COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Munkonda, 2015 ONCA 309

DATE: 20150505

DOCKET: C56089

Sharpe, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Munkonda

Appellant

Jean L. Richer, for the appellant

François Lacasse and Vanita Goela, for the respondent

Heard: October 21, 2014

On appeal from the order of Justice Robert L. Maranger of the Superior Court of Justice, dated July 24, 2012, dismissing an application for certiorari to quash the committal for trial ordered by Justice Robert N. Fournier of the Ontario Court of Justice, dated June 23, 2011.

Rouleau J.A.:

[1] The appellant appeals from the decision of the Superior Court dismissing his application for certiorari. The certiorari judge found four violations of the appellant’s language rights, but nonetheless refused to grant a stay of proceedings or any other remedy.

[2] The appeal raises important questions concerning the language rights of an accused at a bilingual preliminary inquiry or trial, as well as the procedure to be followed during those proceedings, and the remedies that a court should award as a result of a violation of those rights.

FACTS

[3] On February 26, 2010, the appellant was one of eight persons charged with various offences relating to cocaine trafficking. The eight accused were divided into two sub-groups: four were alleged to be wholesale cocaine dealers, while the other four, including the appellant, were alleged to be buyers.

[4] On June 3, 2010, the appellant was released on bail with surety. When his surety was withdrawn, he was taken back into custody. The Superior Court reviewed his detention and he was released on restrictive bail conditions, including house arrest. Those conditions are still in effect.

[5] After they were charged, the appellant and another accused, Mr. Alanjian, exercised their right under s. 530 of the Criminal Code, R.S.C. 1985, c. C-46, to have their preliminary inquiry and trial held in French. The other six accused chose to be tried in English.

[6] There was no formal order concerning the language of the proceedings, but the accused and the Crown seem to have agreed that the proceedings would be bilingual, in order to respect the language rights of both the francophones (including the appellant) and the anglophone accused.

[7] Notwithstanding the appellant’s application under s. 530, the Crown served a series of notices in English only: three notices of intention to produce private communications under s. 189(5) of the Criminal Code and four notices of evidence under s. 540(8) of the Criminal Code.

[8] One of the notices of intention under s. 189(5) of the Criminal Code was accompanied by 37 volumes of 200 to 300 pages each, compiling the transcripts of nearly 1,200 series of conversations or text messages. The conversations and texts were in various languages, including English, French, Italian, and Arabic.

[9] However, with the exception of the conversations and texts in English, the transcripts were not in their original languages. All of the transcripts were in English, even where the conversation or text was in another language, because everything had been translated into English by the Crown. The original version of the texts or conversations in French was not included in the transcripts.

[10] This meant that the anglophone accused had access not only to a transcript of the anglophone texts, but also to a translation of the conversations or text messages that took place or were sent in other languages. The francophone accused, on the other hand, had access only to texts or translations in English. Nothing had been transcribed in French, not even where the original language of the texts or conversations was French.

[11] Appended to the notice transmitting the 37 volumes was a three-volume index (607 pages) indexing the 22,329 files in 400 folders recorded on a hard disk. Everything was in English only.

[12] The other two notices of intention to produce private communications under s. 189(5) were prepared in the same way, but contained much less material.

[13] One of the notices was addressed only to the appellant, and notwithstanding that fact, the notice and the appended documents were entirely in English.

[14] The preliminary inquiry began on May 30, 2011. The Crown was represented by a team of three lawyers: Ms. Dumel, Ms. Larmondin and Ms. Liggett. Ms. Larmondin introduced herself as the lead counsel for the Crown.

[15] At the commencement of the hearing, counsel for the appellant brought a motion to remove Ms. Larmondin and Ms. Liggett from the case. The appellant objected to the two lawyers acting for the prosecution because Ms. Larmondin did not speak French at all and Ms. Liggett spoke very little French. The prosecution opposed the motion, and proposed, as an alternative, that an order be made under s. 530.2 establishing the linguistic framework for the preliminary inquiry.

[16] The preliminary inquiry judge said that he wanted to avoid delays and that he was concerned about the costs that might result from such an order. He therefore denied the motion, and explained:

I could do one of two things here, I could say fine, I will go and impose the letter of the law very strictly and if there are to be three Crown Attorneys, all three need to be absolutely bilingual, I am not going to go that far. That is something I would like to do in a perfect world, but we do not live in a perfect world and although I am familiar with the case law, I know that – you know, expenses and everything else and resources are not to be the reason why we choose one option over the other, it’s not that we have endless resources, but the courts have ruled that we should not spare resources in order to accommodate those provisions, we should just spend what needs to be spent in the way of resources. We can do that. But I think at this particular stage of the proceedings, for me to insist that the three Crown Attorney be absolutely bilingual might mean that I would have to adjourn the matter …. I would like to make that ruling, you know, in a perfect world, as I said earlier. But in order to avoid any undue delay, I am not going to do that.

[17] As a compromise, he ordered that the lead prosecutor in the case for the Crown be bilingual. From the bench, he named Ms. Dumel as lead counsel for the Crown’s case, and established the linguistic framework for participation by the other two unilingual prosecutors.

[18] The judge’s reasons, which cover 4.5 pages of transcript, were given orally in English. They are followed by a summary in French about one page long.

[19] The hearing was then held in the presence of those three Crown counsel. Their participation may be summarized as follows:

1. For the vast majority of the preliminary inquiry, Ms. Liggett questioned witnesses and responded to objections;

2. Ms. Larmondin spoke sporadically during the inquiry and argued certain motions; and

3. Ms. Dumel made submissions at the end of the preliminary inquiry, but spoke only rarely during the inquiry itself.

[20] Ms. Larmondin and Ms. Liggett used the simultaneous interpretation service to follow the proceedings when they were being conducted in French. Accordingly, when the simultaneous interpretation service broke down, Ms. Dumel was concerned that her colleagues were no longer following the proceedings and so informed the court: [translation] “Excuse me, I think the simultaneous interpretation is not working, I just want to make sure that my colleagues can understand.”

[21] At the beginning of the second day of the hearing, counsel for the appellant noted that there were no bilingual court personnel present. He asked the court to remedy the situation, and in particular the fact that the court reporter was a unilingual anglophone. The judge denied the motion, and stated:

[translation] THE COURT: So in the circumstances I am taking no action in this respect because I am not in charge of administration, I have enough problems to solve without solving everybody’s. So – I understand that it would be preferable for our reporters to be bilingual, it is not – I am not going to make orders to get one. So we are going to proceed with the resources available to us this morning.

[22] Counsel for the appellant renewed his request for a bilingual court reporter a few days later. The judge stated that the request was noted, but no bilingual court reporter was assigned to the hearing.

[23] During the hearing, Sgt. Paul, a francophone police officer from Montreal, was called to testify by the Crown. He was questioned by one of the anglophone prosecutors and he gave his testimony in English. When the prosecutor began questioning the police officer concerning his report, a report written in French, counsel for the appellant objected and pointed out the absurdity of having to use interpretation to question a francophone about a report written in French when the trial was bilingual.

[24] The judge agreed and asked the witness to testify in French, since Crown counsel, Ms. Liggett, was the only one who wanted to use English. Ms. Liggett said that she was doing it for the benefit of the anglophones who, at that point in the inquiry, were no longer in court. The judge continued to ask why English would be used when the witness was francophone and his notes were in French. Ms. Liggett objected again and argued that the witness could choose the language of his testimony. The judge conceded this point, and allowed the police officer to continue in English, but insisted that when he quoted his notes or his report, he do so in French. The judge stated: “You might want to question him in English if you want from time to time but you are referring to documents that are prepared in French, why would the officer not read them in French when they are?”

[25] Ms. Liggett persisted in questioning the officer in English. However, on cross-examination, the officer agreed to be cross-examined in his first language, French.

[26] During the trial, a number of excerpts from wiretaps were introduced in evidence. As noted earlier, all of the transcripts of those oral communications and text messages that were intercepted by wiretap were in English even when the original language was not English. When the prosecutor introduced them into evidence, she played the original version of the oral communications, but in the case of the text messages, at least one was introduced only in the English version, in spite of the fact that a portion of the original text was in French.

[27] At least twice, the sound recording of an oral communication was not easy to understand, and so a witness read the transcript aloud. Since the transcripts prepared by the prosecution were available only in English, regardless of the original language of the communication, the communications, one of which was in English and French and the other in English, French, and Italian, were read from a transcript that was entirely in English.

[28] At the end of the hearing, only two accused were participating: the appellant and the other francophone accused, Mr. Alanjian. The judge’s decision was therefore given in French only, preceded by the following comment: [translation]: “Mr. Richer, I hope you are going to be proud of me, because I have written my decision in French only.”

[29] Mr. Alanjian was discharged and the appellant was committed for trial on two of the individual counts (trafficking and possession for the purposes of trafficking) and discharged on the remaining counts.

