R. v. Tayo Tompouba

R. v. Tayo Tompouba
Collection
Supreme Court Judgments
Date
2024-05-03
Neutral citation
2024 SCC 16
Case number
40332
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; O’Bonsawin, Michelle
On appeal from
British Columbia
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Tayo Tompouba, 2024 SCC 16
Appeal Heard: October 11, 2023 Judgment Rendered: May 3, 2024 Docket: 40332
Between:
Franck Yvan Tayo Tompouba Appellant
and
His Majesty The King Respondent
- and -
Director of Public Prosecutions, Canadian Bar Association, Commissioner of Official Languages of Canada, Fédération des associations de juristes d’expression française de common law inc. and Criminal Lawyers’ Association (Ontario) Interveners
Official English Translation: Reasons of Wagner C.J.
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 129)
Wagner C.J. (Côté, Rowe, Kasirer and O’Bonsawin JJ. concurring)
Joint Dissenting Reasons: (paras. 130 to 201)
Karakatsanis and Martin JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Franck Yvan Tayo Tompouba Appellant
v.
His Majesty The King Respondent
and
Director of Public Prosecutions,
Canadian Bar Association,
Commissioner of Official Languages of Canada,
Fédération des associations de juristes d’expression
française de common law inc. and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Tayo Tompouba
2024 SCC 16
File No.: 40332.
2023: October 11; 2024: May 3.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ.
on appeal from the court of appeal for british columbia
Criminal law — Trial — Language of accused — Duty imposed on judge before whom accused first appears to ensure that accused is advised of right to be tried in official language of their choice — Francophone accused convicted of sexual assault following trial conducted in English — Accused raising breach of judge’s duty on appeal — Court of Appeal dismissing appeal — Analytical framework that applies where accused appeals conviction while raising breach of judge’s duty to ensure that accused was advised of right to be tried in official language of their choice, when no decision on accused’s language rights was made at first instance — Whether Court of Appeal made reviewable error in declining to order new trial — Criminal Code, R.S.C. 1985, c. C‑46, ss. 530(3), 686(1)(a), (b).
T is a bilingual Francophone who was convicted of sexual assault following a trial conducted in English. During the judicial process leading to the conviction, the judge before whom T first appeared did not ensure that he was advised of his right to be tried in French, contrary to the requirements of s. 530(3) of the Criminal Code. Before the Court of Appeal, T asserted that he would have liked his trial to be conducted in French. While the Court of Appeal was of the view that the breach of s. 530(3) was an error of law under s. 686(1)(a)(ii) of the Criminal Code, it found that there was insufficient evidence to conclude that the error had caused any prejudice. It therefore applied one of the curative provisos in s. 686(1)(b).
Held (Karakatsanis and Martin JJ. dissenting): The appeal should be allowed, the conviction quashed and a new trial in French ordered.
Per Wagner C.J. and Côté, Rowe, Kasirer and O’Bonsawin JJ.: A breach of the informational duty imposed by s. 530(3) of the Criminal Code on the judge before whom an accused first appears is an error of law warranting appellate intervention under s. 686(1)(a)(ii) of the Criminal Code. The breach, once established, taints the trial court’s judgment and gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice, guaranteed to the accused by s. 530, was violated. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv). In this case, T has proved that a reviewable error was made, and the Crown has failed to establish that T’s fundamental right was not in fact violated despite the breach of s. 530(3).
Institutional judicial bilingualism ensures equal access to the courts for members of Canada’s linguistic communities through various legal guarantees, including those set out in s. 530 of the Criminal Code. Section 530, a provision enacted to advance the equality of status or use of English and French, goes beyond the constitutional right to speak in the official language of one’s choice. It also gives every accused the right to choose the official language they wish to speak and in which they wish to be understood by the judge or the judge and jury, without the use of interpretation or translation services.
