Her Majesty the Queen v. Potvin

[Indexed as: R. v. Potvin]

69 O.R. (3d) 641

2004 ONCA 22752, [2004] O.J. No. 2550

Docket No. C37942

Court of Appeal for Ontario

Labrosse, Weiler and Charron JJ.A.

June 16, 2004

• Reasons released in French. English translation by the Centre for Legal Translation and Documentation at the University of Ottawa. Vous trouverez les motifs en français à la p. 654, post [[2004 ONCA 22752, 69 O.R. (3d) 654].

Criminal law -- Trial -- Language of trial -- Francophone accused requesting and receiving order under s. 530 of Criminal Code for trial before French-speaking judge and jury -- Trial judge and Crown counsel speaking English throughout much of trial -- First five days of testimony taking place solely in English with translation being provided to accused -- No transcript of interpretation being entered in record during first five days of testimony -- Accused not consenting to procedure -- Accused's rights under ss. 530, 530.1(e) and (g) being infringed -- Section 530.1(e) requiring that trial judge and Crown counsel not only understand official language of accused's choice but use it throughout trial -- Remedial provision in s. 686(1)(b)(iv) of Criminal Code not applying to violation of ss. 530 and 530.1 of Code -- Conviction quashed and new trial ordered -- Criminal Code, R.S.C. 1985, c. C-46, ss. 530, 530.1, 686(1)(b)(iv).

The accused was charged with attempted murder, attempted strangulation with intent to commit a sexual assault, aggravated sexual assault, forcible confinement and possession of narcotics. At his request, the court granted an order under s. 530 of the Criminal Code that he be tried before a judge and jury that spoke French. The pre-trial motions were conducted largely in English, with an interpreter being provided for the accused. The accused expressed his dissatisfaction with the procedure several times during the preliminary motions. Towards the end of the fifth day of preliminary motions, during an exchange between the trial judge and Crown counsel which, as usual, was in English, defence counsel interrupted, asking "Can we still speak in French?". The trial judge became angry, indicating to defence counsel that there was nothing in the Criminal Code to require that every word be spoken in French, that at least half the time so far had been wasted, that the situation was intolerable and that it was not going to happen again. The next day, the trial judge rendered his reasons on the motions, orally and in English. No translation was entered in the record. The first five days of testimony took place solely in English. During these five days, 11 Crown witnesses testified, including the complainant. No transcript of the interpretation was entered in the record. At the start of the sixth day, defence counsel objected, stating that the accused had asked for a trial in French, not a bilingual trial, that he could not hear and understand everything happening in the court, and that he was unable to gauge the correctness of the translation. The trial judge rejected defence counsel's request for a mistrial, stating that he was satisfied that the accused had a judge and jury who spoke French, in accordance with the provisions of the Criminal Code. Crown counsel indicated that he was prepared to accommodate the accused by questioning the remaining witnesses, except for the expert witnesses, in French. The trial judge continued to speak primarily in English. Both counsel made their final addresses to the jury in French, and the trial judge gave his charge to the jury partly in English and partly in French. The accused was [page642] acquitted of attempted murder and convicted on the other counts. He appealed, arguing that s. 530.1(e) and (g) of the Criminal Code were violated.

Held, the appeal should be allowed.

The accused did not consent to the manner in which the trial proceeded. His failure to object during the first five days of testimony had to be viewed in the context of the trial as a whole. In view of the difficulties which the accused and defence counsel had to face in the preceding days, it was not surprising that defence counsel did not object at the start of the trial, with the jury present, when the trial judge ordered that the translation be simultaneous. In any event, once an order is made that a trial take place in the official language of the accused, the proceeding must be consistent with the requirements without the accused or his counsel being obliged to continually argue the point. It was the trial judge's responsibility to ensure that the trial proceeded in French.

Section 530.1(e) of the Criminal Code requires that, where an order is made under s. 530, the trial judge and Crown counsel actually speak the official language of the accused's choice. It is not enough that they simply understand that language. The accused's language rights as set out in ss. 530 and 530.1(e) were infringed. As no transcript of the interpretation was entered in the record during the first five days of testimony, s. 530.1(g) of the Code was also infringed.

