Judges need to ensure language rights are respected

The Supreme Court of Canada has affirmed that the right to a trial in one’s official language of choice is of such importance that a judge’s failure to ask an accused what language they want their trial conducted in at first instance is enough of an error of law that it is reviewable on appeal, as it taints the court proceeding.

In the case at hand, Franck Yvan Tayo Tompouba, a bilingual Francophone, was convicted of sexual assault following a trial conducted in English in the Supreme Court of British Columbia. It wasn’t until he appealed that he asserted for the first time that he wanted his trial conducted in French.

The Court of Appeal dismissed his claim, saying he had not met the burden of proving that the trial judge’s breach of Section 530(3) of the Criminal Code in not asking for his preferred language had breached his fundamental rights to be tried in the language of his choice.

In a 5-2 decision handed down on May 3, the Supreme Court of Canada quashed Tompouba’s conviction and ordered a new trial.

"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," said Chief Justice Richard Wagner, writing for the majority.

"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."

Wagner said that the breach of Section 530(3) rights qualified as an error of law under Section 686(1)(a)(ii) of the Criminal Code.

“It involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction,” he wrote.

Once a breach of s. 530(3) Cr. C. has been established, it taints the trial court’s judgment, Wagner said. This gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention.

Wagner added that the Crown could rebut this presumption for the analysis under the curative proviso in the Criminal Code under 86(1)(b)(iv), but that was not done in this case.

He pointed to amendments made to the Criminal Code in 2008 that make the judge in a trial the ultimate guardian of the fundamental right of the accused to be tried in the official language of their choice. This imposes a duty to play an active role.

Kyla Lee of Acumen Law in Vancouver, and chair of the Canadian Bar Association’s criminal justice section, says that the decision is consistent with other judgments by the Supreme Court of Canada about how paramount language rights are in the ability to participate meaningfully in court proceedings, and how fundamental those are to the right to make full answer and defence and access to justice in a proceeding.

“It’s very easy to look at it the way the appellate court did, and say that he was able to understand the trial, and there was no miscarriage of justice that arose. But at the end of the day, it is a statutory right and a Charter-protected right to have your proceedings be in your official language of choice,” Lee says.

“The significance of that has now been emphasized as going to the very heart of the validity of any conviction.”

Lee is interested to see if this decision may lead to an influx of out-of-time appeals where people seek to ask for more time when their language rights weren’t canvassed.

“I have concerns that this may lead to a bit of mischief where people were never asked about a language election and are now saying that because they weren’t asked, they say they would have asked for French when they never really would have and are trying to use this to overturn a conviction,” she says.

Connor Bildfell, associate with McCarthy Tétrault LLP in Vancouver, acted as intervenor for the Canadian Bar Association at the Supreme Court, alongside Michael Feder and Lindsay Frame, and raised concerns about solicitor-client privilege and lawyers’ ethical obligation to advise clients about their official language rights.

He welcomed the court’s strong endorsement of the right to a trial in one’s official language of choice, given “the vital importance” of official language rights to the Canadian justice system.

“They help to preserve the distinct identities of official language minorities throughout Canada,” Bildfell says.

The majority’s clarification of the framework for dealing with alleged breaches of a person’s official language rights, and its finding that a breach constitutes an error of law that presumptively warrants appellate intervention, is a “powerful statement” about the importance of official language rights, he says.

“It’s not a breach that can easily be shrugged off.”

The CBA’s French Speaking Common Law Members Section also welcomed the decision.

“We are pleased with the CBA’s successful intervention in the case. Everyone has a right to access to justice in the official language of their choice,” said section chair Naaila Sangrar, an associate at RZCD.

“The Supreme Court has reinforced the continuing importance, respect and application of this right.”

However, Bildfell feels the majority missed an opportunity to provide additional guidance on how judges can make language inquiries without encroaching on solicitor-client privilege. The CBA’s submissions had encouraged the court to caution that those inquiries should not be of a nature that could potentially impinge on privilege.

That said, he notes the Court was clear, and acknowledged at several points in its reasons, that certain information is protected by solicitor-client privilege.

“But they could have gone a step further and provided guidance to judges across Canada to ensure that both an accused person’s official language rights and solicitor-client privilege are protected.”

Bildfell also notes that there was mention of lawyers’ ethical obligation to inform their clients of their official language rights, which is an important duty.

“We were pleased to see the majority pick up on those submissions.”

Lee notes that there are many places across the country where there are not enough French-qualified judges, which can lead to significant delays in getting French trials. That can also extend to a lack of French-competent lawyers in the defence bar who can represent an accused in their official language.

“This judgment is a signal to governments that are doing appointments that they need to start emphasizing French qualification in selecting judicial candidates, as if there wasn’t a huge shortage of judicial candidates as it is,” Lee says.

“This is going to increase the gap we see in the number of qualified judicial applicants out there.”

Lee also sees a need for incentives for more lawyers to become bilingual.

“For a lot of lawyers, becoming bilingually proficient is not something that is on their radar outside of Manitoba and Quebec,” she says.

“Developing those skills and the ability to represent a broader proportion of the population is an important thing to do.”

Lee says it would be nice to see law societies and legal education providers create courses to develop French-language competency training for lawyers, especially for those who already have basic French skills. She thinks there is probably a large market opportunity for it.

Beyond lawyers and judges, access to justice is also impacted by the lack of French-qualified court staff.

Language election can mean asking people to choose between two Charter-protected rights — the right to have their trial within the Jordan timeline, if that’s possible, and the right to have it in their official language of choice, Lee says.

“It is never good for access to justice when you have competing Charter rights that are meant to both be provided in a criminal trial.”

Lee adds that this is the burden on all of the players in the justice system to do more and do better to decrease delays in trials.

“That means appointing more French-qualified judges, and getting our qualifications in the French language as defence counsel and Crown counsel, and for governments hiring more French-qualified court staff,” she says.