Subsections (1) and (4) of s. 530 set out two frameworks governing the exercise of the same fundamental right, that is, the right of every accused to be tried in the official language of their choice. Section 530(1) guarantees to every accused an absolute right to equal access to the courts in the official language of their choice, provided that the accused’s application is timely and that they are able to instruct counsel and follow the proceedings in the chosen language. Where an accused’s application to be tried in the official language of their choice is made outside the period specified in s. 530(1), the accused’s right is then subject to the judge’s discretion under s. 530(4). However, because of the central importance of language rights in Canadian society, there is a presumption in the accused’s favour that granting their application is in the best interests of justice. The violation of this fundamental right constitutes significant prejudice for which the appropriate remedy is normally a new trial.
To make certain that an accused is able to choose the language of their trial in a free and informed manner, Parliament has imposed an informational duty for this purpose on the judge before whom the accused first appears. Section 530(3) enshrines the accused’s right to be advised of their fundamental right and of the time before which they must apply for a trial before a judge or a judge and jury, as the case may be, who speak the official language of their choice. The judge must ensure that the accused is advised of their fundamental right and of the time limit for exercising it, and if the judge finds that the accused has not been properly informed thereof, or if they have the slightest doubt in this regard, they must take the necessary steps to ensure that the accused is informed. This two‑pronged duty requires the judge to take the steps needed to have no doubt that the accused is well aware of their right and of how it is to be exercised. Ultimately, the goal of s. 530(3) is to make sure that information about the accused’s fundamental right and how it is to be exercised is conveyed to the accused in a timely manner in order to help the accused make a free and informed choice of official language. The amendment to s. 530(3) made by Parliament in 2008 to extend the application of the judge’s informational duty to all accused persons, regardless of whether they are self‑represented or represented by counsel, amounts to legislative recognition of a principle of caution requiring judges to avoid presuming, without verifying in a diligent and proactive manner, that an accused has been properly informed of their right and of how it is to be exercised prior to their first appearance. The amendment also reflects the legislative intent to make the judge the ultimate guardian of the fundamental right of every accused to be tried in the official language of their choice, and thus the ultimate guardian of the free and informed nature of the accused’s choice of official language. A first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge’s duty and infringes the accused’s right under s. 530(3).
Section 686 of the Criminal Code sets out the powers of a court of appeal hearing an appeal against a conviction. Section 686(1)(a) allows a court of appeal to intervene only if the appellant is able to show that the verdict is unreasonable (s. 686(1)(a)(i)), that an error of law was made (s. 686(1)(a)(ii)) or that a miscarriage of justice occurred (s. 686(1)(a)(iii)). A court of appeal can generally intervene only where an error was prejudicial to the accused. Unreasonable verdicts and miscarriages of justice are usually, by nature, prejudicial to the accused, while errors of law are presumed to be prejudicial. Therefore, the primary relevance of the distinction between errors of law and the other types of errors referred to in s. 686(1)(a) lies first and foremost in the allocation of the burden of showing that the error was or was not prejudicial. Where the error is one of law, because such an error is presumed to be prejudicial to the accused, the Crown bears the onus of establishing the absence of prejudice at the stage of the analysis under one of the two curative provisos. This means that, in principle, it is less onerous for an accused to establish an error of law, because showing the existence of such an error is sufficient to give rise to a presumption of prejudice and thus to justify appellate intervention.
An error of law under s. 686(1)(a)(ii) is any error in the application of a legal rule, as long as, first, it is related to the proceedings leading to the conviction, such that it contributed to the ultimate verdict, and second, it was made by a judge, who might not be the trial judge. In such circumstances, it can be concluded that the error tainted the trial court’s judgment, with the result that prejudice can be presumed and the conviction quashed. An error in the application of a legal rule may involve either a decision that is wrong in law or an unjustified failure to comply with a legal rule. The error may originate in various ways, including through a misinterpretation of the legal rule. It is not necessary that the legal rule erroneously applied be substantive in nature, because it is well settled that a procedural irregularity, whether trivial or serious, may constitute an error of law under s. 686(1)(a)(ii).
By comparison, miscarriages of justice under s. 686(1)(a)(iii) are a residual category of errors that exists to ensure that a conviction can be quashed where a trial was unfair. The question to be decided in this regard is whether the irregularity was so severe that it rendered the trial unfair or created the appearance of unfairness. This is a high bar.