The remedial provision in s. 686(1)(b)(iv) of the Code could not be applied to the infringement of ss. 530 and 530.1 of the Code. This was true despite the classification of the provisions of s. 530.1 as procedural rather than substantive. The right set out in s. 530 is a substantive right and a significant one, and s. 530.1 provides certain clarifications for implementing that right. A trial will not necessarily be vitiated every time a few words are spoken in an official language other than that of the accused. However, a unilingual trial ordered under s. 530 must be essentially consistent with the provisions of s. 530.1. In this case, the accused's trial was more like a bilingual, or even a largely Anglophone, trial. The only proper remedy was to quash the conviction and order a new trial.

The accused was not entitled to have a DNA warrant written in French even where the s. 530 order was made before the warrant for the taking of biological samples was issued. The DNA warrant was not part of the trial. Moreover, an accused does not have an automatic right to the translation of documents filed at trial.

APPEAL by the accused from a conviction.

R. v. Beaulac, 1999 SCC 684, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193, 238 N.R. 131, 62 C.R.R. (2d) 133, 134 C.C.C. (3d) 481 (sub nom. Beaulac v. Canada (Attorney General)); R. v. Cross (1998), 1998 QCCA 13063, 165 D.L.R. (4th) 288, 128 C.C.C. (3d) 161, [1998] A.Q. No. 2629 (QL), [1998] R.J.Q. 2587 (C.A.) [notice to discontinue appeal, [1999] 3 S.C.R. xi], revg (1991), 1991 QCCS 11722, 76 C.C.C. (3d) 445 (Que. Sup. Ct.), apld Other cases referred to R. v. Cameron, [1999] Q.J. No. 6204 (QL) (Crim. & Pen. Div. C.Q.); R. v. Montour, [1998] Q.J. No. 2630 (QL) (C.A.); R. v. Rodrigue (1994), 1994 YKCA 16620, 26 C.R.R. (2d) 175, 95 C.C.C. (3d) 129 (Y.T.C.A.) [Leave to appeal to S.C.C. refused (1995), 30 C.R.R. (2d) 376n, 193 N.R. 318n], affg (1994), 1994 YKSC 5249, 91 C.C.C. (3d) 455 (Y.T.S.C.); R. v. Simard (1995), 1995 ONCA 1422, 27 O.R. (3d) 116, 27 O.R. (3d) 97 (Fr.), 105 C.C.C. (3d) 461 (C.A.) [Leave to appeal to S.C.C. refused (1997), 205 N.R. 315n]; R. v. Stadnick, 2001 QCCS 39664, [2001] Q.J. No. 5226 (QL) (Que. S.C.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 14 [page643] Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 133 Criminal Code, R.S.C. 1985, c. C-46, ss. 278.4, 487.05, 487.07, 530, 530.1, 638(1)(f), 686(1)(b)

J.A. Ramsay and Leanne Salel, for respondent. Joel Etienne, for appellant.

The judgment of the court was delivered by

1CHARRON J.A.: -- Marcel Potvin was charged with attempted murder, attempted strangulation with intent to commit a sexual assault, aggravated sexual assault, forcible confinement and possession of narcotics, all with relation to an attack on an exotic dancer on the morning of January 6, 2000. At his request and in accordance with s. 530 of the Criminal Code, R.S.C. 1985, c. C-46, the court ordered that he be tried before a judge and jury that spoke French. His trial took place before Boissonneault J. and a jury at the Superior Court of Justice in Brampton. On October 18, 2000, the appellant was convicted on all counts except for the attempted murder. An aggregate sentence of four years and nine months of imprisonment was imposed.

