Court of Appeal for Ontario
Huscroft, Roberts and Pomerance JJ.A.
Between
His Majesty the King
Respondent
and
K.F.
Appellant
Counsel:
Colleen McKeown and Robert Nanni, for the appellant
Maria Anghelidis, for the respondent
Heard and rendered orally: May 6, 2026
On appeal from the conviction entered by Justice Jennifer D. Strasberg of the Ontario Court of Justice, on December 11, 2023.
REASONS FOR DECISION
1The appellant is francophone. He seeks to adduce fresh evidence demonstrating that he was not aware or informed of his right under s. 530(3) of the Criminal Code to apply for a trial in French and that, had he known of his right, he would have applied for a trial in French.
2As the Supreme Court held in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, non-compliance with s. 530(3) of the Criminal Code is an error of law that gives rise to a presumption that the accused’s right to be tried in the official language of his choice was violated. That is the case here.
3The Crown fairly concedes that it cannot discharge its burden to rebut this presumption in this case through the curative proviso under s. 686(1)(b)(iv) of the Criminal Code. Accordingly, the Crown accepts that the fresh evidence should be admitted, the appeal should be allowed, the conviction quashed, and a new trial ordered.
4As a result, we accept the Crown’s concession, admit the fresh evidence, allow the appeal, quash the conviction and order a new trial in French.
“Grant Huscroft J.A.”
“L.B. Roberts J.A.”
“R. Pomerance J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.