A breach of s. 530(3) is an error of law under s. 686(1)(a)(ii), with the result that an accused need only disclose the breach in order to justify appellate intervention. Failure by the judge before whom the accused first appears to carry out their informational duty under s. 530(3) is an error in the application of a legal rule. By erroneously failing to apply an imperative legal rule of general application, the judge commits an improper omission. Because this irregularity is related to the proceedings leading to the conviction and is committed by a judge, it has the effect of tainting the trial court’s judgment so as to provide a basis for appellate intervention under s. 686(1)(a)(ii). In keeping with the logic and structure of s. 686, this error gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was infringed. The Crown can then rebut this presumption at the stage of the curative proviso analysis.
The curative proviso in s. 686(1)(b)(iii) allows a court of appeal to dismiss an appeal on the ground that an error or irregularity did not result in any substantial wrong or miscarriage of justice. The proviso in s. 686(1)(b)(iv) allows the same result to be reached where an error or irregularity causes a loss of jurisdiction, as long as the accused suffered no prejudice and the trial court at least maintained jurisdiction over the class of offences. The common purpose of the two curative provisos is to permit the dismissal of an appeal where the error or irregularity shown by the accused was not prejudicial to them. A breach of s. 530(3) is an error that results in the court losing jurisdiction over the proceedings. The Crown can therefore rely on the curative proviso in s. 686(1)(b)(iv), which it can validly raise implicitly, and try to show that no prejudice was caused by the error, or in other words, that the error did not result in a violation of the accused’s fundamental right to be tried in the official language of their choice. The opportunity for the Crown to rebut the presumption significantly limits the risk of language rights being instrumentalized for tactical purposes. The Crown can argue that the accused does not have sufficient proficiency in the language they were unable to choose, that the accused would in any event have chosen to be tried in the language in which their trial was conducted or that the accused chose English or French in a free and informed manner. If the Crown fails to make this showing on the balance of probabilities standard, it will be presumed that the breach of s. 530(3) resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice and thus caused the accused prejudice that was too significant for the conviction to be upheld.
In this case, the judge erred in law by not ensuring that T was advised of his fundamental right. The Court of Appeal then erred in law by imposing on T the burden of proving, in addition to a breach of s. 530(3), that his fundamental right to be tried in the official language of his choice had in fact been violated at first instance. Lastly, the Crown has not succeeded in showing that the breach of s. 530(3) nevertheless did not result in the violation of T’s fundamental right to be tried in the official language of his choice. The evidence does not make it possible to conclude on a balance of probabilities that T would in any event have chosen English as the official language of his trial if he had been duly informed of his right or that he had timely knowledge of his right otherwise than through notice under s. 530(3), such that it can be concluded that he made a free and informed choice to have a trial in English. Because it is the Crown that bears the burden of satisfying the Court on a balance of probabilities, the uncertainty and doubt that remain must be resolved in T’s favour and must weigh against the Crown.
Per Karakatsanis and Martin JJ. (dissenting): The appeal should be dismissed. A breach of the procedural requirement under s. 530(3) of the Criminal Code to ensure an accused is advised of their substantive language rights is not a “ground of a wrong decision on a question of law” to set aside the judgment of the trial court under s. 686(1)(a)(ii) of the Criminal Code. The failure to give notice under s. 530(3) falls within the residual category under s. 686(1)(a)(iii), meaning an appellant must establish a miscarriage of justice before a remedy can be granted. In order to establish a miscarriage of justice, T was required to show that the lack of notice required by s. 530(3) had some effect on the exercise of his right, that is, he was unaware of his right to be tried in the official language of his choice. He did not meet his burden.
A wrong decision on a question of law relating to the judgment of the trial court under s. 686(1)(a)(ii) occurs only when there is an error on a question of law contained in a decision that is attributable to the trial judge. First, there must be a question of law. If the irregularity is one of fact or of mixed fact and law, it cannot fall within s. 686(1)(a)(ii). It is a question of mixed fact and law if the appellate court must make new findings of fact based on fresh evidence to determine whether a legal error occurred. Second, the error being alleged on appeal must arise from a decision which, in the context of the trial and the circumstances in which the decision was made, represented an erroneous interpretation or application of the law. When the particular irregularity being alleged on appeal was not raised at trial and therefore the trial judge made no ruling on it, it could be said that no error of law is alleged. Third, this wrong legal decision must be attributable to the trial judge. The irregularities cannot have occurred outside the trial judge’s knowledge, with no opportunity to remedy them. Errors that share these three criteria ordinarily render the verdict of the trial court unsafe and presumptively cause a miscarriage of justice such that the judgment should be set aside.
