COURT OF APPEAL FOR ONTARIO
van Rensburg, Copeland and Gomery JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Pierre Dartiguenave
Appellant
Pierre Dartiguenave, acting in person
Ariel Herscovitch, appearing as amicus curiae
Étienne Lacombe, for the respondent
Heard: August 23, 2024
On appeal from the order of Justice Julianne A. Parfett of the Superior Court of Justice, dated May 16, 2023, upholding the verdict of not criminally responsible on account of mental disorder by Justice Célynne S. Dorval of the Ontario Court of Justice, dated November 3, 2021.
1Pierre Dartiguenave appeals the verdict of not criminally responsible rendered on November 3, 2021. The Crown concedes that the appellant was not advised of his right to request a trial in French pursuant to s. 530(3) of the Criminal Code, R.S.C., 1985, c. C-46. It argues, however, that this error of law did not prejudice the appellant.
2In my view, the appellant expressed his choice for a French trial and never waived it in a free and informed manner. His language choice was not respected at his trial. It follows that the appellant suffered prejudice as a result and that a new trial is required.
Background
3Following an incident that occurred on June 7, 2021, the appellant was charged with assault, assault with a weapon, mischief to property, and breach of an order under s. 733.1(1) of the Criminal Code. The other individuals involved in this incident were the owners of a residence in which the appellant rented a room. A second incident occurred on July 13, 2021, after the appellant was transferred from the Ottawa-Carleton Detention Centre to the detention centre at Montfort Hospital’s psychiatric department. The appellant was charged with assault and assault causing bodily harm. The victims were two peace officers. The appellant was subsequently involuntarily admitted to the hospital under s. 3 of the Mental Health Act, R.S.O. 1990, c. M.7 in August 2021. A verdict of not criminally responsible was rendered on November 3, 2021.
4In order to consider the grounds of appeal, it is necessary to review in detail the history of the case before the courts from the date of the appellant’s arrest on June 9, 2021, to the verdict issued five months later. It is a chronicle punctuated by some thirty appearances before eight justices of the peace and fourteen judges from the Ontario Court of Justice. The appellant attended all appearances solely by videoconference or telephone.
5The appellant’s first appearance was on June 10, 2021. The hearing was conducted entirely in English. The Crown prosecutor noted, however, that the accused’s criminal record was based on convictions in Quebec and was therefore written in French. The justice of the peace advised that he did not have the required level of bilingualism to determine whether the appellant should be released, stating that: “Anything to do with a French bail should proceed in front of a French justice of the peace or a fluently bilingual justice of the peace.”
6The justice of the peace adjourned the case until June 11, 2021, to allow the appellant to consult with duty counsel. It was only after the matter was adjourned by the court that the issue of the choice of the language of the trial was first raised, not by the judge, but by the court clerk, who asked duty counsel:
COURT CLERK: And Ms. Morris, is there a language choice? Can you waive arraignment?
MS. MORRIS: I can waive arraignment and I’m reserving language choice at this point. It depends on what counsel Mr., this gentleman seeks and what counsel advises as to language. He speaks both English and French, so…
THE COURT: All right
MS. MORRIS: ... I’m not sure at this point.
7On the form of the information in this case, at the top of the section reserved for endorsements made at each appearance, the sentence “Accused notified court under s. 530(3)” is preprinted between a check box and an empty space. The box to the left of this sentence is checked, but someone wrote “reser.” in the empty space. In my view, this reflects the conversation that took place between duty counsel and the court on June 10, 2021.
8On the first page of the information, there is a preprinted series of typical orders, such as a nondisclosure order and a publication ban. There is a box that can be checked next to each potential order. In this same section of the form, there is also a check box next to the following sentence: “Provisions of 530(3) complied with.” On the Information in this case, this box is checked and a circled letter F is written on the right side. There is no indication of who checked the box or on what date, and counsel who appeared before this court could not confirm the meaning of the letter F. It can be reasonably inferred that this was added at a later date, as the appellant did not communicate his choice of the language of trial at the June 10th appearance.
9At the June 11th appearance, the hearing was adjourned again until June 14, 2021. At the June 14th appearance, the court asked the appellant whether he wanted the bail hearing to be held in English or French. The appellant replied: “French is good but whatever.” However, when the court advised that this choice would require special arrangements, he agreed to proceed with the bail hearing in English:
THE COURT: Well if it's French, we're going to need French staff and...
PIERRE DARTIGUENAVE: No, do it, do it, I'll do it in English. I'll do it in English.
COURT CLERK: Do we have a lawyer…
THE COURT: You are free…
COURT CLERK: Sorry.
THE COURT: Whichever language you're more comfortable with, sir, we can certainly make arrangements for a French bail hearing.
PIERRE DARTIGUENAVE: Pardon me?
THE COURT: We can certainly make arrangements if you request, for a bail hearing to be held entirely in French. It is up to you which language...
PIERRE DARTIGUENAVE: Okay, I’m going to do it in English. [Emphasis added.]
