Disponible en français.
In May 2024, the Supreme Court of Canada ordered a new trial in French for an accused who had not been informed of his right to be tried in the official language of his choice. The accused had been convicted of sexual assault following a trial that was conducted in English.
This conclusion may be surprising given that the accused is a bilingual francophone who only asserted his language rights for the first time on appeal of his guilty verdict. In its decision, the Supreme Court clarified the role of the trial judge as the protector of the language rights of each accused.
In the Wake of Beaulac
R. v. Tayo Tompouba followed in the wake of the Supreme Court of Canada’s decision, 25 years earlier, in R. v. Beaulac. Jean Victor Beaulac, a bilingual francophone from British Columbia (B.C.), was given a new trial before a judge and jury who spoke both official languages, after being convicted of premeditated murder in a trial conducted in English.
Beaulac laid the foundation for interpreting section 530 of the Criminal Code, which provides that an accused has the right to choose the official language in which they wish to be tried.
In that decision, the Supreme Court of Canada held that to exercise this right, the accused needs only to inform the judge, in a timely manner, of their language based on their subjective ties with the language itself. It does not necessarily have to be their dominant language. What matters is that the accused has sufficient knowledge of this language to instruct counsel and understand the court proceedings. In addition, the judge may grant a late application if they are satisfied that it is in the best interest of justice to make the order. In this respect, there is a presumption in favour of the accused. Typically, denying this sort of application is the exception, unless the Crown can show that the accused has insufficient command of the language they have chosen for their trial.
Tompouba
Franck Yvan Tayo Tompouba, a permanent resident from Cameroon whose mother tongue is French, arrived in Canada in 2013. The facts of which he is accused took place in December 2017 in B.C. Mr. Tayo Tompouba spent an evening at a nightclub in the company of a young woman. Being sober, he drove the intoxicated victim home to sleep. The woman woke up while the accused was sexually assaulting her. Frightened, she pretended to be asleep throughout the sexual activity. Mr. Tayo Tompouba was arrested and charged with sexual assault in 2018.
Following his arrest, Mr. Tayo Tompouba voluntarily made an incriminating statement, in English, to an investigator. He admitted to having had sexual relations with the victim whom he believed was asleep. During his first trial before the Supreme Court of B.C., he attempted to have that statement excluded by claiming, among other things, that he had not understood the investigator’s questions. The judge noted that none of the interactions between Mr. Tayo Tompouba and the police, or any of the statements made by the accused during the trial, suggest that he had difficulty understanding English. On the contrary, Mr. Tayo Tompouba expressed himself in English fluently and rationally, using a relatively varied vocabulary. In addition, at the time of the arrest, he had been living and working in an English-speaking environment and had just enrolled in a post-secondary program in English.
The Supreme Court of B.C. found the accused guilty of sexual assault. It found that the statement he had given to the police was credible and reliable because it was voluntary, clear, specific and consistent with the victim’s version of events. Mr. Tayo Tompouba had also repeatedly told the police that he was telling the truth. Furthermore, the Crown succeeded in proving beyond a reasonable doubt that the accused had had vaginal intercourse with the complainant without her consent.
Mr. Tayo Tompouba challenged this verdict in a second trial before the Court of Appeal for B.C. For the first time since his arrest, he argued that he would have wanted to be tried in French, but that neither the trial judge nor his counsel had informed him of this right as conferred by section 530(3) of the Criminal Code. Moreover, referring to section 530(4), the accused alleged that the judge did not consider whether it was in the best interest of justice to refer him back to trial before a French-speaking judge. According to Mr. Tayo Tompouba, these breaches required the conduct of a new trial.
Both these reasons were unanimously dismissed by the Court of Appeal. The Court found that, first, the accused had failed to demonstrate that the judge’s omission had caused him actual harm. Second, the language of the trial did not appear to be a matter in dispute given that the appellant, represented by his counsel, had demonstrated advanced proficiency in English, understanding and expressing himself in that language since his arrest.
Supreme Court of Canada Decision
Five of the seven judges sitting on the Supreme Court of Canada allowed the appeal of the appellate court’s decision and ordered the conduct of a new trial in French. According to the Supreme Court, the Court of Appeal for B.C. did not apply the correct analytical framework in the specific case where an accused challenges their conviction by raising, for the first time on appeal, a breach of section 530(3) of the Criminal Code. The Court of Appeal wrongly imposed on Mr. Tayo Tompouba the burden of demonstrating that his fundamental right had been violated during the first trial.