2Mr. Potvin appealed his conviction and sentence. As the principal ground of appeal, he argued that he was denied his right to a unilingual French trial and that this court should accordingly order a new trial. The appellant submitted that, far from taking place in French, his trial was actually bilingual, or indeed in English. As a most flagrant example, the appellant noted that the first five days of testimony took place solely in English, without any transcript of the translation being given to him simultaneously in French. He noted that during these five days, 11 Crown witnesses testified, including the principal witness, the complainant in the case at bar. Additionally, in support of his argument that his trial was anything but a trial in French, the appellant submitted a table showing that almost none of the trial transcript pages were entirely in French. Finally, he noted that his trial was held in this way despite objections by his counsel. In conclusion, the appellant relied on R. v. Beaulac, 1999 SCC 684, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193, at para. 54, where the Supreme Court of Canada held that an infringement of the language rights of the accused constituted "a substantial wrong and not a procedural irregularity". Consequently, the appellant submitted that a new trial should be ordered.

3In reply, the respondent argued that the trial took place without objection as to the manner or quality of the interpretation [page644] throughout the first five days of the trial, and it was not until the sixth day that counsel for the defence objected that the appellant could not understand everything that was happening in the courtroom and did not know whether the interpreter was translating correctly, and the earphones were giving him a pain in his ears. The respondent argued that, following this complaint, counsel and the judge agreed on the procedure to be followed, and essentially the remainder of the trial took place in accordance with that agreement. The respondent therefore argued that there was no infringement of the appellant's language rights, since by his actions he essentially agreed to have a bilingual trial. Alternatively, if this court concludes that the appellant's rights were infringed, the respondent argued that the remedial provision under para. 686(1)(b) should be applied here.

4A review of the record confirms that the appellant was not accorded his right to a trial in French and that this was a substantial wrong in the case at bar, for which there is no remedy other than quashing the conviction and ordering a new trial. My reasons are the following.

I. Right to Trial in Language Chosen by Accused

5Section 530 of the Criminal Code allows any accused, whose language is one of the official languages of Canada, to elect to be tried by a court, here a judge and jury, "who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada". The provision reads as follows:

530(1) Language of accused -- On application by an accused whose language is one of the official languages of Canada . . .

a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.

6As indicated earlier, the appellant elected to be tried in French. Section 530.1, set out below, adds the following clarifications:

530.1 Where order granted under section 530 -- Where an order is granted under section 530 directing that an accused be tried before . . . judge and jury who speak the official language that is the language of the accused . . .

(a) the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused; [page645]

(b) the accused and his counsel may use either official language in written pleadings or other documents used in any proceedings relating to the preliminary inquiry or trial of the accused;

(c) any witness may give evidence in either official language during the preliminary inquiry or trial;

(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language that is the language of the accused;

(e) except where the prosecutor is a private prosecutor, the accused has a right to have a prosecutor who speaks the official language that is the language of the accused;

(f) the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;

(g) the record of proceedings during the preliminary inquiry or trial shall include

(i) a transcript of everything that was said during those proceedings in the official language in which it was said,

(ii) a transcript of any interpretation into the other official language of what was said, and

(iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered; and

(h) any trial judgment, including any reasons given therefor, issued in writing in either official language, shall be made available by the court in the official language that is the language of the accused.

(My emphasis)

7The appellant maintained that paras. (d), (e) and (g) were infringed. I note that para. (d), dealing with the language of the judge, only applies at the preliminary inquiry: it is actually an order under s. 530 which provides that the trial judge and jury shall speak the same official language as that of the appellant. The most salient facts relating to the language used during the trial are the following.

II. Form of Trial

8As indicated above, the respondent argued that as no objection was made during the first five days of testimony, the appellant essentially consented to a trial that was more like a bilingual than a unilingual French trial. To determine whether this argument is valid, it is important to consider what occurred in the five preceding days, during which pre-trial motions were heard.

9It is worth noting, first, that there is no doubt the accused obtained a s. 530 order that his trial would be in French. The trial began on September 13, 2000 with preliminary motions [page646] before the jury was empanelled. A certified interpreter was present during the hearing of the motions and throughout the trial. At the very start of the proceeding, the judge spoke to the clerk of the court in English, giving directions regarding exclusion of the public for the closed- door hearing provided for in s. 278.4 of the Criminal Code. Counsel for the defence at once observed that the interpreter was whispering the translation of the judge's words rather than speaking aloud, which did not allow the translation to be recorded. The judge agreed, remarking that the Criminal Code provided that the record of the trial should contain everything that was said, including a transcript of any interpretation into French (para. 530.1(g)). The judge accordingly directed the interpreter to translate aloud everything that was said in English. The pre-trial motions then proceeded in accordance with these directions, but with certain relevant incidents.

