J. 1998 Pha (PH) No. 0579 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GÉRARD DEVEAUX and HER MAJESTY THE QUEEN DECISION HEARD BEFORE: The Honourable Justice Frank C. Edwards PLACE HEARD: Port Hood, Nova Scotia DATE HEARD: November 19, 1999 DECISION: Written December 22, 1999 COUNSEL: Réjean Aucoin, Esq., for the Appellant Laurie Halfpenny MacQuarrie for the Respondent Edwards, J.: The issue in this appeal is whether a Provincial Court Judge is obligated to advise an unrepresented accused of his right to trial in either or both of the official languages of Canada pursuant to Section 530(1) of the Criminal Code. If so, what are the consequences of Provincial Court Judge’s failure to do so? The facts are brief and not in dispute. The Appellant appeared unrepresented by Counsel in Provincial Court in Port Hood on March 31, 1998. He was read the charge in English by the Learned Provincial Court Judge. The Appellant pleaded not guilty to Section 266 of the Criminal Code. The Provincial Court Judge set the trial for October 13, 1998, without advising the Appellant of his rights to trial in French or English pursuant to Section 531(1) and (2) of the Criminal Code contrary to Section 530(3) of the Criminal Code. The trial was held in English on October 13, 1998. At trial, the Appellant was represented by Counsel. At the conclusion of the trial, the Provincial Court Judge found the Appellant guilty of assault and imposed fine of $560.00 plus 12 months probation with conditions. The sole ground of appeal relates to the failure of the Provincial Court Judge to advise the Appellant of his rights to trial in French or English pursuant to Section 530 of the Code. Subsection 530(3) of the Criminal Code reads: “The justice of the peace or provincial court judge before whom the accused first appears shall, if the accused is not represented by counsel, advise the accused of his right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.” (Emphasis added) Subsections 530(1) and (2) of the Criminal Code read: “530(1) Language of accused On application by an accused whose language is one of the official languages of Canada, made not later than (a) 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 557, (b) the time of his election, if the accused is ordered to stand trial, if the accused elects under section 536 to be tried by provincial court judge, 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 court composed of judge or judge and jury, or (iii) is deemed to have elected to be tried by court composed of judge and jury, justice of the peace or provincial court judge shall grant an order directing that the accused be tried before 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. (Emphasis added) (2) Idem 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, justice of the peace or provincial court judge may grant an order directing that the accused by tried before 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.” Subsection 530(3) of the Criminal Code is mandatory. The word “shall” imposes statutory obligation on the trial judge or justice of the peace before whom an unrepresented accused first appears to advise him of his rights under Subsections 530(1) and (2) of the Code as the case may be. In R. v. Beaulac [1999] C.C.J. No. 25, File No. 26416, rendered May 20, 1999, Justice Bastarache of the Supreme Court of Canada states that language rights are not passive rights and these can only be “enjoyed” by the linguistic minority if the state takes positive steps to ensure that these rights are provided: “[para20] ... The objective of protecting official language minorities, as set out in s. of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of duty of the State to take positive steps to implement language guarantees; see J.E. Oestreich, ‘Liberal Theory and Minority Group Rights’ (1999), 21 Human Rts. Q. 108, at p. 112; P. Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’ (1999), 21 Human Rts. Q. 80, at p. 83: ‘[A] right ... is conceptually tied to duty’; and B. Cholewinski, ‘State Duty Towards Ethnic Minorities: Positive or Negative?’ (1988), 10 Human Rts. Q. 344.” In Beaulac, supra, the accused’s request under Section 530(4) to be tried before judge and jury who spoke both official languages of Canada had been denied because his first trial was held in English and the accused could speak English. The Supreme Court of Canada held that under Section 430(4) his request for new trial should have been accepted. Justice Bastarache in Beaulac, supra, at paragraph 37 of the decision reviews the obligations of the Court with regards to language rights in dealing with the definition of “best interest of justice”: “[para37] In order to determine the proper definition that is applicable, the object of s. 530 must again be considered. Since the rule is the automatic access to trial in one’s official language when an application is made in timely manner, and discretionary access when such an application is not timely, the trial judge should therefore consider, foremost, the reasons for the delay. The first inquiry that comes to mind is directed at the knowledge of the right by the accused. When was he or she made aware of his or her right? Did he or she waive the right and later change his or her mind? Why did he or she change his or her mind? Was it because of difficulties encountered during the proceedings? ‘It is worth mentioning at this point that the right of the accused to be informed of his or her right under s. 530(3) is of questionable value because it applies only when the accused is unrepresented....’” (Emphasis added) Beaulac, supra, thus makes it clear that the Court must advise an unrepresented accused of his or her right to trial in either official language or, for that matter, to bilingual