Criminal law -- Trial -- Language of accused -- Right to be tried  by judge and jury who speak both official languages -- Interpretation of s. 530 of Criminal Code -- Meaning of expressions "language of the accused" and "best interests of justice" -- Factors to be considered in defining expression "best interests of justice" -- Criminal Code, R.S.C., 1985, c. C-46, s. 530(1), (4).

 

Criminal law -- New trial -- Language of accused -- Right to be tried by judge and jury who speak both official languages -- Whether s. 530(4) rather than s. 530(1) of Criminal Code applicable when new trial ordered -- Proper judge before whom application must be made and proper time for making application when new trial ordered -- Criminal Code, R.S.C., 1985, c. C-46, s. 530(1), (4).

 

Criminal law -- Trial -- Language of accused -- Accused's application to be tried by judge and jury who speak both official languages under s. 530(4) of Criminal Code dismissed -- Accused convicted following trial in English -- Whether Court of Appeal erred in upholding order dismissing accused's application -- If so, whether s. 686 proviso of Criminal Code applicable -- Whether new trial to be held before judge and jury who speak both official languages should be ordered -- Criminal Code, R.S.C., 1985, c. C-46, ss. 530(4), 686(1)(b).

 

Criminal law -- Appeals -- Collateral attack -- Language of accused -- Accused's application to be tried by judge and jury who speak both official languages dismissed -- Judge dismissing application at pre-trial conference not judge before whom accused tried -- Accused convicted following trial in English -- Whether Court of Appeal had jurisdiction to deal with language issue -- Whether rule against collateral attack applicable.

 

The accused was charged with first degree murder.  His first trial resulted in a mistrial and his conviction at the second trial was overturned by the Court of Appeal and a new trial was ordered.  Despite unsuccessful applications in the earlier proceedings,  the accused applied again, during a hearing prior to his third trial, for a trial before a judge and jury who speak both official languages of Canada pursuant to s. 530 of the Criminal Code.  The judge, who was not the judge before whom the accused would be tried, dismissed the s. 530(4) application.  The trial proceeded in English and the accused was convicted.  On appeal, the Court of Appeal dismissed the appeal from conviction, upholding the decision of the judge at the pre-trial hearing on the language issue. This appeal deals solely with the question of the violation of the accused's language rights.

 

Held:  The appeal should be allowed and a new trial to be held before a judge and jury who speak both official languages ordered.

 

Per L'Heureux-Dube, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.:  The rule against collateral attack had no application in the present case and the Court of Appeal had jurisdiction to deal with the language issue.  An order under s. 530(4) governs the judicial process itself, rather than the conduct of the parties, such that traditional concerns as to certainty and the need for the orderly administration of justice are not brought into play.  The order would have been subject to review if it had been made by the trial judge, and the accused should not be penalized for having brought the application in a timely manner prior to the trial rather than at the trial proper.

 

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.  To the extent that Societe des Acadiens stands for a restrictive interpretation of language rights, it is to be rejected.  The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply.  Language rights are a particular kind of right, distinct from the principles of fundamental justice.  They have a different purpose and a different origin.  When s. 530 of the Criminal Code was promulgated in British Columbia in 1990, the scope of the language rights of the accused was not meant to be determined restrictively.  The amendments were remedial and meant to form part of the unfinished edifice of fundamental language rights.

 

Section 530(1) of the Code creates an absolute right of the accused to equal access to designated courts in the official language that he considers to be his own, providing the application is timely.  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.  This is a substantive right and not a procedural one that can be interfered with. When the application is not timely, s. 530(4) applies and confers on the trial judge a discretion to grant an application if he is satisfied that it is in the best interests of justice.

 

When a new trial is ordered, the application should be made under s. 530(4) of the Code.  While an accused ordered to face a new trial is in a position similar to that of an accused who is ordered to stand trial for the first time, as contemplated by s. 530(1), it is possible that certain circumstances will have to be considered when a new trial is ordered.  This is the main reason why, in a case of a retried accused, s. 530(4) must apply to this situation rather than s. 530(1).

 

The "language of the accused" is very personal in nature; it is an important part of his cultural identity.  Under s. 530 of the Code, an accused must be afforded the right to make a choice between the two official languages based on his subjective ties with the language itself and to freely assert which official language is his own language. An accused's own language, for the purposes of s. 530(1) and (4), is either official language to which that person has a sufficient connection.  It does not have to be the dominant language.  If the accused has sufficient knowledge of an official language to instruct counsel, he will be able to assert that that language is his language, regardless of his ability to speak the other official language. The Crown may challenge the assertion made, but it will have the onus of showing that the assertion is unfounded.  The court, in such a case, will not inquire into specific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused.  It will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language. The assertion of language is a prerequisite to an application under s. 530(1) and s. 530(4). Once entitlement is established and an application is made under s. 530(4), the judge will be required to determine whether the best interests of justice will be served by granting the application.

 

In order to determine whether it is in the "best interests of justice" that a s. 530(4) application be accepted, the trial judge should consider, foremost, the reasons for the delay in bringing the application. He must then consider a number of factors that relate to the conduct of the trial.  Consideration of the requirements of s. 530.1 will provide a good indication of the relevant matters.  Mere administrative inconvenience is not a relevant factor.  In the case of a retrial, the only relevant factors to consider under s. 530(4) are the additional difficulties caused by an untimely application.  Lastly, since language rights are distinct from trial fairness, trial fairness is not to be considered and is certainly not a threshold that, if satisfied, can be used to deny the accused his language rights under s. 530.  Generally, the best interests of justice will be served by accepting the accused's application to be tried or retried in his official language.  It is the denial of the application that is exceptional and that needs to be justified.  The burden of this demonstration should fall on the Crown.

The Court of Appeal's decision upholding the dismissal of the s. 530(4) application is based exclusively on the ability of the accused to speak English. The accused's ability to express himself in English is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity.  In the circumstances of this case, the application under s. 530(4) should have been accepted since no valid reason for refusing the application was raised.  The violation of s. 530 constitutes a substantial wrong and not a procedural irregularity.  Accordingly, s. 686(1)(b) has no application in this case and a new trial must be ordered.  Since the language in which the new trial is to be held is the very object of this appeal, and since the accused has affirmed his request for a trial to be held before a judge and jury who speak both official languages of Canada, the accused's application is granted.