10It should first be noted that all the judge's interventions during the motion days, apart from a few exceptions, were made in English. The same was true of the reasons for decision rendered on the various motions. The Crown prosecutor also habitually addressed the court in English. Counsel for the defence, for his part, continued to make his submissions in French throughout the pre-trial motions.

11Although the translation of the exchanges between the judge and counsel during these days was given aloud and entered in the record, the translation was often incomplete and at times completely absent. It seems clear to the court from reading the record that these deficiencies in the translation were due to the fact that the speakers did not leave the interpreter sufficient time to do his work. In fact, at one point in the first pre-motion day, counsel for the defence objected that everything had not been translated and reminded the judge of his directions concerning translation to be made aloud. The judge agreed, and said [TRANSLATION] "We'll do that." Despite this direction, counsel for the Crown immediately continued his submissions at full speed, still in English, and the judge had to interrupt him so that the translation could be made. Unfortunately, the translation continued to be incomplete several times during the preliminary motions.

12On the third day of preliminary motions, the first Anglophone witness was called to testify. The Crown prosecutor asked the judge for directions on the language to be used during his examination. The judge replied "Whatever you prefer." The Crown prosecutor indicated that he preferred to put his questions in English. Counsel for the defence objected and asked that the Crown prosecutor put his questions in French. The judge decided it was sufficient if the accused understood the questions and [page647] answers. Accordingly, he allowed the Crown prosecutor to put his questions in English, with consecutive translation into French.

13Towards the end of the fifth day of preliminary motions, during an exchange between the judge and the Crown prosecutor, which as usual was proceeding in English, counsel for the defence interrupted, saying:

[TRANSLATION]

Can we still speak in French?

14It seems clear from reading the record that, in response, the judge became angry, indicating to counsel for the defence that there was nothing in the Criminal Code to require that every word be spoken in French, that at least half the time so far had been wasted, that the situation was intolerable and that it was not going to happen again. All of this was said in English, with an incomplete translation, and at this point the court rose.

15On the following day, September 20, the judge rendered his reasons on the motions, orally and in English. Although it appears that an interpreter was present, no translation was entered in the record. The jury was empanelled the same day. This part of the trial was not transcribed for the appeal. The respondent's memorandum indicated that the judge gave the defence leave to challenge each of the jurors, on the ground that he or she did not speak French pursuant to para. 638(1)(f) of the Criminal Code, and to put questions about their knowledge of French.

16The next day, at the start of the hearing of September 21, the interpreter was sworn in for the trial. The judge asked the interpreter if she had the equipment necessary to provide a simultaneous translation. The interpreter indicated that she could do this. The hearing immediately continued in this way, that is without any translation allowed, and consequently without any transcript of what was translated for the appellant. As noted by the respondent, counsel for the defence did not at that time insist that the translation be done aloud, as he had done in the preceding days.

17As indicated earlier, in the next five days 11 witnesses were heard, ten of whom were in English, without any translation being transcribed. At the start of the sixth day of testimony, counsel for the defence objected as follows:

[TRANSLATION]

Mr Leclair: Well, Mr. Potvin would like to make the following comments. He says he asked for a trial in French, which was not bilingual, that he is French, that he cannot hear and understand everything happening in the Court, that even, despite the [page648] competence of the interpreter, if it is not correctly translated he does not know. Also, the earphones cause pain in his ears, and when the earphones are removed and given back, because it changes from English to French, it prevents him from concentrating and it is not always -- he missed parts.

