ONTARIO COURT OF JUSTICE
Unofficial English translation of the Court’s ruling
BETWEEN:
HIS MAJESTY THE KING
— AND —
YOUSSEF BELMKADDEM
Before Justice Mainville
Application for a stay of proceedings – Heard February 26 and 27, 2026
Reasons dated March 23, 2026
Alexandre Simard and Alysa Holmes counsel for the Respondent/Crown
Marcus Bornfreund counsel for the Applicant/Accused
1Mr. Belmkaddem was found guilty following a trial conducted in French before me.
2He is now applying for a stay of proceedings based on what he alleges were violations of his language rights during the trial. Alternatively, he argues that a mistrial should be declared.
3Specifically, his application alleges that his rights under sections 530 and 530.1 of the Criminal Code and sections 7, 14, 16, and 19 of the Charter were violated, including by reason of the occasional use of English by the Crown prosecutor and by myself as trial judge, as well as the quality of the interpretation during the trial.
4At the hearing of this application, he limited the constitutional aspect of it to section 14 of the Charter. His application is now based on that provision and the aforementioned provisions of the Criminal Code.
5He also raised, for the first time, a complaint regarding the use of simultaneous rather than consecutive interpretation. The trial as a whole was conducted with consecutive interpretation. Only the written judgment was read out in the courtroom with simultaneous interpretation. I will return to this point later.
Relevant Facts
6The accused chose to have his trial conducted in one of the official languages that is his own, French.
7The trial was therefore conducted in French, with the Crown prosecutor and judge speaking in French. The witnesses called by the Crown—all police officers from the Toronto area or the FBI—testified in English. Their testimony was consecutively translated into French for the accused.
8The defence lawyer is Anglophone. Since he does not speak or understand French, he made his submissions and questioned the witnesses in English. His statements were also translated into French for the accused. Finally, the statements of the Crown prosecutor and the judge in French were translated into English for Mr. Bornfreund, the defence lawyer. The bilingual accused did not testify.
9Written reasons for the guilty verdicts were issued in French. These included English quotations from English sources. The reasons for judgment were read in the courtroom with simultaneous interpretation into English for the defence counsel. The English quotations were not initially translated into French for the defendant. When I became aware of this, the quotations were repeated with interpretation into French, along with the context in which they were given.
Legislative and Constitutional Provisions at Issue
10Section 530(1) of the Criminal Code provides for an accused person’s right to a trial in the official language of their choice. Specifically, an accused person whose language is one of Canada’s official languages may choose to be tried before a judge who speaks the accused’s official language.
11Section 530.1 sets out the terms of trial when an order is made under section 530, as was the case here.
12Paragraph (c) provides that witnesses have the right to testify in either official language at trial.
13Paragraph (e) provides that an accused person has the right to have the prosecutor speak the same official language as them. Paragraph (c.1) allows a judge, if the circumstances warrant, to authorize the prosecutor to examine or cross-examine a witness in the witness’s official language, even if that language is not the accused’s official language. No application for such authorization was made here.
14Paragraphs (a) and (b) provide that the accused and his counsel have the right to use either official language during the trial, including in pleadings and other trial documents. It was pursuant to this provision that, despite an objection from the Crown, I determined that Mr. Bornfreund could represent the accused in English in this French-language trial.
15Under paragraph (f), the court is required to provide interpretation services to the accused, their lawyer, and witnesses.
16As for the trial record, paragraph (g) requires that it include all proceedings in the original official language and a transcript of the interpretation, as well as all documentary evidence in the official language in which it was presented at the hearing.
17Finally, paragraph (h) requires the court to ensure that any written judgment in either official language —including the reasons for judgment—be made available in the official language of the accused.
18It should be noted that section 530.01(1) provides that the prosecutor is required, at the request of the accused subject to an order made under section 530, to have translated into the accused’s official language any portions of the information and indictment that were written in the other official language and to provide the accused with a copy of the translation as soon as possible. This has been done here.
19As explained in paras. 114-15 of R. v. Munkonda, 2015 ONCA 309, violations of language rights do not necessarily constitute a violation of the principles of fundamental justice guaranteed by section 7 of the Charter. The right to a full defence is linked to language competency only to the extent that the accused must be able to understand and be understood at trial, which is already guaranteed by section 14 of the Charter: R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, at para. 41.
20Thus, the applicant no longer alleges a violation of his rights under section 7 of the Charter. Insofar as Mr. Belmkaddem claims that his ability to present a full and complete defence has been compromised, this claim can be analyzed within the framework provided by section 14 of the Charter.
21Section 14 of the Charter provides that a party or witness who cannot follow the proceedings, including because they do not understand or speak the language used, has the right to the assistance of an interpreter.
