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Chapter 34

The Federal Prosecution Service DESKBOOK

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Part VI
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 34

34 OFFICIAL LANGUAGES IN PROSECUTIONS

34 OFFICIAL LANGUAGES IN PROSECUTIONS

34.1 Introduction

Under the Constitution, French and English have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada, in federal statutes and in the federal courts and, subject to certain limitations, in communications between the public and federal institutions.¹ Certain language rights are also guaranteed by the Constitution in respect of the legislatures and courts of Quebec, Manitoba and New Brunswick.²

In addition, the Official Languages Act³ implements the language rights guaranteed by the Charter in certain spheres of federal jurisdiction by specifying the rights of the public and the obligations of federal institutions with respect to the use of both official languages in parliamentary proceedings (Part I), in legislative and other instruments (Part II), in the administration of justice (Part III), in communications with and services to the public (Part IV) and in the work environment of federal institutions (Part V). The implementation of the Official Languages Act is subject to the scrutiny of the Commissioner of Official Languages (Part IX), and, in some cases, the Official Languages Act may be enforced by an application to the Federal Court - Trial Division (Part X).

Starting in 1978, a number of amendments were made to the Criminal Code in order to ensure that accused persons had a right to a trial that takes place, to the extent possible, in the accused’s official language.⁴

First, s. 530 of the Criminal Code was proclaimed in force on a province-by-province basis starting in 1978. Following the changes made in 1988 to the scheme for implementing s. 530, the provision came into force in all the provinces and territories on January 1, 1990. Generally speaking, this section allows an accused to be tried before a justice of the peace, a provincial court judge, a judge, or a judge and jury who speak the official language that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, in the official language in which the accused can best give testimony.

On February 1, 1989, subs. 841(3) of the Criminal Code came into force in all provinces and territories. This provision requires that any pre-printed portions of a form set out in Part XXVIII of the Criminal Code, such as information, indictments, etc., be printed in both official languages. This obligation exists irrespective of an accused's official language or the language of the trial.

Finally, on January 1, 1990, s. 530.1 of the Criminal Code also came into force in all provinces and territories. This section sets out in detail a series of language rights and corresponding duties that apply once an order has been made under s. 530. These include, among others, the right to a prosecutor who speaks the official language of the accused and the duty of the court to make any trial judgement issued in writing in either official language available in the official language of the accused.

The implementation of these language rights has from time to time created some legal and practical difficulties, as demonstrated by the case law that has developed over the years. For example, a number of questions have been raised as to the constitutional validity and interpretation of some of the provisions, their general interpretation, as well as how they may reasonably be applied in certain circumstances (e.g., in prosecutions involving both English-speaking and French-speaking accused). Problems have also arisen because the provisions are not the only source of law relating to language since certain principles of fundamental justice, such as the right to an interpreter, must also be respected.

34.2 Role of the Official Languages Law Group

Legal matters relating to official languages are the special concern of the Official Languages Law Group. This group is now part of the Civil Law and Corporate Management Sector at the head office of the department. The group is responsible, in particular, for providing and co-ordinating departmental legal advice on language issues arising under the Constitution, the Charter, the Official Languages Act, the Criminal Code and related legislation and for developing a consistent and co-ordinated approach to the conduct of language litigation involving the federal Crown including assisting in framing the Crown’s position and providing specialized litigation support.

PRACTICE DIRECTION

Litigation counsel must consult the Official Languages Law Group in the conduct of all language rights or language-related litigation and in any matter involving the interpretation and application of the Official Languages Act, the Criminal Code or the Constitution and Charter’s language guarantees. The Group should be promptly informed of any new language litigation, consulted in the preparation of pleadings and argument, and kept abreast of significant developments in existing cases, including judgments.

34.3 Purpose of this Policy

The following guidelines are intended to assist Crown counsel in implementing the language provisions of the Criminal Code (i. e. sections 530, 530.1 and 841(3)) in a manner that reflects the substance and spirit of these language provisions. In this respect, the policy describes the relevant statutory and case authorities and sets out guidelines.

34.4 Guidelines

34.4.1 Timing of Application for Order Pertaining to Language of Trial

For the language of trial provisions of the Criminal Code to be triggered, an application must be made to a justice of the peace or a provincial judge for an order directing that the accused be tried by a judge, or judge and jury, who speak the official language of the accused, or the official language in which the accused can best give testimony. Without such an order, the language of trial provisions of the Criminal Code will not apply.