[30] According to the appellant, because no bilingual court reporter had been available and the transcripts of the preliminary inquiry needed to be written in French and English, the transcripts were available only six months later.

[31] The Crown applied to the Superior Court for certiorari to quash the discharge of Mr. Alanjian and the discharging of the appellant for certain charges. That application was dismissed by the court.

[32] The appellant also applied to the Superior Court for certiorari. His application was for a stay of proceedings because of the persistent and serious violations of his language rights and his manifestly unequal treatment compared to the treatment afforded to those who had opted to proceed in English.

[33] The certiorari judge gave his decision orally on July 24, 2012. He found that there were several violations of s. 530.1 of the Criminal Code and was of the opinion that the violations of the appellant’s language rights were not minor. He ruled on any violations that might have occurred before and after the preliminary inquiry. The violations of the requirements of the Criminal Code identified by the certiorari judge are as follows:

1. Two of the Crown prosecutors, Ms. Liggett and Ms. Larmondin, were not bilingual;

2. There was no bilingual court reporter;

3. The preliminary inquiry judge gave his decision in English on the appellant’s motion, made in French, asking that all of the prosecutors be bilingual; and

4. The notices under ss. 189(5) and 540(8) of the Criminal Code served on the appellant were in English only.

[34] However, the certiorari judge decided that the principal remedy sought by the appellant, a stay of proceedings, would be extreme in the circumstances. He acknowledged that the case was unprecedented, but awarded no remedy. He stated, however, that he would have considered [translation] “an order for a new preliminary inquiry that complies with [section] 530” as a remedy, if the appellant had requested it. The result was that no sanction was applied to the Crown for the violations of the appellant’s language rights.

[35] The appellant appeals from the decision of the Superior Court of Justice. For the reasons that follow, I would allow the appeal.

ISSUES

[36] Before this court, the appellant argued that the certiorari judge committed several errors. In the appellant’s submission, the certiorari judge:

1. failed to identify all of the violations of the appellant’s language rights; and

2. having found that there were major violations of the accused’s language rights, failed to award any remedy.

[37] The appellant contends that taken as a whole, the violations show indifference, and even a degree of hostility, on the part of the Crown and the court to their language obligations. The different treatment afforded by the prosecution and the court to the accused who exercised their right to a preliminary inquiry in French, compared to those who chose to have it in English, was on stark display in this case. As a francophone, the appellant could not have helped feeling markedly inferior. A remedy was required in the circumstances.

[38] As noted earlier, the certiorari judge found four violations of the appellant’s language rights:

1. Only one of the Crown prosecutors was bilingual, the other two being unilingual anglophones;

2. The court reporter was a unilingual anglophone;

3. The preliminary inquiry judge gave an interlocutory judgment in English in response to a motion made by the appellant in French; and

4. The prosecution served several notices of intention and evidence under ss. 189(5) and 540(8) in English only. One of those notices was addressed solely to the appellant.

[39] The appellant submits that there were more than these four violations of the appellant’s language rights and that the certiorari judge erred by failing to identify the additional violations. For example, the appellant contends that Sgt. Paul should have been required to testify in French rather than in English. His testimony was given in English to accommodate one of the prosecutors, who did not speak French. In addition, the appellant challenged the fact that the transcripts of the wiretaps for which notices of intention had been given under s. 189(5) were prepared by the prosecution in English only, and as a result, even when the language spoken in the wiretap was French, only the English translation of the wiretap was included in the transcript provided to the accused. This clearly gave the anglophone accused an advantage, in that they had access to a complete transcript, in English, of all of the wiretaps. The appellant received no transcription in French, not even where the original language was French.

[40] However, the appellant’s principal argument is that when viewed as a whole, the preliminary inquiry did not respect the appellant’s language rights. There was a systematic refusal by the court and the Crown to comply with the obligations created by ss. 530 and 530.1. The failure to respect those rights was particularly serious in that it stood in contrast with the treatment afforded to his co‑accused who had chosen to have their preliminary inquiry in English. In the appellant’s submission, a remedy is required in the circumstances and the certiorari judge should have granted a stay of proceedings or another appropriate and effective remedy.

[41] The Crown also maintains that the certiorari judge erred. In the Crown’s submission, however, the error was in finding any violations of the appellant’s language rights. The Crown argued that there was no violation of the appellant’s language rights and that no remedy should be awarded.

LEGISLATION

[42] Sections 530 and 530.1 of the Criminal Code are central to this appeal. The complete versions are reproduced in an appendix, and I reproduce here the portions of those sections that are of particular relevance to the issues raised.

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

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

(6) The fact that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada.

530.1 If an order is granted under section 530,

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

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

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

(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be;

(e) the accused has a right to have a prosecutor — other than a private prosecutor — who speaks the official language of the accused or both official languages, as the case may be;

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

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

530.2 (1) If an order is granted directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages, the justice or judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language.

(2) Any order granted under this section shall, to the extent possible, respect the right of the accused to be tried in his or her official language.

530. (1) Sur demande d’un accusé dont la langue est l’une des langues officielles du Canada, …

un juge de paix, un juge de la cour provinciale ou un juge de la Cour de justice du Nunavut ordonne que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury, selon le cas, qui parlent la langue officielle du Canada qui est celle de l’accusé ou, si les circonstances le justifient, qui parlent les deux langues officielles du Canada.

(6) Peut constituer une circonstance justifiant une ordonnance portant qu’un accusé subira son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles du Canada le fait que des coaccusés qui doivent être jugés conjointement ont chacun le droit d’avoir un procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent une des langues officielles du Canada, mais que cette langue n’est pas la même pour tous les coaccusés.

530.1 Si une ordonnance est rendue en vertu de l’article 530 :

a) l’accusé et son avocat ont le droit d’employer l’une ou l’autre langue officielle au cours de l’enquête préliminaire et du procès;

b) ils peuvent utiliser l’une ou l’autre langue officielle dans les actes de procédure ou autres documents de l’enquête préliminaire et du procès;

c) les témoins ont le droit de témoigner dans l’une ou l’autre langue officielle à l’enquête préliminaire et au procès;

d) l’accusé a droit à ce que le juge de paix présidant l’enquête préliminaire parle la même langue officielle que lui ou les deux langues officielles, selon le cas;

e) l’accusé a droit à ce que le poursuivant — quand il ne s’agit pas d’un poursuivant privé — parle la même langue officielle que lui ou les deux langues officielles, selon le cas;

f) le tribunal est tenu d’offrir des services d’interprétation à l’accusé, à son avocat et aux témoins tant à l’enquête préliminaire qu’au procès;

h) le tribunal assure la disponibilité, dans la langue officielle qui est celle de l’accusé, du jugement — exposé des motifs compris — rendu par écrit dans l’une ou l’autre langue officielle.

530.2 (1) En cas d’ordonnance exigeant que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles, le juge de paix qui préside l’enquête préliminaire ou le juge qui préside le procès peut, au début de l’instance, rendre une ordonnance prévoyant dans quelles circonstances et dans quelle mesure chacune des langues officielles sera utilisée par lui et par le poursuivant au cours de l’instance.

(2) L’ordonnance respecte, dans la mesure du possible, le droit de l’accusé de subir son procès dans la langue officielle qui est la sienne.

ANALYSIS

(1) Organizing principles

[43] Before undertaking an analysis of the facts of this case, it will be useful to identify the relevant principles and formulate an analytical framework that can guide us in our consideration of the various points raised in the appeal. The Crown favours a technical approach that is limited to examination of the words and strict meaning of the text of ss. 530 and 530.1 of the Criminal Code. In my opinion, that approach is neither desirable nor supported by the case law. When Parliament enacted ss. 530 and 530.1, it intended to ensure equal access to the courts by accused persons who speak either official language. Those sections must be given a large and liberal interpretation in order to achieve that objective.

[44] An order that a trial or preliminary inquiry be held before a judge or justice of the peace who speaks both official languages is an exception to the rule that an accused has an absolute right to a trial before a judge who speaks the official language of the accused. An order that a trial or preliminary inquiry be held before a bilingual judge will be made only “if the circumstances warrant” (ss. 530(1), 530(4), 530(5)). However, s. 530(6) provides: “The fact that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a … judge ... who speak[s] both official languages of Canada.” In such a case, the trial or preliminary inquiry is really a bilingual trial or preliminary inquiry, in the sense that there are accused who have the right to a trial in each of the two official languages and both rights operate within a single trial.

[45] The principles addressed in this judgment apply to bilingual trials of this type, and cannot necessarily be transposed to other forms of trials before a judge or justice of the peace who speaks both official languages. As noted, the parties agreed that the preliminary inquiry would be held before a judge who spoke both official languages and that the language rights of the anglophones and francophones should be respected.

