2021 QCCA 1681, 2021 QCCA 1681

[NDLE : La traduction française non-officielle de l’arrêt de la Cour se trouve à la fin des motifs.] Dhingra c. R. 2021 QCCA 1681 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006787-186 (500-01-099546-134, SEQ. 001) DATE: November 11, 2021 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. SONINDER DHINGRA APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals the judgment dated June 6, 2018 rendered by the Honourable Judge Flavia K.

Longo, Court of Québec, Criminal and Penal Division, district of Montreal ( 2018 QCCQ 3839 ), by which he was found guilty of drug trafficking and importation charges and of criminally conspiring to traffic drugs. [ 2 ] For the reasons of Mainville, J.A., with which Vauclair and Healy, JJ.A., concur, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] QUASHES the convictions; [ 5 ] ORDERS a new trial. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A.

Mtre Véronique Robert ROY ROBERT AVOCATS For Appellant Mtre Richard Audet DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: June 11, 2021

REASONS OF MAINVILLE, J.A. [ 6 ] On June 6, 2018, the appellant was found guilty of trafficking and importing large quantities of cocaine and crystal meth and of criminally conspiring to traffic such substances. [1] [ 7 ] On January 16, 2019, he was sentenced to a total of 15 years' imprisonment. [2] A pre-trial detention period of 4 years, 1 month and 13 days was deducted on the basis of one and a half days of imprisonment for each day of pre-trial detention, for an effective total sentence of imprisonment of 8 years, 9 months and 25 days. [ 8 ] An appeal of the conviction on grounds involving questions of law was filed on July 4, 2018, and an application for leave to appeal the conviction on grounds involving questions of fact or questions of mixed fact and law was granted on October 18, 2018. [3] The sentence has not been appealed. [ 9 ] The appellant submits that his right to a trial in the official language of his choice has been breached and that he is therefore entitled to a new trial.

The Crown acknowledges that he was entitled to a trial in the English language, that he requested such a trial and that this request was granted. [4] The Crown further acknowledges that there were lapses respecting the language of the trial [5] , but submits that nevertheless, in the circumstances of this case, these lapses do not warrant setting aside the conviction and ordering a new trial. [6] [ 10 ] For the reasons set out below, the appeal should be allowed, the convictions should be set aside and a new trial should be ordered.

A review of the law pertaining to the language of trials held in English in Quebec and the standards which must be followed in such circumstances is central to the analysis. CONTEXT AND PROCEDURAL HISTORY [ 11 ] The appellant’s language of birth is Punjabi, but he also has a good knowledge of English. He identifies himself as English- speaking. The serious drug importation and trafficking charges first brought against him on November 28, 2013, in file 500-01-098838- 136 of the Court of Québec, were nevertheless all drafted in French.

On November 29, 2013, shortly after these initial charges were laid, the appellant was granted an interim release with conditions. [ 12 ] On December 13, 2013, new but similar charges were brought against the appellant in file 500-01-099546-134 of the Court of Québec. All these charges were again drafted in French.

The initial charges in file 500-01-098838-136 were withdrawn and the appellant’s interim release conditions were transferred to the new file. [ 13 ] One year later, in December 2014, the appellant was also charged in another file, number 500-01-115300-144 of the Court of Québec, with other drug trafficking offences which were said to have been carried out while the appellant was released on conditions. He was further charged in file 500-01-115010-149 of the Court of Québec with related breaches of his release conditions. The appellant was detained in relation to those other files.

This further resulted in a hearing with respect to the revocation of his interim release in the main file 500-01-099546-134. [ 14 ] On December 6, 2016, the appellant’s interim release was revoked by Judge Gilles Cadieux of the Court of Québec in a judgment rendered in French. The revocation was largely based on the alleged additional drug-related offences committed by the appellant while at large on conditions and which resulted in the new criminal charges in files 500-01-115300-144 and 500-01-115010-149. However, the appellant was never found guilty of these charges.

Indeed, on December 8, 2017, the Crown filed a nolle prosequi in file 500-01-115300- 144 and on November 26, 2018, the charges in file 500-01-115010-149 related to the breaches of the conditions of release were withdrawn. [ 15 ] As a result, the only pending criminal prosecution file concerning the appellant which was brought to trial in the Court of Quebec and in which he was found to be guilty was number 500-01-099546-134. [ 16 ] Shortly after the revocation of the appellant’s interim release, the question of the method of

interpretation was raised at a case management conference held on December 8, 2016. At that conference, the presiding judge was informed that all witnesses for the prosecution would be testifying in French.