22The safeguards provided by sections 16(1) and 19(1) of the Charter are reflected in those provided for in the Criminal Code and add nothing to the present debate. These provisions stipulate that French and English are the official languages of Canada, having equal status in federal institutions, and that everyone has the right to use either language in all matters brought before the courts established by Parliament.
23I now turn to the complaints raised by the applicant.
Use of English by the Prosecutor and Judge
24Initially, Mr. Belmkaddem argued that there had been a violation of section 530 and subsection 530.1(e) given the occasions when the judge or the prosecutor did not speak in French. Although subsection (d) was also raised in his written application, it applies only to the preliminary inquiry and is therefore not applicable here.
25The burden of proving these violations on a balance of probabilities rests with the applicant: Dhingra v. R., 2021 QCCA 1681, at para. 60.
26This trial was conducted in French. The court was constituted in French, and both the Crown and the judge spoke in French throughout the proceedings, except on a few occasions by mistake in the context of examining Anglophone witnesses or otherwise inadvertently or to correct errors of interpretation. In almost all, if not every, case, the error was noted and corrected.
27In Munkonda, at para. 64, Justice Rouleau stated very clearly that perfection is not required:
That being said, I acknowledge that the standard is not perfection. There will always be challenges in implementing the rights granted by ss. 530 and 530.1 and differences between how the accused, the prosecution, and the court interpret these sections. A degree of flexibility is therefore necessary. The mere fact that a judge or prosecutor erroneously speaks English when addressing a francophone accused in a French or bilingual trial, or that a procedural omission occurs during the trial and is quickly corrected once it is noticed, will not constitute an infringement of the accused’s language rights giving rise to a remedy (R. v. Potvin (2004), 2004 22752 (ON CA), 69 O.R. (3d) 641 (C.A.), at para. 37). [Emphasis added.]
28Insofar as some remarks were made in English during this trial, this was unintentional, infrequent, brief, and was generally immediately reformulated in French or translated by the interpreters.
29There is no basis for concluding that the applicant's rights have been violated on this point.
The Quality of the Interpretation
30Mr. Belmkaddem also alleges a violation of s. 530.1(f), which requires the court to provide interpretation services to the accused, their counsel, and witnesses. He also invokes section 14 of the Charter, which provides for the right to an interpreter for any party or witness who cannot follow the proceedings in the language of the court.
31The basis of this complaint stems from concerns regarding the quality of the interpretation, both from English to French and from French to English. This concern was noted by the stenography service retained by the defence to transcribe the trial proceedings. In a document filed in support of this application, the transcribing service’s representative relayed the observations of a stenographer that certain words were missing or mistranslated, particularly by one of the two interpreters who translated the entire trial.
32It is also on this basis that Mr. Belmkaddem alleges a violation of s. 530.1(g), which provides that the trial record must contain all proceedings in the original official language and a transcript of the interpretation. Indeed, apart from the alleged errors of interpretation, the trial record as a whole includes both the original official language and the interpretation, as required by s. 530.1(g).
33The right to an interpreter under section 14 of the Charter applies to an accused person who does not speak or understand the language in which the proceedings are being conducted. The onus is on the accused to demonstrate that they required an interpreter: R. v. Tran, 1994 56 (SCC), [1994] 2 SCR 951, at p. 979.
34In this case, it was the accused’s counsel who required an interpreter in order to understand the proceedings in French. This was not a situation where the accused did not understand or speak the language of the court. The accused is Francophone, and I can infer that he also understands English very clearly, as demonstrated by numerous pieces of evidence presented at trial, such as the contents of his phone and his interactions with the Genesis marketplace, including his communications with the marketplace administrators, and the fact that he was able to communicate with his Anglophone lawyer without the assistance of an interpreter.
35Nevertheless, it appears from the Tran decision, at p. 981, that the accused’s lawyer could request the services of an interpreter under section 14 of the Charter. I also agree that this was justified under the accused’s right to a fair trial, as his lawyer needed to be able to understand all the proceedings. In any event, the accused and his lawyer were also entitled to an interpreter under s. 530.1 of the Criminal Code.
36I therefore rely on the analytical framework developed in the Tran decision in the context of section 14 of the Charter. This analytical framework proves useful in assessing the quality not only of the French-to-English interpretation for the benefit of counsel (under section 14 of the Charter and s. 530.1 of the Code), but also of the English-to-French interpretation that was provided for the benefit of the accused (under s. 530.1 of the Code).
37The analytical framework of s. 14 of the Charter provides for a standard of continuity, fidelity, impartiality, competence, and concomitance: Tran, at p. 979. A failure to meet one of these criteria does not necessarily constitute a violation. Indeed, “[t]he claimant of the right must establish something more – namely, that the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling”: Tran, at p. 991.
38Furthermore, the standard of perfection is not required. As indicated at p. 987 of the Tran decision:
[I]t is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection.
In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for.
39Ultimately, “the principle which informs the right – namely, that of linguistic understanding – should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court: Tran, at pp. 990-91.
