Michael Ford (post until Oct. 31/19)
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Crown to pay costs over language rights violations

A recent court decision that orders the federal Crown to pay the costs of a preliminary hearing for a defendant in a cocaine trafficking case because of language rights violations sends an important message about the importance of these rights, says Brampton lawyer-linguist Suzanne Deliscar

“I think it could be precedent-setting because it’s unusual for costs to be awarded against the Crown, but in this case, clearly there was an obligation to provide French-language services and it just didn’t happen,” she tells AdvocateDaily.com.

In the case the Ontario Court of Appeal also quashed the committal for trial for the accused.

“The number and severity of the violations of the appellant’s language rights and the conduct of the Crown and the court were reprehensible in this case,” Ontario Court of Appeal Justice Paul Rouleau says, in writing for the panel.

He also says the violations in this case are indicative of a wider problem.

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

Deliscar says it’s unfortunate to see such violations occurring and for the Crown to be at fault.

“Canada is officially bilingual yet there are so many instances that occur in the court system and outside of it where French-language services aren’t being made available or what is made available isn’t sufficient,” she says. “I wonder what is really the problem — there are lots of French translators and interpreters out there. They are in high demand, but they exist.”

The man was one of eight persons charged with various offences relating to cocaine trafficking in February 2010. 

He appealed a decision of the Superior Court dismissing his application for certiorari. The judge found four violations of his language rights, but refused to grant a stay of proceedings or any other remedy. 

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

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

Rouleau in the recent case, notes that s. 530 also provides that notwithstanding an accused’s exercise of the right to be tried in his or her official language, the trial or preliminary inquiry must, in certain circumstances, be bilingual and be held in French and English. That was the case here.

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

Rouleau says there are a number of reasons why the violations of the appellant’s language rights in this case are serious and require that the court award an appropriate remedy. 

He says the violations are many, varied and not accidental.

“Counsel for the appellant objected several times but the Crown and the preliminary inquiry judge refused to remedy the problem,” the judge writes. 

Rouleau says the violations were the fault of both the preliminary inquiry judge and the Crown prosecutors.

As well, the Crown gave the anglophone accused in this matter an advantage, the judge says.

“Because the preliminary inquiry was bilingual and there were anglophone and francophone accused, the appellant was able to compare the treatment received by the two language groups,” he says. The judge notes how the Crown not only sent its notices in English only, it gave the anglophones a transcript in their language of all the wiretaps and a detailed index, while the francophones did not even receive a transcript in French when that was the language used." 

Rouleau says the requests for the rights to be respected also created an atmosphere of conflict in this matter.

“If requesting that their language rights be respected puts accused persons in conflict with the judge, they are less likely to insist on their rights being respected, out of fear that their insistence will annoy the presiding judge and that the judge might become negatively predisposed toward them,” he says.

Another problem was the lack of effort on the part of the Crown to acknowledge that this was a bilingual proceeding as evident by the assignment of two unilingual prosecutors to the case, says the judge. 

 “It is clear that ss. 530 and 530.1 of the Criminal Code were not complied with and that the appellant did not receive the preliminary inquiry to which he was entitled under those sections,” says the judge. 

“The aspect that offends society’s sense of justice is the contrast between the treatment of the anglophone accused and the francophone accused.” 

Deliscar says the court’s decision here to award costs and to issue a stay of proceedings is an appropriate remedy in this matter. 

“It shows that the courts have to provide these services, but I think it’s terrible that these situations still occur,” she says. “And despite this knowledge that this has to be done, it’s just not happening in every case.”

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