2.11 Official Languages in Prosecutions

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

April 28, 2017

Table of Contents

1. Purpose of Directive

This directive is intended to assist Crown counsel in applying the language provisions of the Criminal Code (the Code), in particular, those dealing with the language of the trial (ss 530, 530.01, 530.1, 530.2, 531 and 849(3)). It is intended to apply only to cases governed by Part XVII of the Code: its provisions are not intended to extend or apply to official languages of a court or jurisdiction other than English or French, such as aboriginal languages in certain provinces or territories.

2. Purpose of Part XVII of the Criminal Code

The purpose of s 530 of the Code is to provide equal access to the courts to accused persons who speak one of the official languages of Canada.Footnote 1 These linguistic provisions are distinct from the principles of fundamental justice such as the right to a fair trial.Footnote 2 Section 530 of the Code sets out the procedure whereby an accused can apply to be tried before a court who speaks the official language of the accused or both official languages. Once an order has been made under s 530 of the Code, s 530.1 of the Code sets out how the proceedings are to be conducted.

The nature of the accused’s right and the purpose of this part of the Criminal Code is to ensure that accused individuals can have their preliminary hearing and trial in the official language of their choice.

The Supreme Court of Canada underlined in BeaulacFootnote 3 that language rights of accused persons “must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.”

As the Court of Appeal of Ontario has stated in its Munkonda decision:Footnote 4

“The objective of s 530 of the Criminal Code is ‘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.’”

The Supreme Court of Canada has further established that criminal courts must be institutionally bilingual:Footnote 5

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.

3. Application Pertaining to Language of Trial Under Section 530 of the Criminal Code

3.1. Accused whose language is one of the official languages

For the language of trial provisions of the Criminal Code to be triggered, the accused whose language is one of the official languages of Canada must make an application under s 530(1) of the Code for an order that the accused be tried before a judge or a judge and jury who speak the official language of the accused or, if the circumstances warrant, both official languages of Canada. This is a substantive right and not a procedural one.Footnote 6

3.2. Accused whose language is not one of the official languages

When an accused does not speak one of the official languages, a judge may grant an order under s 530(2) of the Code directing that the accused be tried before a judge or a judge and jury who speak the official language in which the accused, in the opinion of the judge, can best give testimony or, if the circumstances warrant, who speak both official languages.

3.3. Accused must be informed of right to apply for order

The judge, before whom an accused first appears, whether or not the accused is represented, must ensure that the accused is advised of his or her right to apply for an order and of the time before which such an application must be made (s 530(3) of the Code). The judge must be proactive in ensuring the protection of the linguistic rights of an accused person, no matter what position is taken by counsel appearing before the court.Footnote 7

Crown counsel have the duty to promote the integral application of ss 530 and 530.1 of the Code.Footnote 8 He or she needs to be mindful of the obligation of the justice of the peace or provincial court judge before whom the accused first appears to inform the accused of his or her right to apply for an order under s 530(1) and (2) of the Code and of the time before which such an application must be made.Footnote 9 This duty of the Crown prosecutor to remain vigilant encompasses the duty to make sure the accused is made aware by the court of the nature and extent of this rightFootnote 10 as well as the duty to ensure the accused exercises this right at the earliest opportunity in the criminal process in order that arrangements can be made with respect to subsequent proceedings.

3.4. Time frame for making the application

An accused’s language of trial application must be made not later than:

  1. the time of the appearance of the accused at which his trial date is set, if
    1. he is accused of an offence mentioned in s 553 of the Code or punishable on summary conviction, or
    2. the accused is to be tried on an indictment preferred under s 577 of the Code;
  2. the time of the accused’s election, if the accused elects under s 536 of the Code to be tried by a provincial court judge or under s 536.1 of the Code to be tried by a judge without a jury and without having a preliminary inquiry, or
  3. the time when the accused is ordered to stand trial, if the accused

    1. is charged with an offence listed in s 469 of the Code,
    2. has elected to be tried by a court composed of a judge or a judge and jury, or
    3. is deemed to have elected to be tried by a court composed of a judge and jury.

The transcript of appearances by the accused may demonstrate that the accused has asserted a right to have the trial in the official language of his or her choice, without a formal application having been made pursuant to s 530.Footnote 11

3.5. Application made outside time frame

Section 530(4) of the Code applies where an accused’s application is made outside the prescribed time frame.