10After hearing the appellant’s proposed conditions for his release, the justice of the peace informed him that he would not obtain the order sought without additional conditions. The justice of the peace proposed that the appellant abandon his application, amend his release proposal, and start again at a later date.
11A second bail hearing was held before Bourgeois J. on June 16, 2021. Justice Bourgeois asked the appellant once again about his language preference. He again indicated that he preferred to proceed in French:
COURT CLERK: So, Your Honour, just for the record, the accused has not elected a language. So I’m not sure if he wants to be heard in French or in English.
THE COURT: Okay. Sir, would you like your matter in French or in English? In French or in English, sir? En français ou en anglais, monsieur?
PIERRE DARTIGUENAVE: Mm, do I need to clarify this? I — it’s got to be in French?
THE COURT: As, as you wish. It’s your decision.
PIERRE DARTIGUENAVE: En français, ça va.
PIERRE DARTIGUENAVE: (Trad.) In French, it’s fine.
THE COURT: D'accord. Alors, on peut procéder en français.
THE COURT: All right. So, we can proceed in French.
12In the section of the Information reserved for endorsements, the letters FR are circled next to a date stamp dated June 16, 2021. On page 18, not far from where “reser.” was written to the right of the sentence “Accused notified court under s. 530(3)”, the letter F is circled next to another date stamp, which indicates that a bail order was denied on June 16th. Again, in their submissions to this court, neither the Crown prosecutor nor the amicus curiae could confirm the meaning of these notations.
13The hearing on June 16th proceeded in French. Having considered the relevant factors, including the appellant’s criminal record and the fact that he did not have a permanent address in Ontario, Bourgeois J. determined that he should be detained until his trial under subparas. (a) and (b) of s. 515(10) of the Criminal Code.
14Notwithstanding the language choice expressed by the appellant on June 16, and the notes on the above-mentioned Information, the issue was raised again at his next appearance on June 22, 2021:
CROWN COUNSEL: Is this a, a French matter?
THE COURT: [addressing the appellant] Sir, were you, were you wanting your matter dealt with in French?
PIERRE DARTIGUENAVE: English is good.
15Despite this, at the beginning of the next appearance on June 24, 2021, the court clerk informed the justice of the peace that this was a French matter and it proceeded in that language. As the appellant had not yet been able to find counsel, the case was adjourned until June 28, 2021.
16At the June 28th appearance, although he still did not have a lawyer, the appellant stated that he wanted to stand trial that same day. He claimed that he had no access to a telephone at the detention centre and that his food was poisoned. The case was nonetheless adjourned until June 30, 2021, to allow the Crown prosecutor to obtain instructions from his client in the event of a guilty plea by the appellant and to allow the appellant to speak with a lawyer. At this next appearance, the appellant advised that he had spoken with a lawyer, but that he had not hired her yet. The case was adjourned until July 2, to give the appellant an opportunity to continue his discussion with the lawyer.
17The hearings on June 28 and 30 were held in French. At the next appearance on July 2, 2021, the appellant initially addressed the justice of the peace in French. When the court clerk and duty counsel each spoke in English, the appellant switched to English, but a few minutes later asked if he could speak in French. The court obtained the services of an interpreter. The matter was adjourned until July 6, 2021. On the court clerk’s initiative, the court ordered that the services of an interpreter be reserved for that day.
18On July 6th, the court was notified that the appellant could not attend for health reasons. The same thing happened on the next four days (July 7, 8, 9, and 12, 2021) when the case was called.
19The appellant appeared again on July 14, 2021, by telephone from Montfort Hospital’s psychiatric department. At the beginning of the hearing, the court clerk stated that: “I have French as the language”. The appellant spoke in French through an interpreter; the court clerk, the justice of the peace, and Crown counsel spoke to each other in English. Crown counsel proposed an assessment of the appellant's fitness to stand trial. The appellant said that he did not understand the need for another adjournment and switched to English. The matter was adjourned until July 19, 2021.
20The July 19th appearance, which the appellant again attended by telephone, began as follows:
THE COURT: Good morning, sir. Can you hear me, Mr. Dartiguenave?
PIERRE DARTIGUENAVE: Yes, Your Honour.
THE COURT: Sir, I understand that this matter was listed for the French language this morning. We don’t have the interpreter yet. Can — are you okay if we proceed in English, sir?
PIERRE DARTIGUENAVE: I'm okay.
21Crown counsel advised the court that, according to the psychiatrist who had assessed the appellant, he was fit to stand trial. When questioned by the justice of the peace, the appellant indicated that he wanted to negotiate a plea. The matter was adjourned until July 21, 2021. The court encouraged the appellant to retain counsel.
22On July 21, Lauren Konarowski appeared as counsel for the appellant. She advised that she communicated with her client in English and that he had told her that he did not need a translator. The appellant himself confirmed this at the appearance, and it proceeded in English. Ms. Konarowski informed the court that she had requested disclosure from the Crown. The matter was adjourned until the next day in anticipation of the appellant’s prompt receipt of relevant information and documents, in order to set dates for a judicial conference and a trial based on a guilty plea.
