Supreme Court of Canada

Indexed as: R. v. Tayo Tompouba

2024 SCC 16

File No.: 40332

Appeal Heard: October 11, 2023 Judgment Rendered: May 3, 2024

Parties

Between:

Franck Yvan Tayo Tompouba Appellant

and

His Majesty The King Respondent

— and —

Director of Public Prosecutions, Canadian Bar Association, Commissioner of Official Languages of Canada, Fédération des associations de juristes d'expression française de common law inc. and Criminal Lawyers' Association (Ontario) Interveners

Official English Translation: Reasons of Wagner C.J.

Coram

Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and O'Bonsawin JJ.

Reasons for Judgment: (paras. 1 to 129) Wagner C.J. (Côté, Rowe, Kasirer and O'Bonsawin JJ. concurring)

Joint Dissenting Reasons: (paras. 130 to 201) Karakatsanis and Martin JJ.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

On Appeal from the Court of Appeal for British Columbia

Criminal law — Trial — Language of accused — Duty imposed on judge before whom accused first appears to ensure that accused is advised of right to be tried in official language of their choice — Francophone accused convicted of sexual assault following trial conducted in English — Accused raising breach of judge's duty on appeal — Court of Appeal dismissing appeal — Analytical framework that applies where accused appeals conviction while raising breach of judge's duty to ensure that accused was advised of right to be tried in official language of their choice, when no decision on accused's language rights was made at first instance — Whether Court of Appeal made reviewable error in declining to order new trial — Criminal Code, R.S.C. 1985, c. C‑46, ss. 530(3), 686(1)(a), (b).

T is a bilingual Francophone who was convicted of sexual assault following a trial conducted in English. During the judicial process leading to the conviction, the judge before whom T first appeared did not ensure that he was advised of his right to be tried in French, contrary to the requirements of s. 530(3) of the Criminal Code. Before the Court of Appeal, T asserted that he would have liked his trial to be conducted in French. While the Court of Appeal was of the view that the breach of s. 530(3) was an error of law under s. 686(1)(a)(ii) of the Criminal Code, it found that there was insufficient evidence to conclude that the error had caused any prejudice. It therefore applied one of the curative provisos in s. 686(1)(b).

Held (Karakatsanis and Martin JJ. dissenting): The appeal should be allowed, the conviction quashed and a new trial in French ordered.

Per Wagner C.J. and Côté, Rowe, Kasirer and O'Bonsawin JJ.: A breach of the informational duty imposed by s. 530(3) of the Criminal Code on the judge before whom an accused first appears is an error of law warranting appellate intervention under s. 686(1)(a)(ii) of the Criminal Code. The breach, once established, taints the trial court's judgment and gives rise to a presumption that the accused's fundamental right to be tried in the official language of their choice, guaranteed to the accused by s. 530, was violated. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv). In this case, T has proved that a reviewable error was made, and the Crown has failed to establish that T's fundamental right was not in fact violated despite the breach of s. 530(3).

Institutional judicial bilingualism ensures equal access to the courts for members of Canada's linguistic communities through various legal guarantees, including those set out in s. 530 of the Criminal Code. Section 530, a provision enacted to advance the equality of status or use of English and French, goes beyond the constitutional right to speak in the official language of one's choice. It also gives every accused the right to choose the official language they wish to speak and in which they wish to be understood by the judge or the judge and jury, without the use of interpretation or translation services.

Subsections (1) and (4) of s. 530 set out two frameworks governing the exercise of the same fundamental right, that is, the right of every accused to be tried in the official language of their choice. Section 530(1) guarantees to every accused an absolute right to equal access to the courts in the official language of their choice, provided that the accused's application is timely and that they are able to instruct counsel and follow the proceedings in the chosen language. Where an accused's application to be tried in the official language of their choice is made outside the period specified in s. 530(1), the accused's right is then subject to the judge's discretion under s. 530(4). However, because of the central importance of language rights in Canadian society, there is a presumption in the accused's favour that granting their application is in the best interests of justice. The violation of this fundamental right constitutes significant prejudice for which the appropriate remedy is normally a new trial.

To make certain that an accused is able to choose the language of their trial in a free and informed manner, Parliament has imposed an informational duty for this purpose on the judge before whom the accused first appears. Section 530(3) enshrines the accused's right to be advised of their fundamental right and of the time before which they must apply for a trial before a judge or a judge and jury, as the case may be, who speak the official language of their choice. The judge must ensure that the accused is advised of their fundamental right and of the time limit for exercising it, and if the judge finds that the accused has not been properly informed thereof, or if they have the slightest doubt in this regard, they must take the necessary steps to ensure that the accused is informed. This two‑pronged duty requires the judge to take the steps needed to have no doubt that the accused is well aware of their right and of how it is to be exercised. Ultimately, the goal of s. 530(3) is to make sure that information about the accused's fundamental right and how it is to be exercised is conveyed to the accused in a timely manner in order to help the accused make a free and informed choice of official language. The amendment to s. 530(3) made by Parliament in 2008 to extend the application of the judge's informational duty to all accused persons, regardless of whether they are self‑represented or represented by counsel, amounts to legislative recognition of a principle of caution requiring judges to avoid presuming, without verifying in a diligent and proactive manner, that an accused has been properly informed of their right and of how it is to be exercised prior to their first appearance. The amendment also reflects the legislative intent to make the judge the ultimate guardian of the fundamental right of every accused to be tried in the official language of their choice, and thus the ultimate guardian of the free and informed nature of the accused's choice of official language. A first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge's duty and infringes the accused's right under s. 530(3).

Section 686 of the Criminal Code sets out the powers of a court of appeal hearing an appeal against a conviction. Section 686(1)(a) allows a court of appeal to intervene only if the appellant is able to show that the verdict is unreasonable (s. 686(1)(a)(i)), that an error of law was made (s. 686(1)(a)(ii)) or that a miscarriage of justice occurred (s. 686(1)(a)(iii)). A court of appeal can generally intervene only where an error was prejudicial to the accused. Unreasonable verdicts and miscarriages of justice are usually, by nature, prejudicial to the accused, while errors of law are presumed to be prejudicial. Therefore, the primary relevance of the distinction between errors of law and the other types of errors referred to in s. 686(1)(a) lies first and foremost in the allocation of the burden of showing that the error was or was not prejudicial. Where the error is one of law, because such an error is presumed to be prejudicial to the accused, the Crown bears the onus of establishing the absence of prejudice at the stage of the analysis under one of the two curative provisos. This means that, in principle, it is less onerous for an accused to establish an error of law, because showing the existence of such an error is sufficient to give rise to a presumption of prejudice and thus to justify appellate intervention.

An error of law under s. 686(1)(a)(ii) is any error in the application of a legal rule, as long as, first, it is related to the proceedings leading to the conviction, such that it contributed to the ultimate verdict, and second, it was made by a judge, who might not be the trial judge. In such circumstances, it can be concluded that the error tainted the trial court's judgment, with the result that prejudice can be presumed and the conviction quashed. An error in the application of a legal rule may involve either a decision that is wrong in law or an unjustified failure to comply with a legal rule. The error may originate in various ways, including through a misinterpretation of the legal rule. It is not necessary that the legal rule erroneously applied be substantive in nature, because it is well settled that a procedural irregularity, whether trivial or serious, may constitute an error of law under s. 686(1)(a)(ii).

By comparison, miscarriages of justice under s. 686(1)(a)(iii) are a residual category of errors that exists to ensure that a conviction can be quashed where a trial was unfair. The question to be decided in this regard is whether the irregularity was so severe that it rendered the trial unfair or created the appearance of unfairness. This is a high bar.

A breach of s. 530(3) is an error of law under s. 686(1)(a)(ii), with the result that an accused need only disclose the breach in order to justify appellate intervention. Failure by the judge before whom the accused first appears to carry out their informational duty under s. 530(3) is an error in the application of a legal rule. By erroneously failing to apply an imperative legal rule of general application, the judge commits an improper omission. Because this irregularity is related to the proceedings leading to the conviction and is committed by a judge, it has the effect of tainting the trial court's judgment so as to provide a basis for appellate intervention under s. 686(1)(a)(ii). In keeping with the logic and structure of s. 686, this error gives rise to a presumption that the accused's fundamental right to be tried in the official language of their choice was infringed. The Crown can then rebut this presumption at the stage of the curative proviso analysis.

