PUBLICATION BAN
WARNING
The presiding judge of the panel hearing this appeal orders that the following order be attached to the file:
The publication ban in this matter, pursuant to sections 486.4(1), (2), (2.1), (2.2), (3) or (4) or sections 486.6(1) or (2) of the Criminal Code, is maintained. These provisions of the Criminal Code provide as follows:
486.4(1) Subject to subsection (2), the judge or justice presiding may make an order forbidding the publication or broadcasting in any way of any information that could identify the victim or a witness in proceedings in relation to:
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347,
(ii) an offence under this Act, in any earlier version of this Act, in the case where the act complained of would constitute an offence under subparagraph (i) if it were committed at that time or after that time,
(iii) [Repealed, 2014, c. 25, s. 22(2).]
(b) two or more offences in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(2) In proceedings in relation to offences referred to in paragraphs (1)(a) or (b), the judge or justice presiding shall:
(a) as soon as feasible, inform any witness under the age of eighteen years and the victim of their right to request the order; and
(b) on request made by the prosecutor, the victim or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), the judge or justice presiding may make an order forbidding the publication or broadcasting in any way of any information that could identify the victim who is under the age of eighteen years in proceedings in relation to any offence other than those referred to in subsection (1).
486.4(2.2) In proceedings in relation to any offence other than those referred to in subsection (1), the judge or justice presiding shall:
(a) as soon as feasible, inform the victim, if they are under the age of eighteen years, of their right to request the order; and
(b) on request made by the prosecutor or the victim, make the order.
486.4(3) In proceedings in relation to an offence under section 163.1, the judge or justice shall make an order forbidding the publication or broadcasting in any way of any information that could identify a witness who is under the age of eighteen years or any person in respect of whom the offence is alleged to have been committed.
486.4(4) An order made under this section does not apply to the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to inform the public of the identity of the person referred to in the order.
486.6(1) Every person who contravenes an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to the prohibition of the publication or broadcasting in any way of any information that could identify the victim, witness or person associated with the administration of justice that the order is intended to protect.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. J.P.G., 2019 ONCA 256
DATE: 2019-04-03
FILE NO.: C55894
Panel: Associate Chief Justice Hoy, Justices Rouleau and Roberts
PARTIES
Between
Her Majesty the Queen
Respondent
and
J.P.G.
Appellant
COUNSEL
David Parry, for the appellant
Philippe G. Cowle, for the respondent
Date of Hearing: March 25, 2019
Appeal from: Conviction pronounced on December 2, 2011, by Justice Colin D.A. McKinnon of the Superior Court of Justice of Ontario, sitting with a jury.
REASONS OF THE COURT
[1] The appellant appeals his conviction for sexual exploitation of a young girl aged between 14 and 15 years at the time of the offence, which is provided for in section 153(1) of the Criminal Code. He has abandoned his appeal of sentence.
[2] The appellant contends that the counsel who represented him at trial provided him with ineffective assistance that resulted in a miscarriage of justice. The appellant does not fault his counsel for failing to inform him of the available options for the language of the trial, namely a trial in French, in English, or bilingual, and as to the advantages and disadvantages of each option. Rather, the appellant contends that his counsel did not follow his directive that the trial proceed in French.[1] According to the appellant, the interpretation offered at trial was also inadequate. Thus, his language rights to choose the language of his trial, pursuant to section 530 of the Criminal Code, as well as his right to the assistance of an interpreter at his trial, pursuant to section 14 of the Canadian Charter of Rights and Freedoms, were violated.
[3] We do not accept these contentions.
[4] The language rights provided for in section 530 of the Criminal Code give a substantive and absolute right to the accused to have equal access to the courts in the official language of their choice: see R. v. Beaulac, [1999] 1 S.C.R. 768, at paras. 28 and 34. The choice of the accused must be free and informed: see Mazraani v. Industrielle Alliance, Assurance et services financiers inc., 2018 SCC 50, at paras. 42-43.
[5] In accordance with the importance of an accused's language rights, pursuant to section 3.2-2A of the Law Society of Ontario's Rules of Professional Conduct, a lawyer must "inform their client, where appropriate, of their language rights". These language rights include the client's right to use the official language of their choice. This choice remains that of the client. A lawyer who would accept a retainer without having the competence to provide the required services in the language chosen by the client would contravene their professional obligations.
[6] The appellant contends that his counsel changed the language of the trial from French to English, without discussing it with him and without his knowledge. We reject his testimony on this point and prefer that of his counsel. His counsel states that he explained to the appellant that he could not plead in French. Although the counsel could converse in French, he informed the appellant that if the trial proceeded in French, he would not feel competent to represent him. He therefore offered to recommend the appellant to another francophone lawyer. The appellant did not wish to change counsel and accepted that his trial proceed in English.
[7] The new evidence, which we admit, demonstrates that the appellant had full knowledge of his language rights. It is also clear that the appellant freely chose to undergo his trial in English. He did not wish to change counsel and he was aware of the fact that his counsel was not able to plead in French. Furthermore, the transcript demonstrates that, at a pre-trial appearance on October 1, 2010, the appellant himself confirmed that he was aware of his right to proceed in French, but that he consented to the pre-trial appearances proceeding in English. At the appearances on June 6 and November 7, 2011, the appellant was present and confirmed through his counsel that the trial would proceed in English. Given all the evidence on the record, particularly the testimony of his counsel at trial, we are satisfied that the appellant understood that his trial would proceed in English and that he raised no objection or concern about this.
[8] Section 14 of the Charter grants a party or witness the right to the assistance of an interpreter. The appellant has not demonstrated that the interpretation generally fell below appropriate standards and no objection was raised at trial. In our view, the concerns raised by the appellant concern the technical terms used at trial. These were faithfully translated, and there are therefore no interpretation errors.
[9] For these reasons, the appeal is dismissed.
"Alexandra Hoy J.C.A."
"Paul Rouleau J.C.A."
"L.B. Roberts J.C.A."
[1] At the hearing of the appeal, the appellant abandoned his argument concerning the mode of his trial before a judge and jury.