An accused whose language is one of the official languages of Canada may apply for an order directing a trial in the official language of that person’s choice within the timeframe set out in subs. 530(1). That is, not later than:

the time of the appearance of the accused at which his trial date is set, if
1. he is accused of an offence mentioned in section 553 or punishable on summary conviction, or
2. the accused is to be tried on an indictment preferred under section 577,
the time of his election, if the accused elects under section 536 to be tried by a provincial court judge, or
the time when the accused is ordered to stand trial, if the accused
1. is charged with an offence listed in section 469,
2. has elected to be tried by a court composed of a judge or a judge and jury, or
3. is deemed to have elected to be tried by a court composed of a judge and jury”.

Subsection 530(1) creates an absolute right and, if the accused applies within the prescribed timeframe, the justice of the peace or provincial judge is required to make an order.⁵ There is no discretion involved.

Under subs. 530(2), upon application made within the timeframe set out in subs. 530(1) by an accused whose language is neither English nor French, the judge has the discretion to grant an order allowing the accused to be tried before a judge, or a judge and jury, who speak the official language in which the accused can best give testimony.

Outside the timeframe imposed by subs. (1), an accused may make an application for an order to be tried in his or her official language, or in the official language in which he or she can best give testimony, under subs. 530(4). Such an application can be made to a judge from the court before which the accused will be tried.⁶ The Court will grant the order if it is satisfied that it would be in the best interests of justice to do so.

To determine whether it is in the best interests of justice to allow a late application by the accused under s. 530(4), the Court must consider the reasons for the delay in bringing the application and the additional difficulties, if any, caused by an untimely application. Mere administrative inconvenience is not a relevant factor, nor is the ability of the accused to understand the other official language. Generally, the interests of justice will be served by allowing the application of the accused and the Crown has the onus of demonstrating reasons to dismiss the application.⁷

Once an order has been made under s. 530, it takes effect immediately and the scheme set out in ss. 530 and 530.1 fully applies. This means, amongst other things, that the judge, jury and prosecutor must speak the official language of the accused at the preliminary inquiry and trial.

The rights provided in ss. 530 and 530.1 may be waived.

PRACTICE DIRECTION #1

In cases in which the accused and/or his or her counsel waive any of the rights set out in ss. 530 and 530.1, it is most advisable, especially if the accused is unrepresented, to require that the waiver be noted on the record and be agreed to by the judge. This is made all the more important when one considers that the breach of the language provisions of the Criminal Code has been characterised by the Supreme Court as constituting a substantial wrong.⁸

PRACTICE DIRECTION #2

If an order is made pursuant to s. 530 at the outset or in the course of the preliminary inquiry or of the trial, and it is apparent that the judge, some jury members or Crown counsel do not speak the official language of the accused, Crown counsel must either request an adjournment to remedy the situation or obtain a clear waiver from the accused of the relevant language rights.

34.4.2 Language of the Trial

The “language of the accused”, for the purposes of s. 530 of the Criminal Code, is the official language chosen by the accused, provided he or she has a sufficient connection to that language. It does not have to be the accused’s dominant language. The Court needs only be satisfied that the accused has sufficient knowledge of the chosen language to instruct counsel and to follow the proceedings in that language.⁹

It should be noted that par. 530.1(a) and (b) grant the right to the accused and his counsel to use either English or French regardless of the language that has been chosen as the language of the trial. Accordingly, Crown counsel cannot invoke the language used by the accused or by his or her counsel as grounds to contest the choice of language of trial made by the accused.

PRACTICE DIRECTION #3

Crown counsel cannot contest the choice of official language of the accused, unless the accused clearly has insufficient knowledge of the chosen language to instruct counsel and to follow the proceedings in that language.

Similarly, Crown counsel cannot contest the accused’s statement that he or she will best be able to give testimony in one of the official languages, when neither official language is the language of the accused, unless the accused clearly has insufficient knowledge of the chosen language to instruct counsel and to follow the proceedings in that language.

Pursuant to subss. 530(1), (2) and (4), the judge may also grant an order that the accused be tried before a judge, or a judge and jury, who speak both official languages if the circumstances warrant. For example, such circumstances may occur when an accused requests a trial before a judge, or judge and jury, who speak one official language, but the evidence is in the other official language, or witnesses or the accused’s counsel speak the other official language. By having a judge, or judge and jury, who speak both official languages, the Court will be capable of speaking to and understanding the accused, his or her counsel, the witnesses and the evidence without the assistance of interpreters, hence ensuring to some extent a speedier trial.