The following exchange then occurred: THE COURT: Are we going to proceed with a simultaneous or consecutive translation? (…) Me DEBORA DE THOMASIS [defense counsel]: Now to have had the problem in another file, I don’t have problems with simultaneously, meaning he would hear it, my only issue is we’ve tried it in another file where it was registered on an independent band, unfortunately, half of it is inaudible on that file and it’s at the Court of Appeal right now.

So that’s a bit of an issue, I don’t know if there is a way that we could make sure that it’s registering properly, or if we have a… je vous le dis, because then it’s a major problem because on linguistic rights it’s… I don’t want a new trial because of technicalities this way, we understand each other. [7] (…) THE COURT:

… we have the box for the interpreter. So considering that we are going to use Room 5.12, are we going to proceed with a simultaneous or a consecutive translation? Me DEBORA DE THOMASIS: Simultaneously as long as it’s properly registered. We’ll do some spot checks if you don’t mind. THE COURT: Well, I cannot guarantee anything. [8] (…) THE COURT: So we agree with a simultaneous translation? Me DEBORA DE THOMASIS: Yes, we do.

THE COURT: So, madame la greffière, we will need a French-English translator for all the witnesses and the Defence agrees to proceed with a simultaneous translation as long as we proceed in Room 5.12. [9] (…) [ 17 ] It thus appears that the trial itself was to be held in English with agreed simultaneous

interpretation of the testimony of any witness testifying in French. [ 18 ] A subsequent O’Connor type motion was argued in English on February 10, 2017. However, the Crown counsel nevertheless insisted on making submissions in French, thus requiring the

interpretation of these submissions. This resulted in the following comment by counsel then representing the appellant: Me DEBORA DE THOMASIS: So just for the benefit of the client and I’m not waiving his constitutional rights to be… to have everything said in English, but basically… [10] [ 19 ] Moreover, the

interpretation of the Crown’s arguments was provided at that date by means of whispering to the appellant. The transcript sets out the following note in this matter: Note: Translation was whispered to the defendant and thus was inaudible for transcription purposes – MJL, o.c.r. [11] [ 20 ] At the subsequent March 22, 2017, hearing on the O’Connor type motion, the judge insisted, in order to save time, that the proceedings be carried out in French with simultaneous

interpretation provided to the appellant: LA COUR : Okay. Bon, est-ce que l’enregistrement est parti? LA GREFFIÈRE : Oui, l’enregistrement, il est parti. LA COUR : Bon, alors des deux côtés; l’enregistrement de la cour aussi. Bon, parfait. Alors monsieur Dhingra, nous avons requis le… la traduction des débats est enregistrée. De sorte que ça permet de faire l’interprétation, la traduction en simultanée ce qui sauve beaucoup de temps et ce qui vous donne quand même la latitude d’avoir les débats en anglais si vous souhaitez avoir la transcription. [12] [ 21 ] Since the equipment to carry out simultaneous

interpretation and to record it appears to have been defective, part of the

interpretation was again carried out by whispering to the appellant. [13] This further resulted in numerous problems in

interpretation and difficulties in securing a valid transcript of the

interpretation, as noted by the official stenographer: THIS TRANSCRIPTION IS FROM THE VOICE OF THE SIMULTANEOUS INTERPRETER ONLY – IDENTIFICATION OF INTERVENANTS IS TO THE BEST OF MY ABILITY WHEN POSSIBLE – mjl: NOTES: 1 – THIS INTERPRETER IS WHISPERING THE TRANSLATION CAUSING MORE INAUDIBLES. 2 – EXCEPT FOR REFERENCE TO JURISPRUDENCE, WORDS IN ITALICS ARE A “WRONG” TRANSLATION BUT VERBATIM. 3 – BECAUSE OF CONTINUOUS “SIMULTANEOUS” TRANSLATION IT IS IMPOSSIBLE TO DECIPHER WHETHER TRANSLATION IS FROM CITATIONS OR NOT. MJL [14] (…)