The curative proviso in s. 686(1)(b)(iii) allows a court of appeal to dismiss an appeal on the ground that an error or irregularity did not result in any substantial wrong or miscarriage of justice. The proviso in s. 686(1)(b)(iv) allows the same result to be reached where an error or irregularity causes a loss of jurisdiction, as long as the accused suffered no prejudice and the trial court at least maintained jurisdiction over the class of offences. The common purpose of the two curative provisos is to permit the dismissal of an appeal where the error or irregularity shown by the accused was not prejudicial to them. A breach of s. 530(3) is an error that results in the court losing jurisdiction over the proceedings. The Crown can therefore rely on the curative proviso in s. 686(1)(b)(iv), which it can validly raise implicitly, and try to show that no prejudice was caused by the error, or in other words, that the error did not result in a violation of the accused's fundamental right to be tried in the official language of their choice. The opportunity for the Crown to rebut the presumption significantly limits the risk of language rights being instrumentalized for tactical purposes. The Crown can argue that the accused does not have sufficient proficiency in the language they were unable to choose, that the accused would in any event have chosen to be tried in the language in which their trial was conducted or that the accused chose English or French in a free and informed manner. If the Crown fails to make this showing on the balance of probabilities standard, it will be presumed that the breach of s. 530(3) resulted in a violation of the accused's fundamental right to be tried in the official language of their choice and thus caused the accused prejudice that was too significant for the conviction to be upheld.

In this case, the judge erred in law by not ensuring that T was advised of his fundamental right. The Court of Appeal then erred in law by imposing on T the burden of proving, in addition to a breach of s. 530(3), that his fundamental right to be tried in the official language of his choice had in fact been violated at first instance. Lastly, the Crown has not succeeded in showing that the breach of s. 530(3) nevertheless did not result in the violation of T's fundamental right to be tried in the official language of his choice. The evidence does not make it possible to conclude on a balance of probabilities that T would in any event have chosen English as the official language of his trial if he had been duly informed of his right or that he had timely knowledge of his right otherwise than through notice under s. 530(3), such that it can be concluded that he made a free and informed choice to have a trial in English. Because it is the Crown that bears the burden of satisfying the Court on a balance of probabilities, the uncertainty and doubt that remain must be resolved in T's favour and must weigh against the Crown.

Per Karakatsanis and Martin JJ. (dissenting): The appeal should be dismissed. A breach of the procedural requirement under s. 530(3) of the Criminal Code to ensure an accused is advised of their substantive language rights is not a "ground of a wrong decision on a question of law" to set aside the judgment of the trial court under s. 686(1)(a)(ii) of the Criminal Code. The failure to give notice under s. 530(3) falls within the residual category under s. 686(1)(a)(iii), meaning an appellant must establish a miscarriage of justice before a remedy can be granted. In order to establish a miscarriage of justice, T was required to show that the lack of notice required by s. 530(3) had some effect on the exercise of his right, that is, he was unaware of his right to be tried in the official language of his choice. He did not meet his burden.

A wrong decision on a question of law relating to the judgment of the trial court under s. 686(1)(a)(ii) occurs only when there is an error on a question of law contained in a decision that is attributable to the trial judge. First, there must be a question of law. If the irregularity is one of fact or of mixed fact and law, it cannot fall within s. 686(1)(a)(ii). It is a question of mixed fact and law if the appellate court must make new findings of fact based on fresh evidence to determine whether a legal error occurred. Second, the error being alleged on appeal must arise from a decision which, in the context of the trial and the circumstances in which the decision was made, represented an erroneous interpretation or application of the law. When the particular irregularity being alleged on appeal was not raised at trial and therefore the trial judge made no ruling on it, it could be said that no error of law is alleged. Third, this wrong legal decision must be attributable to the trial judge. The irregularities cannot have occurred outside the trial judge's knowledge, with no opportunity to remedy them. Errors that share these three criteria ordinarily render the verdict of the trial court unsafe and presumptively cause a miscarriage of justice such that the judgment should be set aside.

The proper classification of an irregularity that occurred during a criminal proceeding governs what an appellant must prove, what the court of appeal can do once it has been proven, and whether the court can dismiss the appeal despite it being proven. If an error is not characterized as a wrong decision on a question of law under s. 686(1)(a)(ii), which presumptively causes a miscarriage of justice unless the Crown can prove that the error was trivial or evidence was so overwhelming that a conviction was inevitable, then the error must fall into the residual miscarriage of justice clause under s. 686(1)(a)(iii) if the court of appeal is to have any power to intervene. The appellant bears the burden of proving that the error caused their trial to be unfair or to have the appearance of unfairness such that it would undermine public confidence in the administration of justice. Therefore, where the question before the appellate court is a question of mixed fact and law, or where the irregularity was not brought to the trial judge's attention and therefore they made no decision about it, or where the wrong legal decision cannot be attributed to the trial judge, it falls to the appellant not only to prove the error but to show that it caused a miscarriage of justice under the residual ground of appeal in s. 686(1)(a)(iii). Once proven, the Crown is not able to rebut this and the court of appeal must quash the conviction and either order a new trial or enter an acquittal. Errors that deprive the accused of a chance to make a meaningful choice in the exercise of their rights, thus creating the appearance of unfairness or harming the public's perception of the administration of justice, have been found to fall within s. 686(1)(a)(iii). Such errors do not presumptively render the verdict of the trial court unsafe. The burden is on the appellant in each case to show that a miscarriage of justice occurred.

A judicial official's breach of the procedural requirement under s. 530(3) to ensure an accused is advised of their substantive language rights fails to meet the criteria that typically characterize errors of law under s. 686(1)(a)(ii). A breach of s. 530(3) does not give rise to a question of law alone, nor does it concern a decision by a trial judge. A finding of non-compliance with s. 530(3) on appeal would ordinarily require fresh evidence and findings to determine not only whether the judicial official personally informed the accused of their language rights on the record, but also whether they did enough to ensure that the accused had been informed in some other way. Furthermore, a judicial official's failure to provide the required statutory notice at the first appearance arises outside the trial process without the trial judge making any ruling on this point. On its own, it is clearly not an error made by the trial judge.

Section 530(3) exists to make sure an accused is aware of their language rights and can bring their application for a trial in their official language of choice in a timely manner. It does not itself provide the accused with a right to a trial in their official language of choice. It provides the accused with nothing more than knowledge of the right to choose. Where a judicial official fails at the accused's first appearance to ensure that they are informed of their right to a trial in their official language of choice, it does not necessarily follow that the accused was deprived of their substantive right to choose. The accused may already know of this right in advance, or may learn of it through other means after the first appearance but within the timeframe to make an application, and the breach of s. 530(3) may have no effect at all on the accused's substantive right. Since the breach of this procedural right does not necessarily result in a breach of the substantive right, without additional evidence from the accused on this point, it does not give rise to a presumption that this error has led to a miscarriage of justice.

If the court of appeal is to have any power to intervene, non-compliance with s. 530(3) must fall within the residual category in s. 686(1)(a)(iii), in which case the appellant bears the burden of showing that the error actually caused a miscarriage of justice. In order to justify appellate intervention, an appellant must provide evidence, which may be by way of an affidavit, to establish that the breach in fact deprived them of the knowledge necessary to exercise their right to a trial in the language of their choice and that the option of a trial in that other official language was a viable choice. This burden is not onerous and is tailored to the fundamental importance of language rights and the miscarriage of justice that occurs if an appellant, who truly does not know of their language rights, is deprived of their substantive right to choose a trial in the other official language.

However, the importance of the language rights s. 530 protects does not mean that any breach, even of a procedural or notice requirement, should result in a near-automatic right to a new trial when raised for the first time on appeal. Nor should appellants be relieved of demonstrating that the lack of notice under s. 530(3) was consequential and actually deprived them of knowledge of their right to trial in the official language of their choice. Without placing some evidentiary duty on the accused, it will be difficult, if not impossible in some cases, for the Crown to prove a negative — that the accused did not know they could choose a trial in either official language. It would be equally difficult for the Crown to prove that the accused did know of their language rights as it is usually a question that only the accused can answer.

In the instant case, the justice of the peace presiding over T's first appearance violated s. 530(3). Under the ground of "miscarriage of justice" in s. 686(1)(a)(iii), T was required to establish that he did not otherwise know of his language rights in order to show that this failure had any consequence. T has brought no evidence to meet this minimal burden. The evidence in the record also strongly supports the inference that he was aware of his language rights. The trial judge had no duty under s. 530(4) to verify whether T's trial was taking place in the official language of his choice and did not err in law by failing to order on his own initiative that T be remanded for a trial in French.