The proper classification of an irregularity that occurred during a criminal proceeding governs what an appellant must prove, what the court of appeal can do once it has been proven, and whether the court can dismiss the appeal despite it being proven. If an error is not characterized as a wrong decision on a question of law under s. 686(1)(a)(ii), which presumptively causes a miscarriage of justice unless the Crown can prove that the error was trivial or evidence was so overwhelming that a conviction was inevitable, then the error must fall into the residual miscarriage of justice clause under s. 686(1)(a)(iii) if the court of appeal is to have any power to intervene. The appellant bears the burden of proving that the error caused their trial to be unfair or to have the appearance of unfairness such that it would undermine public confidence in the administration of justice. Therefore, where the question before the appellate court is a question of mixed fact and law, or where the irregularity was not brought to the trial judge’s attention and therefore they made no decision about it, or where the wrong legal decision cannot be attributed to the trial judge, it falls to the appellant not only to prove the error but to show that it caused a miscarriage of justice under the residual ground of appeal in s. 686(1)(a)(iii). Once proven, the Crown is not able to rebut this and the court of appeal must quash the conviction and either order a new trial or enter an acquittal. Errors that deprive the accused of a chance to make a meaningful choice in the exercise of their rights, thus creating the appearance of unfairness or harming the public’s perception of the administration of justice, have been found to fall within s. 686(1)(a)(iii). Such errors do not presumptively render the verdict of the trial court unsafe. The burden is on the appellant in each case to show that a miscarriage of justice occurred.
A judicial official’s breach of the procedural requirement under s. 530(3) to ensure an accused is advised of their substantive language rights fails to meet the criteria that typically characterize errors of law under s. 686(1)(a)(ii). A breach of s. 530(3) does not give rise to a question of law alone, nor does it concern a decision by a trial judge. A finding of non-compliance with s. 530(3) on appeal would ordinarily require fresh evidence and findings to determine not only whether the judicial official personally informed the accused of their language rights on the record, but also whether they did enough to ensure that the accused had been informed in some other way. Furthermore, a judicial official’s failure to provide the required statutory notice at the first appearance arises outside the trial process without the trial judge making any ruling on this point. On its own, it is clearly not an error made by the trial judge.
Section 530(3) exists to make sure an accused is aware of their language rights and can bring their application for a trial in their official language of choice in a timely manner. It does not itself provide the accused with a right to a trial in their official language of choice. It provides the accused with nothing more than knowledge of the right to choose. Where a judicial official fails at the accused’s first appearance to ensure that they are informed of their right to a trial in their official language of choice, it does not necessarily follow that the accused was deprived of their substantive right to choose. The accused may already know of this right in advance, or may learn of it through other means after the first appearance but within the timeframe to make an application, and the breach of s. 530(3) may have no effect at all on the accused’s substantive right. Since the breach of this procedural right does not necessarily result in a breach of the substantive right, without additional evidence from the accused on this point, it does not give rise to a presumption that this error has led to a miscarriage of justice.
If the court of appeal is to have any power to intervene, non-compliance with s. 530(3) must fall within the residual category in s. 686(1)(a)(iii), in which case the appellant bears the burden of showing that the error actually caused a miscarriage of justice. In order to justify appellate intervention, an appellant must provide evidence, which may be by way of an affidavit, to establish that the breach in fact deprived them of the knowledge necessary to exercise their right to a trial in the language of their choice and that the option of a trial in that other official language was a viable choice. This burden is not onerous and is tailored to the fundamental importance of language rights and the miscarriage of justice that occurs if an appellant, who truly does not know of their language rights, is deprived of their substantive right to choose a trial in the other official language.