18In the circumstances, counsel for the defence indicated he saw no solution but to declare a mistrial. At the same time, he indicated that he was prepared to listen if the Crown prosecutor had some other solution to suggest. The court dismissed the motion forthwith, indicating that it was satisfied Mr. Potvin had a judge and jury who spoke French, in accordance with the provisions of the Criminal Code. He expressed his surprise at hearing such a motion, as counsel for the defence had himself questioned witnesses in English. Finally, the judge suggested that the following procedure be adopted:

[TRANSLATION]

Well, if you want, we can continue and I can ask [the Crown prosecutor], if he will, to put his questions in French, to have questions translated aloud, to have answers translated aloud, and perhaps at this stage you could cross-examine in French what you have not done so far.

19In reply to this suggestion, counsel for the defence reminded the court that his client was entitled to have the judge and the Crown prosecutor speak French. He also repeated his objection that there was no complete transcript in French as required by para. 530.1(g). As regards the transcript, the judge appeared to be under the impression that the simultaneous translation had been recorded, which was not the case. Counsel for the defence proposed the following solution: that a transcript of the entire trial up to that point be prepared and that the interpreter translate aloud. Without specifically responding to this suggestion, the Crown prosecutor replied that he was prepared to accommodate Mr. Potvin by questioning the remaining witnesses, except for the expert witnesses, in French. He intended to examine the expert witnesses in English. Counsel for the defence indicated it would be better for the prosecutor to put the questions in French, but ultimately he expressed his agreement with the questions being put in English and translated aloud, provided that, aside from that, the judge and the prosecutor spoke in French. On this last point, the court's reply was in the negative -- it reserved the right to speak in English [TRANSLATION] "on technical points" with a translation given aloud.

20The proceeding continued with the translation given aloud, as agreed. Counsel for the defence, however, remained under the impression that the court had agreed that the interpreter would [page649] translate the first five days of the trial for the appellant, based on the transcripts of what was said aloud. Accordingly, he raised the question again the next day. The court dismissed his motion, indicating that it would place too great a burden on the stenographer.

21For the rest of the trial, the Crown prosecutor put his questions to the rest of the witnesses in French, except for six when he was questioning expert witnesses or there was technical evidence. Counsel for the defence put his questions in French. The judge continued to speak primarily in English. When there was argument or directions in English, a translation was given aloud. Both counsel made their final addresses to the jury entirely in French. The judge gave his charge to the jury partly in English and partly in French. The directions in English were translated aloud.

III. Analysis

(a) Language spoken during proceeding

22The appellant argued that a trial in French, pursuant to the provisions of ss. 530 and 530.1 of the Criminal Code, is one in which the judge and the Crown prosecutor speak French at all times and where the services of an interpreter are only incidental to the progress of the proceeding. He maintained that his trial was not consistent with these requirements and that it was actually a bilingual or Anglophone trial, where the use of French was quite secondary.

23Firstly, the respondent argued that it is not necessary to interpret s. 530.1 in the case at bar, in view of the fact that counsel for the defence did not object to the use of English until the sixth day of the trial, and after discussions between the parties, he agreed to the use of English for certain witnesses. The respondent submitted that in such circumstances, regardless of the nature of the original order, the judge ordered, and the defence approved (at least regarding the use of English for putting questions) a procedure which somewhat resembled a bilingual trial. Consequently, the respondent submitted that the directions in s. 530.1, which only apply to a unilingual trial, were no longer applicable.

24In my opinion, the respondent's arguments as to the alleged consent by the appellant are without foundation. In her memorandum, the respondent made no reference to what happened during the preliminary motion hearing days, as I described it above. When the first five days of testimony are looked at in the context of the trial as a whole, it is unreasonable to conclude that because the appellant made no objection, he changed his mind, [page650] waived his right to a trial in French and agreed to have a bilingual or Anglophone trial. Such a conclusion seems to me all the more unlikely when we take into account the fact that the appellant speaks very little English.

25It is worth noting that an accused has the right to claim one of the two official languages as his own, even if he is able to speak the other official language: see R. v. Beaulac, at paras. 45-47. Accordingly, I mention Mr. Potvin's very limited ability to speak English here not as the basis of his right to a trial in French, but simply to emphasize the fact that, in the context of the case at bar, it is not reasonable to assume that the appellant would have wanted anything but a trial in French.