[46] In a bilingual proceeding, it can be more complicated to ensure that accused persons of both official languages have equal access to the courts than it is in a proceeding where there is only one accused and one official language is used. It is no longer simply a matter of using the official language of the accused. Both languages must be used. However, the principle of equal access must be respected. Thus, we can identify two principles from the case law and the relevant legislation that must govern the conduct of a bilingual trial or preliminary inquiry. They are as follows:

1. Accused retain their right to equal access to proceedings in their language notwithstanding the imposition of a bilingual proceeding; and

2. The court and the prosecution must be bilingual and must not favour either of the official languages.

(a) Accused retain their right notwithstanding the imposition of a bilingual proceeding

(i) The nature of the right

[47] Section 530 of the Criminal Code provides that an accused has the right to a preliminary hearing in his or her official language. The Supreme Court of Canada has explained that language rights, such as the right to a preliminary hearing in one’s language, “must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada”: R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, at para. 25 (emphasis in the original).

[48] Accordingly, language rights, such as ss. 530 and 530.1 of the Criminal Code, are “fundamental tool[s] for the preservation and protection of official language communities where they do apply” (Beaulac, at para. 25). The state has a duty to put in place the necessary structures and deploy the necessary resources to ensure that this right is respected. As the Supreme Court of Canada stated:

I wish to emphasize that mere administrative inconvenience is not a relevant factor. The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. (Beaulac, at para. 39)

[49] The objective of s. 530 of the Criminal Code is “to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity” (Beaulac, at para. 34). To achieve that objective:

[s]ection 530(1) creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. In my view, this is a substantive right and not a procedural one that can be interfered with. (Beaulac, at para. 28).

(ii) Impact of imposing a bilingual proceeding on the right

[50] Section 530 also provides that notwithstanding an accused’s exercise of the right to be tried in his or her official language, the trial or preliminary inquiry must, in certain circumstances, be bilingual and be held in French and English. That was the case here. The Crown chose to include several accused with different official languages in a single indictment. There was nothing to prevent the Crown from doing this, and this possibility is covered by s. 530(6) of the Criminal Code. Accordingly, since there were several accused and some of them had chosen to be tried in French while others had chosen to be tried in English, the preliminary inquiry had to be bilingual.

[51] However, it was in no way the appellant’s choice to have a bilingual preliminary inquiry, and in my opinion, his right to a preliminary inquiry in his own language cannot be diminished except to the extent that it is necessary and reasonable in the circumstances.

[52] When an order for a bilingual trial is made, the equality of the two languages established by s. 530 and the duty imposed on the Crown and the court to ensure the equal use of those languages are not discarded. As the Supreme Court of Canada explained, “the basic right of the accused is met in both cases” (Beaulac, at para. 49).

[53] In R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 75 O.R. (3d) 485 (C.A.), this court explained that in a bilingual trial in which some accused choose to be tried in French and others choose to be tried in English, both French and English will inevitably have to be used at different times. A bilingual trial is therefore

a trial before a judge and jury who speak both official languages of Canada but in which both English and French are used interchangeably as the working languages, depending upon who is speaking and in what context, and interpretation and translation are available if needed. I think this meaning accords more with what is generally understood by that term in daily practice: the triers and prosecutors are bilingual, but the working language of others may be either official language, and translation/interpretation services are provided, should they be required (at para. 40).

[54] As the Quebec Court of Appeal has stated:

[translation] In spite of the fact that his co-accused did not all speak the same language, that fact undeniably could not diminish [the accused’s] absolute right to have his fundamental language rights respected. …

A bilingual trial is a trial that, “to the extent possible, respects the right of the accused to be tried in his or her official language.” A trial of this nature must guarantee the accused and their counsel the opportunity to communicate with the judge and the prosecution in the official language of their choice, both orally and in writing. (R. c. Gagnon, 2013 QCCA 1744, at paras. 32 and 35)

[55] That interpretation is confirmed by s. 530.2. That section provides that in a bilingual preliminary inquiry or trial, the court may make an order “setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language,” but that the order must, “to the extent possible, respect the right of the accused to be tried in his or her official language.”

[56] In conceptual terms, a bilingual trial or preliminary inquiry is a merger of a proceeding in French and a proceeding in English. Whether the accused are francophone or anglophone, they do not lose their language rights; rather, and by necessity, each accused’s language rights must be accommodated. Each accused cannot have the right to have all of the evidence presented in his or her own language. Oral evidence can be presented in only one or the other of the two official languages. Similarly, the prosecution and the judge cannot speak both languages at the same time. There will therefore be times when the testimony given by a witness and the comments made by the judge will not be in the official language of one or another of the accused.

[57] However, to the extent possible, and provided that it is reasonable, the language rights of each of the accused must be respected. This means, for example, that if an accused or his or her counsel addresses the court or the prosecution in the language of that accused, the prosecution or the court should interact with that accused or his or her counsel in that language. The duty to deal with each accused in his or her own language does not evaporate and is not diminished by the fact that the proceeding becomes a bilingual proceeding. Proceeding in any other fashion, unless it is required by the situation, would be a violation of the accused’s language rights.

(b) The court and the prosecution must be bilingual and must not favour either of the official languages

[58] In Beaulac, the Supreme Court explained that when an accused relies on s. 530 of the Criminal Code to obtain a service in the language of the official language minority, that application “must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages” (Beaulac, at para. 39). That governing principle, the equality of the two official languages, is particularly important in a bilingual trial or preliminary inquiry since both languages, English and French, have the same official status in the proceeding. Any inequality of treatment will be particularly apparent to the participants in that situation.

[59] The Court also stated that language rights are a special kind of right, “distinct from the principles of fundamental justice” (Beaulac, at para. 25). It is therefore not a question of trial fairness, but rather of assuring that Canada’s official language minorities have access to services in their language, and that the quality and content of those services are equal to the quality of service received by the majority. This is important, because the rights of the accused and the obligation of the state and the court to provide the service are not reduced or diminished by the fact that an accused understands and speaks the language of the majority. The linguistic ability of the accused

is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity. It would indeed be surprising if Parliament intended that the right of bilingual Canadians should be restricted when in fact official language minorities, who have the highest incidence of bilingualism …, are the first persons that the section was designed to assist. (Beaulac, at para. 45)

[60] Thus, the fact that the appellant understands English and did not use interpretation services has no relevance to his language rights.

[61] Section 530 of the Criminal Code imposes “positive obligations” on the attorney general and the courts (R. v. Bujold, 2011 NBCA 24, 276 C.C.C. (3d) 442, at para. 5). This is based on the observation by the Supreme Court that “[l]anguage rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. ... [T]he freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees” (Beaulac, at para. 20 (emphasis added)). In the context of a bilingual preliminary inquiry in which there are accused using each of the official languages, this duty is to ensure that the two languages are treated equally: in other words, that there is no “primary language”, with the other language merely being “accommodated.” Equality must be the norm and not the exception, and must be achieved without creating conflict.

[62] It follows that an accused should not be required to remind the court and the prosecution of their linguistic obligations. An adversarial approach to language rights risks not only undermining those rights but also creating fear in accused persons that if they insist their rights be respected, they will antagonize the court and the prosecution, and not receive a fair trial.

(c) Summary

[63] The two principles I have identified above must guide the prosecution and the court in a bilingual trial or preliminary inquiry where there are accused using both official languages. When the prosecution exercises its right to include both francophone and anglophone accused in a single indictment, the prosecution does not thereby escape its linguistic obligations, and the accused do not lose their rights under ss. 530 and 530.1. Some adjustments are needed in the conduct of the trial or preliminary hearing as a result of the fact that a single evidentiary record will be presented and the participants will not be able to speak both languages at the same time. However, the adjustments made must not give an advantage to either of the language groups and, to the extent possible and reasonable, must respect the language rights of each accused. Unequal treatment of one language group during a bilingual trial or preliminary inquiry, if it gives an advantage to one group and disadvantages the other, does not comply with s. 530 and may give rise to concerns as to bias.

[64] 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 CanLII 22752 (ON CA), 69 O.R. (3d) 641 (C.A.), at para. 37).

[65] In the next section of my reasons, I will consider the four violations of the appellant’s language rights found by the certiorari judge, in light of the two principles I stated above. In the course of that analysis, I will also address the other violations alleged by the appellant. In the section that follows it, I will answer the questions that must, in my opinion, be asked in cases of this nature: do the violations found entitle the appellant to a remedy, and, if so, what remedy?

(2) The four violations identified by the certiorari judge

(a) The Crown prosecutors were not all bilingual

[66] The respondent acknowledges its obligation to assign a bilingual prosecutor to a bilingual preliminary inquiry. However, the Crown contends that since a bilingual prosecutor was present in this case, the presence of two additional unilingual prosecutors did not violate the appellant’s rights.