Cases Cited

By Wagner C.J.

Applied: R. v. Beaulac, [1999] 1 S.C.R. 768, rev'g (1997), 120 C.C.C. (3d) 16; referred to: Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535; Commission scolaire francophone des Territoires du Nord‑Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. Mercure, [1988] 1 S.C.R. 234; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646; R. v. Deveaux (1999), 181 N.S.R. (2d) 81; R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222; R. v. Kahsai, 2023 SCC 20; R. v. Brunelle, 2022 SCC 5; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Abdullahi, 2023 SCC 19; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Mitchell (1997), 36 O.R. (3d) 643; R. v. Sciascia, 2016 ONCA 411, 131 O.R. (3d) 375, aff'd 2017 SCC 57, [2017] 2 S.C.R. 539; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Cloutier (1988), 43 C.C.C. (3d) 35; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. D.Q., 2021 ONCA 827, 411 C.C.C. (3d) 292; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. White, 2022 SCC 7; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. McMaster, [1996] 1 S.C.R. 740; R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Samaniego, 2022 SCC 9; R. v. O'Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. Deutsch (2005), 204 C.C.C. (3d) 361; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Vaillancourt, 2019 ABQB 859; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Cole, 2021 ONCA 759, 158 O.R. (3d) 680; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Schwartz, [1988] 2 S.C.R. 443.

By Karakatsanis and Martin JJ. (dissenting)

Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Beaulac, [1999] 1 S.C.R. 768; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. W. (G.), [1999] 3 S.C.R. 597; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Abdullahi, 2023 SCC 19; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Kahsai, 2023 SCC 20; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Adgey v. The Queen, [1975] 2 S.C.R. 426; R. v. Bamsey, [1960] S.C.R. 294; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. White, 2022 SCC 7; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; R. v. Tran, [1994] 2 S.C.R. 951; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Cyr-Langlois, 2018 SCC 54, [2018] 3 S.C.R. 456; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. O'Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. Khill, 2021 SCC 37; R. v. McKenna, 2015 SCC 63, [2015] 3 S.C.R. 1087; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Dorfer, 2011 SCC 50, [2011] 3 S.C.R. 366; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3; R. v. MacGillivray, [1995] 1 S.C.R. 890; R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Smith, 2021 SCC 16, [2021] 1 S.C.R. 530; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. D.R.S., 2018 ABCA 342, 368 C.C.C. (3d) 383; R. v. Miller, 2011 NBCA 52, 374 N.B.R. (2d) 302; R. v. Sunshine, 2016 SKCA 104, 484 Sask. R. 259; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; Sutt v. Sutt, [1969] 1 O.R. 169; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46; R. v. Luu, 2021 ONCA 311, 488 C.R.R. (2d) 225; R. v. Oakes, [1986] 1 S.C.R. 103; Lévesque v. Comeau, [1970] S.C.R. 1010; Parsons v. R., 2014 QCCA 2206.

Statutes and Regulations Cited

• Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), S.C. 2008, c. 18, s. 18.
• Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 237.
• Canadian Charter of Rights and Freedoms, ss. 10(b), 14, 16 to 20, 33.
• Code of Professional Conduct for British Columbia (Law Society of British Columbia), r. 3.2-2.1.
• Constitution Act, 1867, s. 133.
• Criminal Code, R.S.C. 1985, c. C‑46, Part XVII, ss. 530, 536(2), 606(1.1), (1.2), 650, 683(1), 686.
• Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), s. 16.
• Rules of Professional Conduct (Law Society of Ontario), r. 3.2-2A.

Counsel

Solicitors for the appellant: Power Law, Ottawa.

Solicitor for the respondent: Attorney General of British Columbia, B.C. Prosecution Service, Criminal Appeals and Special Prosecutions, Victoria.

Solicitor for the intervener the Director of Public Prosecutions: Public Prosecution Service of Canada, Montréal.

Solicitors for the intervener the Canadian Bar Association: McCarthy Tétrault, Vancouver.

Solicitor for the intervener the Commissioner of Official Languages of Canada: Office of the Commissioner of Official Languages of Canada — Legal Affairs Branch, Gatineau.

Solicitors for the intervener Fédération des associations de juristes d'expression française de common law inc.: Gunn Law Group, Edmonton; Calgary Family Law Association, Calgary.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Stockwoods, Toronto.

Reasons for Judgment

English version of the judgment of Wagner C.J. and Côté, Rowe, Kasirer and O'Bonsawin JJ. delivered by

The Chief Justice —

TABLE OF CONTENTS

Section	Paragraph
I. Overview	1
II. Procedural and Judicial History	9
A. Decisions of the Supreme Court of British Columbia (Marchand J.)	11
(1) Voir Dire Decision, 2019 BCSC 2442	11
(2) Decision on Guilt, 2019 BCSC 1529	13
B. Decision of the British Columbia Court of Appeal, 2022 BCCA 177, 414 C.C.C. (3d) 86 (Dickson, Griffin and Voith JJ.A.)	15
III. Issues	21
IV. Analysis	23
A. Language Rights: Purpose, Nature and Interpretation	24
(1) Purpose and Nature	24
(2) Interpretation	27
B. Institutional Judicial Bilingualism: An Essential Component of the Preservation and Development of Linguistic Minorities	28
C. Language Rights Guaranteed by Section 530 Cr. C.	36
(1) Fundamental Right To Be Tried in the Official Language of One's Choice	37
(2) Right To Be Advised of This Fundamental Right	43
D. Powers of a Court of Appeal Hearing an Appeal Against a Conviction	53
(1) Principle Underlying Any Intervention by a Court of Appeal Under Section 686(1)(a) Cr. C.	54
(2) Importance of Distinguishing Errors of Law From the Other Two Types of Errors Referred to in Section 686(1)(a) Cr. C.	57
(a) Error of Law (Section 686(1)(a)(ii) Cr. C.)	60
(i) Error in the Application of a Legal Rule	61
(ii) Related to the Proceedings Leading to the Conviction	66
(iii) Made by a Judge	67
(b) Miscarriage of Justice (Section 686(1)(a)(iii) Cr. C.)	72
(3) Curative Provisos in Section 686(1)(b) Cr. C.	74
E. Framework That Applies Where a Breach of Section 530(3) Cr. C. Is Raised for the First Time on Appeal	78
(1) What the Accused Must Show to Justify Appellate Intervention	79
(2) What the Crown Can Show to Have the Appeal Dismissed Nonetheless	88
(3) This Framework Helps Prevent the Risk of Instrumentalization	94
F. Application to This Case	102
(1) The Curative Proviso Can Apply	103
(2) The Crown Has Failed to Show That Mr. Tayo Tompouba's Fundamental Right Was in Fact Respected	110
(a) Inconclusiveness of the Evidence	113
(i) Impact of a Breach of Section 530(3) Cr. C. on the Choice of Official Language	113
(ii) Timely Knowledge Otherwise Than Through Notice Under Section 530(3) Cr. C.	118
(b) The Inconclusiveness of the Evidence Must Benefit Mr. Tayo Tompouba	125
(3) Conclusion	128
V. Disposition	129

I. Overview

[ 1 ] In Canada, s. 530 of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), guarantees to every accused the right to be tried in the official language of their choice. This is a fundamental right of vital importance. It ensures equal access to the courts for accused persons who speak one of the two official languages and thereby assists in preserving the cultural identity of English and French linguistic minorities across the country.

[ 2 ] To make certain that an accused is able to choose the language of their trial in a free and informed manner, Parliament has imposed an informational duty for this purpose on the judge [^1] before whom the accused first appears. This very important duty, set out in s. 530(3) Cr. C., requires the judge to ensure that the accused is advised of their right to apply for a trial before a judge or a judge and jury, as the case may be, who speak the official language of their choice, and of the time before which the application must be made.

[ 3 ] However, there may be cases in which accused persons are not duly informed of this fundamental linguistic right and of how it is to be exercised. This appeal is an example of such a situation, and it is a reminder that Canada's linguistic minorities too often still experience difficulties in accessing justice in the official language of their choice.

[ 4 ] This appeal provides the Court with an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) Cr. C. when no decision on the accused's language rights was made at first instance. Thus far, the lower courts are not in agreement on the framework to be applied. While some appellate courts find that such a breach in itself warrants a new trial, others, including the Court of Appeal in this case, instead take the view that the evidence in the record must make it possible to conclude that the breach in fact resulted in a violation of the accused's fundamental right to be tried in the official language of their choice. This Court is thus called upon to settle this debate.

