Court of Appeal for Ontario
Before: Feldman, Simmons and Pepall JJ.A.
Between:
Her Majesty the Queen Respondent
and
Freddy Alan Jimenez Leon Appellant
Counsel: Mark Halfyard and Edmond Brown, for the appellant Xenia Proestos, for the respondent
Heard and released orally: November 13, 2014
On appeal from the conviction entered on January 24, 2012 by Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant sought an order from the trial judge under s. 530 of the Criminal Code that his trial be held in English so that he could seek to have a language competency challenge for cause of the jurors under s. 638(1)(f) of the Code.
2The appellant speaks Spanish as his native language; he therefore did not qualify for the order under s. 530(1). He could have applied under s. 530(2), but he did not do so within the time limits prescribed in that subsection.
3He submits that the trial judge should have exercised her discretion under s. 530(4) to make the order. However, it is clear on the wording of ss. (4) that the circumstances for the application of that subsection also did not exist. That subsection allows the court to transfer the trial of a matter to another court where the judge before whom the accused is to be tried, defined as "the court", does not speak the language (either French or English), in which the accused "can best give testimony". In this case that language was English through an interpreter, and the trial judge spoke English. The trial judge found that there was no basis to make a s. 530 order, since the accused was already scheduled to have a trial in English.
4We agree with her conclusion. As Crown counsel submits, that finding is a complete answer to this appeal. In our view, it would be inappropriate for this panel to make obiter observations about the challenge for cause procedure under s. 638(1)(f) of the Code. The issues around the application of that section should be left for another day.
5As this was the sole ground of the appeal from conviction, the appeal is dismissed.
"K. Feldman J.A."
"J. Simmons J.A."
"S.E. Pepall J.A."