Where co-accused who do not have the same official language exercise their respective rights to be tried before a judge, or a judge and jury, who speak their official language, and the accused would otherwise be tried jointly, Crown counsel should seek to obtain an order for a bilingual trial as these are also circumstances that may warrant the ordering of a trial before a judge, or a judge and jury, who speak both official languages. Joint trials generally serve the public interest and a bilingual trial will satisfy the accused’s language rights without undue harm to the public interest¹⁰. However, as of any joint trial, this general rule could be set aside if it was necessary, in the interests of justice, that the trial be severed or if it is established that a joint trial would cause injustice to one or more of the accused (regardless of the implementation of the language rights provided in sections 530 and 530.1 of that the Criminal Code).¹¹

PRACTICE DIRECTION #4

34.4.3 Application of s. 530.1 to Trial Before Court Which Speaks Both Official Languages

The Supreme Court of Canada has indicated clearly that s. 530.1 applies where an order directs that an accused be tried before a judge and jury who speak the official language of the accused, or the language in which the accused can best give testimony, as well as when the order is for a trial before a judge and jury who speak both official languages.¹² This is so because a court which speaks both official languages meets the basic right of the accused since it necessarily speaks the official language of the accused or the official language in which the accused can best give testimony within the meaning of s. 530.1.

34.4.4 Disclosure of Evidence

There is no legal obligation, whether based on the language rights in the Criminal Code or in any other constitutional language right provision, to provide a written translation into the official language of the accused of any evidence disclosed pursuant to the Crown's disclosure obligation.¹³

On this point, the applicable principles are the same as those that apply to all criminal trials.¹⁴ To the extent that an accused may have a right to receive a translation of disclosure material at the Crown’s expense, this right would be based not on the language rights in the Criminal Code but rather on the principles of fundamental justice, which guarantee the rights of the accused to make full answer and defence and to a fair trial.¹⁵

On this point, it is often difficult to distinguish between language rights and principles of fundamental justice¹⁶: principles of fundamental justice (for example, sections 7 to 14 of the Charter) apply to all accused regardless of their language ¹⁷ while language rights (for example, section 19 of the Charter and sections 530 and 530.1 of the Criminal Code) relate only to English and French-speaking persons. In addition, principles of fundamental justice apply only where an accused does not understand or does not speak the language of the proceedings, while language rights must be given effect regardless of what understanding an accused may have of the usual language of the proceedings.¹⁸

Before concluding that the principles of fundamental justice require that evidence disclosed be translated into English or French, Crown counsel should first ask whether the evidence would also have to be translated into a language other than English or French (for example, an aboriginal language, Chinese or German) if the accused did not speak either of the two official languages of Canada. In so far as the issue is no longer the application of language rights, properly speaking, but rather the principles of fundamental justice, the approach should be the same whatever the language of the accused may be.

This question should normally be decided on a case-by-case (and even exhibit-by-exhibit) basis, having regard to what is required by the principles of fundamental justice and the unique circumstances of each case. The objective is to provide the accused with adequate information about the Crown’s evidence so that he or she may make full answer and defence. Some courts have suggested that the fact that an accused has only limited resources, is not represented or is represented by a lawyer who does not understand the language of the evidence, or that the time between disclosure of the evidence and the hearing of the case is short, are factors that might favour an order for translation.¹⁹

34.4.5 Documentary Evidence at Trial

Crown counsel are free to file any documentary evidence in the official language in which it is supplied to them, and do not have to translate evidence of this type. The provisions of par. 530.1(g) require only that the documentary evidence be filed in the record at the preliminary hearing and at trial in the official language in which it was tendered at the hearing.²⁰

However, there may be some circumstances that justify a court ordering that an exhibit filed at trial be translated into the language of the accused at the Crown’s expense, not based on the language rights in the Criminal Code, but rather based on the principles of fundamental justice, such as the right to make full answer and defence, the right to a fair trial or the right to an interpreter.²¹ On this point, the policy described under Part D “Disclosure of evidence” applies mutatis mutandis to the documentary evidence filed at trial.

34.4.6 Oral Argument

The only right listed in s. 530.1 of the Criminal Code that imposes a specific duty on federal Crown counsel is the right set out in paragraph (e), which provides that an accused has a right to a prosecutor who “speaks” the same official language as the accused.