[ 5 ] For the reasons that follow, I am of the view that a breach of s. 530(3) Cr. C. is an error of law warranting appellate intervention under s. 686(1)(a) Cr. C. According to the jurisprudence, an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, through a decision or an improper omission, as long as the error is related to the proceedings leading to the conviction and was made by a judge. A breach of s. 530(3) Cr. C. corresponds precisely to this definition. It involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction. A breach of s. 530(3) Cr. C., once established, has the effect of tainting the trial court's judgment. It gives rise to a presumption that the accused's fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv) Cr. C.

[ 6 ] In addition to being in harmony with the scheme for conviction appeals, this framework strikes an appropriate balance. On the one hand, it takes into account and gives effect to the purpose of s. 530 Cr. C., which is to support the preservation and development of linguistic minorities across Canada by ensuring equal access to the courts in criminal proceedings. On the other, it prevents the risk that an accused who has been convicted will improperly take advantage on appeal, for an ulterior motive, of a breach of s. 530(3) Cr. C. that occurred at first instance. This is because the framework laid down gives the Crown an opportunity to persuade the court of appeal that the accused's fundamental right to be tried in the official language of their choice was respected, despite the breach of s. 530(3) Cr. C. If the Crown succeeds, the appeal can then be dismissed. For this reason, the framework significantly limits the risk of language rights being instrumentalized on appeal — a highly objectionable practice that must be sanctioned to the greatest extent possible.

[ 7 ] In this case, I conclude that the Court of Appeal erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C., that his fundamental right to be tried in the official language of his choice had in fact been violated at first instance. If the Court of Appeal had applied the proper legal framework, it would have found that Mr. Tayo Tompouba had proved that a reviewable error had been made and that the Crown had failed to establish that the appellant's fundamental right was not in fact violated despite the breach of s. 530(3) Cr. C.

[ 8 ] I would therefore allow the appeal, quash the conviction and order that a new trial be held in French.

II. Procedural and Judicial History

[ 9 ] Mr. Tayo Tompouba is a bilingual Francophone who was convicted of sexual assault following a trial conducted in English in the Supreme Court of British Columbia. It is acknowledged that, during the judicial process leading to Mr. Tayo Tompouba's conviction, the judge did not ensure that he was advised of his right to be tried in French, contrary to the requirements of s. 530(3) Cr. C. The parties also agree that Mr. Tayo Tompouba did not apply for a trial in French and that the trial judge did not order on his own initiative that Mr. Tayo Tompouba be tried in French, as s. 530(4) Cr. C. authorized him to do.

[ 10 ] Because Mr. Tayo Tompouba did not apply for a trial in French or raise the breach of his right under s. 530(3) Cr. C. to be advised of the right to make such an application, these matters were not decided at first instance. However, mention should be made of two judgments rendered by the Supreme Court of British Columbia in which findings concerning the appellant's linguistic abilities were made.

A. Decisions of the Supreme Court of British Columbia (Marchand J.)

(1) Voir Dire Decision, 2019 BCSC 2442

[ 11 ] At a voir dire, Mr. Tayo Tompouba argued that an incriminating statement made to the police shortly after his arrest was inadmissible because his right to counsel had been read to him in English and exercised in that language. The Supreme Court of British Columbia rejected his arguments and admitted the incriminating statement into evidence. Taking the entire record into account, the judge held that there had been no special circumstances imposing a duty on the police to take additional steps to ensure that Mr. Tayo Tompouba understood his right to counsel and exercised it in the official language of his choice.

[ 12 ] The judge noted that it was obvious that Mr. Tayo Tompouba was not originally from Canada and that English was not his first language — indeed, it was sometimes difficult to understand him when he spoke English. The judge found that Mr. Tayo Tompouba nonetheless displayed a good ability to understand English and had an advanced vocabulary in English, which was consistent with the fact that he had been living in British Columbia for several years at the time of his arrest and that he worked there and attended school there in English. Lastly, the judge found that Mr. Tayo Tompouba had said that he was confident in his ability to interact with the police in English.

(2) Decision on Guilt, 2019 BCSC 1529

[ 13 ] In his reasons for judgment on guilt, the judge rejected Mr. Tayo Tompouba's arguments, including that his incriminating statement to the police had been false and that he had misunderstood the significance of such a statement because he did not have a good understanding of English.

[ 14 ] In the judge's view, although Mr. Tayo Tompouba's English was not perfect — as he sometimes struggled to find the right words to express himself and he asked for clarifications several times in order to understand the questions put to him — he displayed an excellent ability to understand and express himself in English. Essentially, his slight linguistic difficulties were no different than those normally experienced by witnesses who speak English as a first language.

B. Decision of the British Columbia Court of Appeal, 2022 BCCA 177, 414 C.C.C. (3d) 86 (Dickson, Griffin and Voith JJ.A.)

[ 15 ] It was not until Mr. Tayo Tompouba was before the Court of Appeal that he asserted that he would have liked his trial to be conducted in French. On appeal from his conviction, Mr. Tayo Tompouba urged two grounds for intervention based on the violation of his language rights: the breach of s. 530(3) Cr. C. and, in the alternative, the trial judge's failure to proactively exercise the powers conferred on him by s. 530(4) Cr. C. in order to remand him to be tried by a judge who spoke French. In his opinion, these errors precluded the application of either of the curative provisos and required full new proceedings to be held.

[ 16 ] It is important to note that Mr. Tayo Tompouba did not seek to file fresh evidence on appeal. He did not try to prove that he had been unaware at first instance of his right to be tried in the official language of his choice, nor did he try to explain why he had waited before asserting this right. In his view, this was unnecessary given his position on the lower courts' breaches of his language rights. Therefore, Mr. Tayo Tompouba simply alleged that he had not been informed of his right in this regard at first instance, either by his counsel or by the various judges before whom he had appeared.

[ 17 ] In a unanimous decision, the Court of Appeal dismissed his appeal. First of all, it refused to accept the ground of appeal based on the breach of s. 530(3) Cr. C. While it was of the view that the breach was an error of law under s. 686(1)(a)(ii) Cr. C., it found that there was insufficient evidence to conclude that the error had caused any prejudice. It therefore applied one of the curative provisos in s. 686(1)(b) Cr. C.

[ 18 ] The Court of Appeal explained that the success of this ground of appeal depended on factual inferences that would support a conclusion that the breach of the duty set out in s. 530(3) Cr. C. had resulted in a violation of the appellant's fundamental right to be tried in the official language of his choice. However, in its opinion, such inferences could not reasonably be drawn from the record. Specifically, the evidence before it did not allow a conclusion to be reached one way or the other on various key questions, including when Mr. Tayo Tompouba had learned of his fundamental right, whether he would in fact have chosen a trial in French if he had had an opportunity to do so, and whether he had not made a free and informed choice to have a trial in English. Because the onus was, in its view, on Mr. Tayo Tompouba to adduce such evidence and persuade it that his fundamental right had been violated, the Court of Appeal held that the inconclusiveness of the evidence on these questions was fatal to him.

[ 19 ] The Court of Appeal also dismissed Mr. Tayo Tompouba's alternative ground of appeal to the effect that the trial judge had erred in not remanding him to be tried by a judge who spoke French. As a general rule, a trial judge is not obliged to inquire into an accused's official language of choice unless it becomes evident that this may be a "genuinely live issue" (C.A. reasons, at para. 127). In this case, however, several findings of fact — which, in the Court of Appeal's view, were not tainted by any palpable error — provided a basis for the trial judge to conclude that the language of the trial was not a live issue: the appellant was fluent in English, he was represented by counsel, he felt that he could interact with the police in English, he demonstrated an understanding of linguistic nuance, and he testified in English without apparent difficulty. In this context, the Court of Appeal was of the opinion that the trial judge could not be faulted for not inquiring into whether it would be in the best interests of justice to remand the appellant to be tried in French.

[ 20 ] It is clear from the Court of Appeal's reasons that it was seeking to prevent the risk that accused persons may take advantage of essentially harmless violations of their language rights that occur at first instance. It strongly emphasized the importance of adopting a framework that does not encourage accused persons to raise non‑compliance with s. 530(3) Cr. C. in a purely tactical manner for the purposes of a conviction appeal. In its view, accused persons must not be permitted to secure a new trial as a result of a breach of s. 530(3) Cr. C. that does not genuinely impact their fundamental right to be tried in the official language of their choice. It held that no accused should be automatically entitled to a new trial solely on the basis of a breach of s. 530(3) Cr. C.

