Canada has two official national languages: English and French. What does this mean for somebody charged with an offence before the courts who may desire a trial in French?
Sections 16 and 19 of the Canadian Charter of Rights and Freedoms establish both English and French as the official languages in Canada, and guarantee the right to use either language in judicial proceedings at the federal level.
This constitutional guarantee can be supplemented by additional legislation at the federal or provincial levels. For example, in Alberta the Languages Act, RSA 2000 c L-6, dictates that a person may use either French or English in oral communication before all three levels of court in Alberta.
The Criminal Code also speaks to the language rights of accused people. Section 530 of the Code sets out the procedure whereby an accused person can choose to be tried before a court, including a jury, in French or English.
R v Tayo Tompouba, 2024 SCC 16
The recent Supreme Court decision in R v Tayo Tompouba, 2024 SCC 16, deals directly with the importance of language rights, and the consequences if those rights are not positively enforced during the course of court proceedings.
Mr. Tompouba is a bilingual Francophone who was accused of sexual assault. While his matters were before the court, he was not advised of his right to have a trial proceed in French. On appeal to the Supreme Court, a majority of the Court held that, due to a breach of Mr. Tompouba’s language rights, his conviction ought to be quashed and a new trial ordered.
In rendering its decision, the Majority held that there is 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” (Tompouba at para 38).
If the application by the accused to be tried in a different official language is not timely (i.e. after a trial date is already set) then the accused’s right is then subject to the judge’s discretion. The judge will grant the application to have the trial heard in the other official language if it is in the best interests of justice. Because of the importance of language rights in Canada, there is a general presumption in favor of the accused at this stage, which can only be rebutted by the Crown establishing that granting the application is not in the best interests of justice, by reason of causing delay in the trial, or other issues arising on account of the lateness of the application (Tompouba at para 40).
Working in tandem with an accused’s right to be tried in the official language of their choice, is their right to be informed of this option. As was the case in the Tompouba decision, failure to ensure that an accused is informed of their language rights is an appealable error.
For accused people, language rights are a crucial part to their participation in the criminal justice system.
Using an Interpreter
For languages other than French or English, section 14 of the Charter dictates that people charged with a criminal offence have a right to an interpreter when they do not understand the language of the court. An interpreter is a third-party individual, provided to the accused for free upon request, who can offer word-for-word translation services to an accused during court proceedings.
If you are charged with a criminal offence, you have a right to understand the proceedings against you, be they in French, English, or any other language. If you would like to speak with a lawyer from Dawson, Duckett, Garcia, & Johnson, please contact us now at 780-424-9058.