However, the importance of the language rights s. 530 protects does not mean that any breach, even of a procedural or notice requirement, should result in a near-automatic right to a new trial when raised for the first time on appeal. Nor should appellants be relieved of demonstrating that the lack of notice under s. 530(3) was consequential and actually deprived them of knowledge of their right to trial in the official language of their choice. Without placing some evidentiary duty on the accused, it will be difficult, if not impossible in some cases, for the Crown to prove a negative — that the accused did not know they could choose a trial in either official language. It would be equally difficult for the Crown to prove that the accused did know of their language rights as it is usually a question that only the accused can answer.
In the instant case, the justice of the peace presiding over T’s first appearance violated s. 530(3). Under the ground of “miscarriage of justice” in s. 686(1)(a)(iii), T was required to establish that he did not otherwise know of his language rights in order to show that this failure had any consequence. T has brought no evidence to meet this minimal burden. The evidence in the record also strongly supports the inference that he was aware of his language rights. The trial judge had no duty under s. 530(4) to verify whether T’s trial was taking place in the official language of his choice and did not err in law by failing to order on his own initiative that T be remanded for a trial in French.
Cases Cited
By Wagner C.J.
Applied: R. v. Beaulac, [1999] 1 S.C.R. 768, rev’g (1997), 120 C.C.C. (3d) 16; referred to: Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535; Commission scolaire francophone des Territoires du Nord‑Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. Mercure, [1988] 1 S.C.R. 234; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646; R. v. Deveaux (1999), 181 N.S.R. (2d) 81; R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222; R. v. Kahsai, 2023 SCC 20; R. v. Brunelle, 2022 SCC 5; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Abdullahi, 2023 SCC 19; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Mitchell (1997), 36 O.R. (3d) 643; R. v. Sciascia, 2016 ONCA 411, 131 O.R. (3d) 375, aff’d 2017 SCC 57, [2017] 2 S.C.R. 539; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Cloutier (1988), 43 C.C.C. (3d) 35; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. D.Q., 2021 ONCA 827, 411 C.C.C. (3d) 292; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. White, 2022 SCC 7; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. McMaster, [1996] 1 S.C.R. 740; R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Samaniego, 2022 SCC 9; R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. Deutsch (2005), 204 C.C.C. (3d) 361; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Vaillancourt, 2019 ABQB 859; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Cole, 2021 ONCA 759, 158 O.R. (3d) 680; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Schwartz, [1988] 2 S.C.R. 443.
By Karakatsanis and Martin JJ. (dissenting)
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Beaulac, [1999] 1 S.C.R. 768; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. W. (G.), [1999] 3 S.C.R. 597; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Abdullahi, 2023 SCC 19; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Kahsai, 2023 SCC 20; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Adgey v. The Queen, [1975] 2 S.C.R. 426; R. v. Bamsey, [1960] S.C.R. 294; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. White, 2022 SCC 7; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; R. v. Tran, [1994] 2 S.C.R. 951; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Cyr-Langlois, 2018 SCC 54, [2018] 3 S.C.R. 456; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. Khill, 2021 SCC 37; R. v. McKenna, 2015 SCC 63, [2015] 3 S.C.R. 1087; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Dorfer, 2011 SCC 50, [2011] 3 S.C.R. 366; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3; R. v. MacGillivray, [1995] 1 S.C.R. 890; R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Smith, 2021 SCC 16, [2021] 1 S.C.R. 530; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. D.R.S., 2018 ABCA 342, 368 C.C.C. (3d) 383; R. v. Miller, 2011 NBCA 52, 374 N.B.R. (2d) 302; R. v. Sunshine, 2016 SKCA 104, 484 Sask. R. 259; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; Sutt v. Sutt, [1969] 1 O.R. 169; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46; R. v. Luu, 2021 ONCA 311, 488 C.R.R. (2d) 225; R. v. Oakes, [1986] 1 S.C.R. 103; Lévesque v. Comeau, [1970] S.C.R. 1010; Parsons v. R., 2014 QCCA 2206.
Statutes and Regulations Cited
Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), S.C. 2008, c. 18, s. 18.
Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 237.
Canadian Charter of Rights and Freedoms, ss. 10(b), 14, 16 to 20, 33.
Code of Professional Conduct for British Columbia (Law Society of British Columbia), r. 3.2-2.1.
Constitution Act, 1867, s. 133.
Criminal Code, R.S.C. 1985, c. C‑46, Part XVII, ss. 530, 536(2), 606(1.1), (1.2), 650, 683(1), 686.
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), s. 16.
Rules of Professional Conduct (Law Society of Ontario), r. 3.2-2A.
Authors Cited
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Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 33, 3rd Sess., 30th Parl., May 31, 1978, pp. 5‑6.
Canada. Senate. Debates of the Senate, vol. 144, No. 14, 2nd Sess., 39th Parl., November 21, 2007, pp. 274‑75.
Canadian Oxford Dictionary, 2nd ed. by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 2004, “ensure”.
Coughlan, Steve, and Alex Gorlewski. The Anatomy of Criminal Procedure: A Visual Guide to the Law. Toronto: Irwin Law, 2019.
Coughlan, Steve. Criminal Procedure, 4th ed. Toronto: Irwin Law, 2020.
Desjardins, Tristan. L’appel en droit criminel et pénal, 2nd ed. Montréal: LexisNexis, 2012.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 3rd ed. Toronto: Thomson Reuters, 2022 (loose-leaf updated April 2024, release 3).
Federation of Law Societies of Canada. Model Code of Professional Conduct, October 2022 (online: https://flsc-s3-storage-pub.s3.ca-central-1.amazonaws.com/Model%20Code%20Oct%202022.pdf; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC16_1_eng.pdf).
Grand Robert & Collins (electronic version), “advise”, “aviser”.
Grand Robert de la langue française (electronic version), “aviser”, “veiller”.
Green, Leslie. “Are Language Rights Fundamental?” (1987), 25 Osgoode Hall L.J. 639.
Gruben, Vanessa. “Le bilinguisme judiciaire”, in Michel Bastarache and Michel Doucet, eds., Les droits linguistiques au Canada, 3rd ed. Cowansville, Que.: Yvon Blais, 2013, 301.
Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2023 (updated 2023, release 1).
Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.
McCormack, Nancy. The Dictionary of Canadian Law, 5th ed. Toronto: Thomson Reuters, 2020, “ensure”.
McCormick on Evidence, 8th ed. by Robert P. Mosteller, ed. Thomson Reuters, 2020.
Ontario. Office of the French Language Services Commissioner of Ontario. Special Report – Active Offer of Services in French: The Cornerstone for Achieving the Objectives of Ontario’s French Language Services Act. Toronto, May 2016.
Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 3rd ed. Toronto: LexisNexis, 2022.
Richard, John D. “Le bilinguisme judiciaire au Canada” (2001), 42 C. de D. 389.
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APPEAL from a judgment of the British Columbia Court of Appeal (Dickson, Griffin and Voith JJ.A.), 2022 BCCA 177, 414 C.C.C. (3d) 86, 509 C.R.R. (2d) 43, [2022] B.C.J. No. 909 (Lexis), 2022 CarswellBC 1321 (WL), affirming a decision of Marchand J., 2019 BCSC 1529, [2019] B.C.J. No. 1705 (Lexis), 2019 CarswellBC 2623 (WL). Appeal allowed, Karakatsanis and Martin JJ. dissenting.
Jonathan Laxer, Caroline Magnan and Darius Bossé, for the appellant.
Liliane Bantourakis, Rodney Garson, K.C., and Jean‑Benoît Deschamps, for the respondent.
Ginette Gobeil and François Lacasse, for the intervener the Director of Public Prosecutions.
Connor Bildfell, Michael A. Feder, K.C., and Lindsay Frame, for the intervener the Canadian Bar Association.
Isabelle Hardy and Élie Ducharme, for the intervener the Commissioner of Official Languages of Canada.
Shannon Gunn Emery and Elsy Gagné, for the intervener Fédération des associations de juristes d’expression française de common law inc.
Paul Le Vay and Alexandra Heine, for the intervener the Criminal Lawyers’ Association (Ontario).