[67] I do not accept that argument. Although the question of the bilingualism of a team of prosecutors has not been specifically addressed in the case law, the decisions of the courts suggest that all Crown prosecutors in a bilingual trial must be bilingual and capable of participating fully in the trial in both languages. At para. 40 of Sarrazin, this court explained that it is generally understood that a bilingual trial is a trial where the judge and prosecutors – plural – are bilingual. The Quebec Court of Appeal adopted a similar position in Gagnon, at para. 60, stating, [translation] “the representatives of the Crown are also required to be institutionally bilingual” (emphasis added). Additionally, in R. v. Dow, 2009 QCCA 478, [2009] R.J.Q. 679, at para. 89, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 204, the Quebec Court of Appeal held that courtroom interpretation services are provided for the benefit of witnesses and accused persons, and not for the prosecutor. This suggests that all representatives of the Crown must be bilingual.

[68] The right granted to the appellant in ss. 530 and 530.1 is to have his preliminary inquiry conducted in French, and includes the right to address the Crown in his language. That right exists throughout the preliminary hearing, whoever the prosecutor representing the Crown may be at any given time. I see no reason why the appellant would lose that right simply because the preliminary inquiry has become a bilingual proceeding.

[69] In this case, the two unilingual prosecution counsel handled virtually the entire case. If counsel for the appellant made an objection in French to the testimony called by one of the anglophone prosecutors, that prosecutor was unable to reply in French. She had to use the interpretation service or ask the bilingual prosecutor to answer. The appellant was therefore forced to make a choice. He could make the objection in French, but in so doing he would cause delays and risk irritating the court. Or, he could make the objection in English, which would be simpler for everyone but would not respect the appellant’s choice to have his preliminary inquiry proceed in French. Or he could choose not to make an objection. The anglophone accused were not required to make those kinds of choices.

[70] It seems to me to be highly likely that Sgt. Paul, a Montreal police officer whose first language is French, gave his testimony in English because his testimony was prepared and presented to the court by an anglophone prosecutor. The fact that Sgt. Paul’s evidence was presented by an anglophone prosecutor is also why, after a comment from the judge asking why he would testify in English when all his notes were written in French, the prosecution continued to question him in English. This is a good example of indirect effects stemming from the fact that some of the Crown counsel assigned to a trial or preliminary inquiry are unilingual. Prosecution counsel, in that case, cannot be neutral when it comes to the choice of the language of the witness’ testimony when they themselves are not bilingual. French is accommodated rather than offered as of right.

(b) The notices and accompanying documents in English only

[71] Several notices were served on the appellant before the start of the preliminary inquiry. The notices and the documents that accompanied them were all prepared by the Crown and were in English only. The language used for the notices and the language used in the accompanying documents each raise different and complex issues.

[72] The Public Prosecution Service of Canada Deskbook states: “Where an order has been made pursuant to s. 530 of the Code for a ‘bilingual trial,’ and there are Francophone and Anglophone accused, the documents prepared by Crown counsel must be in both official languages where practicable and unless the judge orders otherwise.” The policy of the Director of Public Prosecutions is set out in the section of the Deskbook entitled “Written Pleadings” and certainly applies to the notices. The reference to “documents prepared by Crown counsel” suggests that all of the documents prepared by the prosecution and sent to the accused, including, for example, the index of wiretaps, must be bilingual.

[73] The Crown acknowledges that since the notices were not prepared in both official languages, that policy was violated in this case. It notes, however, that the Deskbook is an administrative document, so the policies it contains do not have the force of law.

(i) The notices

[74] Documents prepared by the Crown, such as notices under ss. 189(5) and 540(8) of the Criminal Code that are served on the appellant, are communications with the accused initiated by the prosecution. Since those communications take place after an accused has exercised the right to a trial or preliminary inquiry in his or her own language, it seems to me to be logical and necessary that those communications (here the notices under ss. 189(5) and 541(8) of the Criminal Code) should either be bilingual or be prepared in the language of the accused to whom they are addressed.

[75] The Crown argued that there is no such obligation and cited case law that held that an accused was not entitled to receive a translation of the indictment when the indictment was not in the accused’s language (R. v. Simard (1995), 27 O.R. (3d) 116 (C.A.)). To remedy that situation, an amendment to s. 530.01(1) of the Criminal Code was necessary. That amendment gave accused the right to require a translation of the indictment into their own language, but no right to receive a translation of other documents.

[76] In my view, those decisions are not relevant. The notices are not documents akin to an indictment. An indictment is prepared before the accused exercise their language rights under s. 530. The notices, on the other hand, are formal communications with the accused prepared by the Crown after the accused exercise their rights and are directly connected with the trial or preliminary hearing that must be held in the language of the accused or be bilingual.

[77] Section 530.1(b) gives the accused the right to use either official language in written pleadings or other documents at the preliminary inquiry and trial. The Crown is not given the same right. This suggests that the written pleadings and other documents relating to the preliminary inquiry must be prepared by the Crown in the language of the accused to whom those documents are addressed.

[78] That interpretation is also consistent with the purpose of the notices: to give the accused “reasonable notice” of the Crown’s intention to introduce certain communications or documents in evidence at the trial or preliminary hearing (see the text of ss. 189(5) and 540(8) of the Criminal Code). It seems reasonable to me to require that the notices be in the language of the accused. In Ontario, anglophone accused expect that the notices sent to them by the Crown will be in their language, English, and not French. Sending a notice in French to an anglophone accused would be unreasonable. A francophone accused is entitled to expect the same treatment.

[79] That means that in this case, sending the notices under ss. 189(5) and 540(8) in English only violated the appellant’s language rights. In a bilingual trial or preliminary inquiry, those notices must either be bilingual or be written in French for accused who have exercised the right to a trial or preliminary inquiry in French, and written in English for accused who have chosen English. The violation in this case is particularly flagrant since sending the notices in English only does not comply with the policy on bilingual trials set out in the Public Prosecution Service of Canada Deskbook. In addition, one of the notices was addressed to only one person, the appellant, yet it was prepared in English only.

(ii) Translation of the appended documents

[80] I will now turn to the language obligations of the Crown in relation to the appended documents. Those documents do not constitute formal communications like the notices. They are similar to the documents provided to an accused as part of the Crown’s duty of disclosure. It is settled in the case law that the prosecution must disclose all of the evidence it has assembled but is not obliged to translate all of the evidence thus disclosed into the language of the accused (see R. v. Stadnick, 2001 CanLII 39664 (QC CS), [2001] Q.J. No. 5226 (S.C.), aff’d sub nom R. v. Stockford, 2009 QCCA 1573, at paras. 11, 13; R. v. Rodrigue (1994), 1994 CanLII 5249 (YK SC), 91 C.C.C. (3d) 455 (Y.T.S.C.), at para. 12, appeal dismissed on motion (1994), 1994 CanLII 16620 (YK CA), 95 C.C.C. (3d) 129 (Y.T.C.A.); R. v. Rose, [2002] Q.J. No. 8339 (S.C.), at para. 27).

[81] There are certain exceptions, however. At the request of the accused, the court may, where it considers it to be just and reasonable, require that the Crown provide the accused with a summary of the disclosure in his or her language (Stockford and R. v. Couture, 2007 QCCS 6845).

[82] In this case, the appellant did not ask the judge to require that the Crown prepare a translation of the disclosure or the wiretaps, or to prepare a summary of them in French. What he did argue is that the Crown did everything to accommodate the anglophone accused and did nothing to acknowledge the presence of the accused persons who had exercised their right to a preliminary proceeding in French. The most flagrant example is that the Crown not only prepared a transcript of all of the wiretaps that were in English and provided it to the anglophone accused, but also prepared a transcript of the English translation of all of the wiretaps where the original language was French or another language. In addition, the anglophone accused received a detailed index (three volumes) of those wiretaps in English.

[83] This contrasts sharply with what the francophone accused received. They received no index in their language and did not even receive a transcript in French of the wiretaps where the original language used was French. In at least one case, the version of the intercepted text placed in evidence was the translated English version of an intercepted text where the original language was French.

[84] The Crown argued that with the exception of the latter intercepted text, which should have been introduced in French, there are no grounds for complaint. According to the Crown, in a bilingual trial or preliminary inquiry, the Crown may choose to prepare the disclosure and any other documents in English or French. In this case, the fact that it chose to do so in English only meets its language obligations.

[85] In my opinion, the only conclusion that can be drawn from the fact that virtually all of the documents were prepared in English only is that Crown counsel decided to prepare everything for the preliminary inquiry in English and to do the minimum to meet the obligations they were under because the preliminary inquiry was bilingual. That approach to the preliminary inquiry is very possibly a result of the fact that two of the counsel assigned by the Crown to prosecute the charges were not bilingual and thus had to work with English versions of all the documents and evidence. The result is that all their efforts helped facilitate the job of counsel for the anglophone accused and they did not even provide the minimum, a transcript of the French wiretaps in French, for the francophone accused.