 

Per Lamer C.J. and Binnie J.:  It is not an appropriate case to revisit the Court's constitutional interpretation of the language guarantees contained in s. 16 of the Canadian Charter of Rights and Freedoms and to re-assess the Court's approach developed in Societe des Acadiens.  It is a well-established rule of prudence that courts ought not to pronounce on constitutional issues unless they are squarely raised for decision.  This is not a constitutional case.  It is a case of statutory construction.  Section 12 of the Interpretation Act deems s. 530 of the Criminal Code to be remedial and requires it to be given such "fair, large and liberal construction and interpretation as best ensures the attainment of its objects".  This principle of  interpretation is sufficient to dispose of this appeal.  On the statutory interpretation issue, there is agreement with the majority's analysis of s. 530.

 

Cases Cited                                               

 

By Bastarache J.

 

                  Not followed:  Societe des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. Yancey (1899), 2 C.C.C. 320; Piperno v. The Queen, [1953] 2 S.C.R. 292; Saraga v. The Queen, Que. Sup. Ct., No. 500-01-01624L-876, November 18, 1988; R. v. Brown, Que. Sup. Ct., No. 700-01-3172-840, March 28, 1985, R.J.P.Q. 85-215; R. v. Lorentz-Aflalo, Que. Sup. Ct., No. 500-01-006114-877, October 8, 1987; referred to:  R. v. Litchfield, [1993] 4 S.C.R. 333; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; R. v. Simard (1995), 27 O.R. (3d) 116; Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Haig v. Canada, [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Thomas, [1998] 3 S.C.R. 535; R. v. Bernardo (1997), 121 C.C.C. (3d) 123; Robin v. Collège de St-Boniface (1984), 15 D.L.R. (4th) 198; Paquette v. The Queen in Right of Canada (1985), 40 Alta. L.R. (2d) 38; R. v. Tran, [1994] 2 S.C.R. 951.

 

By Lamer C.J. and Binnie J.

 

Referred to:  Societe des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.

 

Statutes and Regulations Cited

 

Act to amend the Criminal Code, S.C. 1977-78, c. 36, s. 1.

 

Canadian Charter of Rights and Freedoms, ss. 14,16(1), (3).

 

Constitution Act, 1867, ss. 91, 92, 133.

 

Criminal Code, R.S.C., 1985, c. C-46, ss. 278.1 to 278.9  [ad. 1997,  c. 30, s. 1], 530 [am. c. 27 (1st Supp.), ss. 94 and 203], 530.1 [ad. c. 31 (4th Supp.), s. 94], 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)], (iv) [ad. c. 27 (1st Supp.), s. 145], (5) [am. idem], (8).

 

Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

 

Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), ss. 2, 94.

 

Authors Cited

 

Canada.  Commissioner of Official Languages.  The Equitable Use of English and French Before the Courts in Canada.  Ottawa:  Minister of Supply and Services Canada, November 1995.

 

Canada.  House of Commons Debates, vol. V, 3rd sess., 30th Parl., May 2, 1978, p. 5087.

 

Canada.  House of Commons Debates, vol. IX, 1st sess., 33rd Parl., May 6, 1986, p. 12999.

 

Canada.  House of Commons Debates, vol. XIV, 2nd sess., 33rd Parl., July 7, 1988, p. 17220.

 

 

 

Cholewinski, Ryszard. "State Duty Towards Ethnic Minorities:  Positive or Negative?" (1988), 10 Hum. Rts. Q. 344.

 

Jones, Peter.  "Human Rights, Group Rights, and Peoples' Rights" (1999), 21 Hum. Rts. Q. 80.

 

Oestreich, Joel E.  "Liberal Theory and Minority Group Rights" (1999), 21 Hum. Rts. Q. 108.

 

Pelletier, Benoît.  "Bilan des droits linguistiques au Canada" (1995), 55 R. du B. 611.

 

Riddell, Alan.  "A la recherche du temps perdu:  la Cour supreme et l'interpretation des droits linguistiques constitutionnels dans les annees 80" (1988), 29 C. de D. 829.

 

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 98 B.C.A.C. 271, 161 W.A.C. 271, 120 C.C.C. (3d) 16, [1997] B.C.J. No. 2379 (QL), dismissing the accused's appeal from his conviction on a charge of first degree murder.  Appeal allowed and new trial ordered.

 

David Griffiths, for the appellant.

 

William F. Ehrcke, Q.C., and Geoffrey R. Gaul, for the respondent.

 

Bernard Laprade and Michel Francœur, for the intervener the Attorney General of Canada.

 

Jean-Yves Bernard, for the intervener the Attorney General of Quebec.

 

Richard Tardif and Ingride Roy, for the intervener the Commissioner of Official Languages.

 

Nathalie Des Rosiers, for the intervener the Association des juristes d'expression francaise de l'Ontario.

 

Laurent J. Roy, Q.C., and Michel L. J. Chartier, for the intervener the Association des juristes d'expression francaise du Manitoba.

 

//The Chief Justice and Binnie J.//

 

The following are the reasons delivered by

 

1                                   The Chief Justice and Binnie J.  --  We agree with the conclusion and with the analysis of s. 530 of the Criminal Code, R.S.C., 1985, c. C-46, set out in the reasons of Bastarache J.  However, with respect, we do not consider this to be an appropriate case to revisit the Court's constitutional interpretation of the language guarantees contained in s. 16 of the Canadian Charter of Rights and Freedoms.  It is a well-established rule of prudence that courts ought not to pronounce on constitutional issues unless they are squarely raised for decision.  This is not a constitutional case.  It is a case of statutory construction.  Section 12 of the Interpretation Act, R.S.C., 1985, c. I-21, deems s. 530 to be remedial and requires it to be given such "fair, large and liberal construction and interpretation as best ensures the attainment of its objects".  This principle of interpretation is sufficient to dispose of this appeal.

