R. v. Tayo Tompouba, 2022 BCCA 1772024 SCC 16 (40332)

“T is a bilingual Francophone who was convicted of sexual assault following a trial conducted in English. During the judicial process leading to the conviction, the judge before whom T first appeared did not ensure that he was advised of his right to be tried in French, contrary to the requirements of s. 530(3) of the Criminal Code. Before the Court of Appeal, T asserted that he would have liked his trial to be conducted in French. While the Court of Appeal was of the view that the breach of s. 530(3) was an error of law under s. 686(1)(a)(ii) of the Criminal Code, it found that there was insufficient evidence to conclude that the error had caused any prejudice. It therefore applied one of the curative provisos in s. 686(1)(b).”

The SCC (5:2) allowed the appeal, quashed the conviction, and ordered a new trial (in French).

The Chief Justice wrote as follows (at paras. 4-7, 49-51, 56, 62-65, 71-72, 98-101, 124):

“This appeal provides the Court with an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) Cr. C. when no decision on the accused’s language rights was made at first instance. Thus far, the lower courts are not in agreement on the framework to be applied. While some appellate courts find that such a breach in itself warrants a new trial, others, including the Court of Appeal in this case, instead take the view that the evidence in the record must make it possible to conclude that the breach in fact resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice. This Court is thus called upon to settle this debate.

For the reasons that follow, I am of the view that a breach of s. 530(3) Cr. C. is an error of law warranting appellate intervention under s. 686(1)(a) Cr. C. According to the jurisprudence, an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, through a decision or an improper omission, as long as the error is related to the proceedings leading to the conviction and was made by a judge. A breach of s. 530(3) Cr. C. corresponds precisely to this definition. It involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction. A breach of s. 530(3) Cr. C., once established, has the effect of tainting the trial court’s judgment. It gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv) Cr. C.

In addition to being in harmony with the scheme for conviction appeals, this framework strikes an appropriate balance. On the one hand, it takes into account and gives effect to the purpose of s. 530 Cr. C., which is to support the preservation and development of linguistic minorities across Canada by ensuring equal access to the courts in criminal proceedings. On the other, it prevents the risk that an accused who has been convicted will improperly take advantage on appeal, for an ulterior motive, of a breach of s. 530(3) Cr. C. that occurred at first instance. This is because the framework laid down gives the Crown an opportunity to persuade the court of appeal that the accused’s fundamental right to be tried in the official language of their choice was respected, despite the breach of s. 530(3) Cr. C. If the Crown succeeds, the appeal can then be dismissed. For this reason, the framework significantly limits the risk of language rights being instrumentalized on appeal — a highly objectionable practice that must be sanctioned to the greatest extent possible.

In this case, I conclude that the Court of Appeal erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C., that his fundamental right to be tried in the official language of his choice had in fact been violated at first instance. If the Court of Appeal had applied the proper legal framework, it would have found that Mr. Tayo Tompouba had proved that a reviewable error had been made and that the Crown had failed to establish that the appellant’s fundamental right was not in fact violated despite the breach of s. 530(3) Cr. C.


 

It follows from the foregoing that a first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge’s informational duty. Such a failure by the judge constitutes a breach of s. 530(3) Cr. C. and violates the accused’s right.

Finally, I note that the consequences of a breach of s. 530(3) Cr. C. will differ depending on when the breach is raised. When it is raised at first instance outside the periods specified in s. 530(1) Cr. C., the accused can file a late application under s. 530(4) Cr. C. The judge’s failure to comply with s. 530(3) Cr. C. will then be a relevant factor in the accused’s favour that the judge hearing the application must consider when assessing the diligence displayed by the accused in exercising their fundamental right. As Mainville J.A. of the Quebec Court of Appeal wrote: “Should the duty under s. 530(3) . . . Cr.C. not have been satisfied, it would be more difficult to refuse a late application” (Dhingra, at para. 51).