[86] It is important to note that the voluminous documentation prepared by the Crown included more than just disclosure. The transcripts of all the wiretaps, including translations of the wiretaps in other languages, and the three-volume index, were tools developed by the prosecution to facilitate the job of the lawyers, witnesses, and preliminary inquiry judge. If there had been only anglophone accused, the documents prepared by the Crown would have been substantially the same. However, if the accused had all been francophone, all or certainly a good portion of the documents would certainly have been in French. If the Crown had wanted to treat the two language groups in a genuinely equal manner, it would have made an effort to meet the needs and expectations of both language groups. A bilingual trial or preliminary inquiry should not mean that the Crown can choose to give preference to one language, thereby facilitating the job of the accused who use that language, and do nothing for the accused who use the other. Indeed, the Crown’s own policy provides that at a bilingual proceeding, “documents prepared by Crown counsel must be in both official languages where practicable.” Here, all the documents prepared by the prosecution and appended to the notices were in English only.

[87] Any third party aware of the different treatment of the two language groups could not help but conclude that the francophone accused were put at a disadvantage and that the anglophone accused were given an advantage. The effect of the approach taken by the Crown was to treat the applicant’s request for a preliminary hearing in his own language as if there were a primary official language, in this case English, and a duty to accommodate when it came to the use of the other official language, namely French. That approach does not respect the governing principle established in Beaulac: the “equality of the two languages” (at para. 39).

[88] It seems to me that in a case such as this one, the transcript should, at a minimum, be in the original language of the wiretaps where the wiretaps were in French or English. Where a language other than English or French was used, the translation could be into either official language. It would then be up to counsel for accused who wanted a transcript or index to be prepared in their language to make the request to the judge.

[89] The judge may, having regard to considerations such as cost, delay in making the request, the delays that might arise from responding to the request, whether counsel and the accused are bilingual, and the principles I have stated, require that the prosecution provide a translation of some of the documents or produce summaries in the language of the accused, depending on what is just and reasonable in the circumstances.

(c) The interlocutory judgment given in English

[90] At the beginning of the preliminary inquiry, the appellant brought a motion to remove the Crown prosecutors who were not bilingual from the file. The motion was argued in French but the judge gave his decision in English, followed by a brief summary in French. The appellant argued that by doing this, the preliminary inquiry judge failed to respect the accused’s language rights. The certiorari judge found for the appellant.

[91] The respondent argued that the preliminary inquiry judge did not err and was entitled to proceed as he did. In the respondent’s submission, the essence of the decision was set out in the French summary, and so the appellant’s rights were respected.

[92] I am not persuaded by the respondent’s arguments. An analysis of the two texts, in French and English, clearly shows that the English version laid out the judge’s complete reasons, including the judge’s justification and reasoning. The French version is merely a summary, and does not present all of the elements that are needed in order to understand the basis of the judge’s decision.

[93] Section 530 gives the appellant the right to appear before a judge who speaks his official language. For the preliminary inquiry, that right is granted by s. 530.1(d). In addition, the court’s obligation to make judgments available in the language of the accused is set out in s. 530.1(h), which reads as follows:

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.

[94] The Quebec Court of Appeal has already considered the meaning of s. 530.1(h). It concluded that the obligation to make judgments available in the official language of the accused that is set out in s. 530.1(h) applies to all judgments, including interlocutory judgments (R. c. Clohosy, 2013 QCCA 1742, at paras. 78-82). Accordingly, the phrases “du jugement” in French and “any trial judgment” in English that appear in s. 530.1(h) include all decisions made in the course of a trial (Clohosy, at para. 79).

[95] 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).

[96] In my opinion, the fact that an interlocutory judgment was given orally in no way lessens the judge’s obligation to make the decision and the reasons available in full in the language of the accused. The Quebec Court of Appeal has held that oral interlocutory judgments given during the trial must be made available in the language of the accused (Dow, at para. 93). This is based on the obligation imposed on the judge by ss. 530 and 530.1(d) to address the accused in his or her own language. Section 530.1(h) merely specifies that the obligation extends to decisions given in writing.

[97] In this case, the appellant’s objection to the participation of the unilingual Crown prosecutors was made in French and the appellant was entitled to receive the judge’s decision, including his reasons, in his own language. Argument took place in French, except that counsel for some of the co-accused stated in English that they supported the appellant’s position. An incomplete summary of the reasons in French is not sufficient. Where argument took place in the language of the accused, the judge must give the judgment in full in the language of the accused, and the preliminary inquiry judge did not do this.

(d) The unilingual court reporter

[98] At the preliminary inquiry, the appellant asked that the unilingual court reporter be replaced by a bilingual court reporter. The judge simply refused to accede to the request. He replied as follows:

[translation] So in the circumstances I am taking no action in this respect because I am not in charge of administration, I have enough problems to solve without solving everybody’s. So – I understand that it would be preferable for our reporters to be bilingual, it is not – I am not going to make orders to get one. So we are going to proceed with the resources available to us this morning.

[99] The appellant renewed his request a few days later. The judge noted his request, but did nothing to address it.

[100] In the appellant’s submission, the judge’s failure to act is a violation of his rights under ss. 530 and 530.1. The certiorari judge agreed. In addition, the appellant argued that the absence of a bilingual court reporter contributed to the delay in the preparation of the transcripts that were needed in order to bring his application for certiorari.

[101] The Crown contended that there had been no violation. It argued that ss. 530 and 530.1 impose no express obligations concerning the presence of a bilingual court reporter. In addition, given technological advances, the preliminary inquiry is tape recorded, and it is not necessary for there to be a court reporter present. Accordingly, the fact that a bilingual court reporter was not present does not constitute a violation of the appellant’s linguistic rights.

[102] There has been no decision dealing specifically with the right to a bilingual court reporter during a bilingual trial or preliminary inquiry. In Beaulac, however, the Supreme Court of Canada seems to have assumed that a bilingual court reporter would be present in a bilingual trial. At para. 39, the Court explained:

I wish to emphasize that mere administrative inconvenience is not a relevant factor. The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis. [Emphasis added.]

[103] In my opinion, the judge’s inaction in the circumstances constitutes a violation of the appellant’s language rights. The effect of an order for a bilingual trial or preliminary inquiry under s. 530 is that all court personnel whose presence is necessary to the proper conduct of the proceeding must be bilingual. To the extent that the presence of the court reporter is necessary for the proper conduct of the inquiry or the trial, then the judge must ensure that the reporter is bilingual.

[104] It is impossible for us, on appeal, to conclude that in this case the court reporter played no role during the preliminary inquiry. It is quite probable that the court reporter was available, for example, to replay or read back extracts of witness’ testimony, in the event that the judge or the parties so requested.

[105] With respect to the Crown’s argument that there can have been no violation since there was no express obligation to have a court reporter present, no evidence was presented to us to establish the rules and practices of the court governing whether a court reporter is to be present. The fact remains that the court thought it appropriate to have a court reporter present during this preliminary inquiry. When the appellant objected, the judge did not simply say that the court reporter had no role to play. The judge seemed to be of the opinion that a court reporter should be present. It is therefore reasonable to conclude that in this case, the court reporter was an integral part of the preliminary inquiry and of the proper conduct of that proceeding, and had to be able to work in both languages.

[106] In response to the appellant’s complaint, the judge should have determined whether the court reporter might be required to play a role in the proper conduct of the inquiry and, if so, ensured that a bilingual court reporter was present. He should not simply have washed his hands of the problem. If the presiding judge refuses to be responsible for ensuring respect of the accused’s language rights in the courtroom, the accused is left with no option for remedying the problem.

[107] I therefore conclude, as did the certiorari judge, that the absence of a bilingual court reporter was a violation of ss. 530 and 530.1. The violation was particularly serious in that the judge refused to act despite the appellant’s request.

[108] With respect to the appellant’s argument that the absence of a bilingual court reporter caused a delay in the preparation of the transcripts needed for the application for review, the appeal record is not clear or complete on that point. In the absence of a sufficient factual record, in this case, it cannot be concluded that the appellant’s language rights were violated on this ground.

(3) Are the rights violations serious and do they entitle the appellant to a remedy, and, if so, what remedy?

(a) The seriousness of the violations

[109] In my opinion, there are a number of reasons why the violations of the appellant’s language rights here are serious and require that the court award an appropriate remedy. The following are some of the factors that have led me to conclude that a remedy is required:

1. The number of violations: The violations are many and varied. We are not talking here about “a few words spoken” in the other official language, as has happened in other cases (see Potvin, at para. 37).

2. The violations were not accidental: Counsel for the appellant objected several times but the Crown and the preliminary inquiry judge refused to remedy the problem. In the case of the unilingual court reporter, the judge washed his hands of the appellant’s request because he had [translation] “enough problems to solve without solving everybody’s”. In the case of the unilingual prosecutors, the Crown simply refused, and the judge refused to do anything, explaining, in English, that he would have made the decision the appellant wanted in a perfect world but decided not to do so for fear that such an order would result in additional costs and delays. There was no evidence in the record to show that any time would have been needed or additional costs would have been incurred. In addition, these are not appropriate considerations, according to Beaulac. The Crown had been informed well in advance that it would be a bilingual preliminary inquiry and has no shortage of bilingual prosecutors.