Transcribed under reserve of isolated simultaneous translation audio track hence overlapping voice of speaker. MJL [15] [Emphasis in original] [ 22 ] This appears to have been a recurring problem considering similar notes and comments being made from time to time by the stenographers who subsequently transcribed the proceedings, most notably with regard to the hearings held September 12, 2017, and November 29, 2017. [16] [ 23 ] The trial was in fact almost exclusively held in French, with simultaneous

interpretation being provided to the appellant, at times by way of whispering. Crown counsel and the judge expressed themselves mainly in French throughout the proceedings. [ 24 ] No formal objection was raised at trial on behalf of the appellant with respect to the language of the proceedings or the quality of the

interpretation. The appellant himself recognized this when he testified on August 31, 2017, in the context of his first Jordan type motion: Q. Is there any other things you did in the legal procedure to… A. I agreed for a simultaneous translation, I agreed not to have an English trial just to speed up the process, I agreed not to have a judge and jury just not to go… just not to create any delays with my trial. I agreed to have a judge only trial, everything, I agreed with everything whatever I could. [17] [ 25 ] The parties achnowledge that the appellant did not renounce to an English language trial, but rather agreed to simultaneous

interpretation in order to speed up the process. [ 26 ] When the formal trial phase itself began on November 27, 2017, the attorney then representing the appellant began by expressing herself in English, while reiterating that simultaneous

interpretation of witness testimony would be allowed if it could be recorded on a separate sound recording track: Me DEBORA DE THOMASIS: Maybe for la cuisine, if you want to say, we have an interpreter present, because the trial had started with O’Conner motion back in January and we agreed that the witnesses, they testify in French or in English, whatever language is beneficial for them and that the translation, if there is, will be done simultaneously through an interpreter, but absolutely has to be registered on a second (2 nd ) band, that was what we requested and this is the way we would want to proceed. (…) [18] [ 27 ] However, though the trial itself started in English, it rapidly slid back into an almost all-French modus operandi .

At the November 28, 2017, hearing, the trial judge queried the attorneys as to the language of the trial: LA COUR : O.k. Bon, avant de commencer, j’ai une question pour les parties. Ce que je n’ai pas compris hier clairement, c’était : Est-ce qu’il y a un

article 530 qui a été demandé? Ce que je veux dire, c’est au niveau de la langue. Est-ce que c’est un procès anglais qu’on fait, vu l’interprétation simultanée qui est enregistrée qui va être reproduite, ou non? Est-ce que le procès anglais avait été demandé, dans le fond? Vous ne le savez pas ou…? Me DEBORA DE THOMASIS, Procureure de la Défense : Initialement, oui. Et lorsque nous avons commencé les requêtes de type « O’Connor » et autre chose… LA COUR : Oui? Me DEBORA DE THOMASIS : … même si les requêtes… En fait, la requête a été produite en français.

Et on a accepté à ce que ce soit, même si on visait en anglais, de procéder avec la traduction simultanée, justement pour ne pas prolonger les débats. Initialement, oui, on avait dit en anglais. Et, par la suite, on a modulé pour faire en sorte qu’on ne perde pas du temps inutile. Donc, je ne sais pas si on l’a fait officiellement. Ça, je ne me souviens pas. Me DANNIE LEBLANC : Non, je ne crois pas. Me DEBORA DE THOMASIS : C’est ça. Alors… LA COUR : Ça va. La raison est très simple: C’est parce que si j’ai des jugements à rendre, est-ce que je les rends en anglais ou en français?

Me DEBORA DE THOMASIS : Je dois vous dire que pour monsieur Dhingra, il ne parle pas français. Donc, oui, pour lui. Sinon, je les traduis constamment. Donc, effectivement, pour les décisions… LA COUR : Est-ce que tout le monde est à l’aise si je fais en anglais… Me DANNIE LEBLANC : Oui. Me DEBORA DE THOMASIS : Oui. LA COUR : … pour le bénéfice de l’accusé? Me DANNIE LEBLANC : Oui. LA COUR : Bon, parfait. Alors, ça, ça va. [19] [ 28 ] The trial was thereafter conducted almost entirely in French since most witnesses testified in that language. All arguments, including closing arguments, were made in French.