This provision therefore requires that, every time an order is made under s. 530 of the Criminal Code, Crown counsel responsible for the file must ensure that he or she has sufficient command of the official language stated in the order. If counsel does not have a command of that language, he or she must inform his or her superior accordingly (or, in the case of an agent, the Agent supervisor), so that another Crown counsel can be assigned to the case.

Section. 530.1 creates an institutional obligation. Thus, where Crown counsel is not capable of arguing the case in the official language of the accused, it is the responsibility of those managing prosecutions on behalf of the Attorney general of Canada to find such counsel. In bilingual trials, Crown counsel must either be bilingual or be assisted by a bilingual counsel.²²

The requirement in par. 530.1(e) means that, as a general rule, Crown counsel must use the official language of the accused in all oral submissions, both to the judge and jury and during any examination of the accused.

PRACTICE DIRECTION #5

Crown counsel must use the official language of the accused (with the assistance of an interpreter if necessary) even during examinations of witnesses who do not speak the same official language as the accused unless this would unduly restrict the Crown’s ability to make its case.²³

PRACTICE DIRECTION #6

In cases in which it is ordered that the trial be “bilingual”, the Crown counsel or team of counsel must use both official languages in a balanced fashion, depending on the unique circumstances of each trial.²⁴ This means that accused persons must each be examined in their own official language, while oral argument must be divided in a balanced fashion between the two official languages.

On the other hand, where an order for a “bilingual trial” is made but there is only one accused or the accused persons all speak the same official language, arguments and examinations must be conducted in that language only, unless practice direction #5 applies.

34.4.7 Written Pleadings

Subsection 841(3) of the Criminal Code specifies that the general portions of the forms set out in Part XXVIII of the Criminal Code must be printed in both official languages. The pre-printed portions of forms must appear simultaneously in both official languages, whether side by side, on opposite sides, or top and bottom, tumble-style.²⁵ This rule applies both to forms that are printed in batches and to those that are made up one at a time on computer. Accordingly, the regional offices of the Department must ensure that Crown counsel always have bilingual forms available to them.

Although the case law is not clear in this regard,²⁶ the policy of the Department of Justice since the Simard decision is to also supply the accused with a translation of the specific or handwritten portions of information or indictments where so requested by him or her.

PRACTICE DIRECTION #7

Crown counsel must ensure that the specific portions of information or indictments filed with the Court (i.e. the particulars) are in the official language chosen by the accused, assuming such a choice has been made; if the official language of the accused is not known, the accused must be clearly informed in writing that a translation may be obtained, within a reasonable time, in the official language chosen by the accused.

As indicated above, s. 530.1 of the Criminal Code requires that the prosecutor be one who “speaks” the official language of the accused. This implies a requirement that this language be effectively used by the prosecutor, in both oral and written communications.

PRACTICE DIRECTION #8

After an order has been made pursuant to s. 530 directing that an accused be tried before a judge and jury who speak the official language of the accused, Crown counsel must use the official language of the accused in both oral and written judicial communications. Pleadings written by Crown counsel (such as motions and written arguments) must therefore be provided in the official language of the accused.

PRACTICE DIRECTION #9

After an order has been made pursuant to s. 530 directing that an accused be tried before a judge and jury who speak both official languages (what are referred to as “bilingual trials”), Crown counsel must favour the official language of the accused in its pleadings (such as motions and written arguments).

PRACTICE DIRECTION #10

In trials in which French-speaking accused are tried jointly with English-speaking accused and where an order has been made for the trial to be held before a court that speaks both official languages, where practicable and unless the judge orders otherwise, pleadings must be prepared in both official languages and be given to the accused, their counsel and the judge in their respective language.

PRACTICE DIRECTION # 11

With respect to the case law and literature used by Crown counsel, books of authorities, case law, legislation and literature must be filed in the official language of the original documents. As well, quotations that appear in pleadings must be reproduced in the pleadings in the official language of the original document.

PRACTICE DIRECTION # 12

Where a version of the text is available in the official language of the accused, that version must be filed with the court. Similarly, where the quotation that appears in pleadings is written in an official language other than the language of the accused, the passage must, where practicable, be translated and shown in the pleadings with the notation. [TRANSLATION].²⁷

34.4.8 Hearings other than the Preliminary Inquiry and Trial

Sections 530 and 530.1 of the Criminal Code provide that the language rights guaranteed by those provisions apply both at the preliminary inquiry and at trial.²⁸ Obviously the criminal process is composed of a number of other stages, which are separate from the preliminary inquiry and trial, during which the rights of the accused could be affected, but those stages are not subject to the language rules set out in ss. 530 and 530.1 of the Criminal Code.