23On July 22, 2021, Ms. Konarowski advised that she had received the Crown's disclosure but that she needed another adjournment in order to speak to her client and Crown counsel. The matter was postponed until July 23, 2021. On that date, Mr. Konarowski advised that the appellant was facing additional criminal charges following an incident at the hospital. The matter was adjourned until July 27, 2021.
24At the beginning of the July 27th appearance, the appellant fired Ms. Konarowski and announced that he would represent himself. Ms. Konarowski withdrew from the record. The justice of the peace asked Crown counsel about setting a trial date. Although the hearing that day was conducted in English, Crown counsel recognized that the trial should be held in French:
CROWN COUNSEL: So, Your Worship, we’ll need a French speaking judge. We can have the matter come to number 25 tomorrow and he can plead guilty then. I'll notify the Crown who's assigned to make sure there's a position in the file and that he can plead guilty in, in front of a French-speaking judge tomorrow, if French is his language of choice.
THE COURT: Ah, okay. Thank you, Mr. Fuller. [Emphasis added.]
25Addressing the appellant, the justice of the peace said that, had he known that the appellant spoke French, he would have spoken in that language at the beginning of the hearing. The hearing continued in French until Crown counsel indicated that he only spoke English and therefore could not negotiate a plea with the appellant. Although the appellant is bilingual, Crown counsel and the justice of the peace again recognized the need for a French trial:
CROWN COUNSEL: (…) So for Mr. — for Mr. Dartiguenave's benefits [sic], he can speak to the judge tomorrow and he can speak to a French-speaking Crown tomorrow and a French speaking judge and I know he speaks English, but he's clearly more comfortable in French.
THE COURT: Yes.
CROWN COUNSEL: And I gather that from the way he reverts to it when he gets very animated in speaking with the Court.
THE COURT: Yes.
CROWN COUNSEL: So he will have a much more fruitful conversation tomorrow in front of a judge with a French-speaking Crown.
THE COURT: Yes. [Emphasis added.]
26The appellant asserted that he wanted to plead guilty immediately and did not need a French-speaking judge to do so. The judge advised that an adjournment would be necessary in any event because the trial had to take place before a judge of the Ontario Court of Justice rather than a justice of the peace.
27On July 28, 2021, a detention centre representative advised Berg J. that the appellant was incoherent and had assaulted two correctional officers a few days earlier. The judge ordered a second assessment of the appellant’s fitness to stand trial. According to the judge, the assessment must be done in French or with the help of an interpreter. Given the state of the appellant’s mental health, and despite his decision to dismiss Ms. Konarowski, the judge asked the Crown prosecutor to inquire about Ms. Konarowski’s availability so that she could attend the next appearance scheduled for July 30, 2021.
28At the July 30 appearance, Ms. Konarowski informed the justice of the peace that the appellant had been placed in a medically-induced coma and was therefore not present. The matter was adjourned until August 4, 2021, and then again until August 6, 2021. On the first of these dates, the court clerk reiterated that the trial must proceed in French.
29The appellant appeared before Graydon J. on August 6. The hearing took place entirely in English; there is no mention of the appellant’s choice of language. At Crown counsel’s request, Graydon J. ordered that the appellant be detained in the psychiatric department of the Montfort Hospital for five days for the purpose of assessing his fitness to stand trial. The case was adjourned until August 9, 2021.
30On August 9, as suggested by Graydon J., Ms. Konarowski obtained an order from Legault J. designating her as counsel for the appellant under s. 672.24(1) of the Criminal Code. This provision allows for such a designation where a court has reasonable grounds to believe that the accused is unfit to stand trial. The matter was adjourned until August 11, 2021. On that date, it was adjourned again until August 13, 2021, still pending the assessment of the appellant's fitness.
31At the August 13, 2021, appearance, Dumel J. addressed the appellant in French. The judge advised the appellant that, according to the psychiatrist who had assessed him, he was fit to stand trial, but his criminal responsibility still had to be determined. The appellant replied that he had not seen the assessment report, but that he intended to represent himself and wanted to negotiate a plea bargain as soon as possible. The matter was adjourned until August 16, 2021. Justice Dumel had asked that an interpreter be present. However, the appearance on this date was conducted entirely in English.
32At the appearance on August 20, 2021, the trial was set for August 31, 2021. The appellant confirmed that he wanted to represent himself and dismissed Ms. Konarowski for a second time. She immediately obtained a court order to act as amicus curiae. The possibility of an assessment of the appellant’s criminal responsibility was raised.
33The appellant’s trial began on August 31, 2021, before Perkins-McVey J. The appellant addressed the court in French, which prompted the following exchange:
THE COURT: Mr. Dartiguenave, once again, you have the option of a translator if you would like one from French to English. But unfortunately I only speak English.
PIERRE DARTIGUENAVE: Okay. I’ll speak English.
34Following this exchange, the trial was conducted entirely in English.