Where the breach of s. 530(3) Cr. C. is raised for the first time on appeal, as in this case, the consequences of the breach are a subject of disagreement among the courts, with respect to both the applicable framework and the appropriate remedy. Some appellate courts find that a breach of s. 530(3) Cr. C. in itself causes very significant prejudice to the accused, which requires that a new trial be held (see MacKenzie, at paras. 3, 11, 69 and 82‑83; R. v. Deveaux (1999), 181 N.S.R. (2d) 81 (S.C.)). Others, including the Court of Appeal in this case, instead take the view that such a breach cannot justify a new trial on its own in the absence of evidence in the record from which it can be concluded that the breach resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice or other significant prejudice (paras. 106 and 125‑26; see also R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392, at paras. 8‑10).



In short, as a general rule, a court of appeal may intervene only if the error was prejudicial to the accused. Unreasonable verdicts (s. 686(1)(a)(i) Cr. C.) and miscarriages of justice (s. 686(1)(a)(iii) Cr. C.) are usually, by nature, prejudicial to the accused, while errors of law (s. 686(1)(a)(ii) Cr. C.) are presumed to be prejudicial (see Khan, at para. 16; Coughlan, at pp. 574‑75 and 582).


 

First, an error in the application of a legal rule may originate in various ways, including through a misinterpretation of the legal rule (Khan, at para. 22; Arradi, at para. 39; Coughlan, at pp. 574‑75; T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at pp. 147‑49).

Second, the application error may occur through a decision or an improper omission, that is, an unjustified failure to apply a legal rule. While it is true that the expression “a wrong decision on a question of law” in s. 686(1)(a)(ii) Cr. C., coupled with what the majority stated in Khan (see paras. 7, 17 and 22), may at first glance support the idea that an error of law is confined to a decision that is wrong in law, it is clear from this Court’s jurisprudence that such an error may also involve an improper omission. More specifically, failing to apply a legal rule — for instance, by not complying with it — may constitute an error of law. This will be the case where, for example, a judge fails to give an instruction to a jury despite being required to do so (see R. v. Chambers, [1990] 2 S.C.R. 1293, at p. 1318; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 32‑34; R. v. Abdullahi, 2023 SCC 19, at paras. 48‑49; Coughlan, at p. 575); to correct prejudicial remarks made by Crown counsel concerning a defence witness (R. v. Romeo, [1991] 1 S.C.R. 86, at p. 95); to appoint an interpreter when it is apparent that the accused is having difficulty expressing themself or understanding the proceedings for language reasons, such that the failure infringes the accused’s constitutional right protected by s. 14 of the Charter (R. v. Tran, [1994] 2 S.C.R. 951, at pp. 980‑81 and 1008‑9); to comply with a procedural rule (see R. v. Mitchell (1997), 36 O.R. (3d) 643 (C.A.); R. v. Sciascia, 2016 ONCA 411, 131 O.R. (3d) 375, at paras. 82‑83 and 86, aff’d on other grounds, 2017 SCC 57, [2017] 2 S.C.R. 539, at paras. 7 and 45; Coughlan, at p. 566; Khan, at para. 16); or to provide sufficient reasons in support of a decision (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 108, per Brown and Rowe JJ., concurring, citing, inter aliaR. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25 and 28). In short, the jurisprudence indicates that an error in the application of a legal rule may involve either a decision that is wrong in law or an unjustified failure to comply with a legal rule. Indeed, this surely explains why Arbour J. stated in Khan that an error of law under s. 686(1)(a)(ii) Cr. C. “can be” — but is not limited to being — “any decision” (para. 22).

Third, for a presumption of prejudice to arise, it is not necessary that the legal rule erroneously applied be substantive in nature. This is because it is well settled that a procedural irregularity, whether trivial or serious, may constitute an error of law under s. 686(1)(a)(ii) Cr. C. and trigger the application of the curative provisos in s. 686(1)(b) Cr. C. (Khan, at para. 16; R. v. Bain, [1992] 1 S.C.R. 91, at pp. 134‑35, per Gonthier J., dissenting, quoting R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), at pp. 46 and 48). In short, the prejudice presumed as a result of an error of law under s. 686(1)(a)(ii) Cr. C., which makes it possible to quash the conviction, may arise from a breach of either a substantive or a procedural right (see Coughlan, at p. 576).

Next, to constitute an error of law under s. 686(1)(a)(ii) Cr. C., the erroneous application of a legal rule must be related to the proceedings leading to the conviction and must be attributable to a judge. Only where these two criteria are met can it be concluded that the error tainted the trial court’s judgment, with the result that prejudice can be presumed and the conviction quashed.