However, the final judgment on the verdict was rendered in English. [ 29 ] After the appellant appealed his conviction on July 4, 2018, a litany of successive lawyers represented him in appeal without much activity in the file until the appearance of the appellant’s new current counsel. The appellant’s current counsel pursued consistent efforts to secure the trial transcripts by since at least May 2019, but to no avail.

Despite the assistance of the Crown counsel’s office, including a joint request for transcripts made in October 2019, no transcripts were provided by the relevant government department. [ 30 ] A bench of the Court held a special hearing on the file on December 16, 2019. As is all too often the case where English trial transcripts are at issue, counsel for the appellant informed the Court of difficulties encountered in securing the trial transcripts. As is its usual practice in such circumstances, the Court deferred the file to a hearing on the special roll to be held on March 23, 2020.

That subsequent special hearing was not held as a result the Covid-19 pandemic. [ 31 ] On August 6, 2020, the appellant applied for his release pending the disposition of his appeal on the ground that he had not been able to secure the transcripts of the trial itself nor the transcripts of the English

interpretation carried out at trial. On August 27, 2020, the Court issued orders to ensure the preparation and filing of such transcripts by November 6, 2020.

The application for the appellant’s release was referred to a panel of the Court sitting on November 23, 2020; however, not all transcripts had been prepared when that panel heard the application. [ 32 ] On January 12, 2021, the Court dismissed the appellant’s application for his release pending the outcome of his appeal, while noting the systemic problems within the Quebec Department of Justice with respect to securing trial transcripts – particularly English transcripts – within a reasonable timeframe, leading to excessive delays in perfecting appeals: [20] [44] The problems faced by litigants in securing trial transcripts are not new.

These problems are particularly acute with English- language transcripts. This is a recurring systemic issue which, regrettably, puts into question the proper administration of criminal justice in Quebec. This is a serious matter which, disappointingly, has been left unresolved by government. (…) [ 46] The practical impacts of this state of affairs are excessive delays in perfecting appeals. The delays can be quite long. As noted in Girgis c. R. [2018 QCCA 2181], in that case, six months were required to obtain a single day of trial transcripts. In Thandapanithesigar v.

R ., [2018 QCCA 1511], the Court noted that more than a year would be required to transcribe 24 trial days. In the present case, some 18 months have elapsed since the transcripts were first requested and they are still incomplete. It is undisputable that these systemic delays disproportionately affect English-speaking appellants. [ 33 ] At that hearing pertaining to the release application, the appellant sought to raise additional grounds of appeal based on the violations of his language rights.

The Court allowed this and ordered that the appeal be heard under an accelerated agenda. [21] The appeal was finally heard on June 11, 2021. ISSUE IN APPEAL [ 34 ] Though various issues were raised in the appellant’s initial notice of appeal, the sole issue on which the appellant now relies pertains to the violation of his language rights during the trial. RELEVANT CONSTITUTIONAL AND LEGISLATIVE PROVISIONS

[ 35 ] It is useful to set out the principal constitutional and legislative provisions dealing with the linguistic rights of an accused, specifically s. 14 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) and ss. 530 , 530.01 and 530.1 of the Criminal Code (“ Cr.C . ”). [ 36 ]

Section 14 of the Charter provides for a right to the assistance of an interpreter for a party who does not understand or speak the language in which the proceedings are conducted: [22] 14 A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. 14 La

partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète. [ 37 ]

Section 530 Cr.C . sets out additional statutory language rights in the context of a criminal trial. An accused, who speaks an official language of Canada (English of French) or who can best give testimony in that official language, may choose to be tried before a judge or a judge and jury who speak that language or, if the circumstances warrant, who speak both official languages. The

section also instructs that judges must ensure that the accused is made aware of this right in a timely fashion. A judge may also order, in the best interest of justice, that the trial be held in accordance with these statutory provisions even if the accused does submit a formal request.

Section 530 reads as follows: 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. 530

(1) Sur demande d’un accusé dont la langue est l’une des langues officielles du Canada, faite au plus tard au moment de la comparution de celui-ci au cours de laquelle la date du procès est fixée, un juge, un juge de la cour provinciale, un juge de la Cour de justice du Nunavut ou un juge de paix ordonne que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury, selon le cas, qui parlent la langue officielle du Canada qui est celle de l’accusé ou, si les circonstances le justifient, qui parlent les deux langues officielles du Canada.