40In the present case, interpreters were made available to Mr. Belmkaddem, his lawyer, and all the witnesses for the duration of the trial. The services of the same two interpreters were retained to ensure continuity and consistency in the interpretation of a trial that included numerous technical and technological terms, that is, to ensure the quality of the interpretation and its proper understanding by all who relied on it. The same two interpreters were also retained throughout the trial given my assessment during the proceedings that the quality of the translation—from my perspective as a fluently bilingual judge, and as previously stated—was good.
41In addition, the entire trial was interpreted consecutively into English or French, depending on the case.1This allowed for the immediate correction of errors. The original statements and their corresponding interpretations were transcribed into the court record. These transcripts were produced in support of this application.
42The applicant’s motion appears to imply that the Crown had an obligation to present its witnesses and exhibits in French. This is clearly not the case. Witnesses have the right to testify in the official language of their choice, and documents may be presented in the official language in which they exist: s. 530.1(c) and (g); Stockford v. R., 2009 QCCA 1573, at paras. 13 and 17.
43Again, s. 14 of the Charter does not guarantee perfect interpretation. The onus is on the applicant to demonstrate that there was a real possibility that they did not understand or were misunderstood. This must be assessed in the overall context of the trial and not in a piecemeal fashion: R. v. S.A., 2021 ONCA 434, at para. 28; R. v. Saini, 2023 ONCA 445, at para. 41.
44Mr. Belmkaddem has never claimed that he was unable to understand the proceedings. He does not identify any specific misinterpretation that impaired his understanding. His lawyer’s complaint in this regard, at the very end of the trial, was general in nature and did not allege that Mr. Belmkaddem had misunderstood the proceedings: Exhibit 1, Applicant’s File, Transcript of 24 June 2025, at pp. 158-59.
45It is important to note that the accused’s counsel has also not demonstrated that he himself misunderstood the court proceedings. He has never claimed that he was unable to properly represent the accused or to perform his duties because of the quality of the interpretation. I have no evidence to that effect before me. If he expressed a misunderstanding along the way, the interpretation was clarified at the same time.
46Mr. Belmkaddem and his counsel rely instead on an out-of-court statement from a stenographer, relayed by a third party, that the interpretation at trial included words that were “missing or not translated correctly.” Aside from the fact that this evidence is double hearsay, it does not indicate any misunderstanding on the part of the accused (or his counsel), nor does it provide any frequency or examples of such errors or omissions.
47To enable me to assess the nature and frequency of such errors or omissions, the applicant also submitted, as an aid, a series of tables showing such alleged errors and omissions: Exhibit A.2 This exhibit includes comments on the nature of the alleged errors identified therein and the level of importance to be attributed to each error, or an analysis of the impact that this would have had on the trial. Insofar as these comments relate to the prejudice caused, this exhibit contains no evidence that the accused or his counsel actually misunderstood the trial or any aspect of it. Such prejudice would therefore have to be inferred from the nature of the error.
48The only time the defence appears to have raised a difficulty in understanding on the part of Mr. Belmkaddem was during the hearing of this application, after the Crown had identified the fact that no such complaint had been made. This claim is highly dubious, given that the accused understands English.
49I now turn to the alleged errors that were made, according to the applicant’s representations contained in Exhibit A.
50This document alleges that there were a total of 411 errors, listed in various tables covering nearly 200 pages. This document appears to me to have been very clearly generated by artificial intelligence, which performed a comparison of English and French based on the trial transcripts. I will not comment here on this practice, which at first glance seems highly problematic. I can only assume that, in any event, Mr. Bornfreund—based on his professional obligations—has at the very least reviewed this document in its entirety and adopts what he presents to the court in support of his application.
51The document lists numerous errors that were corrected during the proceedings. Several others are minor in nature. A few examples will suffice.
52The applicant complains, among other things, of errors such as the misspelling of witnesses’ names. For example, the prosecutor spelled the witness’s name as G-I-L-E-S-P-I-E, whereas the interpreter translated the spelling as “J-I-L- sorry G-I-L-E-S-E-P-I.” Ironically, even the Crown’s spelling was inaccurate. But even when such an error of interpretation occurred when the witness himself spelled out his own name, the transcript records the witness’s correct name. Such an error would not have hindered anyone’s understanding of the proceedings.
53Exhibit A also identifies several instances of timestamping errors by the interpreter, such as 16:17:45 being rendered as 16:17:35. In these instances, everyone followed the same tables, which were entered in evidence. Such errors did not affect the evidence of the chronology, and I have no indication that they misled the accused or his counsel. The same applies to errors in letters or numbers in the property bag numbers entered in evidence.
54The applicant also complains of several instances where a reference to “reports” in the plural, referring to the two Excel reports entered in evidence, was rendered as “report” in the singular.