35The appellant pleaded guilty to three of the four charges arising from the June 9, 2021 incident. However, he agreed with the statement of facts (read in English) by the Crown prosecutor.1 The judge was satisfied that the acts alleged had occurred and that the appellant had accepted his role in those acts. The appellant pled guilty to both counts arising from the July 13, 2021 incident. He did not agree with some of the facts recounted by Crown counsel in relation to the incident (again read in English). Justice Perkins-McVey nevertheless accepted that the acts complained of in the indictment had occurred and that the appellant had admitted his role in the second incident as well as the first.
36As anticipated at the August 20 appearance, Crown counsel then sought an order for an assessment of the appellant’s criminal responsibility for thirty days under s. 672.12(3) of the Criminal Code. The appellant agreed to be assessed. The court ordered that the appellant be assessed and transferred to the Waypoint Centre for Mental Health Care in Penetanguishene for this purpose. The matter was adjourned until September 29, 2021. At the appearance on that date, Perkins-McVey J. adjourned the matter until October 27, 2021, pending the psychiatric assessment of the appointed psychiatrist, Dr. Van Impe. A second extension was granted at the October 27 appearance, and the case was adjourned until November 3, 2021.
37Dorval J. presided at the next hearing on November 3, 2021. The purpose of the hearing was to determine whether the appellant was not criminally responsible on account of mental disorder for the incidents on June 9 and July 13, 2021. Once again, the hearing was conducted entirely in English. Based on psychiatrist Dr. Van Impe’s assessment report filed by the Crown, Dorval J. rendered a verdict of not criminally responsible. Responsibility for determining the conditions of the appellant’s release was then transferred to the Ontario Review Board.
Appeal to the Superior Court
38The appellant first appealed the verdict of not criminally responsible before the Superior Court. In his submission, he had been found guilty of all counts by Perkins-McVey J. at the August 31st trial and could not therefore be found not criminally responsible for the same acts on November 3, 2021. He also contended that Ms. Konarowski was not entitled to make submissions on his behalf at trial because he had fired her.
39Justice Parfett dismissed the appeal. She concluded that, at the trial on August 31, the court accepted that the appellant had committed certain acts but did not determine his criminal liability for them. Justice Dorval therefore did not err in law when she declared a verdict of not criminally responsible based on the psychiatric report filed on November 3, 2021.
40Parfett J. further determined that the appellant’s right to represent himself had not been breached. Ms. Konarowski’s submissions at trial were appropriate in the context of her role as amicus curiae, and she noted on the record that she was no longer acting as counsel for the appellant.
Issues before this Court
41There are three questions to be resolved:
Should the appellant be granted leave to appeal Justice Parfett’s decision?
Did Justice Parfett err in rejecting the appellant’s grounds of appeal?
Should a new trial be ordered, given that the appellant’s language rights under s. 530(3) of the Criminal Code were not respected?
Leave to appeal Justice Parfett's decision should be granted
42A defendant may be granted leave to appeal before the Court of Appeal from a decision of the Superior Court of Justice dismissing an appeal from a summary conviction “on any ground that involves a question of law alone”: Criminal Code, s. 839. The respondent does not contest the appellant’s request for leave to appeal Parfett J.’s decision. However, “a second appeal in summary conviction proceedings should be the exception and not the rule”: R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25. In determining whether an appeal should be granted, it is necessary to assess the significance of the legal issues raised to the administration of criminal justice, and the merits of the grounds of appeal. As stated in R. v. R. (R.), at para. 37:
On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.
43The ground of appeal based on a breach of s. 530(3) of the Criminal Code, admitted by the respondent, is sound. The role of the courts in protecting the language rights of accused persons, and the consideration of the harm that results from a breach of those rights, are important issues for the administration of justice beyond this case.
44Leave to appeal should accordingly be granted.
Justice Parfett did not err in rejecting the grounds of appeal raised by the appellant at the time
45Although the appellant pled guilty on August 31, 2021, and the court accepted that the acts alleged in the indictment took place, I agree with Parfett J. that the appellant was not found guilty on that date.
46Justice Perkins-McVey found that the appellant committed the physical acts alleged by the Crown in the indictments. The question remained, however, as to whether the appellant was liable for his actions under s. 16 of the Criminal Code. In order to make this determination, Perkins-McVey J. ordered that the appellant’s criminal responsibility be assessed by a psychiatrist, a step anticipated by the Crown in advance of the trial. Having read the assessment report and having heard the parties’ submissions, Dorval J. did not err when she rendered a verdict of not criminally responsible on November 3, 2021.
47I also agree with Parfett J. that the appellant was not deprived of his right to represent himself because his former counsel, Ms. Konarowski, attended the trial and made submissions as amicus curiae.
48The transcript reveals that, when the appellant was found fit to stand trial on August 13, 2021, Ms. Konarowski continued to participate as amicus curiae. As mentioned by Dumel J. on that date, Ms. Konarowski was no longer the appellant’s lawyer but was there “to assist the Court for all practical purposes.” During this appearance, the appellant indicated that he wanted to consult with Ms. Konarowski again. At the next appearance on August 20, 2021, the appellant terminated her retainer for a second time and she was reappointed as amicus curiae. The court advised the appellant of Ms. Konarowski’s new role, saying, “I've appointed Ms. Konarowski to assist the court.”