III. Issues

[ 21 ] The questions raised by this appeal are as follows:

(1) What framework applies where an accused appeals their conviction while raising a breach of s. 530(3) Cr. C., when no decision on the accused's language rights was made at first instance?

(2) Did the Court of Appeal make a reviewable error in declining to order a new trial?

[ 22 ] For the reasons that follow, I am of the view that the applicable framework must be based on the principles enunciated in R. v. Beaulac, [1999] 1 S.C.R. 768, and must also be in harmony with the logic and structure of s. 686 Cr. C. Simply showing that s. 530(3) Cr. C. was breached is sufficient to justify appellate intervention under s. 686(1)(a)(ii) Cr. C. A breach of s. 530(3) Cr. C. is an error of law and gives rise to a presumption that the accused's fundamental right to be tried in the official language of their choice was infringed. The Crown can then rebut this presumption at the stage of the curative proviso analysis. If the Court of Appeal had applied the proper framework, it would have allowed Mr. Tayo Tompouba's appeal, quashed his conviction and ordered a new trial.

IV. Analysis

[ 23 ] It is appropriate to begin the analysis with an overview of language rights, institutional judicial bilingualism, the rights guaranteed by s. 530 Cr. C. and the powers of a court of appeal hearing an appeal against a conviction.

A. Language Rights: Purpose, Nature and Interpretation

(1) Purpose and Nature

[ 24 ] The purpose of language rights is to "protect official language minorities in this country and to insure the equality of status of French and English" (Beaulac, at para. 41). These rights are "a fundamental tool" for the preservation and development of Canada's two official language communities (Beaulac, at para. 25, citing Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at p. 850; see also Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261, at para. 32; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at paras. 11 and 18). Neither "negative" nor "passive", they are substantive rights that require positive action by the state to ensure that they are given effect (Beaulac, at paras. 20, 24 and 28; Mazraani, at para. 20; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535, at para. 38; Commission scolaire francophone des Territoires du Nord‑Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para. 111).

[ 25 ] In the judicial context, language rights must be distinguished from guarantees related to procedural fairness. As Bastarache J. reiterated in Beaulac, language rights are a "particular kind of right, distinct from the principles of fundamental justice", in that they are not meant to "enforce minimum conditions under which a trial will be considered fair" (paras. 25 and 47). Rather, their purpose is to ensure that everyone has "equal access to a public service that is responsive to [their] linguistic and cultural identity" (para. 45; see also MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, at pp. 500‑501; Mazraani, at paras. 20 and 46; Bessette, at para. 38).

[ 26 ] This distinction is especially important in criminal law cases. It means that the harm caused by a violation of an accused's language rights during criminal proceedings can in no way be tempered by the fact that the accused was still able to make full answer and defence. In practical terms, this means that where the accused's language rights were violated, the fact that the violation had no impact on trial fairness will not be relevant to the remedy granted (Beaulac, at paras. 41 and 47; Mazraani, at para. 46).

(2) Interpretation

[ 27 ] Since Beaulac, it has consistently been held that language rights, both those that are constitutional and those that are statutory in nature, must in all cases be interpreted liberally and purposively, in keeping with their purpose, which is to support the preservation and development of Canada's two official language communities (para. 25; see Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 27; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, at para. 23; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, at para. 31; Mazraani, at para. 20; P. W. Hogg and W. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 56:12).

B. Institutional Judicial Bilingualism: An Essential Component of the Preservation and Development of Linguistic Minorities

[ 28 ] This appeal relates to institutional judicial bilingualism, which ensures equal access to the courts for members of Canada's linguistic communities (see Beaulac, at para. 28; Bessette, at para. 20). 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 (see Conseil scolaire francophone de la Colombie‑Britannique, at para. 12, per Wagner C.J., and at paras. 188‑89, per Brown and Rowe JJ., dissenting; J. D. Richard, "Le bilinguisme judiciaire au Canada" (2001), 42 C. de D. 389, at p. 395).

[ 29 ] First of all, the Constitution Act, 1867 sets out limited positive rights that protect the use of English and French in certain federal and Quebec institutions, including judicial institutions:

133 Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

[ 30 ] In addition, echoing s. 133 of the Constitution Act, 1867 and strengthening the constitutional protection provided to linguistic minorities across the country, ss. 16 to 20 of the Canadian Charter of Rights and Freedoms set out a series of legal guarantees that ensure institutional bilingualism at the federal level. These guarantees are not subject to the notwithstanding clause in s. 33 of the Charter (see R. J. Sharpe and K. Roach, The Charter of Rights and Freedoms (7th ed. 2021), at pp. 433‑34).

[ 31 ] In this case, it is ss. 16 and 19 of the Charter that should be focused on specifically. After stating, in the first subsection, that English and French are the official languages of Canada and that these two languages have "equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada", s. 16 specifies, in the third subsection, that Parliament and the legislatures remain free at all times "to advance the equality of status or use of English and French". As for s. 19, it specifically guarantees, in the first subsection, the right to use either English or French in, or in any pleading in or process issuing from, any federally established court (see Sharpe and Roach, at p. 433).

[ 32 ] The combined effect of s. 133 of the Constitution Act, 1867 and s. 19(1) of the Charter is to guarantee to every person the right to speak in the official language of their choice in judicial proceedings at the federal level and in Quebec (Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at pp. 574‑75; R. v. Mercure, [1988] 1 S.C.R. 234, at p. 297‑98, per Estey J., dissenting; Hogg and Wright, at § 56:9; Sharpe and Roach, at p. 433). This guarantee is a "constitutional minimum" that can be supplemented by federal and provincial legislation in order to advance the equality of status and use of English and French by conferring additional linguistic guarantees (see s. 16(1) and (3) of the Charter; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, at pp. 192‑93; MacDonald, at p. 496; Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212, at pp. 222‑23; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774, at para. 56; Sharpe and Roach, at p. 432).

[ 33 ] The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), is an example of federal legislation enacted for this purpose. This statute broadens [translation] "the legal guarantees provided by section 133 of the Constitution Act, 1867, both through its geographic scope and through the range of services offered" (Richard, at p. 391; see also Beaulac, at para. 22; V. Gruben, "Le bilinguisme judiciaire", in M. Bastarache and M. Doucet, eds., Les droits linguistiques au Canada (3rd ed. 2013), 301, at pp. 350‑69). With respect to institutional judicial bilingualism in particular, s. 16 requires every federal court to ensure that the judge who hears proceedings is able to understand the language in which the proceedings are conducted, without the use of translation services.

[ 34 ] Section 530 Cr. C. is another example of a provision enacted "to advance the equality of status or use of English and French" (see Beaulac, at paras. 22 and 34; Gruben, at pp. 350‑51 and 370‑71). This section supplements the constitutional minimum guaranteed through the combined effect of s. 133 of the Constitution Act, 1867 and s. 19(1) of the Charter. It goes beyond the constitutional right to speak in the official language of one's choice by also giving every accused the right to choose the official language they wish to speak and in which they wish to be understood by the judge or the judge and jury, without the use of interpretation or translation services (see Beaulac, at para. 28; Bessette, at para. 20).

[ 35 ] I now turn to the language rights guaranteed by s. 530 Cr. C.

C. Language Rights Guaranteed by Section 530 Cr. C.

[ 36 ] The purpose of s. 530 Cr. C. 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; see also para. 56; Bessette, at para. 38). In particular, this section guarantees to every accused the fundamental right to be tried in the official language of their choice (s. 530(1) and (4) Cr. C.) and the right to be advised of this right (s. 530(3) Cr. C.), as can be seen from its wording at the time of Mr. Tayo Tompouba's first appearance: [^2]

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.

(2) On application by an accused whose language is not one of the official languages of Canada, made not later than whichever of the times referred to in paragraphs (1)(a) to (c) is applicable, a justice of the peace or provincial court judge may 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 in which the accused, in the opinion of the justice or provincial court judge, can best give testimony or, if the circumstances warrant, who speak both official languages of Canada.

(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.

(4) Where an accused fails to apply for an order under subsection (1) or (2) and the justice of the peace, provincial court judge or judge before whom the accused is to be tried, in this Part referred to as "the court", is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language or, if the circumstances warrant, who speak both official languages of Canada.