In that case, if the court before which the accused is to be tried is satisfied that it is in the best interests of justice that the accused be tried before a court that speaks 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 in which the accused can best give testimony, the court may remand the accused to be tried before a court that speaks that language or, if the circumstances warrant, that speaks both official languages of Canada.

To determine the best interests of justice, the court must consider the reasons for the delay and then the factors that relate to the conduct of the trial. Institutional inconvenience, the ability of the accused to understand the other official language and the fairness of the trial (which is distinct from the language rights granted under s 530 of the Code) must not be taken into account. The additional difficulties caused by an untimely application and the reasons for the delay are relevant factors.Footnote 12 The ability of the accused to speak the other official language is not a valid consideration: all that is needed is that the accused be able to instruct counsel in the official language of his or her choice.Footnote 13

The basic principle is that, generally, owing to the importance of language rights and the stated intention of the legislator to ensure the equality of French and English, the best interests of justice will be better served by an order allowing the application by the accused to be tried in his or her official language. The denial of the application is exceptional, and the burden of justifying it falls on the Crown.Footnote 14

3.6. Amending the order

Pursuant to s 530(5) of the Code, an order under s 530 of the Code that a trial be held in one of the official languages may, if the circumstances warrant, be varied by the court to require that it be held in both official languages, and vice versa.

3.7. Waiver

The rights provided in ss 530 and 530.1 of the Code may be waived. The accused must know and understand the rights he or she is waiving as well as the consequences of such waiver.Footnote 15 The judge and counsel must be vigilant in this regard and the judge may have to question the reasons behind the waiver to ensure that the accused is fully cognizant of its consequences.Footnote 16 The fact that counsel may have difficulty in speaking the official language of the accused cannot constitute a valid justification for waiver.Footnote 17

Crown counsel should ensure that proceedings are conducted in an official language that the accused person understands. Accordingly, Crown counsel should ask that the waiver of one of the rights provided in ss 530 and 530.1 of the Code be noted on the record, especially if the accused is unrepresented.

4. Language of Trial

4.1. Trial in one of the two official languages

For the purposes of s 530 of the Code, the language of the accused is the official language with which the accused has a sufficient connection. It does not have to be the accused’s dominant language. If the accused has sufficient knowledge of an official language to instruct counsel, the accused may assert that that language is his or her language, regardless of his or her ability to speak the other official language. The onus is on the Crown to show that this assertion is unfounded. The court will satisfy itself only that the accused is able to (i) instruct counsel and (ii) follow the proceedings in the chosen language. The dominant cultural identity and the personal language preferences of the accused are not relevant.Footnote 18

It should be noted that ss 530.1(a) and (b) of the Code provide that both the accused and counsel for the accused have the right to use either official language during the preliminary inquiry and trial. Thus, the language used by the accused or his or her counsel may not be invoked by Crown counsel to challenge the accused’s choice of language of trial.

As the Court of Appeal for Ontario has noted: Footnote 19

“…the rights of the accused and the obligation of the state and the court to provide the service are not reduced or diminished by the fact that an accused understands and speaks the language of the majority. The linguistic ability of the accused [Beaulac, at para 45] ‘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.’”

Crown counsel cannot contest the choice of official language of the accused unless the accused clearly has insufficient knowledge of the chosen official language to instruct counsel and to follow the proceedings in that language.

Crown counsel cannot contest the accused’s statement that he or she will best be able to give testimony in one of the official languages when neither official language is the language of the accused unless the accused clearly has insufficient knowledge of the chosen language to instruct counsel and to follow the proceedings in that language.

4.2. Trial in both official languages (“bilingual trial”)

4.2.1. Single accused

A judge may order that the accused be tried before a judge or a judge and jury who speak both official languages if the circumstances warrant. For example, such circumstances may occur when an accused requests a trial before a judge who speaks only one official language but the evidence is in the other official language or witnesses speak the other official language.