trial. The ability of an accused to speak or understand English is of no importance because violation of Section 530 is not procedural error. Justice Bastarache makes the following observation in Beaulac, supra, at paragraph 45: “[para45] In the present instance, much discussion was centered on the ability of the accused to express himself in English. This ability is irrelevant because the choice of language is not meant to support the legal right to fair trial, but to assist the accused in gaining equal access to public service that is responsive to his linguistic and cultural identity. It would indeed be surprising if Parliament intended that the right of bilingual Canadians should be restricted ... when in fact official language minorities, who have the highest incidence of bilingualism (84 percent for francophones living outside Quebec compared to percent for anglophones according to Statistics Canada 1996 Census), are the first persons that the section was designed to assist.” (Emphasis added) In Beaulac, supra, Justice Bastarache reviews the importance of language rights for the official language communities: “[para17] ... the new language cases are significant because they re-affirm the importance of language rights as supporting official language communities and their culture. In Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] S.C.R. 712, at pp. 748-49, the Court wrote: ‘Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice. Language is not merely means or medium of expression; it colours the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, means by which people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality.’” Further, in Beaulac, supra, the Supreme Court of Canada in reviewing the definition of the expression “language of the accused” in the context of Section 530, also clarified the purpose of the Section which is to assist official language minorities in preserving their cultural identity: “[para34] The solution to the problem, in my view, is to look at the purpose of s. 530. It is, as mentioned earlier, 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; Ford, supra, at p. 749. The language of the accused is very personal in nature; it is an important part of his or her cultural identity. The accused must therefore be afforded the right to make choice between the two official languages based on his or her subjective ties with the language itself. The principles upon which the language is founded, the fact that the basic right is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and the substantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language.” (Emphasis added) In conclusion, the Trial Judge had no discretion and therefore was obligated to put to the unrepresented Appellant the right to be tried in either of the official languages of Canada or both. The failure by the Trial Judge to advise the Appellant in accordance with Section 530(3) of the Code constitutes breach of the Appellant’s rights under Sections 15, 16 and 19 of the Canadian Charter of Rights and Freedoms. Those Sections read as follows: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. (3) Nothing in this Charter limits the authority of Parliament or legislature to advance the equality of status or use of English and French. 19(1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. In this case, the Appellant’s mother tongue is French and the fact that the Trial Judge did not advise him of his rights to trial in his own language is not procedural error. At paragraph 24 in Beaulac, supra, the Supreme Court of Canada noted the following: ... The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at given time. Section of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the state: ... [para28] Section 530(1) creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. In my view, this is substantive right and not procedural one that can be interfered with.” (Emphasis added) In Beaulac, supra, the Court concluded that violation of Section 530 constitutes substantial wrong which precludes the Appeal Court from dismissing the appeal pursuant to Section 686 of the Code: [para54] Given the nature of language rights, the requirement of substantive equality, the purpose of s. 530, as described here, and the objective of s. 686, believe that the violation of s. 530 constitutes substantial wrong and not procedural irregularity. Accordingly, s. 686(1)(b) has no application in this case and new trial must be ordered. Clearly, there must be an effective remedy available for breach of s. 530 rights. The application of the s. 686 proviso would make it illusory.” (Emphasis added) In view of the foregoing, I would allow the appeal and order a new trial. Order accordingly. J. Case No. Vol. No. Page No. GÉRARD DEVEAUX HER MAJESTY THE QUEEN 1998 Pha(PH) No. 0579 Port Hood, Nova Scotia Justice Frank Edwards LIBRARY HEADING DATE HEARD: November 19, 1999 DECISION: Written December 22, 1999 SUBJECT: Criminal law; Code Section 530(3); obligation of Provincial Court Judge to advise unrepresented accused of his right to be tried in one or both of the official languages of Canada. SUMMARY: Provincial Court Judge did not advise unrepresented accused of rights under Section 530(3). ISSUE: Whether Section 530(3) is mandatory and the consequence of failure to comply. RESULT: Section 530(3) is mandatory; new trial ordered. CASES NOTED: R. v. Beaulac [1999] C.C.J. No. 25, File No. 26416 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET.
This was an appeal to determine whether a Provincial Court judge is obliged to advise an accused of his right to a trial in either or both of the official languages of Canada, pursuant to s. 530 of the Code. Allowing the appeal and ordering a new trial, that s. 530(3) of the Code is mandatory.