The Supreme Court of Canada has affirmed that the right to a trial in one’s official language of choice is of such importance that a judge’s failure to ask an accused what language they want their trial conducted in at first instance is enough of an error of law that it is reviewable on appeal, as it taints the court proceeding.
In the case at hand, Franck Yvan Tayo Tompouba, a bilingual Francophone, was convicted of sexual assault following a trial conducted in English in the Supreme Court of British Columbia. It wasn’t until he appealed that he asserted for the first time that he wanted his trial conducted in French.
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Kyla Lee of Acumen Law in Vancouver, and chair of the Canadian Bar Association’s criminal justice section, says that the decision is consistent with other judgments by the Supreme Court of Canada about how paramount language rights are in the ability to participate meaningfully in court proceedings, and how fundamental those are to the right to make full answer and defence and access to justice in a proceeding.
“It’s very easy to look at it the way the appellate court did, and say that he was able to understand the trial, and there was no miscarriage of justice that arose. But at the end of the day, it is a statutory right and a Charter-protected right to have your proceedings be in your official language of choice,” Lee says.
“The significance of that has now been emphasized as going to the very heart of the validity of any conviction.”
Lee is interested to see if this decision may lead to an influx of out-of-time appeals where people seek to ask for more time when their language rights weren’t canvassed.