PRACTICE DIRECTION #13

Once an order is made under s. 530 of the Criminal Code requiring that the accused be tried before a judge, or a judge and jury, who speak the official language of the accused, Crown counsel must, where possible and appropriate, use the official language of the accused not only at the preliminary hearing and trial stages, but also in all proceedings at the trial level at which the accused is present (e.g. bail hearings, pre-trial conferences) unless the parties have agreed otherwise.²⁹

34.4.9 Appeal proceedings

There is no legal obligation for Crown counsel to use the official language of the accused in appeal proceedings. As noted earlier, ss. 530 and 530.1 apply only at the preliminary inquiry and trial stages.

PRACTICE DIRECTION #14

In appeal proceedings, Crown counsel must, where possible,³⁰ use the official language chosen by the defence for the purposes of the appeal, for both oral and written submissions. In language cases, this is mandatory, unless the Assistant Deputy Attorney General gives written notice to the contrary.

In cases in which the A.G. of Canada has initiated the appeal proceedings, it will be assumed that the language of the proceeding will be the same as in the earlier judicial proceedings, unless otherwise indicated or unless the parties have agreed otherwise.

In cases in which the A.G. of Canada is an intervener, Crown counsel must, where possible,³¹ use the official language chosen by the defence for the purposes of the appeal.

In cases in which more than one accused is being tried at a time, or where there is reason to assume that both official languages will be used,³² Crown counsel must, where possible,³³ file written argument in both official languages. In oral pleadings, Crown counsel must use the official language chosen by the defence. If counsel for the accused use a different official language in oral argument than in pleadings, Crown counsel must use the language that appears to him or her to be most appropriate in the circumstances.

PRACTICE DIRECTION #15

Quite apart from the language obligations discussed above, it is the policy of the Department of Justice to prepare the factum of the Attorney General of Canada in both official languages in any high profile litigation to be heard by any Court of Appeal or the Supreme Court of Canada that raises high public or media interest, whether they are language issues or not³⁴.

The Litigation Committee decides³⁵ which cases are of such importance for the public or the media so as to require the preparation of a factum in both official languages. The Committee will consider inter alia: the level of the court; the Communication Plan drafted for a case³⁶; the official language(s) used by the parties in the courts below; the national scope of the case; the nature of the issues raised in the litigation and the anticipated media coverage.

The policy does not require that the factum of the A.G. of Canada be drafted and filed in bilingual format. Rather, the factum to be filed with the Court should be in the language of the proceedings, with a separate translation to be prepared for simultaneous release to the public. (In language cases before the Supreme Court of Canada, the practice has been established to file the factum of the A.G. of Canada in both English and French).

The policy is subject to the exigencies of the case and, in particular, to time constraints which may make it impossible for a translation to be made simultaneoulsy available with the filed version of the factum. In those circumstances, the factum may be filed in one official language and then made available to the public in the other official language at the earliest possible time. The translated version should be clearly indicated as such, since only the filed version will be the authoritative statement of the A.G.' s position in the case.

34.5 ANNEX

In order to ensure that the provisions of sections 530, 530.1 and 841(3) of the Criminal Code are implemented as fully as possible (in order, among other things, to avert appealsor stays of proceedings), Crown counsel should consider the following questions when an application is made for a trial before a judge, or a judge and jury, who speak one official language (or both official languages):

What is the language of the accused?

What is the accused’s stated preference in the application?
Does the accused have sufficient knowledge of the chosen official language to instruct counsel and follow the proceedings in that language?
The following factors are not relevant and cannot justify denying the accused’s application:

the fact that the accused can speak the other official language as well as or better than his or her own;
the official language of counsel for the accused, or the ability of counsel to understand the proceedings in the other official language;

Do the co-accused (where applicable) have different official languages, which would warrant an order for a trial before a judge and jury who speak both of the official languages of Canada?

Might substantial parts of the evidence (testimony or physical evidence) be tendered in the official language that is not the official language chosen by the accused? Where that is the case, should the order require that the trial be held before a judge and jury who speak both official languages, and not just the official language of the accused?

Are interpreters available?

Are the recurring pre-printed portions of the forms referred to in subs. 841(3) of the Criminal Code in both official languages (i.e. do both languages appear on the same form)?

Has a written translation of the charging document (information or indictment) been prepared (where applicable)?

