Language Rights and Access to Justice: A Reminder from the Supreme Court

By Danielle Bazinet

Case Commented on: R v Tayo Tompouba, 2024 SCC 16

 Canada is an officially bilingual country, and as such, our constitutional documents ensure the equality and respect of both official languages in various ways (although our constitutional documents themselves are not officially bilingual).

From the use of both languages in Parliament to the right to minority language education, language rights are enshrined in both the Constitution Act, 1867 and the Charter of Rights and Freedoms. Language rights can also be found in language laws, at both the federal and provincial levels, as well as in other legislation, such as the Divorce Act, and the Criminal Code.

In R v Tayo Tompouba (Tayo Tompouba), the Supreme Court of Canada was asked to decide on a question of the language rights found in the Criminal Code, and reminded lower courts once again of the importance of an accused’s language rights when accessing the justice system.

Section 530 of the Criminal Code lays out the language rights of an accused in a criminal trial. Subsections 530(1) and 530(2) give an accused the right to a trial in the official language of their choice. Subsection 530(3) imposes a duty on the judge who first sees the accused to ensure the accused is aware of that right. This case is about the judge’s duty to inform the accused of their language rights.

The Supreme Court Decision

In Tayo Tompouba, Mr. Tayo Tompouba was a permanent resident who lived in British Columbia (BC) for years. His first language was French, and he was competent in English (at paras 12, 14 and 113). He was charged with sexual assault in 2017. His subsequent interactions with the police were all in English.

During his first trial, the judge never asked him if he was aware of his language rights. The trial proceeded in English, and Mr. Tayo Tompouba was convicted of sexual assault (at para 9).

Mr. Tayo Tompouba appealed that decision to the BC Court of Appeal, on the grounds that he was never informed of his right to a trial in the language of his choice by the trial judge, as required by subsection 530(3) of the Criminal Code. The Court of Appeal found that the trial judge did breach the requirements of subsection 530(3), but that the breach did not amount to a violation of Mr. Tayo Tompouba’s language rights, so they dismissed the appeal (at para 17).

Mr. Tayo Tompouba appealed the ruling to the Supreme Court of Canada which found that the trial judge’s breach of subsection 530(3) was a violation of Mr. Tayo Tompouba’s language rights and ordered a new trial in French (at paras 128-129). The Supreme Court reiterated the importance of language rights and the accused’s right to access the justice system in the language of their choice – a message they had laid out 25 years ago in R v Beaulac, (Beaulac) and applied again in this case.

The issue in this case was not the accused’s right to a trial in French, but the right to be informed about it. The question for the Supreme Court was: is a breach of that right serious enough to merit a judge on appeal ordering a new trial? They answered that question in the affirmative, though with some caveats, so that a new trial is not automatically granted in every case where a judge does not follow subsection 530(3).

The Supreme Court set out the framework for dealing with breaches of subsection 530(3) on appeal. All the accused needs to do to justify appellate intervention is to show that they were not informed of their language rights. It then falls to the prosecution to prove that the accused’s language rights were not violated in order to stop that intervention from happening (at para 82).

In this case, the prosecutors had not proven that Mr. Tayo Tompouba’s language rights were not violated by the trial judge’s failure to inform him under 530(3), so the Supreme Court allowed the appeal and ordered a new trial in French (at paras 128-129).

A short history of section 530 of the Criminal Code

To better understand this case, it must be placed in the wider context of minority language rights in Canada. The Supreme Court dedicated a good portion of their decision to a discussion of language rights, and subsection 530(3)’s role in ensuring they are respected (from para 24 to 52).

At the time of Mr. Tayo Tompouba’s first trial, before its amendment in 2019, the relevant subsections of section 530 read:

(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,

…

(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or

(c) the time when the accused is ordered to stand trial, if the accused

…

(ii) has elected to be tried by a court composed of a judge or a judge and jury, or

(iii) is deemed to have elected to be tried by a court composed of a judge and jury,

a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.

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

(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made. (Tayo Tompouba at para 36)

Section 530 is one of a constellation of language rights that share a common purpose: to ensure that an individual’s cultural and personal choices are respected, and to ensure the preservation and equality of official language minorities (Tayo Tompouba, at paras 24 and 36, citing Beaulac at paras 20, 24, 25, 28, 34 and 56, Mazraani v Industrial Alliance Insurance and Financial Services (Mazraani) at paras 20 and 32, Conseil scolaire francophone de la Colombie Britannique v British Columbia at paras 11 and 18, Bessette v British Columbia (Attorney General) at para 38, and Commission scolaire francophone des Territoires du Nord Ouest v Northwest Territories (Education, Culture and Employment) at para 111).

Section 530, though specific to criminal trials, is not about determining the outcome of a trial, nor is it about the fairness of the process in getting to a verdict (Tayo Tompouba at para 26, citing Beaulac at para 41 and 47 and Mazraani at para 46). It is about the ability of people to access justice in the language of their choice, and the equality of status of both official languages in our justice system (Tayo Tompouba at para 25, citing Beaulac at para 45).

The right is to the trial itself, not to any outcome. Putting an accused through a trial in a language not of their choice is a violation of that right—this is why the remedy on appeal for a breach of section 530 will usually be to order a new trial in the language of the accused’s choice (Tayo Tompouba at paras 42 and 80, citing Beaulac at paras 52-54).

One more thing to keep in mind is that the ability of an accused to understand either language is not a determining factor in choosing the language of the trial (Tayo Tompouba at paras 114-15, citing Beaulac at paras 45-46 and Mazraani at para 44). Because it is a personal and cultural right, even if the accused understands both official languages, denying an accused the right to a trial in the language of their choice is still a violation of their language rights (Beaulac at para 34).

Conclusion

Minority language rights are not usually given a spotlight in legal education. Lawyers may not be fully aware of the extent of them, let alone the general public. As the Supreme Court stated, that is why subsection 530(3) exists – as a safeguard for those rights (Tayo Tompouba at paras 46-48).

On its face, preventing breaches of section 530(3) is simple: a judge just needs to ask questions. As the Supreme Court pointed out, some courts already make it their practice to always ask at the first appearance about language rights (Tayo Tompouba at para 100).

In practice, it will require more resources be put into ensuring our courts are truly bilingual. There’s not much point to asking if an accused needs a minority language trial if the court doesn’t have the resources to implement one. The justice system needs lawyers, judges, clerks and other judicial staff who can run trials in both languages, to ensure our justice system is equal, and accessible to speakers of both official languages.