4.2.2. Co-accused

Section 530(6) of the Code is intended to clarify the specific situation of co-accused who are to be tried jointly but who do not have the same official language. Prior to the coming into effect of this provision on October 1, 2008, the courts had taken different approaches regarding separate trials where co-accused exercised their right to be tried in the official language of their choice, which was not the same. Section 530(6) of the Code provides that the fact that two or more accused who are to be tried together are each entitled to be tried before a judge or judge and jury who speak one of the official languages and that these official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a judge or a judge and jury who speak both official languages. This order reconciles the language rights of the accused with the principle of one trial for co-accused.Footnote 20

Where co-accused who do not have the same official language exercise their respective right to be tried before a judge or a judge and jury who speak their official language, Crown counsel should try to avoid separate trials and obtain an order for a bilingual trial. This constitutes circumstances that warrant such an order under s 530(6) of the Code. That said, in exercising its right to join several accused in a single indictment, the prosecution does not escape its linguistic obligations, and the accused do not lose their linguistic rights; the adjustments required by a bilingual trial must not give an advantage to either of the language groups.Footnote 21

In the Munkonda decision, the Court of Appeal for Ontario underlined that both official languages must be used and “the principle of equal access must be respected.” Two principles govern the conduct of a bilingual trial or preliminary inquiry. They are as follows:

  1. the accused retain their right to equal access to proceedings in their language even though the proceeding is bilingual; and
  2. the court and the prosecution must be bilingual and not favour one or the other official language.

5. Effects of Order Pertaining to Language of Court and of Crown Counsel

Once an order has been made under s 530 of the Code, it takes effect immediately, and the scheme created by ss 530 to 530.1 of the Code applies.

The specific rights listed in s 530.1 of the Code also apply where a bilingual trial is ordered.Footnote 22

5.1. Judge, judge and jury must speak same official language as accused

The judge or judge and jury must speak the official language of the accused or both official languages, as the case may be, at the preliminary inquiry and the trial.Footnote 23 The judge must not only understand and be able to speak the official language of the accused, he or she must in fact use that language during the trial, as well as in interlocutory or final judgments.Footnote 24 Failure by the judge to ensure that the requirements of ss 530 and 530.1 are met will result in a loss of jurisdiction.Footnote 25

5.2. Crown counsel must “speak” same official language as accused

5.2.1. Institutional obligation

Section 530.1(e) of the Code imposes a specific obligation on Crown counsel by providing that the accused has the right to have Crown counsel who “speaks” the same official language as the accused or both official languages, as the case may be. This includes an implicit requirement that Crown counsel in fact uses this language.Footnote 26 Consequently, every time an order is made under s 530 of the Code, Crown counsel responsible for the file must ensure that he or she has sufficient command of the official language stated in the order; in the case of a prosecution team, each prosecutor must be fluent in the official language of the accused and able to fully participate in the trial in the language chosen.Footnote 27 The same principle applies to bilingual trials as well, where the prosecutor or, in the case of a prosecution team, the entire team, i.e., all counsel of record appearing for the Crown and taking place at the counsel table, must be bilingual and ensure that one official language is not favoured over the other.Footnote 28

Section 530.1 of the Code creates an institutional obligation. Thus, if Crown counsel on the file is not fluent in the official language of the accused or does not consent to arguing the case in that language, he or she must inform his or her superior (or, in the case of an agent, the agent supervisor), who then has the responsibility of assigning the case to another counsel who is fluent in the official language of the accused and consents to proceed in the language chosen by the accused.Footnote 29

5.2.2. When to “speak” the same official language as the accused

The language rights guaranteed by ss 530 and 530.1 of the Code apply at the preliminary inquiry and the trial.Footnote 30

Where an order is made under s 530 of the Code, Crown counsel must use the official language of the accused in all oral submissions and during any examination of the accused.

Where an order has been made for a trial before a judge or a judge and jury who speak both official languages (“bilingual trial”), the judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which and the extent to which Crown counsel and the judge may use each official language at the hearing (s 530.2(1) of the Code). Crown counsel must ensure that such an order is made at the earliest opportunity.

This order must, to the extent possible, respect the right of the accused to be tried in his or her official language (s 530.2(2) of the Code).

Crown counsel must use both official languages in a balanced fashion, depending on the unique circumstances of each trial. Accordingly, for example, if the accused or counsel for the accused addresses the court in the official language of the accused, the prosecutor and the judge must use that language in communication with that particular accused and counsel. This means that, generally, accused persons must each be examined in their own official language while oral argument must be divided in a balanced fashion between the two official languages unless the judge has ordered otherwise.

On the other hand, where an order for a “bilingual trial” is made, but there is only one accused or the accused persons all speak the same official language, arguments and examinations must be conducted in that language only unless the judge has ordered otherwise.