55Another type of error lies in the syntax or grammar reflected in the French document. For example, during the reading of the information, the interpreter’s translation of “did, fraudulently and without colour of right, possess…” was rendered as “a frauduleusement et sans apparence de droit à posséder”. In other words, the preposition “à” was grammatically incorrect. This error, identified as being of medium severity in Exhibit A, could not, in my view, have been misleading in the context of the overall translation of that sentence.
56The same applies to the fact that “date and time” was translated as “l’heure et la date”, reversing the order of the two words, which, of course, could not have had any consequence. Or again, the fact that, in connection with the cells of an Excel spreadsheet submitted as evidence, they were simply “grey” rather than “gris pale”.
57Yet another error is the interpreter’s addition of the word “and,” which was used to begin a new sentence. A complete sentence had been spoken in French by the prosecutor. Nothing had been said after that sentence. However, the interpreter translated the sentence into English without error and then stated, “And…” The comments included in Exhibit A criticize the fact that an incomplete sentence had been added. Yet, it was simply a superfluous connecting word.
58Another example is the translation of a word by an anglicism which, although not the correct word, is commonly used and well understood in everyday Canadian French. This is the case, for example, with the word “user,” which was translated as “usager” rather than “utilisateur.”
59One of the “systemic” errors identified by the applicant is the occasional translation of “bot” as “robot.” I cannot understand why this would constitute an error; rather, it appears that the artificial intelligence here misunderstood the distinction. In any event, both words were used frequently throughout the proceedings, with no indication whatsoever that there was any confusion in this regard.
60Another category of errors identified by the defence relates to imprecision, or the fact that another term should have been used. In several cases, the context in which the error—or rather, the imprecision—was made mitigates its significance because the context clearly conveys the intended meaning of the sentence in question.
61For example, the description of the FBI agent’s position as an “intelligence analyst” was translated as “un analyste au niveau de l’espionnage.” This is an error classified as critical or of high importance in Exhibit A. However, in this case, the witness described the nature of his work, which could not have been misleading. This is further demonstrated by the fact that the nature of his employment was correctly reported in the judgment at the end of the trial.
62In other circumstances, there simply is no exact word in the other language that could have been used. This is the case, for example, with the term “layperson.” The applicant argues that the translation “personne civile” would not have allowed for a distinction between an expert witness and a lay witness, since the expression would have been understood as referring to the contrast between a civilian and a military person. Although the term “non-initié” or “profane” might have been more appropriate, that is not the issue. Overall, the distinction could not have been misunderstood.
63Similarly, a cell in a table submitted in evidence that contained only the words “Created at” was translated as “créé à ou le.” The applicant complains about this even though such an interpretation is correct since, without context, “Created at” can mean “créé à” just as it can mean “créé le.” It cannot be complained that the interpreter had no way of knowing what that context was.
64The point here is not to highlight the less significant errors among those noted by the applicant. On the contrary, even errors identified by the applicant as critical or significant demonstrate how unfounded his complaints are.
65Indeed, apart from the “critical” error identified above, the applicant raises an error in an objection by defence counsel, namely the translation of the term “evidence sought” as “preuve subjective.” He submits in Exhibit A that “this is one of the most significant errors in the transcript under review,” since the judge could have misunderstood the basis of a legal objection that led to a decision. However, if the objection is assessed in its context, it is clear that it was not misunderstood because of this misinterpretation.
66The translation of “undercover agents” as “agents double” instead of “agents infiltrés,” in conjunction with the use of the term “source des informations” for the phrase “source code,” are also identified as highly significant errors. I cannot agree with this assessment.
67Finally, the applicant submits that the omission of the word “not” in the French translation of an explanation given by Agent Gathman concerning the FBI’s position regarding the disclosure of a file in the FBI’s possession is “one of the most serious errors found on all the pages analyzed, as it directly contradicts the witness’s answer to an evidentiary question relating to disclosure.”
68However, the matter in question was completely irrelevant to the proceedings. Defence counsel sought clarification of the FBI’s position as an institution, which could have led to a motion for disclosure or production of the item in question—a motion that was never brought. Given the overall exchange on this subject, there could be no confusion as to the FBI’s position that the item could not be disclosed. In any case, this matter was incidental to the trial and to Agent Gathman’s evidence. It seems doubtful to me that this “was an integral part of an event that actually served in some way to ‘move the case forward’”: Tran, at p. 991.
69In short, the defence claims that more than 400 errors were identified during this seven-day trial. In reality, far fewer potentially significant errors were made. Such errors are inevitable in the context of real-time interpretation. It is also important to note that Exhibit A contains a considerable number of duplications—and, of course, a very large number of errors that were immediately corrected.
