Language Rights

Section 530 Language Rights

An accused person has a right to an English, French, or in some cases, a bilingual trial, which includes a preliminary inquiry or a sentencing hearing. This right is set out in section 530 of the Criminal Code (Criminal Code (R.S.C., 1985, c. C-46) Section 530) (“Section 530 Rights”).

Judges have an obligation to make the accused aware of their Section 530 Rights. Previously, in British Columbia Courts, this meant an accused person could advise the Court of their language of choice through their legal counsel. However, a recent Supreme Court of Canada decision changed the judicial procedure of advising the accused of their Section 530 Rights.

R. v. Tayo Tompouba

R. v. Tayo Tompouba, 2024 SCC 16 (“Tayo Tompouba”) is a Supreme Court of Canada decision in which the accused, a bilingual Francophone, was convicted of sexual assault following a trial in English in the Supreme Court of British Columbia (R. v Tayo Tompouba, 2019 BCSC 1529). When the accused appealed the BCSC’s decision, the accused asserted for the first time that they wanted their trial conducted in French.

The British Columbia Court of Appeal dismissed the claim (R. v. Tayo Tompouba, 2022 BCCA 177), asserting that the accused did not meet the burden of proving that the trial judge’s breach of Section 530(3) of the Criminal Code in not asking the accused his preferred language had breached his fundamental rights to be tried in the language of his choice.

In a 5-2 decision handed down on May 3, 2024, the Supreme Court of Canada quashed the conviction and ordered a new trial for the accused. In doing so, the Court made the assertion in para. 24 that the accused fundamental language rights had been breached, and that:

[24] The purpose of language rights is to “protect official language minorities in this country and to insure the equality of status of French and English” (R. v. Beaulac, 1999 CanLII 684 (SCC) at para. 41).

As such, para. 56 of Tayo Tompouba notes:

[56] Any denial of the s. 530(4) right is exceptional and must be justified; the burden of this demonstration is on the Crown.

The Evolution of Section 530 Judicial Procedure

To ensure that an accused can choose the language of their trial in a free and informed manner, Parliament has imposed an informational duty for this purpose on the Judge before whom the accused first appears. Prior to Tayo Tompouba, counsel would often make a language election for their client (after consulting with the accused). Post Tayo Tompouba, the British Columbia courts have required the accused to make this language election either in person, or while appearing by video after having their language rights explained to them. The practical result of this, is that the accused must attend a preliminary appearance and personally elect the language of their trial, irrespective of whether the accused has filed counsel designation (in an indictable matter) or elected for counsel to appear as their agent (in a matter proceeding summarily).

The British Columbia Courts must continue to balance the protection of official language minorities with avoiding further delays and encumbrances to the accused in an already over-stressed judicial system.