 

To summarize, an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, as long as it is related to the proceedings leading to the conviction and was made by a judge. In addition, the error may have been made through a decision or an improper omission. It may also concern either a procedural or a substantive legal rule. This definition is consistent not only with the language and inherent mechanics of s. 686 Cr. C. but also with the manner in which this provision has been interpreted by the courts over time. It also has the advantage of being accessible, intelligible, clear and predictable (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 68). It results in a wide range of errors being classifiable as errors of law under s. 686(1)(a)(ii) Cr. C., which in fact explains why “[m]ost errors that are not based on the unreasonableness of a verdict will relate to an error of law” (Coughlan, at p. 574; see also Khan, at para. 25).

By comparison, miscarriages of justice under s. 686(1)(a)(iii) Cr. C. are a residual category of errors that exists to ensure that a conviction [translation] “can be quashed where a trial was unfair, regardless of whether the error was procedural or substantive in nature” (Vauclair, Desjardins and Lachance, at No. 51.250; see also Khan, at paras. 18 and 27). The question to be decided in this regard is whether the irregularity was so severe that it rendered the trial unfair or created the appearance of unfairness (Khan, at para. 69, per Lebel J., concurring; see also Fanjoy, at pp. 238‑40; Davey, at paras. 50‑51; Kahsai, at paras. 67‑69). The miscarriage of justice standard is “a high bar”, which “is even higher when claimed based on perceived unfairness instead of actual prejudice” (Kahsai, at para. 68).


 

It is, of course, not possible to prevent all risks of abuse. Even given the Crown’s ability to adduce fresh evidence, it is impossible to completely avoid appeals in which the Crown will have difficulty showing that the accused’s fundamental right was not in fact violated by the breach of s. 530(3) Cr. C. In such circumstances, it is possible that accused persons may take advantage on appeal, for purely tactical purposes, of a violation of their language rights that occurred at first instance. Upon reflection, however, these risks and difficulties are tempered by three considerations.

First, the difficulties encountered by the Crown arise only in cases in which the judge did not carry out their informational duty under s. 530(3) Cr. C. Where the judge did carry out that duty, the accused remains free to raise on appeal, for the first time, the violation of their right to be tried in the official language of their choice. The onus will then be on the accused to prove that violation so as to justify appellate intervention at the stage of the analysis under s. 686(1)(a) Cr. C. No presumption will apply in the accused’s favour in the absence of a breach of s. 530(3) Cr. C.

Second, this type of situation can easily be prevented, including by introducing systematic practices to ensure that the informational duty under s. 530(3) Cr. C. is fulfilled in every case, as some provinces have already done (see R. v. Vaillancourt, 2019 ABQB 859, at para. 6ee) (CanLII)). Similarly, the Crown can play an active role in preventing this type of situation by reminding the judge, at the accused’s first appearance, to perform the duty imposed by s. 530(3) Cr. C., as the Nova Scotia Court of Appeal properly noted in MacKenzie, at para. 15(6). Finally, the burden imposed on the Crown and the challenges encountered by the Crown in discharging it are no different than those taken on by the Crown at first instance under the Beaulac framework. Where an accused files a late application under s. 530(4) Cr. C. at first instance, a presumption arises in the accused’s favour that the application should be granted (Beaulac, at paras. 42 and 56). The Crown bears the burden of rebutting this presumption (paras. 42, 44 and 56). The Crown then faces the same problem described above, namely that several pieces of evidence that may be useful to it are out of its reach, notably as a result of solicitor‑client privilege.



In summary, the evidence in the record does not make it possible to conclude on a balance of probabilities that the breach of s. 530(3) Cr. C. did not result in a violation of Mr. Tayo Tompouba’s fundamental right to be tried in the official language of his choice. Moreover, the accused’s silence on its own cannot support a contrary conclusion here. Although I seriously doubt that this is the case, the evidence in the record also cannot serve to completely rule out the possibility that Mr. Tayo Tompouba is now using the breach of s. 530(3) Cr. C. for tactical purposes on appeal. It is simply not possible to reach a conclusion one way or the other on this question on a balance of probabilities. It is therefore necessary to determine in whose favour the remaining uncertainty and doubt must be resolved.”