70As an example of a corrected error, the interpretation of “des mots de passes, des courriels, etc.” in the context of the prosecutor’s opening remarks was initially limited to “passwords”: “passwords and, sorry,” the interpreter having evidently forgotten what followed. I thus assisted by indicating “and emails.” In Exhibit A, the applicant claims that this incomplete interpretation briefly left the English record without a key category of data. Such a claim is completely unfounded, and even frivolous.
71The applicant argues that even where the error has been corrected, it remains a violation. He agrees that it is important to correct the error when it occurs, but maintains that the error is still a violation, albeit a much less serious one. In his view, a few corrections would not be problematic, but the number of violations here adds up, and thus minor violations can become serious violations in this context.
72I cannot agree. Again, perfect interpretation is impossible to achieve and is not required: S.A., at paras. 28-29. Human errors will inevitably occur in the course of live interpretation. When unavoidable errors occur and are noticed, it is obviously preferable that they be corrected immediately—to ensure a clear understanding of the proceedings and the evidence as it is received. This is, in fact, one of the reasons why consecutive interpretation is preferred to simultaneous interpretation: because errors can be corrected immediately, including by the judge or lawyers: Dhingra, at paras. 64 and 69.
73Thus, it is entirely appropriate, indeed expected, for the judge and the prosecutor to intervene proactively when incorrect or inaccurate interpretations occur, as was the case here. This can only enhance the accused’s understanding and demonstrate respect for his linguistic rights.
74Impartial interpreters were made available to the accused and his counsel throughout the trial. Although the prosecutor or the judge could not be appointed as interpreters for the purposes of a trial, the fact that they raise certain errors and propose corrections along the way does not mean that impartiality was compromised. The Supreme Court in Tran, at p. 988, noted that the rule of impartiality must sometimes be relaxed in order to better serve the interests of justice.
75Taken as a whole, I still consider the quality of the interpretation in this case to have been very good, even impressive. At the very least, it was adequate.
76The case law is clear: the applicant “cannot establish a constitutional violation simply by demonstrating that another, perhaps better, interpretation was possible for an interpreter working in an environment far removed from the real-time pressures of simultaneous interpretation”: S.A., at para. 29; Little v. R., 2022 QCCA 1138, at para. 19.
77Furthermore, the analysis is not simply a matter of the number of errors committed. It is important to consider, in particular, the quality and impact of the error in light of the evidence presented at the time, the context in which the error occurred, and the corrections subsequently made: Little, at paras. 45-46 and 51.
78These errors should also be assessed in the context of the entire trial, including its length. Here, the trial lasted seven days. Many errors were corrected, either by the interpreter themselves or between the two interpreters, or by the court or the Crown. A significant number of the alleged errors are not errors or are not consequential. They could not have affected the applicant’s ability to understand or respond to the court proceedings—at least, without evidence to that effect. Generally, these alleged errors are minor in nature and consist of misspellings, grammatical errors, references to incorrect line numbers in the exhibits, and mispronunciations of names or technical terms without direct French equivalents. Again, many of the alleged errors were corrected immediately during the trial or through the exhibits presented at trial.
79The quality of interpretation in this case clearly met the standard guaranteed by the Charter. Although not perfect, it was continuous and faithful. In terms of competence, it was “of sufficient quality to ensure that justice is done and appears to have been done”: Tran, at p. 988. The applicant’s claims regarding the violation of his language rights in this case are entirely without merit.
80The present situation is quite different from that in Dinghra, where a new trial was ordered due to multiple violations of the accused’s language rights, who had elected to be tried in English. Despite this, and despite the fact that the accused had not consented, the Crown prosecutor made all of her oral submissions on a motion and her closing arguments in French: paras. 18 and 28. Furthermore, both the judge and the Crown spoke primarily in French during the trial, including for the purposes of interlocutory judgments. The Court of Appeal noted that the trial was ultimately conducted almost exclusively in French, with simultaneous interpretation for the accused: at paras. 23, 28, 80 and 82. In Dinghra, serious violations of the accused’s language rights occurred throughout the judicial proceedings: para. 52. This is quite different from the situation at hand.
81Mr. Belmkaddem’s trial very clearly met the essential requirements of section 14 of the Charter and sections 530 and 530.1 of the Criminal Code.
French Written Decision
82Section 530.1(h) sets out the judge’s obligation to ensure that the judgment—including the reasons for judgment—that is made available in writing, be in the accused’s official language. This obligation applies to all judgments, including interlocutory judgments: Munkonda, at para. 94.
83Justice Rouleau explained at para. 95 of Munkonda that:
The accused is entitled to receive the complete decision in his or her language. A summary or synopsis is not sufficient. As the Quebec Court of Appeal explained, [translation] “When a judgment is only partially written in the language of the accused, the accused’s rights have only been partially respected. Section 530.1(h) requires more. The language rights of an accused cannot be accommodated by half measures” (Clohosy, at para. 81).