49On the August 31, 2021 transcript, Ms. Konarowski is identified as “Amicus appointed for the appellant.” This shows a lack of understanding on the part of the court clerk, in my view. An amicus curiae does not represent a party. Their role is to advise the court.
50During the trial, the appellant spoke for himself. At the August 31 hearing, Ms. Konarowski spoke only once, to say that she had nothing to add to the submissions made by the appellant. At the beginning of the November 3 hearing, Ms. Konarowski advised the court of the verdict that she anticipated the appellant would request. Towards the end of the hearing, she said that she had informed the appellant of the powers of the Ontario Review Board and the potential consequences of a verdict of not criminally responsible, and she believed that the appellant understood the orders that the Board could make.
51It seems that the appellant did not understand Ms. Konarowski’s role at trial. At the beginning of the hearing on November 3, he identified her as his lawyer:
THE COURT [addressing the appellant]: Okay. You're representing yourself. Is that by choice?
PIERRE DARTIGUENAVE: Uh well I have a lawyer in my—I have a lawyer.
THE COURT: Okay. Who is your lawyer?
PIERRE DARTIGUENAVE: Mrs. Konarowski is my lawyer.
THE COURT: Okay. So she’s your lawyer.
PIERRE DARTIGUENAVE: I wanted to fire her at one point. They didn't let me do that. Now she’s still with me. So uh I am not really representing myself as she’s been with me since the beginning.
52On that day, however, before making her submissions, Ms. Konarowski confirmed that the appellant was representing himself.2 On the transcript the appellant is identified as a self-represented party and Ms. Konarowski is the counsel accompanying him.3
53There is no indication in the trial transcript to suggest that the appellant was denied the right to represent himself because of Ms. Konarowski’s role. The appellant made submissions and arguments to the court directly throughout the August 31 and November 3 hearings.
54This ground of appeal is therefore dismissed.
Since the Crown has failed to show that the appellant did not suffer prejudice due to the breach of s. 530(3) of the Criminal Code, he is entitled to a new trial
(1) An accused has the right to a criminal trial in the official language of their choice
55Section 530 of the Criminal Code guarantees every accused whose mother tongue is English or French the right to be tried in the official language of their choice. A person can accordingly request a criminal trial in English or French, and the courts must ensure that this choice has been respected. The subsections of s. 530 relevant to this case read as follows:
530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than the time of the appearance of the accused at which their trial date is set, a judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace 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.
(3) The judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.
(4) If an accused fails to apply for an order under subsection (1) or (2) and the judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace before whom the accused is to be tried, in this Part referred to as “the court”, is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused ... the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language....
56As stated by Bastarache J. in R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, para. 34:
The language of the accused is very personal in nature; it is an important part of his or her cultural identity. The accused must therefore be afforded the right to make a choice between the two official languages based on his or her subjective ties with the language itself. The principles upon which the language right is founded, the fact that the basic right is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and the substantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language.
57The rights conferred by s. 530 are not intended to “enforce minimum conditions under which a trial will be considered fair”, but rather to ensure that everyone has “equal access to a public service that is responsive to [their] linguistic and cultural identity”: Beaulac,at paras. 45 and 47, and the other authorities cited in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 193, at para. 25. Subsection 530(1) “guarantees to every accused 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”: Beaulac, at paras. 28, 31, 34, 37, and 56, as summarized in Tayo Tompouba, at para. 38.
58The accused does not need to make a formal motion; the exercise of the choice of language is not subject to any mandatory formality. If the accused makes their choice within the time limit set out in s. 530(3) and if the Crown does not adduce evidence that the accused does not have sufficient command of the chosen language to exercise their right to it, the trial must be conducted in the official language of the accused’s choice.
59Courts must be vigilant and proactive with respect to the accused’s right to a trial in the official language of their choice and the mandatory nature of s. 530(3) of the Criminal Code. If a judge or justice of the peace “finds that the accused has not been properly informed, or if there remains any doubt about this in their mind, the judge must ensure that the accused is informed of their right and of how it is to be exercised”: Tayo Tompouba, at para. 45.4 In practical terms, as explained by the Supreme Court at para. 44:
The judge cannot presume what the accused’s choice is or assume that the accused has been or will be advised of their right and of how it is to be exercised. The judge must ensure, in a proactive and systematic manner, that the accused is properly informed, irrespective of the fact that the accused seems to be a member of a linguistic minority or that the accused may have been or may be informed of this right by another person, such as their counsel. In short, the judge must take the steps needed to “have no doubt” that the accused is well aware of their right and of how it is to be exercised (Mazraani,at para. 34; see also paras. 25, 32, 38, 44 and 60; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485, at para. 12; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466, at para. 49).
60Even if an accused, although duly informed of their right to a trial in the official language of their choice, does not make a request under s. 530(1), s. 530(4) gives the court the power to order that the accused be tried in the accused’s official language if it is in the best interests of justice to do so.
