The Importance of Respecting Language Rights in Criminal Trials

A failure to inform an accused of their right to choose to be tried in the language of their choice creates a presumption of a violation of this fundamental right. In R v. Tayo Tompouba, the Supreme Court of Canada (SCC) reaffirmed the fundamental importance of language rights in the Canadian judicial system and emphasized their essential nature in maintaining both linguistic communities.

The central issue was whether a bilingual accused's right to a trial in French was violated when the trial judge did not inform him of the right to choose the conduct of his trial in the language of his choice. The majority of the SCC found that this violation constituted an error of law justifying the intervention of an appellate court.

Factual background

Tompouba, a francophone living in British Columbia, was charged with sexual assault and was tried in English. At his first appearance, the judge did not inform him of his right, under section 530(3) of the Criminal Code, to his choice to be tried in French. It was only after his conviction that Tompouba raised the issue on appeal, saying he would have chosen a trial in French if he had been informed of that choice.

The Court of Appeal found that there was insufficient evidence to conclude that this error was prejudicial, but the majority of the SCC allowed the appeal, quashing his conviction and ordering a new trial in French.

The Judicial Duty to Notify Accused Persons of Their Language Rights

Section 530(1) of the Criminal Code guarantees every accused person the absolute right to equal access to the courts in the official language of their choice. Under section 530(3), Parliament has imposed an obligation on judges to advise an accused of his or her right to a trial in either official language at the first appearance. This obligation has two components:

Duty to inform – Judges must explicitly inform the accused that they have the right to choose the language of their trial.

Procedural obligation – Judges must take the necessary steps to enable the accused to exercise this right. If an accused appears to be Francophone or bilingual, a judge cannot assume that they are aware of their right to a trial in French.

The fact that a judge has not fulfilled this obligation deprives the accused of a real opportunity to exercise his or her language right and, therefore, of their right to a fair trial.

An error of law justifying the intervention of a court of appeal

The Supreme Court emphasized that failure to comply with section 530(3) is not a mere procedural error, but rather an error of law that may warrant appellate intervention.

There are two remedial provisions in the Criminal Code that allow an appeal to be dismissed where the error or irregularity demonstrated by the accused did not prejudice him. Once there is a violation of section 530(3), the Crown can rely on the remedial provisions to rebut the presumption of violation by showing that the violation did not cause prejudice to the accused. If he fails, the prejudice becomes too great to uphold the conviction.

A presumption of violation that reverses the burden of proof

Once the presumption is triggered, the onus is on the Crown to prove, on a balance of probabilities, that the accused was aware of their rights and voluntarily chose to proceed in the other official language. In this case, the Crown failed.

A key element of this decision is that the Court rejected the argument that bilingual accused automatically understand and implicitly waive their right to a trial in French. Being bilingual does not mean an accused must be tried in English if they prefer French. This fundamental right protects linguistic minorities and guarantees equal access to justice.

A strong statement on the importance of language rights

Wagner C.J., writing for the majority, emphasized that language rights are not mere procedural formalities. They serve a broader purpose: to preserve Canada's bilingual character and ensure equitable access to justice. These rights are specifically intended to protect official language minorities and must be actively respected by the justice system.

Key Points

This decision is an essential reminder of the importance of language rights in criminal proceedings. The SCC sends a clear message to trial judges that the obligation to inform an accused of his or her right to a trial in the official language of their choice is not optional – it is mandatory.

For lawyers and other legal professionals, this case is a reminder that language rights should never be presumed to be acquired. Ensuring that an accused understands their rights and can fully exercise them is not an administrative formality but a fundamental guarantee of a fair trial and equal access to justice.

In a bilingual country like Canada, the Tayo Tompouba decision is a powerful affirmation that language rights remain at the heart of the justice system. This is also a reminder of the professional obligations that lawyers must inform their clients of their language rights.

For an overview of ethical obligations in this regard, see this article by other members of the Ontario Bar Association's Official Languages Committee.