3. The violations were the fault of both the preliminary inquiry judge and the Crown prosecutors.

4. The Crown gave the anglophone accused an advantage: Because the preliminary inquiry was bilingual and there were anglophone and francophone accused, the appellant was able to compare the treatment received by the two language groups. The anglophones’ language rights were not violated. In fact, the anglophone accused were given an advantage. As noted earlier, the Crown not only sent its notices in English only, it gave the anglophones a transcript in their language of all the wiretaps and a detailed index, while the francophones did not even receive a transcript in French when that was the language used. Any observer of these proceedings, including the appellant, cannot help but conclude that the accused who chose to proceed in English received a distinct advantage from the Crown.

5. The requests for the rights to be respected created an atmosphere of conflict: The court has a duty to ensure that the language rights of accused persons are respected in full and to facilitate the exercise of those rights. If requesting that their language rights be respected puts accused persons in conflict with the judge, they are less likely to insist on their rights being respected, out of fear that their insistence will annoy the presiding judge and that the judge might become negatively predisposed toward them. In this case, appellant’s counsel and the judge exchanged words several times concerning the language rights of the accused. There is nothing to suggest that the appellant was unreasonable in his requests, and in fact it appears that his objections were well-founded. However, those conflicts took on such significance that at the conclusion of the preliminary inquiry, when the judge announced that he was committing the appellant for trial, he saw the need to add: [translation] “Mr. Richer, I hope you are going to be proud of me, because I have written my decision in French only.” That comment reflects a failure by the trial judge to view the accused’s language rights with the appropriate seriousness.

6. The lack of effort on the part of the Crown to acknowledge that this was a bilingual proceeding: Well before the preliminary inquiry, it was obvious that the proceedings would be bilingual. Nonetheless, the Crown assigned two unilingual prosecutors to the case. They had the largest role to play before and during the preliminary inquiry. Since they are not bilingual, it would be expected that they would arrange for the hearing to be conducted in English, and in French only in a secondary manner. No effort was made by the prosecutors to present evidence in French (see, for example, Sgt. Paul’s testimony), or to treat the two languages equally (all of the disclosure, including the translations, was in English). The prosecution did not even comply with its own internal guidelines, which provide that, in a bilingual trial, notices must be prepared in both languages. By choosing to include francophone and anglophone accused in a single indictment, the Crown imposed a bilingual preliminary inquiry on the appellant, thereby taking away his right to a preliminary inquiry exclusively in French. In my opinion, the Crown has a responsibility in those circumstances to make reasonable efforts to ensure that the bilingual nature of the proceeding is preserved.

(b) The remedy

[110] The appellant submits that the numerous violations of his language rights constitute violations of not only ss. 530 and 530.1 of the Criminal Code, but also ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms. In the appellant’s submission, a stay of proceedings under s. 24(1) of the Charter or the common law would be an effective remedy for the violations of his rights. The Crown submits that there was no violation of the appellant’s rights, and in the event that this court concludes otherwise, the appropriate remedy would be continuation of the proceedings with an order for a unilingual trial in French.

[111] In my opinion, given the number and severity of the violations of the appellant’s rights, it is essential that an effective remedy be imposed. It should be recalled that language rights are not procedural rights; rather, they are substantive rights. An appropriate remedy must correct the situation to the extent possible, while also ensuring that the Crown is held accountable for the failure to meet its obligations.

[112] Before moving on to the appropriate remedy, I will consider whether there was a violation of a Charter right that would entitle the appellant to a remedy under s. 24(1).

(c) [Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[113] The appellant submits that the treatment he received, compared to the treatment received by the anglophone accused, was unequal to the point that it constituted a deprivation of life, liberty, and security of the person contrary to the principles of fundamental justice, thereby infringing s. 7 of the Charter.

[114] In my opinion, the violations of language rights in this case do not constitute a violation of the principles of fundamental justice. Bastarache J. in Beaulac referred to the “complete distinctiveness of language rights and trial fairness” (at para. 41). Accordingly,

[i]t would constitute an error either to import the requirements of natural justice into ... language rights ... or vice versa, or to relate one type of right to the other.... Both types of rights are conceptually different.... To link these two types of rights is to risk distorting both rather than reenforcing either (at para. 41).

[115] Certainly, it is possible that in some circumstances, the violation of an accused’s language rights could be such as to constitute a violation of the principles of fundamental justice guaranteed in s. 7 of the Charter. In this case, however, the language rights violations and the unequal treatment of the two language groups that occurred do not, in my opinion, constitute such a violation.

(d) [Section 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[116] The appellant also seeks to rely on s. 11(b) of the Charter and asks that a stay of proceedings be granted in light of the intolerable delays the appellant has experienced because he had to initiate these proceedings in order to have his language rights respected.

[117] This issue was raised by the appellant for the first time before this court. The Crown has therefore been denied an opportunity to submit relevant evidence. The record contains no transcripts of the various court appearances made before the preliminary inquiry was held. Nor does it contain the evidence required to apply the other factors relevant to assessing the reasonableness of the delays beyond those caused by the application for certiorari, such as waivers of time limits, the reasons for the delays, or the prejudice suffered by the appellant.

[118] In my opinion, the record presented to us does not allow us to conduct the necessary analysis. The question of delay and of whether s. 11(b) can be relied on to obtain a stay of proceedings as a remedy should be the subject of a motion in the trial court if the appellant wishes to pursue it.

[119] However, nothing in these reasons should be taken as suggesting that the appellant is not free to make that request, supported by the necessary evidence, including the delays caused by the failure to respect his language rights.

(e) The appropriate remedy

[120] It is clear that ss. 530 and 530.1 of the Criminal Code were not complied with and that the appellant did not receive the preliminary inquiry to which he was entitled under those sections. In the appellant’s submission, the appropriate remedy is a stay of proceedings. Even absent a Charter violation, the appellant submits that he is entitled to a stay under the common law doctrine of abuse of process.

[121] In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada explained that a stay of proceedings is the most drastic remedy in criminal law and should be granted only rarely, in the clearest of cases. Those cases are divided into two categories:

1. The main category, which covers abuses of process that compromise the fairness of the trial; and

2. The residual category, which covers abuses of process that risk undermining the integrity of the justice system.

[122] In this case, the appellant is not claiming that the violations of the language rights guaranteed in ss. 530 and 530.1 of the Criminal Code had an impact on the fairness of the preliminary inquiry. This means that only the residual category could be relevant.

[123] The test for a stay under the residual category has three steps:

(1) There must be 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";

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (Babos, at para. 32 [Citations omitted]).

(i) Prejudice to the integrity of the justice system

[124] The Supreme Court of Canada has described this requirement as follows: “For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice” (Babos, at para. 36, quoting Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 91).

[125] The number and severity of the violations of the appellant’s language rights and the conduct of the Crown and the court were reprehensible in this case. The aspect that offends society’s sense of justice is the contrast between the treatment of the anglophone accused and the francophone accused. In a proceeding in respect of which Parliament has legislated to ensure the equality of the two languages, it appears that, in one prosecution, the Crown denied the language rights of the francophones, including the appellant, while respecting the anglophones’ language rights. As noted, the prosecution did not even follow its internal directives concerning the obligation to translate the notices in a bilingual trial. Moreover, the preliminary inquiry judge not only participated in the violations, he also seemed, at times, to be exasperated by the appellant’s requests that his language rights be respected. In this case, the repeated violations by the prosecution and the fact that neither the judiciary nor the court administration acted to remedy the violations or ensure equality in the treatment of the two language groups suggest that absent a clear statement and an appropriate remedy, full respect for the rights conferred by ss. 530 and 530.1 of the Code will remain illusory.

[126] Access to justice in French in the majority anglophone provinces presents major challenges for francophones appearing in the courts. Numerous studies and reports on access to justice in French confirm that the appellant’s experience is not unique and is part of a larger problem.

[127] As an example, I would cite several reports on the subject produced by the federal government or the government of Ontario:

1. In 2002, the federal government published a study entitled Environmental Scan: Access to Justice in Both Official Languages. The main conclusion in the report was a pessimistic one:

A number of studies done before this one have reported the gaps in the judicial system's fulfillment of its obligations in respect of access to the courts in both official languages. Most of those studies, including this one, have made the same finding: that members of official language minority communities who appear before the courts encounter a number of difficulties in accessing the judicial system in their own language. (Environmental Scan, n.p.)

That report also contains statistics that give pause for thought: in a survey of Ontario lawyers, 59% of respondents thought that trials in French were not heard within the same timelines as trials in English, and 31% thought that requesting a trial in French would involve additional costs. Even more disturbing is that 15% of respondents were concerned about the effect that a request for a trial in French might have on the outcome of the case (Environmental Scan, Table 10.8).

2. In its annual report for 2008-2009, the Office of the French Language Services Commissioner of Ontario wrote: “There are numerous cases of citizens who have encountered difficulty exercising their rights” (2008-2009 Annual Report of the OFLSC, at p. 37).