The Supreme Court noted that section 530(3) was amended in 2008 to expand the application of the judge’s duty to inform to include all accused persons, regardless of whether or not they are represented by counsel; previously, this obligation was imposed on the judge only in the latter case. Thus, Parliament’s intent was to make the judge in the first appearance responsible for being the “ultimate guardian” of accused persons’ language rights. The trial judge, therefore, must take the steps necessary to remove any doubt that the accused was properly informed of their right and of how it is to be exercised. In this case, the trial judge failed to do so.
The Supreme Court confirmed that such a breach constitutes an error of law, that is, an error made by a judge in the application of a legal rule, as long as the error is related to the proceedings leading to the conviction. This error taints the trial court’s judgment and gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated.
The Supreme Court stated that the onus is on the Crown to refute this presumption. In this case, despite the three routes it could have taken, the Crown failed to show that having the first trial in English did not cause harm to Mr. Tayo Tompouba:
- First, the accused indicated that his first language was French but that he had been unable to choose that language at trial. The Crown, therefore, could not argue that the accused was not proficient enough in the official language that he was unable to choose.
- Second, the Crown did not show that, had the accused been duly informed of his right, he would still have chosen to be tried in English, given his advanced ability to understand and express himself in English, his second official language.
- Lastly, the Crown could not prove that the accused had been informed of his language rights in a timely manner, which rendered the Crown’s evidence irrelevant.
Prior to his first appearance, the accused had signed an undertaking and a promise to appear that contained a notice about his language rights. Thus, the Supreme Court explained that by signing these documents, the accused understood the undertaking and the sanctions that would be imposed if he were to contravene it, and that he understood that failure to appear in court is a criminal offence. These documents themselves are not related to the accused’s language rights – the fact that they are signed cannot serve as tangible evidence that the accused made a free and informed choice to be tried in English.
Risk of Abuse
This framework developed by the Supreme Court has a weak link. The Court conceded that the evidence in the record did not allow it to completely rule out the possibility that Mr. Tayo Tompouba had used his language rights strategically, although it expressed serious doubts in that regard. More specifically, some accused persons could benefit from a violation of these rights by raising, for the first time on appeal, the fact that they did not receive the notice required under section 530(3) of the Criminal Code.
This risk of abuse should be mitigated by the mechanism provided in the analytical framework. Where a judge has failed in their duty under section 530(3), it is presumed that the accused’s language rights have been violated. However, the Crown can rebut this presumption if it successfully shows that no harm has been caused to the accused. If the judge has fulfilled their informational duty, then the accused bears the onus of proving that their rights have been violated.
The Supreme Court also noted that breaches can be prevented by establishing systematic practices. For example, in the Northwest Territories, judges must ask at the time of the accused’s first appearance whether they have had an opportunity to choose the official language in which they wish to be tried. The Crown can also play an active role in preventing an oversight by reminding the judge to advise the accused of the notice under section 530(3) of the Criminal Code. In Alberta, defence counsel have a specific ethical duty to inform their clients of their right to be tried in the official language of their choice.
These approaches raise questions about the relevance of implementing national best practices, given the consequences that failing to inform the accused of their right to a trial in English or French can have on their real equal access to justice. Furthermore, this failure can have an impact on the rights of victims of sexual assault, a criminal offence that affects mainly women, and their right to seek justice.
Additional Resources
Hudon, Marie-Ève. “Bilingualism in Canada’s Court System: The Role of the Federal Government.” Publication no. 2017-33-E, Library of Parliament, 26 November 2020.
Hughes, Dylan Mortimer. “Bilingual Law in Wales (and England): The Implications of Law Being Made in Two Languages.” Statute Law Review, vol. 45, no. 1, 2024,
pp. 1–12 [access to the parliamentary network required].
Law Society of Alberta. Code of Conduct. Rules 3.2-7 and 3.2-8, 7 June 2024.
Montpetit, Dominique. “A Snapshot of Gender-Based Violence against Women in Canada.” HillNotes, Library of Parliament, 4 December 2023.
R. v. Vaillancourt. 2019 ABQB 859 (CanLII).
R. v. MacKenzie. 2004 NSCA 10.
By Isabelle Chénier, Library of Parliament
Categories: Education, language and training, Law, justice and rights