(1) Fundamental Right To Be Tried in the Official Language of One's Choice

[ 37 ] Subsections (1) and (4) of s. 530 set out two frameworks governing the exercise of the same fundamental right, that is, the right of every accused to be tried in the official language of their choice. In Beaulac, this Court clarified the nature of and manner of exercising the right guaranteed to every accused under these two subsections, which until then had been interpreted inconsistently by the courts (see Gruben, at p. 373, citing R. Soublière, "Les perpétuels tiraillements des tribunaux dans l'interprétation des droits linguistiques" (2001), 4 R.C.L.F. 1).

[ 38 ] Discussing s. 530(1) Cr. C., this Court stated that it guarantees to every accused an absolute right to equal access to the courts in the official language of their choice, provided that the accused's application is timely and that they are able to instruct counsel and follow the proceedings in the chosen language (Beaulac, at paras. 28, 31, 34 and 37). To exercise this absolute right, the accused need only "assert" which official language is their own language. The judge will then have to grant the accused's application unless the Crown shows that the assertion is unfounded (para. 34). Where the Crown challenges the accused's assertion, the judge should not inquire into specific criteria to determine a dominant cultural identity or into the personal language preferences of the accused. The judge will only verify that the requirements of s. 530(1) Cr. C. are met (para. 34). In short, where the accused's application is timely and there is no evidence establishing that their proficiency in the chosen language is insufficient for them to exercise their right, the accused has an absolute right, guaranteed by s. 530(1) Cr. C., to choose the official language to be used and understood by the judge or the judge and jury before whom they will be tried (para. 56).

[ 39 ] In contrast, where an accused's application to be tried in the official language of their choice is untimely — that is, made outside the period specified in s. 530(1) Cr. C. — the accused's right is then subject to the judge's discretion. Under s. 530(4) Cr. C., the judge may grant the accused's application only if satisfied that doing so is in the best interests of justice. In Beaulac, this Court stated that there are, however, significant constraints on this judicial discretion. In particular, because of the central importance of language rights in Canadian society, there is a presumption in the accused's favour that granting their application is in the best interests of justice. In practice, therefore, granting an application under s. 530(4) Cr. C. should be the rule and denying it should be the exception (Beaulac, at paras. 42 and 56).

[ 40 ] To justify the denial of such an application, the Crown must rebut this presumption. It must show that granting the accused's application is not in the best interests of justice and, for this purpose, make arguments based on both the reasons for the delay and the difficulties caused by the lateness of the application (Beaulac, at paras. 37, 40, 42 and 44). With regard to the reasons for the delay, this Court specified that the later the application is made, the better the reason for the delay must be in order for the application to be accepted. That being said, there is no burden on the accused: even if the accused provides no explanation for the delay, this will not necessarily be fatal. At most, it will merely facilitate the Crown's task of justifying the denial of the accused's late application (paras. 43 and 56). As for the difficulties caused by the lateness of the application, the Court set out the relevant factors relating to the conduct of the trial, including

whether the accused is represented by counsel, the language in which the evidence is available, the language of witnesses, whether a jury has been empanelled, whether witnesses have already testified, whether they are still available, whether proceedings can continue in a different language without the need to start the trial afresh, the fact that there may be co‑accuseds (which would indicate the need for separate trials), changes of counsel by the accused, the need for the Crown to change counsel and the language ability of the presiding judge. [para. 38]

Mere administrative inconvenience, on the other hand, is of no relevance (para. 39).

[ 41 ] The result is a framework conducive to the protection of the accused's language rights. Even where the accused decides to exercise their fundamental right to be tried in the official language of their choice late, even as late as during the trial on the merits, the presumption applies in the accused's favour. The burden of persuading the court that the accused's application must be denied falls on the Crown (Beaulac, at paras. 42 and 56).

[ 42 ] Finally, it should be noted that it is well settled that the violation of this fundamental right constitutes significant prejudice for which the appropriate remedy is normally a new trial. In Beaulac, this Court stated that the erroneous denial of an application under s. 530(1) or (4) Cr. C. violates the accused's right to be tried in the official language of their choice and will always cause prejudice to the accused. It follows that where this fundamental right of the accused was violated, the Crown can never successfully rely on either of the curative provisos in s. 686(1)(b) Cr. C., even if the violation had no impact on trial fairness or on the accused's ability to make full answer and defence (Beaulac, at paras. 52‑54; Bessette, at para. 38). Therefore, where there was an infringement of an accused's fundamental right to be tried in the official language of their choice, a new trial will generally be the fair, appropriate and proportionate remedy (see Beaulac; Mazraani, at paras. 47‑48).

(2) Right To Be Advised of This Fundamental Right

[ 43 ] Section 530(3) Cr. C. enshrines the accused's right to be advised of their right to be tried in the official language of their choice and of the time before which an application for this purpose must be made. Parliament's intention was that the safeguarding of this fundamental right be ultimately entrusted to the judge before whom the accused first appears. To begin with, s. 530(3) Cr. C. explicitly states that the judge must ensure that the accused is advised of their fundamental right and of the time limit for exercising it. In addition, it is implicit in the language of s. 530(3) Cr. C. that if the first appearance judge finds that the accused has not been properly informed, or if they have the slightest doubt in this regard, they must take the necessary steps to ensure that the accused is informed of their fundamental right and of how it is to be exercised. While this last point is not clear from the language of s. 530(3) Cr. C., it is nonetheless the interpretation that must be adopted in light of the legislative intent. This two‑pronged duty — which requires the judge to ensure that the accused is duly informed of their fundamental right and of how it is to be exercised and, where the circumstances so require, to take the necessary steps to inform the accused thereof — is what I refer to as the judge's "informational duty".

[ 44 ] Section 530(3) Cr. C. states that the judge before whom an accused first appears "shall ensure" ("veille" in the French version) that the accused is "advised" ("avisé" in the French version) of their right and of the time limit for exercising it. The use of these terms in each language version indicates that Parliament intends judges to "make certain" that every accused is informed of their right and of how it is to be exercised so that the accused can avail themself of the right in a timely manner (Canadian Oxford Dictionary (2nd ed. 2004), sub verbo "ensure"; The Dictionary of Canadian Law (5th ed. 2020), sub verbo "ensure"; Le Grand Robert de la langue française (electronic version), sub verbo "aviser"; Grand Robert & Collins (electronic version), sub verbo "advise" and "aviser"). In other words, the judge must display [translation] "vigilance" and "actively take care" to ensure that the accused is duly informed of their right and of how it is to be exercised (Le Grand Robert de la langue française (electronic version), sub verbo "veiller"). The judge cannot presume what the accused's choice is or assume that the accused has been or will be advised of their right and of how it is to be exercised. The judge must ensure, in a proactive and systematic manner, that the accused is properly informed, irrespective of the fact that the accused seems to be a member of a linguistic minority or that the accused may have been or may be informed of this right by another person, such as their counsel. In short, the judge must take the steps needed to "have no doubt" that the accused is well aware of their right and of how it is to be exercised (Mazraani, at para. 34; see also paras. 25, 32, 38, 44 and 60; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485, at para. 12; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466, at para. 49).

[ 45 ] It should be noted here that if the judge finds that the accused has not been properly informed, or if there remains any doubt about this in their mind, the judge must ensure that the accused is informed of their right and of how it is to be exercised. While it is true that this is not explicitly stated in the provision, this interpretation is nonetheless the one most in keeping with the legislative intent as revealed by the provision's purpose and the legislative history. I will start by looking at the purpose of s. 530(3) Cr. C. The primary purpose of this provision is to help protect the accused's fundamental right to choose the official language in which they wish to be tried by ensuring that the accused has, at the proper time, the information required to exercise this right. In the context of language rights, the jurisprudence establishes that when it comes to protecting the right to choose an official language, it is essential that this personal choice be a free and informed one (Mazraani, at paras. 42 and 44). Ultimately, the goal of s. 530(3) Cr. C. is therefore to make sure that information about the accused's fundamental right and how it is to be exercised is conveyed to the accused in a timely manner in order to help the accused make a free and informed choice of official language. This requires the first appearance judge to take the necessary steps to ensure that the accused is informed of their right and of how it is to be exercised where the judge finds that the accused has not been properly informed or where the judge has any doubt in this regard.