84These comments were made in a context where the judge rendered an interlocutory judgment in English, with only a summary of the decision in French. It was noted that the French decision was merely a summary and that “all the elements necessary to understand the basis of the judge’s decision” were not present: Munkonda, at para. 92. There had therefore been a violation of the accused’s language rights.
85However, in the present case, the entirety of the written reasons for judgment were in French, apart from certain quotations from original English sources, which are not available in French.
86Did the accused nevertheless have “all the elements necessary to understand the basis of the judge’s decision”?
87It appears to me that he did, especially in a context where the English passages were communicated to the accused in French through the interpretation made available to him when the judgment was read. The French content of the written judgment sets out the full reasons for the guilty verdicts, including the legal criteria applied, the basis for my justification and reasoning explaining why certain evidence was admitted and why the elements of the offences were established. To the extent that direct quotations from English case law and legal doctrine have been used, the essence and meaning of these quotations were rendered in French in the surrounding paragraphs.
88Furthermore, it is far from clear that such original quotations must or should be translated by the judge, rather than reproduced in the original language. The usual practice is to cite sources in the original language of the text.
89Thus, countless trial decisions in criminal matters rendered in French contain quotations from English sources in the context of French-language trials, including reasons for judgment at the conclusion of trials: see, for example, R. v. Vanier, 2018 ONCS 4070, at paras. 24, 26-34, Thorburn J.; R. v. Paré, 2024 ONCS 819, at paras. 5, 7 and 8, Varpio J.; R. v. F.J., 2018 ONSC 4587, 2018 ONCS 4587, at paras. 46-47, 50, 54-55, 63-65, O’Bonsawin J.; R. v. Elali, 2025 QCCQ 5519, at paras. 135 and 145, Jarry J.; R. v. Deslauriers, 2025 QCCS 2302, at paras. 488, 675, 679, Thibault J.; R. v. M.R.M., 2019 ONCS 297, at paras. 22, 45 and 47, Labrosse J.; Hebert v. R., 2025 QCCQ 8039, at para. 103, Simon J.; R. v. Mendoza-Godinez, 2026 QCCQ 251, at paras. 75, 83-84, Galiatsatos J.; and R. v. Scoppa, 2025 QCCS 3591, at para. 25, Pennou J.
90I concede that this is not decisive. Even though the sources are not written by the judge (and the judge therefore cannot substitute their own words) and are not available in the official language of the accused, paragraph 530.1(h) does provide that written reasons must be given in the official language of the trial.
91However, this provision does not appear to expand the language rights otherwise conferred on the accused. As Rouleau J.A. explained in Munkonda, at para. 96, oral judgments must also be given in the language of the accused: “This follows from the obligation imposed on the judge by s. 530 and s. 530.1(d) to address the accused in their language. Paragraph 530.1(h) merely clarifies that the obligation extends to decisions made in writing.” Therefore, this requirement must be interpreted within the context of the entire regime set out in sections 530 and 530.1.
92Yet, it is well established that this regime does not impose on the court or the Crown the obligation to provide a systematic translation of all documents that may be presented or produced during a criminal trial. Documents may be presented and entered into the record in the language in which they are written, without translation. Translation of documents filed at trial will be required only when necessary to preserve the accused’s right to full answer and defence: Stockford, at paras. 13, 17 and 19; R. v. Schneider, 2004 NSCA 99, at para. 35.
93The question then arises: if a judge can, during a trial, cite the original English version of an exhibit, or an English-language source of legal doctrine or case law, without infringing on the accused’s language rights—which, in my view, must necessarily be the case given that documentary evidence may be filed in a language other than the language of the trial—why could she not do so in a written judgment?
94In fact, certain exhibits will also necessarily have to be cited by the judge in the original language of the document in the context of a written judgment. A citation in the original language of the document, as opposed to its translation, may well be important. Even if the judge provides an informal or unofficial translation, it is clear that the fact that some passages of the decision may be in a language other than that of the trial does not necessarily mean that there will be a violation of article 530.1 and the linguistic rights of the accused.
95Nevertheless, must the original English sources be translated informally in every written judgment? If so, must they be translated within the written judgment itself, or is it sufficient for the interpretation to be provided orally to the accused, as was the case here?
96Although decided in a civil context and on the basis of s. 22 of the Official Languages Act of Canada, which differs from s. 530.1 of the Criminal Code, I note that the New Brunswick Court of Appeal in Charlebois v. City of Saint John, 2004 NBCA 49, at para. 63, rejected the notion that the Attorney General could not cite case law written in English in its factum or case brief:
… [T]he Appellant submits that section 22 imposes on the Province and its institutions the obligation to use case law in French or to translate case law written in English that may be used. In my view, the expressions “oral or written pleadings and processes” do not in any way apply to case law that may be cited in a brief or book of authorities. Given the “essentially unitary nature of Canada’s court system” and the fact that the vast majority of cases from other Canadian jurisdictions are only available in English, it is quite inconceivable that the Legislature would have wanted to establish such a requirement that would be against the interests of litigants and the Canadian legal system as a whole. However, to the extent that a version of the authorities exists in the official language chosen by the civil litigant, it would be normal to expect the Province and its institutions to use that version of the authorities. [Omitted citations.]