 

2                                   At paragraph 25, our colleague Bastarache J. undertakes an examination of constitutional language rights and proposes that "[t]o the extent that Societe des Acadiens du Nouveau-Brunswick [Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549], at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected."  The reference is to that portion of the judgment of Beetz J. where he discussed s. 16 of the Charter and highlighted the political and historic origins of language rights in our Constitution and observed that:

 

The legislative process, unlike the judicial one, is a political process and hence particularly suited to the advancement of rights founded on political compromise.

 

                                                                  . . .

 

If however the provinces were told that the scheme provided by ss. 16 to 22 of the Charter was inherently dynamic and progressive, apart from legislation and constitutional amendment, and that the speed of progress of this scheme was to be controlled mainly by the courts, they would have no means to know with relative precision what it was that they were opting into.  This would certainly increase their hesitation in so doing and would run contrary to the principle of advancement contained in s. 16(3).

 

In my opinion, s. 16 of the Charter confirms the rule that the courts should exercise restraint in their interpretation of language rights provisions.  [Emphasis added.]

 

 

3                                   The foundation of Beetz J.'s caution, i.e., that language rights reflect a political compromise, was recently spelled out by this Court in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 79:

 

There are a number of specific constitutional provisions protecting minority language, religion and education rights.  Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises.... [T]he protection of minority religious education rights was a central consideration in the negotiations leading to Confederation.  In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated.... Similar concerns animated the provisions protecting minority language rights....  [Citations omitted.]

 

 

4                                   In Mahe v. Alberta, [1990] 1 S.C.R. 342, Dickson C.J., for a unanimous Court, stated at p. 365 that "Beetz J.'s warning that courts should be careful in interpreting language rights is a sound one", a point of view that was reiterated by the Court in Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at pp. 851-52.

 

5                                   This is not to say that language rights are not to be given a purposive approach.  On the contrary, it is clearly open to the Court, as Wilson J. put it in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1176, "to breathe life into a compromise that is clearly expressed".  In fact, the process envisaged by Beetz J. and the majority in Societe des Acadiens, supra, is illustrated by the enactment of s. 530 itself, which addresses a particular aspect of language rights and develops a comprehensive statutory procedure to vindicate those rights in the context of a balanced recognition of the various interests at stake.  A re-assessment of the Court's approach to Charter language rights developed in Societe des Acadiens and reiterated in subsequent cases is not necessary or desirable in this appeal which can and should be resolved according to the ordinary principles of statutory interpretation mentioned above.

           

6                                   On the statutory interpretation issue, we agree with our colleague's analysis of s. 530 of the Code and we therefore agree with the disposition of the appeal he proposes.

 

//Bastarache J.//

 

The judgment of L'Heureux-Dube, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ. was delivered by

 

Bastarache J. —

 

1.  General Introduction and Procedural History

7                                   This is the first time this Court has been called upon to interpret the language rights afforded by s. 530 of the Criminal Code, R.S.C., 1985, c. C-46.  This case concerns the right to be heard by a judge or a judge and jury who speak the official language of Canada that is the language of the accused, or both official languages of Canada.  The unique circumstances of the accused provide an opportunity to clarify the scope of the right in ss. 530(1) and 530(4) of the Code and to determine the proper scheme of the legislation in cases where a new trial is ordered.  For the purposes of this introduction, I will only mention that s. 530(1) creates an absolute right, while s. 530(4) subjects that right to the discretion of the trial judge.

 

8                                   The appellant, Jean Victor Beaulac, was charged in 1988 with first degree murder for an offence that occurred in 1981 and went unsolved for many years.  He was subsequently tried three times in the Supreme Court of British Columbia for this same murder.  His first trial ended in a mistrial because of a conversation between a juror and his wife who had overheard prejudicial information.  The second trial resulted in the conviction of the appellant, but this conviction was overturned by the Court of Appeal on the basis of errors in the jury charge concerning the issue of self-induced intoxication.  The third trial also ended in a conviction.  The current appeal deals solely with the question of the violation of the accused's language rights.

 

9                                   Section 530 was declared in force in British Columbia on January 1, 1990.  Thus, it was not in force until after the January 1989 preliminary hearing at which this accused was ordered to stand trial for the first time.  In fact, the first application for a trial before a judge and jury who speak both official languages of Canada was made by the appellant on October 30, 1990 during a voir dire, five days into the first trial, but was denied by Skipp J.  After the mistrial ruling, the appellant applied for a retrial before a court composed of a judge and jury who spoke both official languages of Canada.  Macdonell J. dismissed the application with written reasons on February 11, 1991:  [1991] B.C.J. No. 277 (QL).  An application for leave to appeal to the Supreme Court per saltum was dismissed without reasons.  Although Macdonell J.'s reasons are not directly on appeal, they were relied upon in the subsequent rulings and are therefore highly relevant.  Macdonell J. considered what was in the best interests of justice.  As discussed later in these reasons, this is the criterion governing the exercise of the judge's discretion under s. 530(4) of the Code.  Macdonell J. assessed the appellant's fluency in English based on the transcripts of his evidence at the first trial, which was held in English.  He found that his English was not the most refined, but that his message gets across clearly and forcefully.  He concluded that no injustice would result from a new trial in English.  He also commented on the logistical difficulties connected with mounting a complete trial in French in British Columbia.  He finally mentioned that the appellant was in custody and that it was the general policy to proceed with trials of people in custody as quickly as possible.  In all of the circumstances, Macdonell J. found that it was not in the best interests of justice that the appellant be tried before a judge and jury who speak both English and French.

 

10                              The application for a trial before a judge and jury who speak both official languages of Canada was renewed, but dismissed by Rowles J. on June 18, 1991. I note here that she was not the "judge before whom the accused is to be tried", as prescribed by s. 530(4).  She decided that s. 530(1) does not apply to a retrial before dealing with the application of s. 530(4).  The second trial was heard by Murray J. who dismissed yet another application on October 7, 1991. The conviction of the accused was overturned by the Court of Appeal, which declined to rule on the language of proceedings in its decision of January 21, 1994:  (1994), 40 B.C.A.C. 236.

