Appeal court makes strong statement about bilingual proceedings

As the Ontario Court of Appeal made a strong statement about language rights by awarding costs against the Crown, the provincial government is getting ready to launch a pilot project to address the issue of French-language services in the justice system.

“Access to justice in French in the majority anglophone provinces presents major challenges for francophones appearing in the courts. Numerous studies and reports on access to justice in French confirm that the appellant’s experience is not unique and is part of a larger problem,” wrote appeal court Justice Paul Rouleau in the May 5 decision in R. v. Munkonda.

Besides the costs order, the appeal court also quashed the committal for trial in the case of a francophone defendant who suffered linguistic disadvantages in the proceeding.

The decision comes as the Ministry of the Attorney General prepares to launch a pilot project in Ottawa that will implement a number of recommendations by the French-language services bench and bar advisory committee in 2012. Rouleau co-chaired that committee with lawyer Paul Le Vay. The pilot project will involve what the government is calling “an active offer” of services in French and support to French speakers “from the moment they enter the courthouse.” Videoconferencing may also be available to provide French-language services remotely, according to the ministry.

The preliminary hearings in Munkonda involved both anglophone and francophone individuals accused in a drug-trafficking matter with two of the three prosecutors have little or no ability to speak French. Making matters worse, according to the appeal court, was the fact the Crown had wiretapped communications translated into English even though they were originally in French or another language. Other issues raised in the appeal included the fact the court reporter was a unilingual anglophone and the preliminary inquiry judge had given an interlocutory judgment in English in response to a motion from the appellant in French.

“In my opinion, the only conclusion that can be drawn from the fact that virtually all of the documents were prepared in English only is that Crown counsel decided to prepare everything for the preliminary inquiry in English and to do the minimum to meet the obligations they were under because the preliminary inquiry was bilingual,” wrote Rouleau.

“That approach to the preliminary inquiry is very possibly a result of the fact that two of the counsel assigned by the Crown to prosecute the charges were not bilingual and thus had to work with English versions of all the documents and evidence. The result is that all their efforts helped facilitate the job of counsel for the anglophone accused and they did not even provide the minimum, a transcript of the French wiretaps in French, for the francophone accused.”

In its decision, the Court of Appeal considered the challenges of doing bilingual trials and the standard of fairness.

“I acknowledge that the standard is not perfection,” wrote Rouleau, noting a francophone or an anglophone accused in a bilingual trial doesn’t have the right to a translation of everything.

“A degree of flexibility is therefore necessary,” he added.

“The mere fact that a judge or prosecutor erroneously speaks English when addressing a francophone accused in a French or bilingual trial, or that a procedural omission occurs during the trial and is quickly corrected once it is noticed, will not constitute an infringement of the accused’s language rights giving rise to a remedy.”

The appeal court also found the language-rights violations didn’t constitute breach of the appellant’s rights under the Charter of Rights and Freedoms. It decided against ordering a stay of the proceedings because the violations took place at a preliminary hearing as opposed to a trial and they didn’t meet the bad-faith requirement for such a remedy.

“One of the things that’s particularly good about the decision is that it places language rights in their proper context,” says Le Vay, citing the appeal court’s pragmatic approach to the issue.

“The judge says . . . every little thing doesn’t have to be slavishly translated and identical but it has to be a true practical equivalent in a sense that the francophone accused doesn’t have to be a second-class citizen in a bilingual trial under s. 530 of the Criminal Code,” he adds.

Although the preliminary inquiry judge had acknowledged the violations, he didn’t make any orders or grant any remedies due to a lack of resources to accommodate requirements such as having a bilingual court reporter. The judge said those were administrative concerns he had no authority over.

Ottawa criminal lawyer Doug Baum says the francophone accused in the case was only one of a number of defendants and he wasn’t even the target or a seller of cocaine but instead was a purchaser. “So it doubly makes one wonder about the wisdom of pursuing this accused at such cost,” says Baum.

“If the cost was worth it to prosecute, then the Crown should have assumed all the true costs of pursuing him in French.”

Now that the appeal court has quashed the appellant’s committal for trial, it will be interesting to see if the Crown pursues the case again, says Baum, noting the ruling could also have implications for future cases involving francophones.

Baum also says the ruling could lead to more francophones insisting on French trials and disclosure.

“There is no more money in the system to accommodate language rights any more than they are accommodated at present,” he says.   

For more, see "Major gaps in bilingual court services."

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