26I conclude without hesitation that the appellant did not agree to his trial being bilingual. In view of the difficulties which the appellant and his counsel had to face in the preceding days, it is not surprising that counsel for the defence did not object at the start of the trial, with the jury present, when the judge ordered that the translation be simultaneous. In any event, once an order is made that a trial take place in the official language of the accused, the proceeding must be consistent with the requirements without the accused or his counsel being obliged to continually argue the point. It is the judge's responsibility to ensure that the trial proceeds in French.

27Secondly, the respondent argued that even if s. 530.1 applied in the case at bar, those provisions did not impose on the judge and Crown prosecutor any duty to speak exclusively in the language which was the official language of the accused. In the respondent's submission, the provisions allowed the Crown prosecutor and judge to use either language at their option, provided they were able to speak the language of the accused. The respondent maintained that, therefore, it is sufficient for the Crown prosecutor, judge and the jury to be able to understand and assess, without interpreters, the testimony given or the argument presented in the official language of the accused during the hearing.

28There is little precedent on this point. The Quebec Court of Appeal had to consider the question of the language used by the Crown prosecutor in a unilingual trial in R. v. Cross, 1998 QCCA 13063, [1998] R.J.Q. 2587, 128 C.C.C. (3d) 161 (C.A.), notice to discontinue appeal, [1999] 3 S.C.R. xi; see also the related case of R. v. Montour, [1998] Q.J. No. 2630 (QL) (C.A.). In R. v. Cross, the accused had obtained an order that his trial be unilingually in English. The four Crown prosecutors assigned to argue the case, Francophones, told the judge they intended to use French occasionally when the jury was not present. The trial judge at once pointed out that para. 530.1(e) of the Criminal Code [page651] did not allow this. Counsel accordingly challenged the constitutional validity of para. 530.1(e) of the Criminal Code in the Quebec courts, based on s. 133 of the Constitution Act, 1867, which provides inter alia that:

. . . either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

29The Quebec Court of Appeal affirmed the constitutionality of para. 530.1(e). The court concluded that the judge could not, without infringing s. 133, prohibit the prosecutor from speaking the official language of his choice. At the same time, under the provisions of the Criminal Code, the Attorney General had to ensure that the prosecutor he assigned to the case was not only capable of speaking the language of the accused, but also willing to do so throughout the trial. The Court of Appeal added:

[TRANSLATION]

If at some point during the trial the prosecutor felt unable to do full justice to his or her instructions using a language other than his or her own, and indicated an intention to speak French or English as he or she is allowed to do by s. 133, the judge clearly could not compel him or her to speak the official language that was not his or her own. In such a case, the judge should stay the hearing to enable the Attorney General to find a replacement prepared to continue the case in the language of the accused. If this proves to be impossible within a reasonable time, a judge presiding over a jury trial might have to declare a mistrial.

30I agree with this interpretation of the scope of para. 530.1(e). Further, I feel that the same conclusion applies to the accused's right to be tried before a "judge and jury who speak" the official language that is the language of the accused. In my view, this interpretation is the only one which can meet the objective of the statutory provisions, as the Supreme Court of Canada held in Beaulac.

31In Beaulac, at para. 25, the Supreme Court held that "[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada." At para. 34, the court defined the purpose of s. 530 as being "to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity" (my emphasis).

32If it were enough for the judge and prosecutor to understand French, without it being necessary for them to use it during the proceeding, there would be little difference between, on the one hand, the right to a unilingual trial in the official language of one's choice, and on the other, the right to the assistance of an interpreter already provided for in s. 14 of the Canadian Charter of Rights and Freedoms. The right to the assistance of an [page652] interpreter ensures that the accused will be able to understand his or her trial and make himself or herself understood, and that the trial will thus be fair: see R. v. Beaulac, at para. 41. However, as noted by the Supreme Court in Beaulac, at paras. 25 and 41, "language rights are . . . distinct from the principles of fundamental justice. . . . Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English."