3. In its annual report for 2011-2012, the Office of the French Language Services Commissioner of Ontario noted that in spite of the initiatives undertaken by the government and the courts, it continued to receive “worrisome complaints” (2011-2012 Annual Report of the OFLSC, at p. 31).

4. In 2012, the French Language Services Bench and Bar Advisory Committee to the Attorney General of Ontario, of which I was a member, found that proceeding in French exposed individuals appearing before the courts to additional delays and costs (Report of the Advisory Committee, at pp. 26-27). The Committee concluded: “In spite of the goodwill on the part of participants in the justice system, the French-speaking community continues to experience barriers to accessing justice in French” (Report of the Advisory Committee, at p. 48).

5. In 2013, the Office of the Commissioner of Official Languages of Canada (“OCOL”) published a report on the appointment of bilingual judges. In its report, the OCOL noted “the shortcomings that still limit access to justice in both official languages” for members of minority language groups (Access to Justice in Both Official Languages, at p. 6). Those shortcomings mean that access to justice in the minority language is still a “particular challenge” for the members of that community (Access to Justice in Both Official Languages, at p. 37).

[128] As explained in Beaulac, at para. 45, failure to respect language rights will rarely make a trial unfair. The Crown will always be able to argue, as it does in this case, that a remedy is not necessary.

[129] However, every failure to respect language rights has a subtle but significant impact. As this court said in a decision concerning language rights in civil cases:

Violation of these rights, which are quasi-constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied (Belende v. Patel, 2008 ONCA 148, 89 O.R. (3d) 502, at para. 24).

[130] No accused in Ontario will choose to exercise the right to a trial or preliminary inquiry in French if he or she is penalized for doing so or has to fight to have this right respected. In addition, no application for review by way of certiorari will be brought if there are violations of these rights, if no remedy will be awarded. Accordingly, in my opinion, the first step of the test has been met.

(ii) Other remedies

[131] It is settled law that an accused can bring certiorari to quash a committal for trial where there is a lack or loss of jurisdiction (R. v. Forsythe, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, at p. 271). A magistrate will lose jurisdiction if he or she “fails to observe a mandatory provision of the Criminal Code” (Forsythe, at pp. 271-72).

[132] The Quebec courts have held that ss. 530 and 530.1 of the Criminal Code are mandatory provisions. For example, the Superior Court of Quebec concluded that [translation] “the interpretation of sections 530 and 530.1 raises a jurisdictional issue, and so any error by the justice of the peace on that point will affect his or her jurisdiction” (R. c. Edwards, 1998 CanLII 11790 (QC CS), [1998] R.J.Q. 1471 (S.C.), at para. 60).

[133] In my opinion, the failure of the judge in this case to ensure that the requirements of ss. 530 and 530.1 were met resulted in a loss of jurisdiction, and we have the authority to quash the committal for trial.

(iii) The balancing exercise

[134] However, the appellant submits that quashing the committal for trial would simply result in a second preliminary inquiry being held, and that this does not constitute an effective remedy. In a sense, that result would be a punishment for the appellant rather than a remedy. The appellant was released on bail on June 3, 2010. Except for a brief period when he was taken back into custody after his bail was withdrawn, he was and continues to be subject to very onerous house arrest conditions. Quashing the committal for trial, without more, would simply add to the delay already experienced, prolong the appellant’s onerous house arrest conditions, and oblige the appellant to incur the costs of a second preliminary inquiry. By contrast, the impact on the Crown, which was responsible for the violations, along with the court, would be minimal.

[135] On the other hand, although a stay of proceedings would be an effective remedy for the appellant, the respondent submits that this remedy, the most drastic in criminal law, is not justified in this case. In the Crown’s submission, the appellant has not met the heavy burden that rests on him to be entitled to a stay. As the Supreme Court stated in Babos, at para. 44:

Undoubtedly, the balancing of societal interests that must take place and the “clearest of cases” threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be “exceptional” and “very rare” …. But this is as it should be. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted.

[136] In my opinion, a stay of proceedings could be the appropriate remedy, in an appropriate case, for serious violations of language rights. In this case, however, the violations took place during a preliminary inquiry and not at trial. Further, in spite of the fact that they are serious, I am not able to conclude that there was bad faith, given that there is no case law clearly establishing the Crown’s obligations in a bilingual trial or preliminary inquiry of this kind. Accordingly, the challenge in this case is to fashion a remedy that is less extreme than a stay of proceedings, but that nonetheless constitutes a genuine remedy for the appellant.

[137] If the order quashing the committal for trial was accompanied by an order awarding the appellant his costs, this would compensate the appellant and would hold the prosecution responsible and accountable for its misconduct. In addition, given the significant delays for which the court and the prosecution are responsible, the appellant could very possibly obtain a change to his conditions of release and could pursue a request for a stay of proceedings under s. 11(b) of the Charter.

[138] Accordingly, in these circumstances, I am of the opinion that an order consisting of quashing the committal for trial and awarding the appellant his costs would constitute an appropriate remedy.

[139] This brings me to the next question: is it possible, in this case, to require that the prosecution pay the appellant’s costs?

(f) Awarding court costs

[140] Historically, it was very rare for court costs to be awarded against the Crown in criminal cases, and such awards were used to call attention to bad faith on the part of the Crown or intentional misconduct by the prosecution (R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 97). As explained in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, the Supreme Court made that approach more flexible if costs are awarded as a remedy under s. 24(1) of the Charter. There, the Supreme Court held that the courts may require that the Crown reimburse the accused for costs incurred as a constitutional remedy if they find “marked and unacceptable departure from the reasonable standards [of conduct] expected of the prosecution” (974649 Ontario, at para. 87). The Supreme Court stated: “In recent years, costs awards have attained more prominence as an effective remedy in criminal cases” (974649 Ontario, at para. 81).

[141] The Supreme Court considers that awarding costs can often constitute the most appropriate remedy to sanction the prosecution’s marked and unacceptable departures from reasonable standards that do not rise to the threshold required for a stay of proceedings but that are nonetheless very serious (974649 Ontario, at para. 80). The fact that the accused must be tried a second time because of a Charter violation is a factor that operates in favour of awarding costs or even awarding damages (974649 Ontario, at paras. 99‑100).

[142] Apart from Charter violations, cost awards in a criminal case remain rare. Costs are typically awarded as a consequence of acts of bad faith on the part of the Crown. However, the categories of circumstances in which costs may be awarded in a criminal context are never closed (R. v. King (1986), 1986 CanLII 1156 (BC CA), 26 C.C.C. (3d) 349 (B.C.C.A.)). The Supreme Court has confirmed that in “remarkable” (R. v. Trask, 1987 CanLII 24 (SCC), [1987] 2 S.C.R. 304, at p. 308) or “unique” circumstances (R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at p. 546), a court may award costs even in the absence of bad faith on the part of the Crown.

[143] Doherty J.A. of this court, in an appeal relating to a summary conviction case, summarized the cases concerning awards of costs as follows:

The cases in which costs have been awarded against the Crown in summary conviction appeal proceedings fall into two broad categories. The first, and by far the largest, category consists of cases where the conduct of the prosecution is said to merit sanction in the form of an award of costs against the Crown. The second category consists of cases where there is no Crown misconduct, but other exceptional circumstances exist such that fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation (R. v. Garcia (2005), 2005 CanLII 4831 (ON CA), 194 C.C.C. (3d) 361, at para. 13 [Emphasis added]).

[144] This court has confirmed that what was said in Garcia applies equally to prosecutions under the Criminal Code: R. v. B.(D.) (2006), 2006 CanLII 8871 (ON CA), 79 O.R. (3d) 698, at para. 96; Canada (Attorney General) v. Foster (2006), 2006 CanLII 38732 (ON CA), 215 C.C.C. (3d) 59, at para. 63; R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575, at para. 94.

[145] It is worth noting that in Curragh Inc., the Supreme Court of Canada awarded costs to two accused without finding a Charter violation. In that case, the conduct of the trial judge was such as to raise a reasonable apprehension of bias against the prosecution, but the trial judge refused to recuse himself from the case. The court held that the accused should not suffer the grievous financial burden that arose from systemic problems that were beyond their control and to which they had in no way contributed.

[146] I am therefore of the opinion that in spite of the fact that there was no violation of the accused’s Charter rights, we can award him his costs for the preliminary inquiry. In this case, the facts are exceptional in many respects. The prosecution failed in several ways to respect the appellant’s language rights. Additionally, the treatment it afforded to the accused who exercised their right to have their preliminary inquiry held in English was distinctly superior to the treatment it afforded to the accused who chose French. The prosecution not only respected the language rights of the anglophones, it went beyond its obligations to them. As I noted earlier, an observer with knowledge of the facts would have been left in no doubt that the accused who chose to proceed in French were put at a disadvantage. As in Curragh Inc., this disadvantage arose from systemic failures; the appellant, having objected in a timely manner, cannot be faulted for what transpired.

