The appellant in the case, Cameroon-born Franck Tayo Tompouba, was convicted of sexual assault after a preliminary inquiry and a trial conducted in English, which he also speaks. He appealed his conviction on the basis that he was not informed of his right to be tried in his official language of choice, as required by s. 530 of the Criminal Code which protects official language rights in criminal proceedings.
The purpose of s. 530 is to provide equal access to the courts to anglophones and francophones alike, with a goal to ensuring the substantive right of all accused to be tried in their official language of choice is fully respected. In service of this goal, s. 530(3) requires the judicial officer before whom an accused first appears to ensure they are advised of their language rights.
But Justice Gail Dickson dismissed the appeal, noting the judicial officer where Tayo Tompouba first appeared failed to meet the requirements of s. 530(3) but the “record does not show that his substantive right to be tried in his official language of choice was violated” at the preliminary inquiry or trial (R. v. Tayo Tompouba 2022 BCCA 177).
“Mr. Tayo Tompouba bears the onus of establishing that his substantive language rights were violated. To succeed, his position must be grounded in the record, together with any fresh or new evidence that may be presented and any reasonable inferences that may be available,” she wrote. “The fact that Mr. Tayo Tompouba is a native French-speaker does not necessarily mean that his official language of choice for trial purposes was French and not English. The ‘language of the accused’ is deeply personal, it may be based on subjective factors and it need not be the maternal language spoken by the accused.”
A trial judge is not obliged to inquire into the accused’s official language of choice unless and until it becomes reasonably apparent in the course of the proceedings that it may be a genuinely live issue, Justice Dickson wrote.
“Standing alone, the fact that he is a native French-speaker does not support an inference that, if apprised of his language rights, he would knowingly choose to be tried in French,” she wrote. “I am not prepared to infer that Mr. Tayo Tompouba was unaware of his language rights based solely on the fact that he was not informed of those rights. Nor am I prepared to infer that had he known of those rights he would have chosen to be tried in French based on the fact that his maternal language is French.”
Dan McLaughlin, communications counsel with the B.C. Prosecution Service, said in an e-mail the decision dealt with several legal issues, but the overall ruling was fact driven.
“On the issue of language rights, what the court referred to as ‘the primary issue on this appeal’ the court clarified that the onus was on the accused, on the facts of this case, to assert their language rights,” he said. “The court concluded that a trial judge is not obliged to inquire into the accused’s official language of choice unless and until it becomes reasonably apparent in the course of the proceedings that it may be a genuinely live issue. In the context of this case, where the accused demonstrated fluency in both official languages the obligation did not arise.”
Jennifer Klinck, Association des juristes d’expression française de la Colombie-Britannique
“This provision was plainly meant to provide a robust guarantee that all accused persons will know about their language rights and the responsibility is entrusted to judicial officers,” said Klinck, a partner with Juristes Power Law. “That also highlights the importance of the notice requirement and Parliament’s commitment to ensuring that accused persons are systematically made aware of their rights.”
Klinck pointed to research which showed that there are gaps in compliance with s. 530 in British Columbia.
“Our concern is the decision treats the failure to give an accused notice of his trial language rights as an insignificant error, and it does this by placing the burden on the accused to prove that despite this failure he suffered no substantive language rights violation,” she said. “And we think this trivializes the language rights guarantee because the burden is on the Crown to show that errors are harmless, not on the accused to show that there is an error and the error actually caused him substantive harm.”
The decision in the case was issued May 24 but re-released with corrections on June 7.
If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.