Should portions of the evidence disclosed before trial or the evidence presented in court be translated in writing to ensure that the accused is guaranteed the right to a fair trial?

1 Canadian Charter of Rights and Freedoms, subss. 16(1) to 20(1) and Constitution Act, 1867, s. 133.

2 See s. 133 of the Constitution Act, 1867, s. 23 of the Manitoba Act, 1870 and subss. 16(2) to 20(2) of the Charter.

3 R.S.C. 1985, c. 31 (4th supp.) (came into force on September 15, 1988). It replaces the first Official Languages Act, R.S.C. 1970, c. O-2.

4 It should be noted that, like the constitutional language provisions and the Official Languages Act, the language provisions of the Criminal Code are separate and distinct from the principles of fundamental justice, such as the right of the accused to a fair trial; see, Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549, at 567, and R. v. Beaulac, [1999] 1 S.C.R. 768, at 792, 799-800 and 804, par. 25, 41 and 53.

5 R. v. Beaulac, [1999] 1 S.C.R. 768, at 793, par. 28.

6 R. v. Beaulac, [1999] 1 S.C.R. 768, at 779-780, par. 11. In the case of a new trial, the application may be made directly to the Court of Appeal (par. 50).

7 R. v. Beaulac, [1999] 1 S.C.R. 768, at 797 to 801, par. 37 to 43.

8 R. v. Beaulac, [1999] 1 S.C.R. 768, at 805, par. 54.

9 R. v. Beaulac, [1999] 1 S.C.R. 768, at 796-797, par. 34.

10 However, opinion in the case law is not unanimous as to the possibility of trying accused jointly when the language chosen by the accused are different. In Garcia v. R. (1990), 58 C.C.C. (3d) 43 (Que. Sup. Ct.); Lapointe et Sicotte v. R. (1982), 64 C.C.C. (2d) 562; R. v. Gauvin (1995), 169 R.N.B. (2d) 161 (N.B.Q.B.) and Mills v. R. (1994), 124 N.S.R. (2d) 317, the courts agreed that accused who did not all have the same official language could be tried jointly. On the other hand, in Forsey v. Sa Majesté la Reine (1994), 95 C.C.C. (3d) 354 (Que. Sup. Ct., Crim. Div.), the Court ordered separate trials for French-speaking and English-speaking accused, on the ground that their language rights and rights to a fair trial could not be exercised effectively if all the accused were tried jointly: see, to the same effect, R. v. DiMaulo (1995), 21 C.R. 195 (Que. Sup. Ct.). See also Edwards. v. Lagacé,[1998] R.J.Q. 1471, for application of these principles to the preliminary enquiry.

11 See R. v. Crawford, [1995] 1 S.C.R. 858, at 881.

12 R. v. Beaulac, [1999] 1 S.C.R. 768, at 803, par. 49.

13 Regina v. Rodrigue (1994), 91 C.C.C. (3d) 455 (Y.S.C.), appeal dismissed on other grounds (1995), 95 C.C.C. (3d) 129 (Y.C.A.), leave to appeal denied (September 7, 1995), No. 24585 (S.C.C.); R. v. Breton (July 9, 1995), Whitehorse TC-94-10538 (Y.T.C.), notice of appeal to the Yukon Supreme Court filed on June 6, 1995; R. v. Mills (1994), 124 N.S.R. (2d) 317 (N.S.S.C.); and R. v. Simard (1995), 27 O.R. (3d) 97 (Ont. C.A.), application for leave to appeal dismissed on September 12, 1996 (S.C.C.); R. v. Glenn Cameron, (October 14, 1999) Quebec Court #500-73-000475-976. See also Harward v. Norway, (July 15, 1994) U.N./comm. 451/1991 (Human Rights Committee).

14 See also Part Five, Chapter 18, “Disclosure”.

15 Regina v. Rodrigue (1994), 91 C.C.C. (3d) 455 (Y.S.C.), at p. 479: “It is possible that in other circumstances an accused would be successful in persuading the court that, given the private resources of the accused, without a translation the preparation for trial would be so difficult that it would be ineffective to the point that at the trial itself the accused would not be able to make full answer and defence”.