[147] In this case, much like in Curragh Inc., the preliminary inquiry judge also bears a large share of the responsibility for the failure to respect the appellant’s rights, and hence for the need for a new preliminary inquiry. He did not ensure that the appellant’s language rights were respected, citing reasons of convenience and a lack of resources. In addition, when giving his decision to commit for trial, rather than thank counsel for the appellant for his efforts to ensure that the appellant’s language rights were respected, he added a comment to the effect that counsel for the appellant should be proud of him for giving his decision in French, reflecting a failure by the trial judge to view the accused’s language rights with the appropriate seriousness. I note that at the time he gave his decision, it affected only the two francophones, since the anglophones had all pleaded guilty or consented to their committal for trial. There was no reason to give judgment in English.

[148] In my opinion, the certiorari judge was right to find several violations of the accused’s language rights but erred by failing to award any remedy. The appellant correctly argued that, standing alone, an order quashing the committal for trial would not constitute an appropriate remedy since it would simply lead to a new preliminary inquiry. That kind of “remedy” would place a heavy financial and psychological burden on the accused (see R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 128). If the appellant were not awarded his costs, quashing the committal for trial would, for the reasons I have stated, be an inadequate remedy.

[149] Accordingly, in this case, unless the appellant is granted an order quashing the committal for trial and an order that the Crown pay the appellant’s costs, there is no order other than a stay of proceedings that would constitute an appropriate response to the violations identified. Given that, as was the case in Curragh Inc., the additional delays and costs incurred by the appellant arise solely from systemic problems and the conduct of the judge and the prosecution, the appellant, who is in no way responsible, should be awarded costs. I note that in Curragh Inc., the Supreme Court of Canada awarded not only the costs already incurred by the accused, but also the costs to be incurred for the new trial. However, I see no need to go that far in this case.

[150] Before concluding, I would reiterate that this is an exceptional remedy. I do not believe it would be appropriate if the violations were minor or had been corrected quickly. Bilingual proceedings are demanding and the standard should not be perfection: see e.g. R. v. Wilcox, 2014 QCCA 321, 381 D.L.R. (4th) 383, at paras. 110‑12, aff’d on other grounds, 2014 SCC 75, [2014] 3 S.C.R. 616.

Conclusion

[151] For these reasons, I would quash the committal for trial and allow the appellant his reasonable costs of the preliminary inquiry incurred to date.

[152] If the parties are unable to agree on the costs, I would ask the appellant to provide us with his written submissions, of no more than five pages, within 30 days after publication of this decision. I would ask the respondent to provide a reply of no more than five pages within 15 days following service of the appellant’s submissions.

Released: May 5, 2015

(P.R.) “Paul Rouleau J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree Gladys Pardu J.A.”

APPENDIX: LEGISLATION

530. (1) On application by an accused whose language is one of the official languages of Canada, made not later than

(a) the time of the appearance of the accused at which his trial date is set, if

(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or

(ii) the accused is to be tried on an indictment preferred under section 577,

(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or

(c) the time when the accused is ordered to stand trial, if the accused

(i) is charged with an offence listed in section 469,

(ii) has elected to be tried by a court composed of a judge or a judge and jury, or

(iii) is deemed to have elected to be tried by a court composed of a judge and jury,

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

(5) An order under this section that a trial be held in one of the official languages of Canada may, if the circumstances warrant, be varied by the court to require that it be held in both official languages of Canada, and vice versa.

(6) The facts that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada.

530.01 (1) If an order is granted under section 530, a prosecutor — other than a private prosecutor — shall, on application by the accused,

(a) cause the portions of an information or indictment against the accused that are in an official language that is not that of the accused or that in which the accused can best give testimony to be translated into the other official language; and

(b) provide the accused with a written copy of the translated text at the earliest possible time.

(2) In the case of a discrepancy between the original version of a document and the translated text, the original version shall prevail.

530.1 If an order is granted under section 530,

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

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

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

(c.1) the presiding justice or judge may, if the circumstances warrant, authorize the prosecutor to examine or cross-examine a witness in the official language of the witness even though it is not that of the accused or that in which the accused can best give testimony;

(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be;

(e) the accused has a right to have a prosecutor — other than a private prosecutor — who speaks the official language of the accused or both official languages, as the case may be;

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

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

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

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

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

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

530.2 (1) If an order is granted directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages, the justice or judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language.

(2) Any order granted under this section shall, to the extent possible, respect the right of the accused to be tried in his or her official language.

530. (1) Sur demande d’un accusé dont la langue est l’une des langues officielles du Canada, faite au plus tard :

a) au moment où la date du procès est fixée :

(i) s’il est accusé d’une infraction mentionnée à section 553 ou punissable sur déclaration de culpabilité par procédure sommaire,

(ii) si l’accusé doit être jugé sur un acte d’accusation présenté en vertu de section 577;

b) au moment de son choix, s’il choisit de subir son procès devant un juge de la cour provinciale en vertu de section 536 ou d’être jugé par un juge sans jury et sans enquête préliminaire en vertu de section 536.1;

c) au moment où il est renvoyé pour subir son procès :

(i) s’il est accusé d’une infraction mentionnée à section 469,

(ii) s’il a choisi d’être jugé par un tribunal composé d’un juge seul ou d’un juge et d’un jury,

(iii) s’il est réputé avoir choisi d’être jugé par un tribunal composé d’un juge et d’un jury,

un juge de paix, un juge de la cour provinciale ou un juge de la Cour de justice du Nunavut ordonne que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury, selon le cas, qui parlent la langue officielle du Canada qui est celle de l’accusé ou, si les circonstances le justifient, qui parlent les deux langues officielles du Canada.

(5) Toute ordonnance rendue en vertu du présent article prévoyant le déroulement d’un procès dans l’une des langues officielles du Canada peut, si les circonstances le justifient, être modifiée par le tribunal pour prévoir son déroulement dans les deux langues officielles du Canada, et vice versa.

(6) Peut constituer une circonstance justifiant une ordonnance portant qu’un accusé subira son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles du Canada le fait que des coaccusés qui doivent être jugés conjointement ont chacun le droit d’avoir un procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent une des langues officielles du Canada, mais que cette langue n’est pas la même pour tous les coaccusés.

530.01 (1) Le poursuivant — quand il ne s’agit pas d’un poursuivant privé — est tenu, à la demande de l’accusé visé par une ordonnance rendue en vertu de section 530, de faire traduire, dans la langue officielle de l’accusé ou dans la langue officielle qui permettra à celui-ci de témoigner le plus facilement, les passages des dénonciations et des actes d’accusation qui ont été rédigés dans l’autre langue officielle et de lui remettre une copie de la traduction dans les meilleurs délais.

(2) En cas de divergence entre l’original d’un document et sa traduction, l’original prévaut.

530.1 Si une ordonnance est rendue en vertu de section 530 :

a) l’accusé et son avocat ont le droit d’employer l’une ou l’autre langue officielle au cours de l’enquête préliminaire et du procès;

b) ils peuvent utiliser l’une ou l’autre langue officielle dans les actes de procédure ou autres documents de l’enquête préliminaire et du procès;

c) les témoins ont le droit de témoigner dans l’une ou l’autre langue officielle à l’enquête préliminaire et au procès;

c.1) le juge de paix ou le juge qui préside peut, si les circonstances le justifient, autoriser le poursuivant à interroger ou contre-interroger un témoin dans la langue officielle de ce dernier même si cette langue n’est pas celle de l’accusé ni celle qui permet à ce dernier de témoigner le plus facilement;

d) l’accusé a droit à ce que le juge de paix présidant l’enquête préliminaire parle la même langue officielle que lui ou les deux langues officielles, selon le cas;

e) l’accusé a droit à ce que le poursuivant — quand il ne s’agit pas d’un poursuivant privé — parle la même langue officielle que lui ou les deux langues officielles, selon le cas;

f) le tribunal est tenu d’offrir des services d’interprétation à l’accusé, à son avocat et aux témoins tant à l’enquête préliminaire qu’au procès;

g) le dossier de l’enquête préliminaire et celui du procès doivent comporter la totalité des débats dans la langue officielle originale et la transcription de l’interprétation, ainsi que toute la preuve documentaire dans la langue officielle de sa présentation à l’audience;

h) le tribunal assure la disponibilité, dans la langue officielle qui est celle de l’accusé, du jugement — exposé des motifs compris — rendu par écrit dans l’une ou l’autre langue officielle.

530.2 (1) En cas d’ordonnance exigeant que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles, le juge de paix qui préside l’enquête préliminaire ou le juge qui préside le procès peut, au début de l’instance, rendre une ordonnance prévoyant dans quelles circonstances et dans quelle mesure chacune des langues officielles sera utilisée par lui et par le poursuivant au cours de l’instance.

(2) L’ordonnance respecte, dans la mesure du possible, le droit de l’accusé de subir son procès dans la langue officielle qui est la sienne.