Persons accused of provincial offences in British Columbia have a right to be tried in the official language of their choice, the Supreme Court of Canada ruled today in a decision that will allow a francophone to be tried in French after he was charged under B.C.’s Motor Vehicle Act.
Jennifer Klinck of Power Law in Vancouver, who was lead counsel for the appellant, calls the decision “huge” for her client, for the francophone community in B.C. and “for official language minorities across the country.”
It affirms the fundamental character of language rights, she says.
The appeal in Bessette v. British Columbia (Attorney General) concerned the right to be tried in the official language of one’s choice, but it also addressed the question of adequate remedy.
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Joseph Roy Éric Bessette was charged with a provincial driving offence in British Columbia and, relying on the right of an accused to be tried in the official language of their choice, sought an order from the British Columbia Provincial Court to be tried in French.
The Crown argued that English is the only language of provincial offence prosecutions in British Columbia according to an old English statute received into the colonial law of the province, referred to as the 1731 Act, and a provincial court judge agreed. That decision was upheld by the Supreme Court of British Columbia and the B.C. Court of Appeal.
But a unanimous Supreme Court found that “the provincial court judge’s decision not to honour Mr. Bessette’s request for a trial in French was immediately reviewable by the superior court on a petition for certiorari,” that the province’s Supreme Court was wrong in not seeing the provincial court judge’s decision as a jurisdictional error and the Court of Appeal was wrong in not intervening.
The remedy that had been provided to the appellant was that, once convicted, he could appeal the conviction based on the denial of his request to be tried in French. The Supreme Court of Canada rejected this.
“As the violation of the accused’s trial language right is a harm in itself, an appeal following a conviction by an English-speaking court cannot represent an adequate alternative remedy to deciding, before the trial has taken place, whether the accused is indeed entitled to this fundamental right,” justices Suzanne Côté and Sheilah Martin wrote in joint reasons.
“Further, Mr. Bessette rightly points out that, had he been acquitted after an English trial, he would have had no opportunity to have his language rights vindicated. This is because an accused does not have the right to appeal an acquittal under the [British Columbia] Offence Act (s. 102).”
In making his initial application to be tried in French, Bessette had argued that s. 133 of B.C.’s Offence Act, which incorporates the provisions of the Criminal Code relating to offences punishable on summary conviction, makes ss. 530 to 533 of the Criminal Code applicable to the prosecution of provincial offences.
Section 133 of the Offence Act provides that where “express provision has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable on summary conviction apply [emphasis added].”
Sections 530 to 533 of the Criminal Code provide for the right of an accused to be tried in the official language of their choice and to be advised of such right.
In today’s decision, the Supreme Court of Canada found that “[b]y virtue of its incorporation into the Offence Act, s. 530 enjoys the same status in that Act as it does in the Criminal Code.Therefore, just as s. 530 of the Criminal Code implicitly repealed the 1731 Act in respect of criminal trials . . . it implicitly repeals the 1731 Act in respect of Offence Act trials.” So, the incorporation by reference provisions overrides the 1731 Act, which was used as the basis to argue that in B.C. prosecutions of this nature must proceed solely in English.
In its ruling today, the Supreme Court outlined the path to which incorporation by reference should be made. Although its decision is limited to the legislative framework of British Columbia, three Atlantic provinces have similar types of incorporation by reference for provincial infractions, and today’s ruling is expected to extend to other jurisdictions as well.
“From the perspective of official language rights, the decision of the Supreme Court of British Columbia and the Court of Appeal was really quite damaging,” Klinck told Legal Feeds, ”because both courts found that since the provincial court had denied Mr. Bessette a trial in French — had said, s. 133 of the Offence Act doesn’t grant you that right — he had to undergo his trial in English first before he could challenge that interpretation.”
This decision, together with the Supreme Court’s decision in R. v. Awashish, 2018, which held that certiorari is available to an accused where a judge acts without jurisdiction, provides some clarity on that, Klinck said.
For language rights, today’s decision “affirmed that the denial of the 530 right to a trial in the official language of your choice is a jurisdictional error and can’t be remedied on appeal,” because the violation of language rights is a harm in itself, she adds.
“If Mr. Bessette were forced to undergo his trial in English and only allowed to challenge and assert his right to a trial in French after a trial, he may never be able to assert that right because he may be acquitted without ever having his language rights respected. So that’s why an eventual appeal is not an effective remedy for the denial of language rights.”
Nova Scotia, Prince Edward Island and Newfoundland and Labrador all have similar provisions in their provincial legislation, she says, and the Nova Scotia Court of Appeal’s decision in R. v. MacKenzie, 2004 NSCA 117 found that these provisions did incorporate s. 530 of the Criminal Code. So, the Supreme Court ruling today is consistent with that judgment.