16 In MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, the Supreme Court of Canada clearly held that there is a fundamental difference between the two concepts, and that they must not be confused, nor must the one be cited in support of the other, at the risk of distorting them (at p. 500):

It would constitute an error either to import the requirements of natural justice into the language rights of s. 133 of the Constitution Act, 1867, or vice versa, or to relate one type of right to the other under the pretext of reenforcing both or either of them. Both types of rights are conceptually different. Also, language rights such as those protected by s. 133, while constitutionally protected, remain peculiar to Canada. They are based on a political compromise rather than on principle and lack the universality, generality and fluidity of basic rights resulting from the rules of natural justice. They are expressed in more precise and less flexible language. To link these two types of rights is to risk distorting both rather than reenforcing either.

See also R. v. Beaulac, [1999] 1 S.C.R. 768, at 799-800, par. 41; Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549, at p. 578; and Rottiers v. R. (June 2, 1995), No. 6613 (Sask. C.A.).

17 For example, the right to a fair trial and s. 14 of the Charter allow any accused to have the assistance of an interpreter who speaks the language of the accused where the accused does not understand the language of the proceedings, whether the accused’s language is French, English, Mandarin, German or any other language: Tran v. R., [1994] 2 S.C.R. 951.

18 R. v. Beaulac, [1999] 1 S.C.R. 768, at 799-800 and 801-802, par. 41 and 45.

19 See R. v. Breton, (July 9, 1995), Whitehorse TC-94-10538 (Y.T.C.), notice of appeal filed on June 6, 1995 in the Yukon Supreme Court, at p. 18; and R. v. Rodrigue (1994), 91 C.C.C. (3d) 455 (Y.S.C.), appeal dismissed on other grounds (1995), 95 C.C.C. (3d) 129 (Y.C.A.) at p. 479, for a discussion of the relevance of these factors as well as R. v. Glenn Cameron, (October 14, 1999) Court of Quebec #500-73-000475-976. See also Part Five, Chapter XVIII, “Disclosure”.

20 R. v. Breton (July 9, 1995), Whitehorse TC-94-10538 (Y.T.C.), notice of appeal filed on June 6, 1995 (Yukon Supreme Court), at p. 7; see, to the same effect, R. v. Rodrigue (1994), 91 C.C.C.(3d) 455 (Y.S.C.) at p. 461.

21 See R. v. Rodrigue (1994), 91 C.C.C. (3d) 455 (Y.S.C.), appeal dismissed on other grounds (1995), 95 C.C.C. (3d) 129 (Y.C.A.) at p. 138. See also R. v. Mills (1994), 124 N.S.R. (2d) 317 (N.S.S.C.), in which the judge pointed out that the presence of simultaneous interpretation of the evidence presented at trial would generally be sufficient to ensure that the accused’s rights were protected, but added, at p. 320: “[h]owever, the circumstances may require that a different procedure be followed to ensure that the accused have a fair trial and an opportunity to make full answer and defence. In assessing this particular situation, the court must keep in mind that these transcripts have been served on the accused or their former counsel for a long period of time. They had been presented at the preliminary inquiry and had been interpreted in the proceeding. Simultaneous translation of the conversations will again be made as they are played here in court. In my opinion, it was not necessary, at the time I initially heard this motion, to have those transcripts more formally translated. We were to follow the procedure which I have just indicated. However, having since tried this procedure and heard the interpreters describe the problems encountered and the representations of the parties, it has become evident that more is required. I have, therefore, ordered that the transcripts be translated and made available, in writing, in the French language, before the evidence of the recordings is played for the jury.” See also R. v. Landry (March 2, 1995), Ottawa 94-12080-04 (Ont. Ct. Gen. Div.), in which the Court ordered that an affidavit be translated: the court held that its need to understand, coupled with the fact that the federal Crown controlled and was going to introduce the evidence in question, justified translating it; see also R. v. Boudreau (1991), 107 N.B.R. (2d) 298, at pp. 304-5 (N.B.C.A.): [TRANSLATION] “In my view, it would be contrary to the principle of a fair trial to admit evidence, without the consent of the accused, in a language other than the language chosen for the trial, without translating it into the language of the trial.”

22 It may be necessary to seek an adjournment. If another counsel willing to speak the language of the accused is not assigned to the case within a reasonable time, the trial judge may order a stay of the proceedings. See Cross v. Teasdale, [1998] R.J.Q. 2587 (Que. C.A.) at 2594.