61The rights guaranteed under s. 530 of the Criminal Code are not limited to the right conferred by s. 530(1) to 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.” If an order is granted under s. 530, the accused has, among other things, the following additional rights:
At the request of the accused, the Crown is required to translate any part of any information or indictment drafted in the other official language and to provide the accused with a written copy of the translation as soon as possible (s. 530.01(1));
the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial (para. 530.1(a));
the accused is entitled to have a Crown prosecutor at trial who speaks the same official language as the accused or both official languages, as the case may be (para. 530.1(e));
the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial (para. 530.1(f));
the record of proceedings during the preliminary inquiry or trial shall include “a transcript of everything that was said during those proceedings in the official language in which it was said; a transcript of any interpretation into the other official language of what was said, and any documentary evidence that was tendered during those proceedings in the official language in which it was tendered” (para. 530.1(g));
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 (para. 530.1(h)).
62A breach of s. 530(3) is an error of law under subpara. 686(1)(a)(ii) of the Criminal Code, with the result that an accused need only disclose the breach in order to justify appellate intervention under s. 686(1)(a) of the Criminal Code: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, para. 16,and Tayo Tompouba, at para. 82. The court’s failure to inform the accused of their rights under s. 530 at the first appearance gives rise to a presumption of a violation of the accused’s fundamental right to be tried in the official language of their choice. At para. 90 of Tayo Tompouba, the Supreme Court set out three possible ways that the Crown can show that the appellant did not suffer prejudice as a result of the breach of s. 530(1):
I. It can prove that the appellant does not have sufficient proficiency in the official language they were not given the opportunity to choose, that is, that the appellant does not have the ability to instruct counsel and follow legal proceedings in that language;
II. It can show that, even if the appellant had been duly informed of their right, they would in any event have chosen to be tried in the language in which their trial was conducted;
III. It can show that the appellant knew about their language rights even though they did not have notice under s. 530(3),such that it can be found that the appellant chose the language of trial in a free and informed manner.
63The standard of proof in each case is the balance of probabilities: Tayo Tompouba, at para. 90 and the authorities cited therein.
(2) The appellant’s rights under s. 530 of the Criminal Code were not respected at his first appearance
64The appellant is a bilingual Francophone. The Crown concedes that his right to be notified of his right to a trial in French under s. 530(3) was not respected at his first appearance. This is an error of law.
65Based on the June 10, 2021 transcript, it is impossible to determine whether the appellant was even present in the virtual courtroom during the exchange that took place between the court clerk and the Crown prosecutor regarding the choice of the language of the trial. Even if he were there, his rights under s. 530(3) were clearly not respected. The wording of s. 530(3) is unequivocal: the court before which the accused “first appears shall ensure that they are advised of their right” to request an order for a trial to be held in French and of the time limits for making a request. The justice of the peace did not advise the appellant of his right to request a trial in French nor of the time limits applicable to such an application.
66The burden therefore shifts to the Crown to show that the error was not prejudicial to the appellant, based on the criteria set out in Khan and Tayo Tompouba. There is no suggestion that the appellant is not sufficiently proficient in French to follow court proceedings in that language. The Crown must therefore show either that the appellant had timely knowledge of his fundamental right other than by the notice provided for in s. 530(3) but did not elect for a trial in French; or that the appellant, duly informed of his right, would have chosen to be tried in English in any event.
(3) To the extent that the appellant was made aware of his language rights in a timely manner, he chose to have a trial in French, a choice that he never waived in a free and informed manner
67The appellant clearly expressed his choice for a trial in French at the June 16, 2021 bail hearing. The court clerk raised the issue of language election. When the judge asked the appellant whether he wanted his case to be heard in English or French, he said: “In French, it’s fine.”
68The Crown contends, however, that the appellant waived his initial election when he agreed to proceed in English on June 22, July 19, and 21 and when he switched to English at his trial once the judge advised him that she only spoke English. This argument has no merit.
69A waiver of a language right must be free and informed. As Gascon and Côté JJ. Instructed in Mazraani v. Industrial Alliance, 2018 SCC 50, [2018] 3 S.C.R. 261, para. 42:
In our view, it seems inappropriate to speak in this regard of “waiver” of a right, be it directly or through counsel. The right is not a right to speak in one’s mother tongue or in a language that the court deems to be the person’s language: it is the right to make a personal choice. If what the right protected was merely speaking in one official language or the other, it would protect nothing: a person must speak a language in order to talk and must, at least summarily, choose one of the two languages before speaking. What the courts concerned must protect is not just the fact of speaking in one of the official languages, but also the free and informed nature of the choice to speak in one of them rather than the other.
70At no time was the appellant provided with an explanation of his rights under s. 530(1) of the Criminal Code, and there is no evidence that, in the absence of such an explanation, the appellant understood the nature and extent of his language rights.
71At the June 16, 2021 hearing, the judge simply asked the appellant whether he wanted his case to proceed in French or in English. Not one of the fourteen judges of the Ontario Court of Justice or the eight justices of the peace before whom the appellant appeared advised him that he had an absolute right to a trial in French, presided over by a bilingual judge, with the participation of a bilingual Crown counsel, as well as a French translation of the charges and a synopsis of the alleged acts in French. In the absence of such an explanation, the appellant was unaware of the panoply of rights guaranteed to him under ss. 530 and 530.1.
