Choice of Language
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General Principles
Part XVII deals with powers of the court to accommodate the language of the accused.
- PART XVII
- Language of Accused
530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than the time of the appearance of the accused at which their trial date is set, a judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.
- Idem
(2) On application by an accused whose language is not one of the official languages of Canada, made not later than the time of the appearance of the accused at which their trial date is set, a judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace may grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada in which the accused, in the opinion of the judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace, can best give testimony or, if the circumstances warrant, who speak both official languages of Canada.
- Accused to be advised of right
(3) The judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) [language of accused – official languages] or (2) [language of accused – non-official languages] and of the time before which such an application must be made.
- Remand
(4) If an accused fails to apply for an order under subsection (1) [language of accused – official languages] or (2) [language of accused – non-official languages] and the judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace before whom the accused is to be tried, in this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] referred to as “the court”, is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language or, if the circumstances warrant, who speak both official languages of Canada.
- Variation of order
(5) An order under this section that a trial be held in one of the official languages of Canada may, if the circumstances warrant, be varied by the court to require that it be held in both official languages of Canada, and vice versa.
- Circumstances warranting order directing trial in both official languages
(6) The facts that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada.
R.S., 1985, c. C-46, s. 530; R.S., 1985, c. 27 (1st Supp.), ss. 94, 203; 1999, c. 3, s. 34; 2008, c. 18, s. 18; 2019, c. 25, s. 237.
[annotation(s) added]
Section 530 has "quasi-constitutional" status. It "reflects ‘certain basic goals of our society’ and must be so interpreted ‘as to advance the broad policy considerations underlying it’" which requires a "broad and purposive interpretation" of the provision. [1]
A failure to provide the accused with the proper choice of language can result in a stay of proceedings.[2]
"Language of the accused" refers to one of the official languages of Canada to which the accused has a "sufficient connection."[3]
Section 16 of the Charter states, in part:
- Official languages of Canada
16 (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
[omitted (2)]
- Advancement of status and use
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
- ↑
R v MacKenzie, 2004 NSCA 10 (CanLII), 181 CCC (3d) 485, per Fichaud JA, at paras 58 to 60
R v Schneider, 2004 NSCA 99 (CanLII), 188 CCC (3d) 137, per curiam - s.16(3) of Charter does not "constitutionalize" s. 530
- ↑
MacKenzie, supra -- stay of proceedings overturned
Latour c SMLR, 2013 CSTNO 22 (CanLII), per LA Charbonneau J - charges stayed - ↑ R v Beaulac, 1999 CanLII 684 (SCC), [1999] 1 SCR 768, per Bastarache J
Translation of Documents
- Translation of documents
530.01 (1) If an order is granted under section 530 [language of accused], a prosecutor — other than a private prosecutor — shall, on application by the accused,
- (a) cause the portions of an information or indictment against the accused that are in an official language that is not that of the accused or that in which the accused can best give testimony to be translated into the other official language; and
- (b) provide the accused with a written copy of the translated text at the earliest possible time.
- Original version prevails
(2) In the case of a discrepancy between the original version of a document and the translated text, the original version shall prevail.
2008, c. 18, s. 19.
[annotation(s) added]
Order
- If order granted
530.1 If an order is granted under section 530 [language of accused],
- (a) the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused;
- (b) the accused and his counsel may use either official language in written pleadings or other documents used in any proceedings relating to the preliminary inquiry or trial of the accused;
- (c) any witness may give evidence in either official language during the preliminary inquiry or trial;
- (c.1) the presiding justice or judge may, if the circumstances warrant, authorize the prosecutor to examine or cross-examine a witness in the official language of the witness even though it is not that of the accused or that in which the accused can best give testimony;
- (d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be;
- (e) the accused has a right to have a prosecutor — other than a private prosecutor — who speaks the official language of the accused or both official languages, as the case may be;
- (f) the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;
- (g) the record of proceedings during the preliminary inquiry or trial shall include
- (i) a transcript of everything that was said during those proceedings in the official language in which it was said,
- (ii) a transcript of any interpretation into the other official language of what was said, and
- (iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered; and
- (h) any trial judgment, including any reasons given therefor, issued in writing in either official language, shall be made available by the court in the official language that is the language of the accused.
R.S., 1985, c. 31 (4th Supp.), s. 94; 2008, c. 18, s. 20.
- Language used in proceeding
530.2 (1) If an order is granted directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages, the justice or judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language.
- Right of the accused
(2) Any order granted under this section shall, to the extent possible, respect the right of the accused to be tried in his or her official language.
2008, c. 18, s. 21.
- Change of venue
531. Despite any other provision of this Act but subject to any regulations made under section 533 [power of province to make regulations re language rights], if an order made under section 530 [language of accused] cannot be conveniently complied with in the territorial division in which the offence would otherwise be tried, the court shall, except if that territorial division is in the Province of New Brunswick, order that the trial of the accused be held in another territorial division in the same province.
R.S., 1985, c. C-46, s. 531; R.S., 1985, c. 27 (1st Supp.), s. 203; 2008, c. 18, s. 21.
[annotation(s) added]
- Regulations
533. The Lieutenant Governor in Council of a province may make regulations generally for carrying into effect the purposes and provisions of this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] in the province and the Commissioner of Yukon, the Commissioner of the Northwest Territories and the Commissioner of Nunavut may make regulations generally for carrying into effect the purposes and provisions of this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] in Yukon, the Northwest Territories and Nunavut, respectively.
R.S., 1985, c. C-46, s. 533; 1993, c. 28, s. 78; 2002, c. 7, s. 144.
[annotation(s) added]
Part XVII - Language of Accused
- PART XVII Language of Accused
- Saving
532 Nothing in this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] or the Official Languages Act derogates from or otherwise adversely affects any right afforded by a law of a province in force on the coming into force of this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] in that province or thereafter coming into force relating to the language of proceedings or testimony in criminal matters that is not inconsistent with this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] or that Act.
1977-78, c. 36, s. 1.
[annotation(s) added]
- Review
533.1 (1) Within three years after this section comes into force, a comprehensive review of the provisions and operation of this Part [Pt. XVII – Language of Accused (ss. 530 to 533.1)] shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
- Report
(2) The committee referred to in subsection (1) [parl. to review of language amendments after 3 years] shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends.
2008, c. 18, s. 21.1.
[annotation(s) added]