 

11                              During the pre-trial hearing of July 4, 1994, the accused applied again for a trial before a judge and jury who speak both official languages of Canada.  Owen-Flood J., who, like Rowles J., was not the judge before whom the accused would be tried, dismissed the application.  The trial proceeded in English and the appellant was convicted.  The Court of Appeal assumed that the order made pursuant to s. 530(4) was an order pertaining to the judicial process and that it could therefore be attacked collaterally under the principles articulated in R. v. Litchfield, [1993] 4 S.C.R. 333. It dismissed the appeal from conviction on October 29, 1997, upholding the decision of Owen-Flood J. on the language issue:  (1997), 120 C.C.C. (3d) 16.  It is this decision that is currently under appeal. The respondent did not argue against the appellant's appeal on the basis of the rule against collateral attack. Although it is not technically necessary to deal with this latter issue, I would lift the uncertainty of the Court of Appeal's decision by saying that the order under s. 530(4) governs the judicial process itself, rather than the conduct of the parties, such that traditional concerns as to certainty and the need for the orderly administration of justice are not brought into play.  The order would have been subject to review if it had been made by the trial judge, and the appellant should not be penalized for having brought the application in a timely manner prior to the trial rather than at the trial proper. I would therefore conclude that the rule against collateral attack had no application in the present case and that the Court of Appeal had jurisdiction to deal with the language issue.

 

2.  Relevant Constitutional and Legislative Provisions

 

12                              Criminal Code, R.S.C., 1985, c. C-46

 

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  his election, if the accused elects under section 536 to be tried by a 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 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 or provincial court judge 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.

 

                                                                  . . .

 

(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.

 

                                                                  . . .

 

530.1 Where an order is granted under section 530 directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language that is the language of the accused or in which the accused can best give testimony,

 

(a) the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused;

                                                                                                                                         

(b) the accused and his counsel may use either official language in written pleadings or other documents used in any proceedings relating to the preliminary inquiry or trial of the accused;

 

(c) any witness may give evidence in either official language during the preliminary inquiry or trial;

 

(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language that is the language of the accused;

 

(e) except where the prosecutor is a private prosecutor, the accused has a right to have a prosecutor who speaks the official language that is the language of the accused;

 

(f) the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;

 

(g) the record of proceedings during the preliminary inquiry or trial shall include

 

(i)  a transcript of everything that was said during those proceedings in the official language in which it was said,

 

(ii) a transcript of any interpretation into the other official language of what was said, and

 

(iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered; and

 

(h) any trial judgment, including any reasons given therefor, issued in writing in either official language, shall be made available by the court, in the official language that is the language of the accused.

 

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

 

                                                                  . . .

 

(b) may dismiss the appeal where

 

                                                                  . . .

 

(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;

 

                                                                  . . .

 

(5) Where an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, the following provisions apply:

 

(a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;

 

(b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or provincial court judge, as the case may be, acting under Part XIX, other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge who tried the accused in the first instance;

 

(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and

 

(d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.

 

                                                                  . . .

 

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

 

Official Languages Act, R.S.C., 1985, c. 31 (4th Suppl.)

 

2.  The purpose of this Act is to

 

(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;

 

(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and

 

(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

 

Constitution Act, 1867

 

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.

 

Canadian Charter of Rights and Freedoms

 

16. (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 a legislature to advance the equality of status or use of English and French.

 

3.  Legislative Interpretation

 

(a)  The Constitutional Background

 

13                              Before I get to the specific statutory questions raised in this appeal, it will be helpful to consider the constitutional background that has been so important to the recent interpretation of official language provisions.

 

14                              The power to make laws with regard to the use of official languages has not been formally inscribed in ss. 91 and 92 of the Constitution Act, 1867.  It is an ancillary power to the exercise of legislative authority over a class of subjects assigned to Parliament or to provincial legislatures.  But the backdrop against which language provisions have been examined remains the language rights that are established by the Constitution.

 

15                              In 1975, when this Court confirmed that language guarantees in s. 133 of the Constitution Act, 1867 were minimal provisions and did not preclude the extension of language rights by either the federal or the provincial legislatures (Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, at pp. 192-93), a purposive and liberal approach to the interpretation of language rights was adopted.  This approach was re-affirmed and expanded in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), and Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2).  In Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, the Court wrote, at p. 739:

 

If more evidence of Parliament's intent is needed, it is necessary only to have regard to the purpose of both s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, which was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike.  [Emphasis added.]

 

16                              In 1986, three decisions dealing with language rights in the courts appeared to have reversed the tendency to adopt a liberal approach to the interpretation of constitutional language guarantees:  MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, Societe des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, and Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449.  In those cases, the majority of the Court held that s. 133 of the Constitution Act, 1867 guarantees a limited and precise group of rights resulting from a political compromise, and that, contrary to legal rights incorporated in ss. 7 to 14 of the Charter, they should be interpreted with "restraint" (Societe des Acadiens du Nouveau-Brunswick, at p. 580).  The majority judgments went on to say that progression towards equality of official languages is a goal to be pursued through the legislative process.  The Court held that the right to use one's language in s. 133 does not impose a corresponding obligation on the State or any other individual to use the language so chosen, other than the obligation not to prevent those who wish to do so from exercising those rights; see Societe des Acadiens du Nouveau-Brunswick, at pp. 574-75.  In dissent on the constitutional question, Dickson C.J. wrote, at p. 560:  "In interpreting Charter provisions, this Court has firmly endorsed a purposive approach."  Noting the willingness of the Court to expand the definition of the words "Acts" and "Courts" in Blaikie No. 1 and Blaikie No. 2, Dickson C.J. re-affirmed, at p. 563, that the purpose of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 was based on equality.  He then quoted from the Reference re Manitoba Language Rights, supra, at p. 744:

 

Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right of Franco-Manitobans to use their own language.  The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity.  It is through language that we are able to form concepts; to structure and order the world around us.  Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

 

17                              Immediately after the trilogy, the Court seemed to depart from its restrictive position.  While this more liberal approach to language rights was not always directed at s. 133 of the Constitution Act, 1867 or the similar provisions of s. 23 of the Manitoba Act, 1870, 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] 2 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 a 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, a means by which a 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.

 

18                              Again, in Mahe v. Alberta, [1990] 1 S.C.R. 342, Dickson C.J. stated, at p. 365, after noting the caution of Beetz J. in Societe des Acadiens du Nouveau-Brunswick, supra:

 

. . . however, this does not mean that courts should not "breathe life" into the expressed purpose of the section, or avoid implementing the possibly novel remedies needed to achieve that purpose.