Sections 530.1(c) and 530.1(c.1) of the Code, provide that witnesses have the right to give evidence in either official language during the preliminary inquiry and at trial and that the judge may, if the circumstances warrant, authorize Crown counsel to examine or cross-examine a witness in his or her official language even where that language is not the language of the accused or the one in which the accused can best give testimony. In the context of a bilingual trial or preliminary inquiry, when the official language of the witness is that of the accused having asserted the rights conferred by ss 530 and 530.1, the witness must be examined in that language, particularly when this witness is a victim of violent acts that are the basis of the legal proceedings, or when this witness has prepared notes in that language.Footnote 31

Obviously, the criminal process consists of a number of steps, other than the preliminary inquiry and the trial, during which the accused’s rights may be affected, but they are not subject to the language scheme under ss 530 to 531 of the Code.

Nevertheless, once an order is made under s 530 of the Code that the accused will be tried before a judge or a judge and jury who speak the official language of the accused, Crown counsel must use the official language of the accused not only at the preliminary inquiry and trial stages but also in all proceedings at the trial level at which the accused is present unless the parties have agreed otherwise.Footnote 32

5.2.3. Written pleadings

Under s 849(3) of the Code, the forms set out in Part XXVIII of the Criminal Code (for example: summons, search warrant) must be printed in both official languages.Footnote 33

Section 530.01(1) of the Code states that, if an order is granted under s 530 of the Code, Crown counsel is required, on application by the accused, to cause the portions of the information or indictment against the accused that are in an official language that is not that of the accused or that in which the accused can best give testimony, to be translated into the other official language and to provide the accused with a written copy of the translated text at the earliest possible time.

Crown counsel must ensure that portions of informations or indictments are in the official language chosen by the accused if such a choice has been made.

If the official language of the accused is not known, Crown counsel should ensure that the accused is clearly informed by the court on the record that a translation may be obtained, within a reasonable time, in the official language chosen by the accused.

As stated above, s 530.1(e) provides that Crown counsel must “speak” the same language as the accused or both official languages, as the case may be. This means that Crown counsel must actually use that language in oral representations, and as mentioned in section 5.2.2 of this directive, in written representations as well, both at the preliminary inquiry and at trial. This also means that Crown counsel must use that language in any correspondence with the accused or accused’s counsel.

Where an order has been made pursuant to s 530 of the Code for a “bilingual trial,” but there is only one accused or the accused all speak the same official language, the documents prepared by Crown counsel must be in the official language of the accused unless the judge orders otherwise.

Where an order has been made pursuant to s 530 of the Code for a “bilingual trial,” and there are Francophone and Anglophone accused, the documents prepared by Crown counsel must be in both official languages unless the judge orders otherwise.Footnote 34

Crown counsel must file case law, literature and legislation in the official language of the original documents. As well, quotations must be reproduced in the original official language.

Where a version of these texts is available in the official language of the accused, that version must also be filed with the court. Similarly, where a quotation is written in an official language other than the language of the accused, the passage must, where practicable, be translated with the notation [translation].Footnote 35

Where an order has been made under s 530 of the Code, Crown counsel must prepare documents in the official language of the accused not only at the preliminary hearing and trial stages but also in all proceedings at the trial level at which the accused is present unless the parties have agreed otherwise. In a bilingual trial or preliminary hearing, Crown documents must be prepared in both languages.Footnote 36

6. Other Effects of Order

As the Court of Appeal for Ontario has stated in Munkonda:Footnote 37

In conceptual terms, a bilingual trial or preliminary inquiry is a merger of a proceeding in French and a proceeding in English. Whether the accused are francophone or anglophone, they do not lose their language rights; rather, and by necessity, each accused’s language rights must be accommodated. Each accused cannot have the right to have all of the evidence presented in his or her own language. Oral evidence can be presented in only one or the other of the two official languages. Similarly, the prosecution and the judge cannot speak both languages at the same time.

Nonetheless, the language rights of each accused must be respected to the extent possible. This would mean, for example, that if an accused or his or her counsel addresses the court in the accused’s official language, the prosecutor and the judge should interact with the accused and counsel in that language.

Where an order is made under s 530 of the Code, the court is required to make interpreters available to assist the accused, his or her counsel or any witness during the preliminary inquiry or trial (s 530.1(f) of the Code). The interpreter is present for the benefit of the accused, the jury and witnesses, and not for the judge or Crown counsel. Consecutive interpretation is generally a better solution than simultaneous interpretation, as it allows the quality of interpretation to be monitored. If simultaneous interpretation is provided, it must be done in such a way that the translation can be recorded and transcribed, in order for such monitoring to be made possible.

