Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest News

  1. 🥐 The SCC will release its judgment in R. v. Tayo Tompouba on Friday, April 26, 2024. At issue is what to do when a judge fails to advise an accused of his right to apply for a trial in French.
  2. 🪖 On April 26, 2024, the SCC released its decision in R. v. Edwards, 2024 SCC 15, which dealt with five appeals. In a 6:1 split, the Court dismissed the appeals, finding that the requirement that military judges be officers did not affect their independence and was therefore constitutional.
  3. 🔮 94% of players correctly predicted the outcome.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Failure to Advise of Right to Trial in French

Appeal by leave from R. v. Tayo Tompouba, 2022 BCCA 177

SCC factums and webcast

What Happened?

Trial: The appellant was charged with sexual assault. On his first appearance, he was not advised of his right to apply for a trial in French, despite the court’s obligation to inform him of that right under s. 530(3) of the Criminal Code. He was convicted following a trial in English.

Court of Appeal: The Court of Appeal acknowledged that not advising the appellant of his right was an error, but it applied the curative proviso to dismiss his appeal. It held that the right provided for in s. 530(3) is a procedural right, not a substantive right. The Court noted that the appellant was fluent in both official languages, he was represented by counsel, and he testified in English without apparent difficulty.

What Was Argued at the SCC?

Appellant: The Court of Appeal erred in applying the curative proviso. The prosecutor indicated they weren’t relying on the curative proviso and the Court improperly reversed the burden of proof requiring the accused to show the curative proviso shouldn’t apply.

Respondent: The Crown agrees the justice of the peace did not ensure the appellant was advised of his right to apply for a trial in the official language of his choice, but argues that does not entitle him to have his conviction set aside. The record does not show the appellant was actually denied the right to choose his official language for trial and there is no evidence of harm or prejudice. The record is also silent on whether the appellant, if he was properly advised, would have chosen a trial in the other official language.

What Else Should You Know Before Making a Prediction?

I’m leaning towards appeal allowed. Parties advancing language-rights appeals have a very good track record at the Supreme Court. There was a clear problem here, and I imagine the Court will want to send a message so that it doesn’t happen again. In R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 SCR 768, the Court set aside a first degree murder conviction and ordered a new trial because of problems with the judge and jury not speaking both official languages.

Previous Prediction: Independence of Military Judges

On April 26, 2024, the SCC released its decision in R. v. Edwards, 2024 SCC 15.

Held (6:1): Appeals dismissed. The military status of military judges does not violate the s. 11(d) constitutional guarantee of judicial independence.

Key Points:

  • Accused members of the Canadian Armed Forces who appear before military judges are entitled to the same guarantee of judicial independence and impartiality under s. 11(d) as accused persons who appear before civilian criminal courts, but this does not require that the two systems be identical in every respect.
  • The requirement in the National Defence Act that military judges be officers is not contrary to s. 11(d) of the Charter.
  • In R. v. Généreux, [1992] 1 S.C.R. 259, the Court held that the military status of military judges does not violate s. 11(d). That is still good law and s. 11(d) does not require “absolute” judicial independence.
  • The three essential conditions of judicial independence from Valente v. The Queen, [1985] 2 S.C.R. 673 are met for military judges through the provisions of the NDA.
  • A reasonable apprehension of bias is not created by the possible liability of military judges to discipline under the Code of Service Discipline. Military judges are not above the law and can be held accountable when they act outside their judicial functions for their conduct as members of the CAF.

Predictions: 94% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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