(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.

(2) Sur demande d’un accusé dont la langue n’est pas l’une des langues officielles du Canada, faite au plus tard au moment de la comparution de celui-ci au cours de laquelle la date du procès est fixée, un juge, un juge de la cour provinciale, un juge de la Cour de justice du Nunavut ou un juge de paix peut ordonner que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury, selon le cas, qui parlent la langue officielle du Canada, qui, à son avis, permettra à l’accusé de témoigner le plus facilement ou, si les circonstances le justifient, qui parlent les deux langues officielles du Canada.

(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) or (2) and of the time before which such an application must be made.

(3) Le juge, le juge de la cour provinciale, le juge de la Cour de justice du Nunavut ou le juge de paix devant qui l’accusé comparaît pour la première fois veille à ce que l’accusé soit avisé de son droit de demander une ordonnance au

titre des paragraphes (1) ou (2) et des délais dans lesquels il doit faire une telle demande.

(4) If an accused fails to apply for an order under subsection (1) or (2) 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 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.

(4) Lorsqu’un accusé ne présente aucune demande pour une ordonnance en vertu des paragraphes (1) ou (2) et que le juge, le juge de la cour provinciale, le juge de la Cour de justice du Nunavut ou le juge de paix devant qui l’accusé doit subir son procès — appelés « tribunal » dans la présente

partie — est convaincu qu’il est dans les meilleurs intérêts de la justice que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent la langue officielle du Canada qui est celle de l’accusé ou, si la langue de l’accusé n’est pas l’une des langues officielles du Canada, la langue officielle du Canada qui, de l’avis du tribunal, permettra à l’accusé de témoigner le plus facilement, le tribunal peut, par ordonnance, s’il ne parle pas cette langue, renvoyer l’accusé pour qu’il subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent cette langue ou, si les circonstances le justifient, qui parlent les deux langues officielles du Canada.

(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.

(5) Toute ordonnance rendue en vertu du présent

article prévoyant le déroulement d’un procès dans l’une des langues officielles du Canada peut, si les circonstances le justifient, être modifiée par le tribunal pour prévoir son déroulement dans les deux langues officielles du Canada, et vice versa.

(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.

(6) Peut constituer une circonstance justifiant une ordonnance portant qu’un accusé subira son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles du Canada le fait que des coaccusés qui doivent être jugés conjointement ont chacun le droit d’avoir un procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent une des langues officielles du Canada, mais que cette langue n’est pas la même pour tous les coaccusés. [ 38 ] Once an order is issued under s. 530 Cr.C . , ss. 530.01 and 530.1 set out the mechanics of these language rights: 530.01

(1) If an order is granted under

section 530 , 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. 530.01

(1) Le poursuivant — quand il ne s’agit pas d’un poursuivant privé — est tenu, à la demande de l’accusé visé par une ordonnance rendue en vertu de l’article 530, de faire traduire, dans la langue officielle de l’accusé ou dans la langue officielle qui permettra à celui-ci de témoigner le plus facilement, les passages des dénonciations et des actes d’accusation qui ont été rédigés dans l’autre langue officielle et de lui remettre une copie de la traduction dans les meilleurs délais.

(2) In the case of a discrepancy between the original version of a document and the translated text, the original version shall prevail.

(2) En cas de divergence entre l’original d’un document et sa traduction, l’original prévaut. 530.1 If an order is granted under

section 530 , 530.1 Si une ordonnance est rendue en vertu de l’

article 530 : (

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;

a) l’accusé et son avocat ont le droit d’employer l’une ou l’autre langue officielle au cours de l’enquête préliminaire et du procès;

(

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;

b) ils peuvent utiliser l’une ou l’autre langue officielle dans les actes de procédure ou autres documents de l’enquête préliminaire et du procès; (

c) any witness may give evidence in either official language during the preliminary inquiry or trial;

c) les témoins ont le droit de témoigner dans l’une ou l’autre langue officielle à l’enquête préliminaire et au procès; (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; c.1) le juge de paix ou le juge qui préside peut, si les circonstances le justifient, autoriser le poursuivant à interroger ou contre-interroger un témoin dans la langue officielle de ce dernier même si cette langue n’est pas celle de l’accusé ni celle qui permet à ce dernier de témoigner le plus facilement; (