23 The question of the language in which witnesses are examined under s. 530.1 has not been definitely resolved by the courts, although Greenberg J. seems to have ruled in Constitutional Challenge against section 530.1(e) of the Criminal Code, [1991] R.J.Q. 1430, at p. 1438, that under s. 530.1 Crown counsel must use the language of the accused throughout the trial, including the examination of witnesses. While the Court of Appeal of Quebec, on appeal from this case, did not address this issue, it seems that it proceeded on the basis that this was the case: Cross v. Teasdale, [1998] R.J.Q. 2587. It is therefore advisable to obtain the permission of the Court before examining a witness in the official language other than that of the accused.

24 Edwards v. Lagacé, [1998] R.J.Q. 1471 (Que. S.C.).

25 The law is clear that a bilingual form is mandatory, although the authorities are divided as to the consequences of using an improper form: whether the informations or indictments will be quashed, or the defect corrected by providing a translation: Noiseux v. Belval, [1999] R.J.Q. 704 (Que. C.A.), application for leave to appeal dismissed; Shields v. R. (June 6, 1990), Belleville A768/90 (Ont. Cty. Ct.) [unreported]; R. v. Keenan (1990), 84 Man. R. (2d), (Man. Prov. Ct, Crim. Div.); Goodine v. Regina, (1992), 71 C.C.C. (3d) 146 (N.S.C.A..); R. v. Perry, [1989] B.C.J. No 1616 (Q.L.) (B.C.S.C.) [unreported]; R. v. Young, (April 17, 1990), (Ont. Prov. Ct., Crim. Div.) [unreported]; R. v. Sorensen (1990), 75 O.R. (2d) 659 (Ont. C.J., Gen. Div.).

26 R. v. St-Pierre (March 21, 1995), Sault Ste-Marie 93-CR-04614 (Ont. C.J., Gen. Div.); Crête v. R. (June 30, 1995), Toronto C7312 (Ont. C.A.). See also R. v. Breton (9 July 1995), Whitehorse TC-94-10538 (Y.T.C.), in which Judge Dutil noted the distinction between the pre-printed portions of a form which, under subs. 841(3) of the Criminal Code, must be bilingual, and the additions (specific or handwritten portions) made by the peace officer, which need not be translated. But see Simard v. R. (1995), 27 O.R. (3d) 97 (Ont. C.A.), application for leave to appeal dismissed on September 12, 1996 (S.C.C.), in which the court, after concluding that subs. 530.1 does not require that the Crown supply the accused with an information or indictment written entirely in his or her official language, indicated that to ensure that the interpretation of ss. 11 and 14 of the Charter is consistent with the remedial object of s. 530, a fair trial must be initiated by the filing of a charging document entirely translated in writing into the official language of the accused, where so requested by him or her; see also R. v. Alius Belleus, (May 13, 1991) (Ont. C.J., Gen. Div.) [unreported].

27 Many legal texts are available in both official languages. For example, decisions of the federal courts must, in principle, be available in both official languages, under s. 20 of the Official Languages Act. The New Brunswick Reports are also published in both official languages. In addition, federal statutes, as well as the statutes of Ontario, Quebec, New Brunswick, Manitoba and the three Territories are available in both languages. Lastly, the cases reported by authors Marx and Chevrette contain passages from decisions of the Judicial Committee of the Privy Council and full translations of judgments of the Supreme Court of Canada prior to 1969.

28 This is also the case in respect of par. 530.1(e) notwithstanding the fact that this paragraph makes no mention of the preliminary enquiry. See Edwards v. Lagacé, [1998] R.J.Q. 1471 (Que. S.C.).

29 However, this policy is applied only if the relevant provincial or territorial statutes permit the use of the official language of the accused. Since the use of English and French in proceedings other than the trial and preliminary inquiry is not governed by the Criminal Code, the provincial or territorial statutes must be consulted to determine the law on this point. In certain provinces and territories, the Constitution or the provincial or territorial statutes provide that English and French may be used in oral and written pleadings in any court of justice in criminal proceedings (Yukon, N.W.T., Saskatchewan, Alberta, Manitoba, Ontario, Quebec and New Brunswick). On the other hand, others allow only English to be used (British Columbia). Lastly, in some provinces the law is uncertain or is silent on this point (Newfoundland, Prince Edward Island and Nova Scotia).

30 See note 29.

31 See note 29.

32 For example, where some co-accused have not chosen the same official language, or where one accused is represented by two lawyers who have not chosen the same official language.

33 See note 29.

34 Adopted by the Litigation Committee on June 12, 2001.

35 Litigation managers have a discretion to require translation in cases not sent to the Litigation Committee.

36 See the Department's policy document entitled “Communications Issues in Litigation”.