72The full range of rights related to the right to a trial in the official language chosen by the accused informs the content of the duty incumbent upon a judge or justice of the peace under s. 530. The existence of these rights also gives meaning to what the Crown must show in order to establish that the breach of s. 530(3) was not prejudicial to the appellant. An accused cannot exercise a free and informed choice to waive their rights if they are unaware of the nature and extent of the rights in question.
73The appellant’s acquiescence to proceed in English on June 22, July 19, and 21 was made in a context where he would have understood that a request for a hearing in French would delay the resolution of the charges, which the appellant repeatedly stated that he wanted to avoid.
74The appellant repeatedly expressed a preference for a hearing in French or, at least, the services of an interpreter so that he could make submissions in French. This choice was respected at some appearances. However, at many appearances, the judges or justices of the peace involved pointed out that, if the appellant chose to proceed in French, this would complicate and delay the resolution of the matter, or they noted that he did not appear to need an interpreter because he could express himself in English. The appellant wanted to resolve his matter as soon as possible.
75A court should not favour one language in order to give the impression that it is the only official language and that the second language must be accommodated: R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646, at para. 62. In Tayo Tompouba, at para. 115, the Supreme Court furthermore emphasized that an accused’s bilingualism should not, in itself, constitute evidence that they would have chosen a trial in their second language:
[The fact that the accused] is bilingual is of only limited assistance in determining whether he would have chosen a trial in English if he had been duly informed of his right. Indeed, attaching too much weight to this factor would be contrary to Beaulac, in which the Court cautioned against any analysis tending to restrict the language rights of bilingual Canadians, especially given that official language minorities in fact have the highest incidence of bilingualism....
76On several occasions, the courts pointed out to the appellant that, if he wished to make submissions in French, it would be necessary to make special arrangements. Following the June 14, 2021 exchange during which the appellant indicated his preference for a bail hearing in French – the necessity of which had already been recognized by the justice of the peace who presided over the June 10 hearing – the court advised that a hearing in French would be available but would necessitate special arrangements due to the absence of bilingual court staff. In my view, a reasonable detainee would have understood that he could try to obtain a release order on that day if he agreed to proceed in English, but that he would have to wait if he insisted on having a hearing in French. Faced with this choice, the appellant opted to proceed in English.
77The same phenomenon occurred when the appellant requested the services of an interpreter on July 2, 2021:
PIERRE DARTIGUENAVE: Well, right now, I was, I was thinking of - can I speak French?
THE COURT: I'm sorry, sir. I do not speak French.
PIERRE DARTIGUENAVE: Can I have a translator?
THE COURT: Can we get a translator, Ms., Madam Clerk?
THE COURT CLERK: I can try, Your Worship. I know that they’re not always in the office.
THE COURT: Yeah, I know?
THE COURT CLERK: Because of COVID, but I can, I’ll try.
78Once again, the court pointed out to the appellant that his choice to proceed in French would likely cause delays. Again, it is clear that the appellant wanted to resolve his matter as soon as possible. He explicitly stated that he did not want to postpone the matter at the June 28, July 14 and 27, and August 13 appearances.
79Repeatedly questioning the appellant about his choice of language also implicitly signaled that it would be preferable to proceed in English. When the appellant was advised of his right to proceed in English or in French on June 14, he stated that he would prefer a hearing in French, but he subsequently agreed to a hearing in English in order to avoid another adjournment. He reiterated his choice to proceed in French at the June 16 hearing. Notwithstanding his earlier assertions, he was asked again, on June 22nd, if he wanted to proceed in French. This time, he answered (in English): “English is good.”
80Similarly, on several occasions, the appellant began to address the court in French, but then switched to English when all other participants in the hearing responded in English. This was the case on July 2 and 14, for example. On July 19, the appellant agreed to switch to English when he was informed that there was no interpreter in the courtroom.
81Notwithstanding all of the above, at the beginning of his trial on August 31, 2021, the appellant indicated that he had not waived his choice of a trial in French, by addressing the court in that language. But it is not at all surprising that when the trial judge advised the appellant that she only spoke English, he agreed to switch to his second language once again. In this context, I would not accept the Crown’s argument based on the appellant's acquiescence, at the beginning of the trial on August 31, 2021, to proceed in English to accommodate an English-speaking judge.
82The Crown has accordingly not shown that the appellant waived his right to a trial in French in a free and informed manner.
(4) The Crown has not shown that, duly informed of his right, the appellant would have chosen to be tried in English in any event
83The Crown has not shown that, duly informed of his rights, the appellant would have chosen to be tried in English in any event.