97In paragraph 48 of Munkonda, Justice Rouleau states that “[t]he state has a duty to put in place the necessary structures and deploy the necessary resources to ensure that this right is respected.” Thus, I believe that a judge could not, for example, cite a lack of translation services as grounds for issuing a judgment that is not in the accused’s language of choice.
98But with respect to passages in the decision that cite an English source, in my view there is no obligation to translate direct quotations from English case law or doctrinal sources, unless their translation is necessary to ensure the accused’s understanding of the judgment. This claim was never made by the defence.
99In my assessment, even in such a case, it is sufficient that the original sources appearing in a written judgment be translated for the accused into the language of the trial, regardless of the method used. I reach this conclusion given the importance, in certain cases, of quoting the original version of a text, in the language in which it was written. A translation of such a text provided by the judge will not always be adequate. A professional interpretation delivered in the courtroom seems to me more appropriate in these circumstances.
100This has been done here. The judgment was delivered in its entirety in the courtroom in French, in the presence of the accused. It was also entered in the court record.
101If I am mistaken, and the sources must necessarily be translated into French in the judgment itself, I believe that the violation that occurred in this respect in the present case would not justify a stay of proceedings. I will return to this issue later.
Simultaneous vs. Consecutive Interpretation
102The trial proceeded as agreed, with consecutive interpretation from French to English and from English to French. Throughout the trial, including the presentation of evidence and counsel’s submissions, both French and English were translated aloud and concomitantly in the courtroom.
103The defence nevertheless complains that the proceedings were interpreted simultaneously when the court rendered judgment in this case on October 8, 2025. As noted, the use of simultaneous interpretation occurred on that single occasion, at the defence’s initiative or at least with its full knowledge and without the defence raising this issue before the court.
104Indeed, when the session began on October 8, 2025, defence counsel put on headphones and began simultaneous interpretation, despite the fact that previous sessions had been conducted with consecutive interpretation and therefore without the need for headphones. This could have led to the impression that, for the purpose of reading the written judgment in French, simultaneous interpretation in English for Mr. Bornfreund was acceptable to the defence. Certainly, no mention was made of this.
105Similarly, the defence did not alert the court that the English-language quotations were not initially translated by the interpreters providing simultaneous interpretation via headphones and were therefore inaudible to the court or the Crown, despite the fact that the defence subsequently complained about this when the court pointed it out. (Similarly, the defence complained after the fact about the quotes being written in English, without ever requesting a written translation.)
106The defence absolves itself of any obligation in this regard by arguing that respect for language rights falls to the court, not the defence. While this may ultimately be true, court proceedings are not a game of cat and mouse, nor a game of chicken, as defence counsel seems to believe. If counsel notices a problem or has a grievance about the process—whether related to the accused’s language rights or not—it is incumbent upon them to raise it, not to sit back and wait in the hope that their client will benefit from it later.
107Indeed, counsel has a duty to assist the court in the exercise of its functions: see, in particular, R. v. Zoldi, 2018 ONCA 384, at para. 61; R. v. Abdullahi, 2021 ONCA 82, at para. 157, Paciocco J.A. dissenting, which dissent was adopted by the Supreme Court, 2023 SCC 19.
108Thus, in appeal proceedings, the failure to object at trial to an error raised on appeal will sometimes not be decisive—but it could lead the court to conclude that it was a strategic choice: see, for example, Abdullahi SCC, at paras. 69-70, where the Court stated the point as follows: “Counsel cannot withhold an objection at trial and save it for an appeal”; R. v. S.(P.), 2000 5706 (ON CA), [2000] O.J. No. 1374 (C.A.), at para. 63.
109In Tran itself, at pp. 981-82, the Supreme Court stated that:
[I]t should be borne in mind by defence counsel that the safer course will always be to request an interpreter when one is required, rather than to rely on a court to appoint one entirely on its own motion. Indeed, as officers of the court, there is an obligation on both Crown and defence counsel to draw a court's attention to the need for an interpreter where counsel become aware that such a need exists. While courts must be alert to signs which suggest that an accused may have language difficulties, they are not nor can they be expected to be mind readers. [Emphasis added.]
110In any event, simultaneous interpretation in the present case was conducted using headphones that allowed for recording and thus a review of the interpretation. This is one of the key reasons why consecutive interpretation is normally preferred over simultaneous interpretation: see Dinghra, at paras. 64 and 69. This distinguishes the present case from the Dinghra case, where interpretation was at times done by whispering. At other times, the judge insisted on simultaneous interpretation in order to save time: see paras. 19-23.