English version of the judgment of Wagner C.J. and Côté, Rowe, Kasirer and O’Bonsawin JJ. delivered by
The Chief Justice —
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Procedural and Judicial History
9
A. Decisions of the Supreme Court of British Columbia (Marchand J.)
11
(1) Voir Dire Decision, 2019 BCSC 2442
11
(2) Decision on Guilt, 2019 BCSC 1529
13
B. Decision of the British Columbia Court of Appeal, 2022 BCCA 177, 414 C.C.C. (3d) 86 (Dickson, Griffin and Voith JJ.A.)
15
III. Issues
21
IV. Analysis
23
A. Language Rights: Purpose, Nature and Interpretation
24
(1) Purpose and Nature
24
(2) Interpretation
27
B. Institutional Judicial Bilingualism: An Essential Component of the Preservation and Development of Linguistic Minorities
28
C. Language Rights Guaranteed by Section 530 Cr. C.
36
(1) Fundamental Right To Be Tried in the Official Language of One’s Choice
37
(2) Right To Be Advised of This Fundamental Right
43
D. Powers of a Court of Appeal Hearing an Appeal Against a Conviction
53
(1) Principle Underlying Any Intervention by a Court of Appeal Under Section 686(1)(a) Cr. C.
54
(2) Importance of Distinguishing Errors of Law From the Other Two Types of Errors Referred to in Section 686(1)(a) Cr. C.
57
(a) Error of Law (Section 686(1)(a)(ii) Cr. C.)
60
(i) Error in the Application of a Legal Rule
61
(ii) Related to the Proceedings Leading to the Conviction
66
(iii) Made by a Judge
67
(b) Miscarriage of Justice (Section 686(1)(a)(iii) Cr. C.)
72
(3) Curative Provisos in Section 686(1)(b) Cr. C.
74
E. Framework That Applies Where a Breach of Section 530(3) Cr. C. Is Raised for the First Time on Appeal
78
(1) What the Accused Must Show to Justify Appellate Intervention
79
(2) What the Crown Can Show to Have the Appeal Dismissed Nonetheless
88
(3) This Framework Helps Prevent the Risk of Instrumentalization
94
F. Application to This Case
102
(1) The Curative Proviso Can Apply
103
(2) The Crown Has Failed to Show That Mr. Tayo Tompouba’s Fundamental Right Was in Fact Respected
110
(a) Inconclusiveness of the Evidence
113
(i) Impact of a Breach of Section 530(3) Cr. C. on the Choice of Official Language
113
(ii) Timely Knowledge Otherwise Than Through Notice Under Section 530(3) Cr. C.
118
(b) The Inconclusiveness of the Evidence Must Benefit Mr. Tayo Tompouba
125
(3) Conclusion
128
V. Disposition
129
I. Overview
[1] In Canada, s. 530 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), guarantees to every accused the right to be tried in the official language of their choice. This is a fundamental right of vital importance. It ensures equal access to the courts for accused persons who speak one of the two official languages and thereby assists in preserving the cultural identity of English and French linguistic minorities across the country.
[2] To make certain that an accused is able to choose the language of their trial in a free and informed manner, Parliament has imposed an informational duty for this purpose on the judge[1] before whom the accused first appears. This very important duty, set out in s. 530(3) Cr. C., requires the judge to ensure that the accused is advised of their right to apply for a trial before a judge or a judge and jury, as the case may be, who speak the official language of their choice, and of the time before which the application must be made.
[3] However, there may be cases in which accused persons are not duly informed of this fundamental linguistic right and of how it is to be exercised. This appeal is an example of such a situation, and it is a reminder that Canada’s linguistic minorities too often still experience difficulties in accessing justice in the official language of their choice.
[4] This appeal provides the Court with an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) Cr. C. when no decision on the accused’s language rights was made at first instance. Thus far, the lower courts are not in agreement on the framework to be applied. While some appellate courts find that such a breach in itself warrants a new trial, others, including the Court of Appeal in this case, instead take the view that the evidence in the record must make it possible to conclude that the breach in fact resulted in a violation of the accused’s fundamental right to