 

19                              This approach was confirmed subsequently in Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212, at p. 222, where s. 23 of the Manitoba Act, 1870 was interpreted to apply to a large category of decrees and delegated legislation.  Another reference, with regard to education this time, Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, reinforced the cultural purpose of language guarantees.  At p. 850, the Court said:

 

Several interpretative guidelines are endorsed in Mahe for the purposes of defining s. 23 rights.  Firstly, courts should take a purposive approach to interpreting the rights.  Therefore, in accordance with the purpose of the right as defined in Mahe, the answers to the questions should ideally be guided by that which will most effectively encourage the flourishing and preservation of the French-language minority in the province.  Secondly, the right should be construed remedially, in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection for minority language rights.

 

20                              These pronouncements are a reflection of the fact that there is no contradiction between protecting individual liberty and personal dignity and the wider objective of recognizing the rights of official language communities.  The objective of protecting official language minorities, as set out in s. 2 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 a duty of the State to take positive steps to implement language guarantees; see J. E. Oestreich, "Liberal Theory and Minority Group Rights" (1999), 21 Hum. Rts. Q. 108, at p. 112; P. Jones, "Human Rights, Group Rights, and Peoples' Rights" (1999), 21 Hum. Rts. Q. 80, at p. 83:  "[A] right . . . is conceptually tied to a duty"; and R. Cholewinski, "State Duty Towards Ethnic Minorities:  Positive or Negative?" (1988), 10 Hum. Rts. Q. 344.

 

21                              This interpretative framework is important to a true understanding of language rights and the determination of the scope of s. 530 of the Code.  It is relevant in this appeal because the conflicting messages of the 1986 trilogy and following cases have permeated the interpretation of language provisions that are incorporated in various statutes, including the Code; see B. Pelletier, "Bilan des droits linguistiques au Canada" (1995), 55 R. du B. 611, at pp. 620-27.  I  have found evidence of this, for instance, in R. v. Simard (1995), 27 O.R. (3d) 116 (Ont. C.A.), at pp. 129-30, and Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, at pp. 386-87, where the Federal Court of Appeal relates the 1986 trilogy to language rights created by statute:

 

The 1988 Official Languages Act is not an ordinary statute.  It reflects both the Constitution of the country and the social and political compromise out of which it arose.  To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada.  To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects "certain basic goals of our society" and must be so interpreted "as to advance the broad policy considerations underlying it".  To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to "pause before they decide to act as instruments of change", as Beetz J. observed in Societe des Acadiens du Nouveau-Brunswick Inc.  et al. v. Association of Parents for Fairness in Education et al. . . .  [Emphasis added.]

 

22                              The Official Languages Act of 1988 and s. 530.1 of the Criminal Code, which was adopted as a related amendment by s. 94 of the same Official Languages Act, constitute an example of the advancement of language rights through legislative means provided for in s. 16(3) of the Charter; see Simard, supra, at pp. 124-25.  The principle of advancement does not however exhaust s. 16 which formally recognizes the principle of equality of the two official languages of Canada.  It does not limit the scope of s. 2 of the Official Languages Act.  Equality does not have a lesser meaning in matters of language.  With regard to existing rights, equality must be given true meaning.  This Court has recognized that substantive equality is the correct norm to apply in Canadian law.  Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.  Parliament and the provincial legislatures were well aware of this when they reacted to the trilogy (House of Commons Debates, vol. IX, 1st sess., 33rd Parl., May 6, 1986, at p. 12999) and accepted that the 1988 provisions would be promulgated through transitional mechanisms and accompanied by financial assistance directed at providing the required institutional services.

 

23                              When s. 530 was promulgated in British Columbia, on January 1, 1990, the scope of the language rights of the accused was not meant to be determined restrictively.  The amendments were remedial (see Interpretation Act, R.S.C., 1985, c. I-21, s. 12), and meant to form part of the unfinished edifice of fundamental language rights (House of Commons Debates, vol. XIV, 2nd sess., 33rd Parl., July 7, 1988, at p. 17220).  There was nothing new in this regard.  In the House of Commons, the Minister of Justice had clearly articulated the purpose of the original language of the provisions when he introduced amendments to the Criminal Code on May 2, 1978, to add Part XIV.1 (An Act to amend the Criminal Code, S.C. 1977-78, c. 36, s. 1).  He said:

 

It seems to me that all persons living in a country which recognizes two official languages must have the right to use and be understood in either of those languages when on trial before courts of criminal jurisdiction.  I repeat that a trial before a judge or jury who understand the accused's language should be a fundamental right and not a privilege.  The right to be heard in a criminal proceeding by a judge or a judge and jury who speak the accused's own official language, even if it is the minority official language in a given province, surely is a right that is a bare minimum in terms of serving the interests of both justice and Canadian unity.  It is essentially a question of fairness that is involved.  [Emphasis added.]

 

(House of Commons Debates, vol. V, 3rd sess., 30th Parl., at p. 5087.)

 

24                              Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to such rights. A. Riddell, in "A la recherche du temps perdu:  la Cour supreme et l'interpretation des droits linguistiques constitutionnels dans les annees 80" (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also led to the adoption of ss. 7 and 15 of the Charter and argues, at p. 848, that there is no basis in the constitutional history of Canada for holding that any such political compromises require a restrictive interpretation of constitutional guarantees.  I agree that the existence of a political compromise is without consequence with regard to the scope of language rights.  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 a given time.  Section 2 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; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.  This being said, I note that this case is not concerned with the possibility that constitutionally based language rights may conflict with some specific statutory rights.

 

25                              Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850.  To the extent that Societe des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected.  The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply.  It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice.  They have a different purpose and a different origin.  I will return to this point later.

 

26                              With this background in mind, I now turn to the discussion of the legislative provisions directly applicable in this case.

 

(b)  The Interpretation of Section 530

 

27                              For convenience, I will reproduce s. 530:

 

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  his election, if the accused elects under section 536 to be tried by a 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 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 or provincial court judge 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.

 

                                                                  . . .

 

(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.

 

(i)   Should an Application Be Made Under Section 530(1) or Section 530(4) of the Criminal Code in the Case of a New Trial?

