The appellant, a bilingual Francophone, was convicted of sexual assault following a trial conducted in English.
The justice of the peace before whom he first appeared failed to advise him of his right under s. 530(3) of the Criminal Code to be tried in the official language of his choice.
The appellant raised this breach for the first time on appeal.
The majority held that a breach of s. 530(3) constitutes an error of law under s. 686(1)(a)(ii) of the Criminal Code, giving rise to a presumption that the accused's fundamental right to be tried in the official language of his choice was violated.
The Crown bore the burden of rebutting this presumption under the curative proviso in s. 686(1)(b)(iv), and failed to do so on the evidence.
The appeal was allowed, the conviction quashed, and a new trial in French ordered.
Karakatsanis and Martin JJ. dissented, concluding the breach was a miscarriage of justice under s. 686(1)(a)(iii) requiring the appellant to demonstrate actual deprivation of knowledge of his language rights, a burden he did not meet.