111Defence counsel argues here that the court must order consecutive interpretation even when the defence consents to simultaneous interpretation. This does not reflect the state of the law. Consecutive interpretation is certainly preferable to simultaneous interpretation: Dinghra, at paras. 41 and 67-69; Tran, at pp. 989-90. However, this does not preclude the use of simultaneous interpretation in some circumstances. The court must ensure that the accused understands the extent of his language rights, including his right to consecutive interpretation, before waiving them. But he may very well waive them: Dhingra, at paras. 42-43, 71-72; Tran, at pp. 996-98.
112Here, there could be no doubt that the accused understood his right: the entire trial up to this point had been conducted with consecutive interpretation. He clearly understood the benefits of such an approach, which notably allowed for the correction of errors in real time. I conclude that the defence knowingly chose to proceed with simultaneous interpretation for the reading of the judgment, and that its failure to object in all respects at this hearing was a tactical choice on its part.
113In any event, the decision was rendered in writing in French and made available to the accused. There was no violation of his language rights in this regard. Furthermore, contrary to the defence’s submissions, this procedure at the judgment stage could not have affected the fairness of the trial or the accused’s ability to mount a full and complete defence.
Appropriate Remedy
114Although I do not perceive any violation of the accused’s language rights in this trial, to the extent that I may be mistaken—especially with respect to the English quotations in the French judgment—it is appropriate to comment briefly on the question of the appropriate remedy.
115A stay of proceedings is the most draconian remedy in criminal law. It should be granted only rarely, in the most obvious cases: R. v. Babos, 2014 SCC 16. Since the fairness of the trial is not at issue, as in Munkonda, any remedy would fall under the residual category, requiring that there has been prejudice to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome: Munkonda, at paras. 122-24.
116In Munkonda, the Court concluded that a remedy was warranted in view of the gravity of the violations. This was based on various considerations, including the fact that there had been multiple and varied violations, that the violations were not accidental, and that the prosecution had favoured the Anglophone defendants in the bilingual proceeding: Munkonda, at paras. 109 and 111.
117The present situation is far from the one that existed in Munkonda, where the Francophone accused was penalized for exercising his right to have his preliminary inquiry conducted in French and had to fight to have that right respected: Munkonda, at para. 130.
118The situation is more comparable to that of “a few words spoken” in the other official language: see Potvin, at para. 37, cited in Munkonda, at para. 109.
119However, even in Munkonda, a stay of proceedings was not granted. The Court of Appeal recognized at para. 136 that such a remedy “could, in an appropriate case, be the appropriate remedy to address serious violations of language rights.” However, the violations occurred during a preliminary inquiry and not at trial, and the Court could not conclude that there was bad faith given the lack of case law clearly establishing the Crown’s obligations in a bilingual trial or preliminary inquiry of that kind.
120In the present case, the examples cited above demonstrate that there was no violation, or at least a lack of clarity on the underlying point.
121The principle established in R. v. Hayes, 1989 108 (SCC), [1989] 1 SCR 44, at p. 48, is that a new trial cannot be ordered in every case where there is a gap in the trial transcript.
122Similarly, in Dhingra, at para. 60, the Quebec Court of Appeal stated that:
This does not mean that any breach of language rights will necessarily result in a new trial. The standard is not perfection. Rather, only sufficiently serious and substantial breaches may lead to a judicial reparation on appeal. There will always be challenges in implementing s. 530 and s. 530.1 and a degree of flexibility is thus required. The mere fact that a prosecutor or a judge speaks French during an English language trial to deal with minor administrative issues, or where there are minor lapses in interpretation or in the transcript of the interpretation which go unnoticed during a trial, will not necessarily lead to the conclusion that a serious or substantial breach of the language rights has occurred. Each case must be decided on its particular facts and in the overall context in which the trial was held.
123Even in Dhingra, where the violations were systematic and could be characterized as extreme, a new trial was ordered and not a stay of proceedings: at paras. 88-89.
124In any event, a lesser but appropriate remedy in the present case would be a written interpretation of the English quotations rendered in the written judgment. This serves the objective that the redress should “remedy the situation as far as possible”: Munkonda, at para. 111. In view of the fact that, if there was a violation, it occurred at the very end of the proceedings with the filing of the written judgment, full reparation appears to me to be available. Although I do not conclude that there was a violation, I hereby attach such a version to this judgment for the benefit of the accused.
125The motion is therefore dismissed.
Released: March 23, 2026
Signed: Justice Mainville
Footnotes
- The only exception was during the reading of the judgment, at which point the defence opted for simultaneous interpretation.
- Contrary to the defense lawyer’s claim, this document contains not only alleged errors but also purported omissions. Indeed, the document expressly states that the analysis aimed to identify omissions, additions, mistranslations, changes in tense and mood, numerical errors, spelling mistakes in the court file, as well as structural alterations.