In certain cases, the trial may be held in another territorial division if an order made under s 530 cannot conveniently be complied with in the territorial division in which the offence would otherwise be tried (s 531 of the Code).

In a trial or preliminary hearing governed by the regime set out in ss 530 and 530.1, all court personnel in the courtroom must be bilingual.Footnote 38

7. Evidence

7.1. Disclosure

In interpreting the language rights in the Criminal Code or of any other constitutional language rights provisions, courts have not imposed a legal obligation on the Crown to provide a translation of evidence disclosed to the accused into the official language of the accused, or into the official language of counsel retained by the accused.Footnote 39

In exceptional circumstances; however, the right to make full answer and defence may entitle the accused to obtain an order for translation of a portion or summary of the evidence into his or her official language.Footnote 40 Insofar, as the issue is no longer the application of language rights, properly speaking, but the principles of fundamental justice, the approach should be the same whatever the language of the accused may be. This question should be decided on a case-by-case basis, and even exhibit by exhibit.Footnote 41

7.2. Documentary evidence

Crown counsel may file any documentary evidence in the official language in which it is supplied to them, without the need for translation. The provisions of s 530.1(g) of the Code require only that the documentary evidence be filed in the record at the preliminary hearing and at trial in the language in which it was tendered. In the context of a bilingual trial, the transcript of intercepted conversations must be prepared in the official language in which the conversation was held and not only in a translated version.Footnote 42 Where the intercepted conversation takes place in a language other than English or French, the transcript must be translated into the official language of the accused if there is only one accused, and into both official languages if there is more than one accused and one or more of the accused have invoked their Part XVII rights, unless there is a clear waiver stated on the record that the translated transcript can be in one official language only. There again, as with disclosure of documents, there may be some circumstances that justify a court ordering that an exhibit be translated into the language of the accused, not based on the language rights in the Criminal Code, but rather on the principles of fundamental justice.

8. Appeal Proceedings

There is no legal obligation on Crown counsel to use the official language of the accused in appeal proceedings. As indicated above, ss 530 and 530.1 of the Code apply only to the preliminary inquiry and the trial.

In appeal proceedings, Crown counsel must use the official language chosen by the defence for the purposes of the appeal, for both oral and written submissions.Footnote 43

Where the Director of Public Prosecutions (DPP) initiates the appeal, it is assumed that the language of the proceeding will be the same as in the earlier judicial proceeding unless the parties have agreed otherwise.

Where the DPP is an intervener, Crown counsel must also use the official language chosen by the defence for the purposes of the appeal.Footnote 44 In cases involving more than one accused or where there is reason to assume that both official languages will be used, Crown counsel must file written argument in both official languages. In oral pleadings, Crown counsel must use the official language chosen by the defence. If counsel for the accused persons do not all use the same official language in oral argument, Crown counsel must use the language that appears to be most appropriate in the circumstances.

9. Other Aspects of Official Languages

Under the Constitution, French and English have equality of status as to their use in all institutions of the Parliament and government of Canada, in federal statutes and in the Federal Courts and, subject to certain limitations, in communications between the public and federal institutions.Footnote 45 The Constitution also guarantees certain language rights with respect to the legislatures and courts of Quebec, Manitoba and New Brunswick.Footnote 46

Certain spheres of federal jurisdiction, the Official Languages ActFootnote 47 specifies the rights of the public and the obligations of federal institutions with respect to the use of both official languages in parliamentary proceedings (Part I), in legislative and other instruments (Part II), in the administration of justice (Part III), in communications with and services to the public (Part IV) and in the work environment of federal institutions (Part V).

10. Official Languages Law Team of the Department of Justice (OLLT)

Crown counsel must inform their Chief Federal Prosecutor (CFP) as soon as possible of all imminent matters where language rights are at issue pursuant to the Canadian Charter of Rights and Freedoms (Charter), the Official Languages Act, Part XVII of the Criminal Code or related legislation. The CFP shall then inform the champion or co-champion of official languages of the PPSC.

If needed, the champion or co-champion of official languages of the PPSC will consult the OLLT. The OLLT coordinates policy and legal advice to the federal government relating to official languages and language rights. However, any subsequent dealings with the OLLT will be conducted by Crown counsel who will keep the CFP and champion or co-champion informed of the progress of the file.

11. Questions to Consider for Part XVII Proceedings

Official Language of the Accused

Prosecution Plan

Disclosure

Witnesses

Interpreters

Hearings

Pleadings

Other documents

Other questions

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