ONTARIO COURT OF JUSTICE
DATE: 2025-04-16
COURT FILE No.: Hamilton 998 24 47102552
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN NGUYEN
Ruling under s. 530 of the Criminal Code
Before Justice Davin M.K. Garg
Heard on March 21, 2025
Reasons released on April 16, 2025
Simon McNaughton ........................................................................... counsel for the Crown
Kevin Nguyen ................................................................................ self-represented accused
Overview
[1] Canadian courts are bilingual. An accused person has the right to a trial in either English or French. The right gives equal access to the courts for people who speak one of Canada’s official languages. It also helps preserve the linguistic and cultural identity of official language minorities. Someone who requests a French trial is not being “accommodated”. In the context of institutional bilingualism, the governing principle is the equality of both official languages.
[2] While every accused enjoys an absolute right to access the courts in the official language of their choice, the Crown can seek to displace an accused’s choice to proceed in a particular language. The onus is on the Crown to establish that the accused cannot instruct counsel and follow the proceedings in their chosen language.
[3] In this case, I am satisfied that the Crown has met its onus of showing that the accused, Kevin Nguyen, cannot have his trial in French. Specifically, Mr. Nguyen cannot communicate in French and could not follow the proceedings in French. This conclusion is highlighted by Mr. Nguyen’s own recognition that a French trial would have required the court to provide interpreters to translate the proceedings from French to English (and then from English to Vietnamese).
[4] Language rights are fundamental to Canadian society. I must be vigilant and proactive to protect them. The right to have one’s trial in French or English is distinctly Canadian. But allowing this case to proceed in French would have undermined Mr. Nguyen’s right to a fair trial. Mr. Nguyen’s French capabilities are deficient. The purpose of the right to a French trial is not advanced by conducting the proceedings in French but then translating them into English and then Vietnamese, as would have been required for Mr. Nguyen to participate.
Legal Principles
[5] Institutional judicial bilingualism ensures equal access to the courts for members of Canada’s two official linguistic communities. “The inextricable link between institutional judicial bilingualism and the protection of linguistic minorities, as well as the importance of these two concepts, are reflected in Canada’s constitutional fabric”: R. v. Tayo Tompouba, 2024 SCC 16 at para. 28. “A court should not favour one language in order to give the impression that it is the only official language and that the second language must be accommodated”: R. v. Dartiguenave, 2025 ONCA 2 at para. 75. Trial judges are the “ultimate guardians” of an accused’s fundamental right to be tried in the official language of their choice: Tayo Tompouba at para. 48.
[6] There is no issue that Mr. Nguyen was informed of his right to have a trial in French and requested a French trial pursuant to s. 530(1) of the Criminal Code. Section 530(4) thus plays no role in this case. In deciding how to proceed, it is irrelevant whether it would be in “the best interests of justice” to proceed in French. To exercise the right to a French trial, Mr. Nguyen only needed to “assert” that French is his “own language”: Tayo Tompouba at para. 38. Mr. Nguyen made this assertion in a timely fashion.
[7] The issue is whether the Crown has successfully challenged Mr. Nguyen’s assertion. Section 530(1) begins: “On application by an accused whose language is one of the official languages of Canada” [emphasis added]. An accused has the absolute right to a French trial if this statutory precondition is met. The analysis eschews any inquiry into Mr. Nguyen’s dominant cultural identity or personal language preferences. The question is whether Mr. Nguyen can “instruct counsel and follow the proceedings” in French: R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 34. The onus is on the Crown to lead evidence showing that the accused’s “proficiency in the chosen language is insufficient for them to exercise their right”: Tayo Tompouba at para. 38.
[8] The Ontario Court of Appeal’s decision in R. v. Deutsch, 2005 ONCA 47598 at paras. 44-53 provides helpful direction on the applicable principles and procedures. In that case, the accused applied at the outset of trial to have the trial proceed in French. The Crown opposed the application and filed materials to show that the accused lacked sufficient French proficiency. Those materials included the ruling of an earlier judge who concluded that the accused’s comprehension and verbal skills were “quite limited”. The accused chose not to testify before the trial judge on the language issue. The trial judge concluded that the accused’s assertion of French being his language was “unfounded” and that “his inability to operate in the French language might seriously impair the trial process”. The Court of Appeal upheld the trial judge’s ruling.