84Notwithstanding the appellant’s agreement to proceed in English at various appearances, several judges and Justices of the Peace, as well as Crown counsel, acknowledged that the appellant was more comfortable in French and that his trial should be conducted in that language. When the appellant asked to speak in French at the July 2 appearance, the court summoned an interpreter to the courtroom and noted on the information that an interpreter would be required to attend during all of the appellant’s appearances. After the dismissal of the appellant’s counsel on July 27, the Crown and the justice of the peace agreed that a trial in the appellant’s mother tongue was necessary. On July 28, the judge specified that the assessment of the appellant’s fitness to stand trial should be conducted by a French-speaking psychiatrist or with the assistance of an interpreter. However, an order under s. 530(4) was not rendered.
85Finally, as already mentioned, the appellant himself indicated his desire to proceed in French at the beginning of the hearing on August 31. It is therefore obvious that he did not want to forfeit his rights.
86This case demonstrates the importance of not forcing a detainee to choose between exercising his language rights and a speedy trial. This could have been avoided. Once the appellant had clearly and unequivocally stated his choice to proceed in French on June 16, 2021, his choice should have been made in the form of an order or, at the very least, noted on the information form in a clear and unambiguous manner. An order would have achieved two objectives. First, it would have ensured that the appellant’s language rights were respected. Second, it would have allowed the court registry to ensure, in advance of the trial, that the assigned judge and Crown counsel were bilingual.
(5) Another trial should be ordered
87In light of the prejudice to the appellant resulting from the breach of s. 530(3), a new trial should be ordered. When an accused’s right to a trial in the official language of their choice has not been respected, “the harm caused by a violation of an accused’s language rights during criminal proceedings can in no way be tempered by the fact that the accused was still able to make full answer and defence": Tayo Tompouba, at para. 26.
88The prejudice in this case is particularly serious. By the time his trial began at the end of August 2021, the appellant had dismissed his lawyer and was representing himself. He was facing serious charges, especially with the addition of assault charges against two peace officers. His case had become more complex due his mental health issues. The possibility of a verdict of not criminally responsible, pursuant to which the appellant would be detained for an indeterminate period under the aegis of the Ontario Review Board, increased the need for the appellant to be able to understand the Crown’s evidence and arguments and to make submissions and ask questions in his mother tongue.5
89I recognize that, given their current workloads, justices of the peace and judges of the Ontario Court of Justice are faced with Herculean tasks. The volume of work has increased significantly in the wake of the COVID-19 pandemic.
90Notwithstanding these circumstances, all Ontario courts are required to ensure that the language rights of accused persons under s. 530 are respected. Perhaps the time has come for a standard script that a judge or justice of the peace could read out at the first appearance of an accused person, in order to advise them of their right to request a trial in the official language of their choice, the time limits for making such a request and, if necessary, a summary of the scope of the rights at issue.
91An accused person does not have the right to demand that pretrial appearances (save for a preliminary hearing) be conducted in the official language of their choice. That being said, during an appearance in a criminal case before an Ontario court where it is obvious that an accused is more comfortable communicating in French than in English, and it therefore appears that the accused might prefer a trial in French, the judge or justice of the peace should verify whether an order under s. 530 has already been made. If such an order is not clearly on the record, the court must consider whether such an order should be made. At a pretrial hearing in this case, the court and the Crown’s representative repeatedly acknowledged that the appellant’s trial should be conducted in French. It appears that they assumed that the trial would be conducted in that language, despite the absence of an order or unambiguous endorsement to that effect.
92Courts must be alert to the need to protect the language rights of the accused at appearances leading up to trial. In this case, as soon as the appellant expressed his desire to make submissions in French on July 2, 2021, an order under ss. 530(3) or (4) should have been considered. In general, courts must be vigilant to developments in a case that heighten the need to protect language rights. Here, there were two important developments: the accused made the decision to represent himself, and his mental health was called into question.
93Finally, courts must avoid pointing out to an accused who is invoking their language rights that providing services in French would cause delays or inconvenience and they should avoid reflexively favouring the use of English. They must be proactive to ensure that there are no delays when an accused has chosen to be tried in French.
Conclusion
94I would allow the appeal. I would quash the verdict of not criminally responsible and send the case back to the Ontario Court of Justice for a new trial in French.
Released: January 2, 2025 “K.M.v.R.”
“S. Gomery J.A.”
“I agree. K. van Rensburg J.A.”
“I agree. J. Copeland J.A.”
Footnotes
- According to the appellant, “... it’s pretty, pretty close to what happened. Not exactly but pretty close.”
- She said: “Just for the record because Mr. Dartiguenave is a self-represented individual.”
- “Counsel appearing with Pierre Dartiguenave.”
- The version of s. 530 of the Criminal Code applicable in Tayo Tompouba is the predecessor to the current version applicable in this case. However, the amended language does not affect the principles articulated by the Supreme Court or the applicable analysis.
- It is not necessary, for the purposes of this appeal, to decide the question of the scope of an accused’s language rights in the specific context of an inquiry into his mental state. Generally, the Crown is not required to provide the accused with a translation of all the evidence disclosed: Stockford c. R., 2009 QCCA 1573, EYB 2009-163012, at para. 13. However, given its central importance, a court could deem it appropriate to order the Crown to provide the accused with a translation of a psychiatric assessment report (or at least a summary) in the context of a determination of criminal responsibility, especially if the accused is self-represented.