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;

d) l’accusé a droit à ce que le juge de paix présidant l’enquête préliminaire parle la même langue officielle que lui ou les deux langues officielles, selon le cas; (

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;

e) l’accusé a droit à ce que le poursuivant — quand il ne s’agit pas d’un poursuivant privé — parle la même langue officielle que lui ou les deux langues officielles, selon le cas; (

f) the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;

f) le tribunal est tenu d’offrir des services d’interprétation à l’accusé, à son avocat et aux témoins tant à l’enquête préliminaire qu’au procès; (

g) the record of proceedings during the preliminary inquiry or trial shall include

g) le dossier de l’enquête préliminaire et celui du procès doivent comporter la totalité des débats dans la langue officielle originale et la transcription de l’interprétation, ainsi que toute la preuve documentaire dans la langue officielle de sa présentation à l’audience; (

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 therefore, 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.

h) le tribunal assure la disponibilité, dans la langue officielle qui est celle de l’accusé, du jugement — exposé des motifs compris — rendu par écrit dans l’une ou l’autre langue officielle. ANALYSIS General legal principles [ 39 ] Two complementary language rights protect the accused.

First, the constitutional right to the assistance of an interpreter set out in s. 14 of the Charter and second, the statutory right set out at s. 530 Cr.C . [ 40 ] The constitutional right applies to a broader number of individuals since it extends to any party or witness who does not understand or speak the language in which the proceedings are conducted. Therefore, an accused who does not understand the language in which the trial is conducted is constitutionally entitled to the assistance of an interpreter.

This protection operates “at every point in the proceedings in which the case is being advanced” and thus, not only at the trial. [23] [ 41 ] As noted in Tran , [24] the right conferred under s. 14 of the Charter includes a standard of

interpretation, which is defined in terms of continuity, precision, impartiality, competency and contemporaneity. Consequently, breaks in

interpretation or summaries of proceedings are not allowed. [25] Moreover, a certain level of competency in the

interpretation must be consistently upheld throughout the trial. [26] In addition, the

interpretation must take place contemporaneously with the proceedings; in this regard, consecutive

interpretation is to be favoured over simultaneous

interpretation. [27] I will return to this subject later. [ 42 ] A violation of the s. 14 Charter right can only be established when a lapse in

interpretation occurred in the course of the proceedings themselves where a vital interest of the accused was involved. [28] However, whether the accused actually suffered prejudice, notably to the right to full answer and defence, is not a factor to be considered in the analysis. [29] The relevant “prejudice” is “in being denied the right to which one is entitled, nothing more”. [30] A waiver of the right is rarely possible and, at the very least, requires that the accused personally exercise the waiver and truly understand its implications and consequences. [31] [ 43 ] In Tran , Chief Justice Lamer suggested that “there will be circumstances in which waiver of the right to interpreter assistance will not be permitted for reasons of public policy”, pointing to criminal cases. [32] He recalled the words of Lord Reading in R. v.

Lee

Kun [33] and concluded: In short, Lee Kun stands for two basic propositions. First, in the case of an unrepresented person charged with a criminal offence who does not understand or speak the language of the court, the evidence given at the trial must be interpreted to him or her. This rule cannot be waived.

Second, in the parallel situation of an accused represented by counsel, the evidence must also be interpreted unless the accused or counsel expresses a wish to dispense with the service and the judge is of the opinion that the accused substantially understands the nature of the evidence which is going to be given against him or her. [34] [ 44 ] As for s. 530 Cr.C . , it sets out a non-discretionary or absolute statutory right for the accused to be tried in the official Canadian language that he considers to be his own, provided the application is timely.

The courts called upon to hold criminal trials are therefore required to be institutionally bilingual so as to provide for the equal use of the two official languages of Canada in such trials.

This is a substantive right which cannot be interfered with. [35] If the accused has sufficient knowledge of an official language of Canada to instruct counsel, he will be able to assert that language for the purposes of s. 530 Cr.C . , regardless of his ability to speak another language, including the other official language of Canada. [36] [ 45 ] Mere administrative inconvenience implementing this statutory right is not a relevant factor.

