated in the alleged rights violation, but had simply made a ruling on a disputed question of law; and (e) the decision was not so “obviously wrong” (if indeed wrong at all) to merit immediate intervention.
C. Court of Appeal for British Columbia (Saunders, Goepel and Fenlon JJ.A.) — 2017 BCCA 264, 361 C.C.C. (3d) 448
[18] A unanimous panel of the Court of Appeal held that the Supreme Court of British Columbia’s decision attracted deference as it was a discretionary decision about whether the interests of justice favoured granting certiorari. The court held that it was open to the superior court judge to conclude that an appeal from conviction represented an adequate alternative remedy and that there were no circumstances warranting departure from the general rule against interlocutory appeals in criminal and quasi-criminal matters.
IV. Issues
[19] There are two questions before this Court:
1. The threshold question: Was the Provincial Court’s decision not to grant Mr. Bessette his trial in French immediately reviewable by the Supreme Court of British Columbia on a petition for certiorari, and, if so, did the Supreme Court err in declining to consider the merits of Mr. Bessette’s petition?
2. The substantive question: Does s. 133 of the Offence Act incorporate s. 530 of the Criminal Code and thereby grant persons accused of certain provincial offences the right to be tried in French?
[20] It is not contested that Mr. Bessette made his application before the Provincial Court at the appropriate time under s. 530(1) (a) of the Criminal Code , and therefore meets the procedural requirements for obtaining a French-language trial. There is also no dispute that the Provincial Court must have the capacity to provide trials in French; indeed, because it hears Criminal Code matters, it is required to be institutionally bilingual (R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 28).
V. Analysis
A. The Threshold Question: Availability of Certiorari
[21] In our view, whether Mr. Bessette is entitled to be tried in French raises a jurisdictional question, and certiorari review is therefore available before the trial is heard. Although superior courts retain a residual discretion to refuse certiorari review, even in the face of alleged jurisdictional errors, no such refusal is warranted in the circumstances.
(1) Jurisdictional Error: Failure to Comply With a Mandatory Statutory Provision
[22] Superior courts generally do not intervene in ongoing criminal proceedings in the provincial courts. As was recently explained by this Court in R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, criminal appeals are statutory and, with limited exceptions, there are no interlocutory appeals. Indeed, the Offence Act provisions governing appeals from “order[s]” (ss. 102 and 109) have been interpreted by the British Columbia courts as authorizing only appeals from final orders (see R. v. Plummer, 2018 BCSC 513, 25 M.V.R. (7th) 117, at para. 16). Criminal trials should not routinely be fragmented by interlocutory proceedings as these may be based on an incomplete record, take on a life of their own, or result in significant delay and the inefficient use of judicial resources (Awashish, at para. 10; Johnson, at p. 54).
[23] For parties to criminal proceedings, pre- or mid-trial certiorari is available “for a jurisdictional error by a provincial court judge” (Awashish, at para. 20). In the criminal context, a jurisdictional error occurs “where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice” (Awashish, at para. 23). The court that makes such an error loses jurisdiction over the accused (Doyle v. The Queen, [1977] 1 S.C.R. 597, at pp. 603 and 607; see also R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at paras. 12, 18-19, 33 and 37-38). Whether the alleged error by the trial judge constitutes a jurisdictional error, making certiorari review available, is a question of law reviewable for correctness.
[24] The parties agree that the law governing the availability of certiorari review in the criminal context applies in this quasi-criminal context. Both parties argued their case on this basis. However, they dispute whether the Provincial Court’s decision not to grant Mr. Bessette a trial in French was immediately reviewable by the superior court for constituting a failure to observe a mandatory statutory provision.
[25] On its face, s. 530 of the Criminal Code is clearly a mandatory statutory provision. It dictates, in no uncertain terms, that the judge “shall grant” a French trial on application of the accused (provided the application is brought within the requisite time). “Shall” is mandatory language (Interpretation Act, R.S.C. 1985, c. I-21, s. 11 ; Beaulac, at para. 31).
[26] In R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646, the Court of Appeal for Ontario expressly decided that not complying with s. 530 of the Criminal Code constitutes a jurisdictional error that is susceptible to review on certiorari (at paras. 131-33):
It is settled law that an accused can bring certiorari to quash a committal for trial where there is a lack or loss of jurisdiction (R. v. Forsythe, [1980] 2 S.C.R. 268, [1980] S.C.J. No. 66, at p. 271). A magistrate will lose jurisdiction if he or she “fails to observe a mandatory provision of the Criminal Code ” (Forsythe, at pp. 271-72 S.C.R.).
The Quebec courts have held that ss. 530 and 530.1 of the Criminal Code are mandatory provisions. For example, the Superior Court of Quebec concluded that [translation] “the interpretation of sections 530 and 530.1 raises a jurisdictional issue, and so any error by the justice of the peace on that point will affect his or her jurisdiction” (R. c. Edwards, [1998] J.Q. no 1420, [1998] R.J.Q. 1471 (S.C.), at para. 60).