 

28                              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 a substantive right and not a procedural one that can be interfered with.  The interpretation given here accords with the interpretative background discussed earlier.  It is also an important factor in the interpretation of s. 530(4) because that subsection simply provides for the application of the same right in situations where a delay has prevented the application of the absolute right in subs. (1).  One of the main questions facing this Court is the interpretation of this scheme when it interacts with the requirement of a new trial.  In reading s. 530, I am left with the impression that the drafters of the section did not consider the particular situation of the retried accused.  This leaves the courts with a very unsatisfactory set of rules to apply in such a case.  Nevertheless, we must endeavour to provide a solution that will not only respect as much as possible the words of the provision, but most importantly its spirit.

 

29                              The first issue is therefore to decide if s. 530(1) applies to a new trial or if it falls more properly under the ambit of s. 530(4).  Rowles J. dealt summarily with this issue and did not agree that "the subsection should be interpreted in such a way that whenever an order is made for an accused to stand trial [i.e., when a new trial is ordered by a court of appeal], that if application is made by an accused directing that he or she be tried by a court speaking one or both official languages of Canada, the granting of the order should not be a discretionary matter".  As a superior court judge, it was her view that the structure of s. 530 takes into account the available modes of trial and requires that only a justice of  the peace or provincial court judge make the order sought under s. 530(1).

 

30                              In my view, this argument does not address the substantive issue raised and is therefore not sufficient to justify the decision.  After all, Rowles J. herself was neither a "justice of the peace" nor a "provincial court judge", nor was she the "judge before whom the accused [was] to be tried" at the time she made her decision; yet, she took jurisdiction over the s. 530(4) application.  Considering the importance of language rights and the obvious desire of the legislator that language issues be decided as soon as possible in the trial process, I believe Rowles J. was empowered to make such an order.  The same reasoning, however, applies to s. 530(1).  Furthermore, since the date of her reasons, this Court has had the opportunity of dealing with directions for a new trial.  In R. v. Thomas, [1998] 3 S.C.R. 535, at para. 22, Lamer C.J. explains that to order a new trial must mean a "full" new proceeding.  It is consistent with this reasoning to hold that the accused ordered to face a new trial is in a position quite similar to that of an accused who is ordered to stand trial for the first time, as contemplated by s. 530(1).

 

31                              The object of s. 530(1) is to provide an absolute right to a trial in one's official language, providing the application is timely.  As mentioned earlier, when a new trial is ordered, conceptually and practically, the situation is almost the same as if the parties were at the beginning of the original trial process.  But, there are some differences.  One can imagine, for example, the situation of an accused who made no s. 530 application at a first trial on a particular charge, and then requested a second trial in the other official language.  In such an eventuality, the Crown prosecutor, who would have gone through the first trial, might have to be replaced for the retrial.  The same might be true for a complainant's counsel when dealing with an application under ss. 278.1-278.9 of the Criminal Code and for the co-accused's, if applicable.  Thus, in my view, it is possible that some circumstances will have to be considered when a new trial is ordered.  That is the main reason why s. 530(4) must apply to this situation rather than s. 530(1).  That said, I will now examine the question of the proper application of this provision in general and in the case of a retried accused.

 

(ii)   The Language of the Accused

 

32                              There are two phrases that pose an interpretative challenge in s. 530:  "the language of the accused" and the "best interests of justice".  The expression "language of the accused" was not addressed at trial or in the Court of Appeal because it posed no problem to the parties.  Admittedly, French was the maternal language of the accused and that fact was accepted as justification for invoking s. 530(4).  The Attorney General of Canada explained that the definition of the language of the accused has been a contentious issue for many years.  In R. v. Yancey (1899), 2 C.C.C. 320 (Que. Q.B. (Crown side)), at p. 323, the "habitua[l]" language of the accused was adopted.  This solution was accepted in Piperno v. The Queen, [1953] 2 S.C.R. 292, at p. 296, and more recently in Saraga v. The Queen, Que. Sup. Ct., No. 500-01-01624L-876, November 18, 1988.  Other courts have adopted the maternal language, or first language learned and still spoken; see R. v. Brown, Que. Sup. Ct., No. 700-01-3172-840, March 28, 1985, R.J.P.Q. 85-215; R. v. Lorentz-Aflalo, Que. Sup. Ct., No. 500-01-006114-877, October 8, 1987.  In those cases, the court considered the language of education, the language used at home, the language used for social contacts and the language of the community to which the accused identifies.  In Saraga, supra, Martin J. accepted the language of the preferred form of communication.

 

33                              A simple approach, such as maternal language or language used in the home, is inappropriate inter alia because it does not provide a solution for many situations encountered in a multicultural society and does not respond to the fact that language is not a static characteristic.  Some persons insist that they have two maternal languages.  Some persons have a maternal language that is neither French nor English, and use in the home either the maternal language, or the maternal language and French, or English, or both English and French.  Their language at work may be English or French.  Their language in social contacts may not be the same as their language of work.  Language of use can change when a person changes employment, marries or divorces, or makes new friends.  Many other situations of this nature could be described.  This is not necessary.

 

34                              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 a choice between the two official languages based on his or her subjective ties with the language itself.  The principles upon which the language right 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.  I note that s. 530(2) will apply to individuals who do not speak either of the two official languages.  An accused's own language, for the purposes of s. 530(1) and (4), is either official language to which that person has a sufficient connection.  It does not have to be the dominant language.  If the accused has sufficient knowledge of an official language to instruct counsel, he or she will be able to assert that that language is his or her language, regardless of his or her ability to speak the other official language.  The Crown may challenge the assertion made, but it will have the onus of showing that the assertion is unfounded.  The court, in such a case, will not inquire into specific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused.  It will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language.

 

35                              The assertion of language is a prerequisite to an application under s. 530(1) or s. 530(4).  Once entitlement is established and an application is made under s. 530(4), the judge will be required to determine whether the best interests of justice will be served by granting the application.

 

(iii)  The Best Interests of Justice and the Judicial Discretion Afforded Under Section 530(4)

 

36                              The expression "best interests of justice" is the one that has caused difficulty in this case.  In another context, the expression has been held to take into consideration both the interests of the accused as well as those of the State; see R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at p. 131.