[9] Even though Mr. Nguyen requested a French trial during a set date appearance before a Justice of the Peace, I have jurisdiction as the trial judge to determine whether the trial will proceed in French: Deutsch at paras. 56-57, 65-66.
Analysis
[10] I am satisfied that the Crown has shown that Mr. Nguyen could not follow the proceedings in French. Mr. Nguyen’s French proficiency is insufficient. I primarily base this conclusion on three facts.
Facts
[11] First, Mr. Nguyen himself recognized that a French trial would require the proceedings to be interpreted twice. Mr. Nguyen explained that he would need interpretation from French to English and then subsequent translation from English to Vietnamese. Mr. Nguyen asserted this position in his representations before me and in emails with the Crown that were filed as exhibits.[^1]
[12] Second, I find that Mr. Nguyen’s French capabilities are very limited. When Mr. Nguyen testified, the Crown put some questions to him in French.[^2] As a bilingual judge who presides in both French and English, I could assess Mr. Nguyen’s linguistic capabilities. The relevant portion of the transcript is reproduced below:
ME MCNAUGHTON: Dis quelque chose en français, s’il vous plaît.
KEVIN H. NGUYEN: Can you say again. Could – répéter, s’il vous plaît.
ME MCNAUGHTON: Dis quelque chose en français, s’il vous plaît.
KEVIN H. NGUYEN: Je ne parle – je ne comprends pas.
ME MCNAUGHTON: Quand as-tu appris à parler en français?
KEVIN H. NGUYEN: Tu apprendre un peu [indiscernable...marmonnage].
ME MCNAUGHTON: Mais pas beaucoup?
KEVIN H. NGUYEN: Pas beaucoup.
ME MCNAUGHTON: Non. Pourquoi demandes-tu un procès en français si tu ne parles pas – parlez pas en français?
KEVIN H. NGUYEN: Parce que à cause – le langue au Canada on doit – on [indiscernable...marmonnage]. Et au [indiscernable...marmonnage].
ME MCNAUGHTON: Okay. Et donc – you’d need an interpreter though, right?
KEVIN H. NGUYEN: Yes.
[13] The above excerpt is charitable to Mr. Nguyen. I took notes during Mr. Nguyen’s testimony and listened to the recording. The latter two notations of “indiscernable...marmonnage” are not there because Mr. Nguyen spoke with poor grammar or in broken French. The notations have nothing to do with the quality of the recording. Rather, the extract as a whole, including the “indiscernable...marmonnage” portions, reveal that Mr. Nguyen cannot convey basic thoughts in French.
[14] Third, I accept the testimony of Luciana Fenech, who is Mr. Nguyen’s tenant. Ms. Fenech speaks French. She told Mr. Nguyen that she spoke French when signing the lease. Mr. Nguyen laughed and responded, “I don’t speak French, ha, ha”. Despite knowing that Ms. Fenech spoke French, Mr. Nguyen never expressed any interest in speaking to Ms. Fenech in French over the course of the tenancy. They always used English to communicate orally and in writing. Ms. Fenech was not shaken on her testimony that she had shared her French capabilities with Mr. Nguyen. She gave credible and reliable details on when and where that conversation occurred. I reject an argument that an ongoing landlord-tenant dispute motivated her to give dishonest or unreliable testimony.
[15] Before moving on, I wish to address two pieces of evidence that play no role in my analysis. First, I put no weight on the testimony of Joseph Thomas, another tenant who testified that he only dealt with Mr. Nguyen in English. The fact that Mr. Nguyen is proficient in English is irrelevant to whether he can exercise his right to a French trial. Someone can live day-to-day in English yet still maintain sufficient proficiency to proceed to trial in French. Second, I put no weight on the affidavit of Crown counsel because the assertions contained therein are hearsay. It is for this reason that I did not ask Mr. Nguyen if he wished to cross-examine the affiant.
