Recent Amendments to Language Provisions of the Criminal Code

By Renée Soublière, General Counsel and Acting Director, Official Languages Law Group.

The provisions of Bill C‑13, entitled An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) related to sections 530 and 530.1 of the Code came into force on October 1, 2008. These amendments to the language provisions of the Criminal Code represent the most recent step on a long path towards recognizing the right of the accused to be tried before a judge or judge and jury who speak his or her preferred official language.

The right of an accused to a trial in the official language of his or her choice is not new. In the Official Languages Act of 1969, Parliament had recognized the right of an accused to a trial in the official language of his or her choice. In 1978, and again in 1988, Parliament found it useful to broaden the scope of the language rights of an accused and to provide for the implications of criminal proceedings in the minority language.

The current provisions of the Criminal Code concerning the language of the accused, sections 530 and 530.1, have been in force across Canada since January 1, 1990. Section 530 grants all accused the right to a preliminary hearing and trial in the official language of their choice. Section 530.1 sets out a number of ancillary rights and obligations that apply when an order is made to allow an accused to stand trial in the official language of his or her choice. For example, the accused will have the right to a judge and a Crown prosecutor who speak the chosen official language. The Court shall make interpreters available to assist the accused, his or her counsel or any witnesses, and must also ensure that the trial judgment be made available in the official language of the accused. These provisions, adopted by the federal Parliament in exercising its competencies regarding criminal law and criminal proceedings, are an illustration of the principle of advancement of language rights through legislative means provided for in subsection 16(3) of the Canadian Charter of Rights and Freedoms.

Over the years, several problems of interpretation have been raised with respect to sections 530 and 530.1. The courts have had to grapple with these questions, and their decisions demonstrate the need to clarify and fine tune initial provisions. Studies by the Commissioner of Official Languages and the Department of Justice had also confirmed the need to make certain changes to these provisions.

For example, subsection 530(3) of the Criminal Code, before the 2008 amendments, provided that an accused who is not represented by counsel had to be informed by the judge of his or her language rights. However, public consultations led by the Department and several studies have shown that language rights guaranteed under the Criminal Code are often not well known. Furthermore, the Supreme Court questioned the usefulness of this provision because it applied only to unrepresented accused and was based on the false premise that counsel would be sufficiently aware of the right as to advise their clients. Bill C-13 has therefore broadened the scope of subsection 530(3) and the judges' duty to ensure that all accused are informed of their language rights, whether or not they are represented.

Bill C‑13 also created a new provision that gives accused persons the right to request the translation of specific portions of information or indictments. Before its adoption, only pre-printed sections of the forms appearing in Part XXVIII of the Criminal Code had to be in both official languages. The specific portions of information or indictments, which are completed by the informant, were written and presented to the accused in the language of the person who filled out the form in question. Some courts felt that it was unfair that the accused did not have the right to their translation, given the importance of these documents, and ruled that they be translated upon request. Some jurisdictions have adopted practices that are consistent with these rulings. The addition of a new provision to that effect, through Bill C-13, has allowed these practices to be standardized and better reflects the state of the law.

Another new provision added to the Criminal Code through Bill C-13 addresses the special situation of co-accused. More specifically, the provision in question provides that when co-accused who do not speak the same official language exercise their respective rights to be judged by a judge or by a judge and jury who speak their official language, and the co-accused would otherwise be judged together, these circumstances may justify a bilingual trial. Technically, people who are jointly accused of the same offence must stand trial together, and some people feel that this should be the case even if they do not speak the same official language. However, over the years, the courts have taken a different direction, a phenomenon that has sometimes led to costly duplicate proceedings – held in French and in English – as well as inconsistent conclusions, not to mention extra pressure on resources and witnesses.

This new addition to the Criminal Code therefore seeks to clarify the issue by specifying that the existence of co-accused who do not speak the same official language is a circumstance that may justify a bilingual trial. The Attorney General of Canada has consistently pleaded before the courts that such an order balances the language rights of the accused with the principle that people accused of the same crime should undergo joint proceedings. The Department is pleased to find that a recent decision from the Superior Court of Québec, R. v. Bellefroid, 2009 QCCS 3193, confirms this reasoning. The Court tells us, [Translation] "Affirming that a bilingual trial... does not respect the rights of accused fails to take into account the provisions that came into force on October 1, 2008 to protect the language rights of accused." The Court adds, [Translation] "In light of this context, it can be seen that the lawmakers intended to make it easier to hold a bilingual trial while, in the same breath, respecting the language rights of the accused."

Bill C-13 also amended the opening paragraph of section 530.1 to put an end to a debate concerning its precise extent. The opening paragraph listed only two of the three types of orders that may be issued under section 530 of the Code: an order made to allow an accused to be tried before a judge who speaks the official language of the accused and an order made to allow an accused to be tried before a judge who speaks the official language in which the accused can best give testimony. However, no reference was made to an order made to allow a trial before a judge or a judge and jury who speak both official languages. Several courts had carefully noted this omission and found that the rights provided for in section 530.1 did not apply if an order for a bilingual trial was issued. By shortening the opening paragraph of section 530.1 and by simply referring back to "an order granted under section 530," Bill C‑13 has clarified this issue once and for all.

These are but a few examples of recent amendments made by Bill C-13 with regard to the language provisions of the Criminal Code. The amendments therefore seek not only to remedy certain interpretation problems regarding the former provisions but also to fill certain gaps and better reflect the law.

Bill C-13 in its entirety was piloted by the Criminal Law Policy Section, but the Official Languages Law Group (Public Law Sector) played a key role in the development and adoption of the amendments made to sections 530 and 530.1. If you have any questions regarding the language component of Bill C-13, please contact the Official Languages Law Group.