33The more limiting interpretation suggested by the respondent might indeed ensure that the accused was understood by the prosecutor, the judge and the jury in his or her original language, without the intermediary of translation; however, in the context of linguistic equality, it seems to the court just as important for the accused to be able to understand what the judge and prosecutor say in the original language used by them during the hearing. There is no question that the requirement for the judge and Crown prosecutor not only to understand French but to use it may give rise to inconvenience in certain situations, but that fact is not relevant. In Beaulac, Bastarache J. says this clearly, at para. 39:

I wish to emphasize that mere administrative inconvenience is not a relevant factor. The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages.

34Accordingly, I have to conclude that the appellant's language rights set out in s. 530 and para. 530.1(e), requiring that the judge and Crown prosecutor speak the official language of the accused, were infringed.

(b) Transcript of translation

35As noted above, the appellant alleged there was also a breach of para. 530.1(g), since no transcript of the interpretation was entered in the record during the first five days of testimony. On this point also, the respondent argued that there was consent by the appellant. I have already dismissed this argument as unreasonable in the circumstances. The infringement of para. 530.1(g) is accordingly clear. [page653]

(c) Remedial provision

36Finally, the respondent maintained that the remedial provision in para. 686(1)(b) should be applied in the case at bar. The respondent acknowledged that in Beaulac the Supreme Court held that s. 530(1) gives the accused an absolute and substantial right, not a procedural right which may be departed from. Consequently, an infringement of this right does not result in the application of the remedial provision mentioned in para. 686(1)(b). However, the respondent submitted that s. 530.1 represents procedural provisions pursuant to the right set out in s. 530(1), and consequently para. 686(1)(b)(iv) can be applied to an infringement of s. 530.1. The respondent argued that, unlike Beaulac, the appellant did not reject a priori his right to a trial before a judge and jury speaking the official language that was spoken by the accused. The question here is actually whether all the procedural provisions were observed.

37In my opinion, the result that follows in the case at bar does not depend on the classification of the provisions in s. 530.1 as procedural rather than substantive. The right set out in s. 530 is a substantive and significant right, and s. 530.1, as the title indicates, provides certain clarifications for implementing that right. A trial will not necessarily be vitiated every time a few words are spoken in an official language other than that of the accused. However, a unilingual trial ordered under s. 530 must be essentially consistent with the provisions of s. 530.1. In the case at bar, I agree with the appellant's argument that his trial was not consistent. Overall, his trial was much more like a bilingual, or even largely Anglophone, trial. Consequently, there is no basis for applying the remedial provision and a new trial must be ordered.

(d) Other grounds of appeal

38In view of this conclusion, it is not necessary to consider the other grounds of appeal raised by the appellant, except for the following point of law. The appellant argued that he was entitled to have the warrant for the genetic analyses, issued pursuant to s. 487.05 of the Criminal Code, written in French. In support of this argument, the appellant relied solely on the fact that the order concerning the language of his trial was made before the warrant for taking of biological samples was issued.

39I do not accept that argument. Although the order on the language of trial preceded the issuing of the warrant, the warrant for samples was not thereby made part of the trial. Further, an accused does not have an automatic right to the translation of documents filed at a trial: R. v. Stadnick, 2001 QCCS 39664, [2001] Q.J. No. 5226 (QL) (Que. S.C.); [page654] R. v. Cameron, [1999] Q.J. No. 6204 (QL) (Crim. & Pen. Div. C.Q.); R. v. Rodrigue (1994), 1994 YKSC 5249, 91 C.C.C. (3d) 455 (Y.T.S.C.); R. v. Simard (1995), 1995 ONCA 1422, 27 O.R. (3d) 97 (Fr.) (C.A.).

40The point for decision in the case at bar was whether the appellant was given sufficient information in accordance with the requirements of s. 487.07 of the Criminal Code. If that point is raised again, it will have to be decided by the judge presiding over the new trial.

Conclusion

41For these reasons, I would allow the appeal, quash the conviction and order a new trial.