[ 46 ] The legislative history of s. 530(3) Cr. C. also shows that a principle of caution must always guide the judge who has to ensure respect for the accused's right to be advised of their language rights protected by s. 530 Cr. C., such that the slightest doubt must lead the judge to take the necessary steps to ensure that the accused is duly informed. The previous version of this provision imposed an informational duty on the judge only in cases where the accused was self‑represented. It was thus presumed that counsel would properly inform their clients of their language rights (see Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 33, 3rd Sess., 30th Parl., May 31, 1978, at pp. 5‑6; Gruben, at p. 379). In 2008, in response to criticisms by courts and other interested institutions and bodies that this presumption was unfounded in practice, Parliament amended s. 530(3) Cr. C. to extend the application of the judge's informational duty to all accused persons, regardless of whether they were self‑represented or represented by counsel (see Beaulac, at para. 37; An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), S.C. 2008, c. 18, s. 18; House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 65, 1st Sess., 39th Parl., May 2, 2007, at pp. 2‑3; Commissioner of Official Languages, The Equitable Use of English and French Before the Courts in Canada (1995), at pp. 102‑4).

[ 47 ] This amendment is important. It amounts to legislative recognition of a principle of caution requiring judges to avoid presuming, without verifying in a diligent and proactive manner, that an accused has been duly informed of their right and of how it is to be exercised prior to their first appearance. While this principle of caution applies in relation to accused persons who are represented by counsel, notwithstanding the fact that counsel generally have an ethical duty to inform their clients of their fundamental right to be tried in the language of their choice, I am of the view that the principle applies with even greater force in relation to accused persons who are not represented by counsel and to those who were purportedly informed of their right by another person or in another way prior to their first appearance.

[ 48 ] The amendment also reflects the legislative intent to make the judge the ultimate guardian of the fundamental right of every accused to be tried in the official language of their choice, and thus the ultimate guardian of the free and informed nature of the accused's choice of official language. By imposing a duty on the judge to play an active role in ensuring respect for this fundamental right, this legislative amendment enshrines the principle of active offer when it comes to language rights (see Debates of the Senate, vol. 144, No. 14, 2nd Sess., 39th Parl., November 21, 2007, at pp. 274‑75). It recognizes that in a context as intimidating as that of a criminal trial, where the accused's freedom is at stake, it is important that it be the person in a position of authority, namely the judge, who protects the accused's language rights under s. 530 Cr. C. by being vigilant, cautious and proactive, particularly to alleviate any fear associated with the exercise of these rights and to help ensure that the choice is a free and informed one (see R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 691, at para. 62; see also Office of the French Language Services Commissioner of Ontario, Active Offer of Services in French: The Cornerstone for Achieving the Objectives of Ontario's French Language Services Act (2016), at pp. 10‑11).

[ 49 ] It follows from the foregoing that a first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge's informational duty. Such a failure by the judge constitutes a breach of s. 530(3) Cr. C. and violates the accused's right.

[ 50 ] Finally, I note that the consequences of a breach of s. 530(3) Cr. C. will differ depending on when the breach is raised. When it is raised at first instance outside the periods specified in s. 530(1) Cr. C., the accused can file a late application under s. 530(4) Cr. C. The judge's failure to comply with s. 530(3) Cr. C. will then be a relevant factor in the accused's favour that the judge hearing the application must consider when assessing the diligence displayed by the accused in exercising their fundamental right. As Mainville J.A. of the Quebec Court of Appeal wrote: "Should the duty under s. 530(3) . . . Cr.C. not have been satisfied, it would be more difficult to refuse a late application" (Dhingra, at para. 51).

[ 51 ] Where the breach of s. 530(3) Cr. C. is raised for the first time on appeal, as in this case, the consequences of the breach are a subject of disagreement among the courts, with respect to both the applicable framework and the appropriate remedy. Some appellate courts find that a breach of s. 530(3) Cr. C. in itself causes very significant prejudice to the accused, which requires that a new trial be held (see MacKenzie, at paras. 3, 11, 69 and 82‑83; R. v. Deveaux (1999), 181 N.S.R. (2d) 81 (S.C.)). Others, including the Court of Appeal in this case, instead take the view that such a breach cannot justify a new trial on its own in the absence of evidence in the record from which it can be concluded that the breach resulted in a violation of the accused's fundamental right to be tried in the official language of their choice or other significant prejudice (paras. 106 and 125‑26; see also R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392, at paras. 8‑10).

[ 52 ] Below I will endeavour to clarify the applicable framework and the appropriate remedy where a breach of s. 530(3) Cr. C. is raised for the first time on appeal. Before that, however, a few words should be said about the powers of a court of appeal hearing an appeal against a conviction under s. 686 Cr. C.

D. Powers of a Court of Appeal Hearing an Appeal Against a Conviction

[ 53 ] Section 686 Cr. C. sets out the powers of a court of appeal hearing an appeal against a conviction. The relevant portions of this section read as follows:

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where:

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

(1) Principle Underlying Any Intervention by a Court of Appeal Under Section 686(1)(a) Cr. C.

[ 54 ] Section 686(1)(a) Cr. C. allows a court of appeal to intervene only if the appellant is able to show that the verdict is unreasonable, that an error of law was made or that a miscarriage of justice occurred. These three grounds for intervention have the same underlying principle: a court of appeal can generally intervene only where the error was prejudicial to the accused. Otherwise, it is an error without legal consequence, except in cases where the error, without causing direct prejudice to the accused, is so serious that it shakes public confidence in the administration of justice (see R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, quoting R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89; R. v. Kahsai, 2023 SCC 20, at paras. 67‑68).

[ 55 ] Section 686(1)(a)(i) Cr. C. is concerned with situations that are inherently prejudicial to the accused, that is, situations in which the accused's conviction is unreasonable in the sense that the guilty verdict cannot reasonably be supported by the evidence or is vitiated by illogical or irrational reasoning (R. v. Brunelle, 2022 SCC 5, at para. 7, citing R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; see also Sinclair, at para. 76, per Charron J., concurring, quoting R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 219). For its part, s. 686(1)(a)(ii), when read along with the curative provisos in s. 686(1)(b)(iii) and (iv), presumes that an error of law is prejudicial to the accused unless the Crown can show the contrary with the requisite degree of certainty (see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 16; Sinclair, at para. 76, quoting Morrissey, at p. 219; S. Coughlan, Criminal Procedure (4th ed. 2020), at pp. 566‑67, 574, 578 and 581‑82). Finally, s. 686(1)(a)(iii) Cr. C. permits a court of appeal to intervene in any other situation that causes prejudice giving rise to a miscarriage of justice. This will be the case where the accused was convicted following a trial that was unfair in fact or in appearance, for example where the accused entered a guilty plea without being aware of a collateral consequence of the plea that, if it had been known, would have induced the accused to act differently (Davey, at para. 51, quoting Wolkins, at para. 89; Kahsai, at para. 67, citing Khan, at paras. 69 and 73; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 5, 25 and 39, per Moldaver, Gascon and Brown JJ., and at paras. 44, 79 and 85, per Wagner J., dissenting).

[ 56 ] In short, as a general rule, a court of appeal may intervene only if the error was prejudicial to the accused. Unreasonable verdicts (s. 686(1)(a)(i) Cr. C.) and miscarriages of justice (s. 686(1)(a)(iii) Cr. C.) are usually, by nature, prejudicial to the accused, while errors of law (s. 686(1)(a)(ii) Cr. C.) are presumed to be prejudicial (see Khan, at para. 16; Coughlan, at pp. 574‑75 and 582).

V. Disposition

[ 129 ] I would allow the appeal, quash the conviction and order that a new trial be held in French.

Joint Dissenting Reasons

Karakatsanis and Martin JJ. (dissenting) —

I. Overview

[ 130 ] Language rights are of central importance to Canadian society and have a special place in criminal proceedings. Together, the various parts of s. 530 of the Criminal Code, R.S.C. 1985, c. C-46, secure a substantive right to a trial in the official language of the accused's choice — one that, if requested before trial, is absolute (s. 530(1)). Section 530(3) obliges judges, provincial court judges, judges of the Nunavut Court of Justice or justices of the peace ("judicial officials") to ensure that accused persons are advised of their right to a trial in French or English when they first appear in court. This informational duty is designed to give the accused timely and necessary information to facilitate the choice of a trial in either official language. No such notice was provided to the appellant, and the main issue before us is what legal consequences flow from non-compliance with s. 530(3) when that breach is asserted for the first time on appeal.