In my opinion, the failure of the judge in this case to ensure that the requirements of ss. 530 and 530.1 were met resulted in a loss of jurisdiction, and we have the authority to quash the committal for trial. [Emphasis added.]
[27] We agree that failing to ensure that the requirements of s. 530 of the Criminal Code are met constitutes a jurisdictional error. As such, the court that fails to comply with s. 530 , where it applies, loses jurisdiction over the proceedings. This is consistent with this Court’s decision in Beaulac, in which Bastarache J. said the following (at para. 11):
. . . 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. [Emphasis added.]
[28] The Attorney General of British Columbia rightly concedes the mandatory nature of s. 530 . However, he maintains that, because the applicability of s. 530 to Offence Act trials is the very question in dispute, the provincial court judge’s determination that s. 530 does not apply cannot constitute the failure to follow a mandatory statutory provision. Put differently, the Attorney General submits that the provincial court judge was not deciding whether to follow a mandatory statutory provision; he was deciding whether a mandatory statutory provision indeed applied to him — a matter of statutory interpretation and a question of law. In the Attorney General’s view, the provincial court judge would only have committed a jurisdictional error if he had concluded that s. 530 applied to Mr. Bessette’s trial but nonetheless failed to follow it.
[29] With respect, we disagree. Whether the Provincial Court is bound to comply with a mandatory statutory provision does not become a non-jurisdictional question simply because the court decides that it is not bound by the provision. In this regard, the Attorney General’s position contradicts this Court’s approach to identifying jurisdictional issues amenable to certiorari review in the course of criminal proceedings set out in R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804. In Russell, the Court (per McLachlin C.J.) concluded that the preliminary inquiry judge’s committal of Mr. Russell for trial was reviewable on certiorari because the kind of error alleged by Mr. Russell went to jurisdiction (Russell, at paras. 21-22 and 30).
[30] In Russell, the evidence at the preliminary inquiry suggested that Mr. Russell had forcibly confined one person and then killed another. The preliminary inquiry judge held that Mr. Russell should be tried on the charge of first degree murder, as murder is first degree when done “while committing” certain enumerated offences, including forcible confinement (Criminal Code, s. 231(5) ). In making Mr. Russell stand trial for first degree murder, the preliminary inquiry judge held that the victim of the predicate offence (forcible confinement) did not need to be the same as the victim of the murder for the latter offence to be done “while committing” the former. Mr. Russell sought certiorari to quash the committal.
[31] When the matter reached this Court, it held that the preliminary inquiry judge had properly interpreted “while committing” and had therefore not exceeded jurisdiction in deciding that Mr. Russell should stand trial for first degree murder. Nonetheless, the judge’s decision had been amenable to certiorari review since, had the judge erred in his interpretation, he would have exceeded his jurisdiction in committing Mr. Russell to stand trial.
[32] Applying Russell, if the provincial court judge erred in his interpretation of s. 133 of the Offence Act (as Mr. Bessette asserts and as we find below), the effect was that he failed to observe a mandatory statutory provision (namely s. 530 of the Criminal Code ) and thereby exceeded (or lost) his jurisdiction. Because Mr. Bessette complied with the statutory requirements of s. 530 for requesting a trial in French, if s. 530 applies, a provincial court judge does not have the jurisdiction to conduct Mr. Bessette’s trial in English. Indeed, if a trial in English was erroneously ordered, the proceeding would be a nullity from the outset. As such, the error Mr. Bessette alleged before the superior court was amenable to certiorari review.
[33] To be clear, our conclusion that certiorari review was available in this case is not predicated on our conclusion that s. 133 of the Offence Act incorporates s. 530 of the Criminal Code . Certiorari review would have been available even if s. 133 did not incorporate s. 530 . The determinative question is not whether the error alleged on a petition for certiorari is in fact established. Rather, it is whether the error alleged would result in a loss of jurisdiction over the proceedings. This, in turn, depends upon the nature, effects and consequences of the decision. Such an approach is logical; it permits the reviewing court to determine whether the petition can be adjudicated before deciding the merits of that petition.
[34] On an application by a party for certiorari in the course of a criminal (or, as is the case here, quasi-criminal) trial, the alleged error will be jurisdictional in nature if making it results in a failure to comply with a mandatory statutory provision or a breach of natural justice. Here, the interpretation of s. 133 of the Offence Act related to a mandatory statutory provision, such that a misinterpretation of s. 133 would have resulted in a loss of jurisdiction over the proceedings. As such, the proper interpretation of s. 133 is itself jurisdictional for the purposes of certiorari review.
(2) Discretion to Undertake Certiorari Review
[35] Even where certiorari review is available, superior courts retain the discretion to refuse to conduct that review (Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 37). One of the discretionary grounds for refusing to engage in certiorari review — the ground invoked by the superior court in this case — is the existence of an adequate alternative remedy (Strickland, at para. 40; R. v. Arcand (2004), 73 O.R. (3d) 758 (C.A.), at para. 13). Because certiorari review is a discretionary remedy, the court’s decision not to underta