Application
[16] I am satisfied that the Crown has shown that Mr. Nguyen’s proficiency in French is insufficient for him to exercise his right to a French trial: see Tayo Tompouba at para. 38. The facts lead me to conclude that Mr. Nguyen would be incapable of following the proceedings in French: Beaulac at para. 34.
[17] Since Mr. Nguyen is self-represented, the requirement that he also be able to instruct counsel in French does not directly apply. Perhaps this requirement should be adapted for self-represented accused, in the way it is adapted when determining an accused’s fitness to stand trial. As a self-represented accused, Mr. Nguyen is required to communicate directly with the court. It would thus be reasonable to consider whether he could communicate with the court in French: see R. v. Bharwani, 2023 ONCA 203 at para. 94.
[18] Nevertheless, I need not resolve whether the test must be adapted for a self-represented accused. Mr. Nguyen’s French capabilities are wholly deficient to meet the requirement of following the proceedings in French. It is not sufficient that Mr. Nguyen can put together elementary phrases, like “je ne comprends pas” or “Parce que à cause”: see Deutsch at paras. 46, 50, 52.[^3] Even the simplest of criminal cases will involve some sophisticated phrases, no matter how much the trial judge decants and simplifies the proceedings. To proceed in French, Mr. Nguyen must have “proficiency” in the language: Tayo Tompouba at para. 38. He must have “sufficient connection” to the language and “sufficient knowledge” of it: Beaulac at para. 34. Even if the bar for proficiency or sufficiency is set very low, Mr. Nguyen does not pass it.[^4]
[19] Whether he meant to or not, I took Mr. Nguyen to recognize that his French abilities were deficient. Mr. Nguyen asserted that he would require interpretation from French to English, and then from English to Vietnamese. This recognition, in and of itself, goes a long way toward revealing that Mr. Nguyen could not follow the proceedings in French. Mr. Nguyen cannot opt out of the requirement to follow the proceedings in French. The proposed chain of interpretation also raises an additional problem. Even with the best interpretation services available, there is always a risk that nuance or precision is lost when court proceedings are translated from one language to another. That risk is magnified if the proceedings are translated twice before reaching the accused. The court cannot risk a game of broken telephone when Mr. Nguyen’s liberty interests are at stake.
[20] I recognize that language rights are distinct from fair trial rights. Appellate courts have emphasized that a breach of an accused’s language rights will not be remedied by the absence of prejudice to their ability to make full answer and defence: Tayo Tompouba at para. 42. Put another way, I would fall into error if I ruled that Mr. Nguyen will have an English trial because he is competent to defend himself in English: Beaulac at para. 41. But this erroneous line of reasoning is different from a concern that granting Mr. Nguyen a French trial would undermine his right to a fair trial. It necessarily follows that Mr. Nguyen’s ability to defend himself would be compromised if he could not follow the proceedings.
[21] Finally, I emphasize that administrative convenience is irrelevant to my decision: see Beaulac at para. 39. From my perspective, there is no inconvenience to the administration of justice from running a trial in French. We have bilingual judges and court staff at the ready here in Hamilton.
Conclusion
[22] The Crown met its onus of challenging Mr. Nguyen’s assertion that his language is French. It is for this reason that Mr. Nguyen’s trial is proceeding in English.[^5]
Released: April 16, 2025
Signed: Justice Davin M.K. Garg
[^1]: Transcript at p. 7: “I would need an interpreter to be translated from French to English and another interpreter from English into Vietnamese”.
[^2]: Deutsch at paras. 45, 48 suggests it is appropriate for an accused to testify on the application and have their French proficiency “tested”.
[^3]: For example, Mr. Deutsch could say “moi je parle français”. The Court of Appeal affirmed the findings of the trial court that Mr. Deutsch’s French ability was “quite limited” and that “his inability to operate in the French language might seriously impair the trial process”.
[^4]: In view of this conclusion, it also follows that the circumstances do not warrant a bilingual trial pursuant to s. 530(1).
[^5]: I gave my bottom-line conclusion at the end of argument so that the trial could start. The Crown’s case is now complete. The defence has not yet started calling its case.