 

37                              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 a trial in one's official language when an application is made in a timely manner, and a 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.  The assumption that counsel is aware of the right and will in fact advise his or her client of that right in all circumstances, absent a duty to do so, is unrealistic, as confirmed by the report of the Commissioner of Official Languages of Canada, The Equitable Use of English and French Before the Courts in Canada (1995), at p. 105.

 

38                              Once the reason for the delay has been examined, the trial judge must consider a number of factors that relate to the conduct of the trial.  Among these factors are 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.  In fact, a consideration of the requirements of s.  530.1(a) to (h) will provide a good indication of relevant matters.

 

39                              I wish to emphasize that mere administrative inconvenience is not a relevant factor.  The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be considered because the existence of language rights requires that the government comply with the provisions of the Act by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis.  As mentioned earlier, in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language.  The governing principle is that of the equality of both official languages.

 

40                              The retried accused does not have to justify why he or she is requesting a second trial in his or her official language when he or she failed to do so in the first.  The granting of such a request is not an exceptional favour given to the accused by the State; rather, it is the norm.  The only relevant factors to consider under s. 530(4) are the additional difficulties caused by an untimely application.

 

41                              Another important consideration with regard to the interpretation of the "best interests of justice" is the complete distinctiveness of language rights and trial fairness.  Unfortunately, the distinctions are not always recognized, as can be seen from the reasons of Southin J.A. of the Court of Appeal:

 

The phrase "the best interests of justice" [encompasses several further principles] . . . :

 

1. An accused is entitled to make full answer and defence.

 

2. He is entitled to be present at his trial . . . .

 

3. . . . the jurors . . . must be mentally competent and capable of understanding the evidence given before them. . . . [T]he language of the trial must be a language that the jurors and, . . . the judge, understand.

 

                                                                  . . .

 

Can it be said that an accused who understands both official languages is deprived of his right to make full answer and defence or, to put it another way, that his trial is not fair, if his trial against his wishes is in the other official language, albeit he had an interpreter throughout?  If the answer is "yes", it may be argued that the right to make full answer and defence is different for those whose language is English or French from those persons who possess neither language, for instance, many First Nations persons.

 

((1997), 120 C.C.C. (3d) 16, at paras. 63 and 66.)

 

The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his trial.  But this is already guaranteed by s. 14 of the Charter, a section providing for the right to an interpreter.  The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages.  Language rights have a totally distinct origin and role.  They are meant to protect official language minorities in this country and to insure the equality of status of French and English.  This Court has already tried to dissipate this confusion on several occasions.  Thus, in MacDonald v. City of Montreal, supra, Beetz J., at pp. 500-501, states that:

 

It would constitute an error either to import the requirements of natural justice into . . . language rights . . . or vice versa, or to relate one type of right to the other. . . .  Both types of rights are conceptually different. . . . To link these two types of rights is to risk distorting both rather than reenforcing either.

 

I re-affirm this conclusion here in the hope that these rights will no longer be confused.  Fairness of the trial is not to be considered at this stage and is certainly not a threshold that, if satisfied, can be used to deny the accused his language rights under s. 530.

 

42                              While no set infallible method can be provided to ascertain whether it is in the best interests of justice that an application under s. 530(4) be accepted, some guidelines can be provided.  I have already explained that trial fairness should not be considered; nor should institutional inconvenience.  Additional difficulties caused by a late application, as well as the reasons for this delay, are however relevant factors.  The basic principle, however, is that, generally, owing to the importance of language rights and the stated intention of Parliament to insure the equality of French and English in Canada, the best interests of justice will be served by accepting the application of the accused to be tried in his official language.  Therefore, it is the denial of the application that is exceptional and that needs to be justified.  The burden of this demonstration should fall on the Crown.

 

43                              That said, it remains that the later the application is made in the trial process, the better must be the reason for the delay in order for the application to be accepted.  If the accused makes his or her application in the middle of the trial and can provide no reason for his or her lateness, it may not be accepted, depending on the circumstances.

 

44                              When a new trial is ordered, however, the presumption in favour of the accused is much stronger because of the similarity between this situation and the one contemplated in s. 530(1).  As mentioned in a prior example, although the need to replace the Crown prosecutor is a relevant factor to be considered in such a case, this alone will not be enough to justify the denial of the application, even in the absence of any reason provided by the accused for not making a similar application before the first trial.  As stated earlier, the accused is under no obligation to justify his or her actions in that regard, as he or she was under no obligation to make an application in the first trial.  Therefore, even if the retried accused must make an application pursuant to s. 530(4), the granting of his or her application will be assured unless, in exceptional circumstances, the Crown is able to show that the application should be denied, based on relevant s. 530(4) considerations.

 

(c)  The Application of Section 530(4) in this Case

 

45                              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 a fair trial, but to assist the accused in gaining equal access to a 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 7 percent for anglophones according to Statistics Canada 1996 Census), are the first persons that the section was designed to assist.

 

46                              It is very clear, on the record, that the Court of Appeal based its decision exclusively on the ability of the appellant to speak English.  It says, at para. 73:

 

Mr. Justice Owen-Flood was satisfied that the appellant was bilingual and fluent in English.  Although he does not expressly say so, I take him to mean that the appellant was sufficiently fluent for the purpose at hand, namely, to make full answer and defence at this trial relating to the events in question.

 

47                              Language rights are not subsumed by the right to a fair trial.  If the right of the accused to use his or her official language in court proceedings was limited because of language proficiency in the other official language, there would in effect be no distinct language right.  The Court of Appeal fell into error, no doubt because there is a natural relationship between the ability to express oneself and taking full advantage of the possibility of convincing the court of the merits of one's case; see Robin v. Collège de St-Boniface (1984), 15 D.L.R. (4th) 198 (Man. C.A.), at pp. 208-9 (Monnin C.J.M., in dissent), and Paquette v. The Queen in Right of Canada (1985), 40 Alta. L.R. (2d) 38 (Q.B.), at p. 68.  But language rights are not meant to enforce minimum conditions under which a trial will be considered fair, or even to ensure the greatest efficiency of the defence.  Language rights may no doubt enhance the quality of the legal proceedings, but their source lies elsewhere.