[ 131 ] We agree that every accused person should be given the full opportunity to exercise their substantive right to a trial in the official language of their choice. We also agree with the Chief Justice's review of the fundamental importance of language rights, that they engender positive obligations, that avoiding a breach of s. 530(3) is not difficult, and that courts should implement practices that ensure accused persons are properly informed of their language rights. We differ though in how we classify the irregularity that occurs when s. 530(3) is not followed.

III. Application

[ 189 ] Both parties agreed that the justice of the peace presiding over the appellant's first appearance violated s. 530(3). Under the ground of "miscarriage of justice" in s. 686(1)(a)(iii), the appellant was required to establish that he did not otherwise know of his language rights in order to show that this failure had any consequence. The appellant has brought no evidence to meet this minimal burden, both before the British Columbia Court of Appeal and again before this Court. He has not shown that this breach affected his substantive right to a trial in the official language of his choice, thus causing a miscarriage of justice.

[ 190 ] While the appellant's silence is enough to dispose of this appeal, we also note that the evidence in the record strongly supports the inference that the appellant was aware of his language rights. Upon his release from the police station after arrest and before his first appearance, he signed a police undertaking and a promise to appear, both of which had notices informing him of the option to apply for a trial in French (2022 BCCA 177, 414 C.C.C. (3d) 86, at paras. 9-10). In the promise to appear, the notice was in both French and English. He signed the undertaking immediately above a statement that he was entitled to "apply, pursuant to Section 530 of the Criminal Code, to have [his] trial" in either English or French, and that if he wanted a trial in French, he "must apply to the court" within the specified timeframes (R.R., at pp. 2-3). The promise to appear contained the same statement, and the appellant again signed immediately above a written instruction to "See Notice of Language Rights at Trial on reverse" (p. 1).

[ 191 ] In addition, at his first appearance, the appellant's counsel affirmed he would ensure his client was aware that the terms of the undertaking were still in effect (C.A. reasons, at para. 12). Like lawyers in most jurisdictions in Canada, this counsel had an ethical duty to inform the appellant of his language rights (see Law Society of British Columbia, Code of Professional Conduct for British Columbia, r. 3.2-2.1; see also Law Society of Ontario, Rules of Professional Conduct, r. 3.2-2A; Federation of Law Societies of Canada, Model Code of Professional Conduct, October 2022 (online), r. 3.2-2A). Where an accused is represented by a lawyer, a court is entitled to presume that defence counsel will fulfill their professional obligations (see, e.g., G.D.B., at para. 27). Although the presence of counsel cannot relieve a judicial official of their obligations under s. 530(3) (Beaulac, at para. 37), where a s. 530(3) breach is raised for the first time on appeal, the role of counsel may be a relevant factor to consider in determining whether the accused otherwise knew of their language rights.

[ 192 ] Once at trial, the appellant advanced an argument in a voir dire based on an allegation that the police had breached s. 10(b) of the Charter when they obtained a statement without first making sure the appellant understood he had the right to consult with French-speaking counsel (C.A. reasons, at para. 17). Such an argument would tend to demonstrate a nuanced understanding of his language rights and the protections that our law provides him.

[ 193 ] The appellant's silence in the face of this contrary evidence is concerning. This is evidence that the Crown could likely have used to question him on the key point of whether he had knowledge of his right to a trial in French or English. When the appellant alone has the evidence necessary to ground his appeal, an appellate court is arguably entitled to conclude that his silence on these matters raises an adverse inference that the evidence would not have helped his case. His silence speaks volumes (see Lévesque v. Comeau, [1970] S.C.R. 1010, at pp. 1012-13; Jolivet, at para. 28).

[ 194 ] The record below also reveals no serious dispute that the appellant is bilingual: the evidence available as to his language abilities suggests that he could have chosen a trial in either English or French. Although the appellant disputes his English abilities for the first time before this Court, we would not depart from the findings of the trial judge on the voir dire that he is fluent in English, as these findings are entitled to deference (trial reasons, 2019 BCSC 1529, at para. 35; voir dire reasons, 2019 BCSC 2442, at paras. 11-12, reproduced in A.R., vol. I, at pp. 7-9). The appellant's bilingualism does not affect whether his substantive right to a trial in French was breached if he did not know of his ability to choose a trial in either official language. However, if he knew of this right, the fact that he is competent in English means it is plausible that, from the beginning, he chose to be tried in English. What he knew, he will not say.

[ 195 ] The appellant has not met his burden to show that a miscarriage of justice occurred. He has not shown that he suffered any consequence from the failure of the justice of the peace presiding over his first appearance to follow s. 530(3) or that this failure deprived him of his substantive right to choose the official language of his trial. Although the breach that occurred in his proceedings should not have happened, this Court has no power to grant relief from an error that, ultimately, had no proven effect.

IV. The Trial Judge's Duty Under Section 530(4)

[ 196 ] We turn briefly to the appellant's alternative submission that the trial judge had a duty under s. 530(4) to verify whether the appellant's trial was taking place in the official language of his choice, and that the trial judge erred in law by failing to order on his own initiative that the appellant be remanded for a trial in French. We would dismiss this ground of appeal as well.

[ 197 ] Under s. 530(4), trial judges have no mandatory duty to confirm the accused's choice of language: the ability of the trial judge to do so is left to their discretion. Typically, such an inquiry would be conducted following a late application by the accused, although s. 530(4) also allows the trial judge, of their own motion, to ask and remand the accused to be tried in the other official language if doing so is in "the best interests of justice". Trial judges should thus be vigilant for signs that the trial is not proceeding in the accused's official language of choice, such as the accused switching between languages while testifying (see Mazraani, at para. 45; Parsons v. R., 2014 QCCA 2206, at para. 35). At the same time, trial judges are not "expected to be mind readers" (Tran, at p. 982). Unless the circumstances in the trial record are such that the choice of the accused (or lack thereof) to proceed in that language calls out for an inquiry, there will be no breach of s. 530(4) if the trial judge fails to do so.

[ 198 ] The accused's choice of language for trial is highly subjective and deeply personal. Although it is important for trial judges to ensure that the accused is being tried in their language of choice, they must also be cautious about interfering with that choice simply because the accused's first language differs from that of the proceedings. The substantive right to a trial in one's own official language is not necessarily related to the fairness of the trial or the ability of the accused to testify in one language better than another. An accent, or brief slippages into another language, do not automatically trigger a duty under s. 530(4). Each case depends on its own unique circumstances.

[ 199 ] Here, the trial judge found that the appellant was fluent in both English and French (trial reasons, at para. 35; voir dire reasons, at paras. 11‑12). In English, the appellant was articulate, able to understand certain nuances, had a solid vocabulary, and spoke fluidly and rationally (trial reasons, at paras. 76 and 83). Although the appellant sometimes struggled to find the right words, he overall "displayed an excellent ability to understand and express himself in English" and any difficulties in speaking he experienced were like those encountered by many witnesses who testify in criminal proceedings, even those whose first language is English (para. 84).

[ 200 ] In these circumstances, the trial judge cannot be faulted for failing to ask about the appellant's choice to proceed in English. We would dismiss this alternative ground of appeal.

V. Disposition

[ 201 ] We would dismiss the appeal.

Appeal allowed, Karakatsanis and Martin JJ. dissenting.

Solicitors

Solicitors for the appellant: Power Law, Ottawa.

Solicitor for the respondent: Attorney General of British Columbia, B.C. Prosecution Service, Criminal Appeals and Special Prosecutions, Victoria.

Solicitor for the intervener the Director of Public Prosecutions: Public Prosecution Service of Canada, Montréal.

Solicitors for the intervener the Canadian Bar Association: McCarthy Tétrault, Vancouver.

Solicitor for the intervener the Commissioner of Official Languages of Canada: Office of the Commissioner of Official Languages of Canada — Legal Affairs Branch, Gatineau.

Solicitors for the intervener Fédération des associations de juristes d'expression française de common law inc.: Gunn Law Group, Edmonton; Calgary Family Law Association, Calgary.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Stockwoods, Toronto.

[^1]: Throughout these reasons, when the term "judge" is used in this context, it refers to a judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace.

[^2]: Subsections (1) to (4) of s. 530 Cr. C. were amended to some extent in 2019 (see An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 237). The previous version of s. 530 Cr. C., at the time of Mr. Tayo Tompouba's first appearance, remains the relevant version for the purposes of the proceedings in issue.