 

48                              The Court of Appeal applied the wrong criteria.  In this case, the Crown adduced no specific evidence showing that the appellant's application would adversely affect the trial process.  Furthermore, Mr. Beaulac was not responsible for any delay in the initial application, given the date of implementation of s. 530 in British Columbia.  Following the first denial, the accused diligently re-applied for a trial in both official languages at every opportunity in the subsequent judicial process.  The application under s. 530(4) should have been accepted since no valid reason for refusing the application was raised.

 

49                              No argument was made concerning the discretion of the judge to order a trial before a judge and jury who speak both official languages of Canada as opposed to a trial before a judge and jury who speak only the language of the accused.  There is therefore no issue to be decided with regard to the type of order that should have been made in the present case.  I would only say on this question that the basic right of the accused is met in both cases.  Therefore, s. 530.1 applies in both cases.  Its provisions provide a useful backdrop against which the trial judge can determine, in his discretion, whether the circumstances of the case warrant the appointment of a judge, or a judge and jury who speak both official languages of Canada.

 

4.  Procedural Considerations

 

50                              The text of s. 530 does not provide a clear indication of the proper judge or tribunal before whom an application must be made or the proper time for making an application when a new trial is ordered.  In my view, the answers to these questions must therefore be found in the legislative intent.  The purpose of s. 530(4) will best be served if the application is made as soon as possible.  This suggests that the ideal time and place for the application is before the Court of Appeal itself, in a manner similar to the one prescribed by s. 686(5) of the Code.  Such an order can be made by the court pursuant to s. 686(8) of the Code.  An application can be made, or inferred, in a case like this one when the language right is at the heart of the appeal.  It is not likely that an application will be made in other cases.  I would therefore suggest that it would be good judicial policy for courts of appeal to systematically ask the accused if he or she wants to make an application under s. 530 before they order a new trial if there are obvious signs that this is a possibility.

 

51                              If no application is made at the time when the new trial is ordered, it would be appropriate for the accused to make an application before or at the time when the trial date is set.  This application must be considered timely under s. 530(4) in the case of the retried accused.  The provision makes it clear that the accused can apply for a trial in his official language at a later time, but delays constitute important factors to be weighed by the judge exercising the discretion.

 

5.  The Remedy

 

52                              The respondent relies on s. 686(1)(b)(iii) and s. 686(1)(b)(iv) of the Criminal Code.  Her position is that the trial was fair.  The position of the appellant is based on the contrary premise.  He argues that the language used at trial has a strong impact on findings of credibility and that there is a real possibility that the jury could have come to another result had it heard the evidence presented in French and the evidence presented in English directly,  in the French and English languages.

 

53                              Section 530 is not concerned with assuring a fairer trial or a more reliable verdict.  In my view, there is an analogy to be made in this case with R. v. Tran, [1994] 2 S.C.R. 951, where the Court refused to apply the s. 686 proviso to a violation of s. 14 of the Charter.  Lamer C.J. said, at p. 1008:

 

Section 686(1)(b)(iii) is designed to avoid the necessity of setting aside a conviction for minor or "harmless" errors of law where the Crown can establish that no substantial wrong or miscarriage of justice has occurred.  Section 686(1)(b)(iv), a relatively new provision of the Code introduced in 1985, is also designed to permit a court to dismiss an appeal from a conviction, but in cases of procedural irregularity where the Crown can show that the accused suffered no prejudice.

 

At p. 1009, he continues:

 

While denial of a Charter right constitutes an error of law, it is by its very constitutional nature a serious error of law, and certainly not one which, for Criminal Code purposes, can be characterized as minor or harmless, or as a "procedural irregularity". Therefore, I find as a matter of law that a violation of s. 14 of the Charter precludes application of both s. 686(1)(b)(iii) and s. 686(1)(b)(iv) of the Code.

 

54                              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, I believe that the violation of s. 530 constitutes a substantial wrong and not a procedural irregularity.  Accordingly, s. 686(1)(b) has no application in this case and a 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.

 

55                              Since the language in which the new trial is to be held is the very object of this appeal and the appellant has affirmed his request for a trial to be held before a judge or judge and jury who speak both official languages of Canada, I would hold that the appellant's application be granted.

 

6.  Summary

 

56                              Courts must give effect to s. 530 of the Code in light of its remedial character, its substantive nature and its object, which is foremost to assist members of the two official language communities to enjoy equal access to specific services, in specific courts, in their own language.  Absent evidence that the accused does not speak the language chosen, an accused is free to make his or her choice of the official language spoken by the judge or judge and jury by whom he or she will be tried, providing his or her application is timely.  The exercise of discretion by the judge under s. 530(4) of the Code is based on the additional difficulties caused by an untimely application and the reasons for the delay.  Administrative inconvenience is not a relevant factor, nor is the language proficiency of the accused in the official language not chosen by him or her; fairness of the trial is not a language rights issue.  Any denial of the s. 530(4) right is exceptional and must be justified; the burden of this demonstration is on the Crown.  In the case of a new trial, there is an even stronger presumption in favour of the accused because of the similarity between that situation and the one contemplated in s. 530(1).

 

7.  Disposition

 

57                              As a result, the appeal is allowed, the judgment of the British Columbia Court of Appeal is set aside and a new trial to be held before a judge and jury who speak both official languages of Canada is ordered.

 

Appeal allowed and new trial ordered.

 

Solicitors for the appellant:  Wilson & Buck, Vancouver.  

 

Solicitor for the respondent:  The Ministry of the Attorney General, Vancouver.

 

Solicitor for the intervener the Attorney General of Canada:  The Department of Justice, Ottawa.

 

Solicitors for the intervener the Attorney General of Quebec:  Jean-Yves Bernard and Monique Rousseau, Montreal.

 

Solicitor for the intervener the Commissioner of Official Languages:  Richard Tardif, Ottawa.

 

Solicitors for the intervener the Association des juristes d'expression francaise de l'Ontario:  Nathalie Des Rosiers, London; Peel & Colvin, London.

 

Solicitors for the intervener the Association des juristes d'expression francaise du Manitoba:  Monk, Goodwin, Winnipeg.