The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges and the additional financial costs of rescheduling are not pertinent factors, since the language rights guarantees set out in the Criminal Code require that governments maintain proper institutional infrastructures and services for criminal trials in both official languages of Canada on an equal basis. [37] Moreover, the language rights of the accused are not to be interpreted as a component of natural justice, but are rather free-standing independent rights which are conceptually separate and distinct from common law or other natural justice or procedural considerations. [38] [ 46 ] A violation of s. 530 Cr.C . therefore constitutes a substantial wrong and not a procedural irregularity.

Accordingly, the remedial powers of a court of appeal to uphold a conviction notwithstanding a finding of error, as set out in paras. 686(1)( b )(iii) and (iv) Cr.C . may not be relied upon in cases where the linguistic rights of the accused under s. 530 Cr.C . have been breached, and a re-hearing should be ordered in such circumstances. [39] However, the jurisprudence is somewhat mixed as to the extent to which the mechanics set out in s. 530.1 Cr.C . – as opposed to the rights set out in s. 530 Cr.C . – may be waived by an accused or may be subject to the remedial powers of an appellate court under paras. 686(1)(b)(iii) and (iv) Cr.C . [40] I will also return to that subject later. [ 47 ] If an order is granted under s. 530 Cr.C ., the trial must comply with the provisions of s. 530.1 Cr.C ., which notably set out that: -the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial; -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; -the accused has a right to have a justice of the peace presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be; this right is in addition to the one set out in s. 530 Cr.c. requiring that the judge presiding over the trial speak the official language of the accused or both official languages, as the case may be; -the accused has a right to have a prosecutor who speaks his official language or both official languages, as the case may be; -the court must make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial; -the record of proceedings during the preliminary inquiry or trial must include (

i) the 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 -any trial judgment, including any reasons given therefore, issued in writing in either official language, must be made available by the court in the official language that is the language of the accused. [ 48 ] These rights have been interpreted generously.

Courts have found that, at trial, both the judge and the prosecutor must use the official language of Canada of the accused. [41] [ 49 ] The law, and more specifically s. 530(3) Cr.C . and 530(4) Cr.C . , requires judges before whom the accused first appears to ensure that he is aware of his right to apply for an order under s. 530(1) or

(2) Cr.C . and of the time at which such an application must be made.

This has been interpreted as imposing a positive duty upon the judge to provide the notice irrespective of whether the defendant has applied for a s. 530 Cr.C . order [42] and, since 2008, irrespective of whether the accused is represented by counsel: As for the trial judges sitting in criminal matters throughout Canada, those of the Court of Quebec and the Superior Court of Quebec in particular, it would behoove them to take a proactive stance in protecting the language rights of accused despite the positions counsel take when appearing before them. [43] [ 50 ] Moreover, in Dow , this Court concluded that the practice in Quebec made it unnecessary for an English-speaking defendant tried in Quebec before a jury to formally apply under s. 530 Cr.C . for an English language or bilingual trial, since the rights provided under that

section are to be applied automatically in the province by the judge presiding over the trial: [44] [71] A literal reading of section 530(1) Cr. C. would mean that absent an application thereunder and an order granting same, the trial of an accused should take place in the official language of the province's linguistic majority.

Again, whatever may be the practice outside Quebec, it has never been necessary to make such an application in Quebec for the trial of an Anglophone to take place before an English-speaking jury with a trial judge and Crown prosecutor able to fully participate by using the English language. In Quebec, therefore, the object of section 530(1) Cr. C. is achieved insofar as jury trials are concerned without the need for a formal application under the auspices of that provision.

(Emphasis added; references omitted) [51] If an untimely application is made, the Supreme Court suggests that the first inquiry should focus on the knowledge of the rightby the accused. Should the duty under s. 530(3) or

(4) Cr.C. not have been satisfied, it would be more difficult to refuse a lateapplication. That said, the requirements of s. 530.1(

a) to (

h) Cr.c. will provide a good indication of relevant factors to consider.[45]Again, mere administrative inconvenience is not a relevant factor.[46] The violations to the appellant’s language rights and the curative powers of the Court [52] The Crown recognizes that serious lapses with respect to the appellant’s language rights occurred throughout the trialproceedings.

While further recognizing that the jurisprudence is somewhat mixed on the issue, the Crown submits that the curativepowers of the Court under paras. 686(1)(b)(iii) and (iv) Cr.C. should be exercised in this case, as no substantial wrong or miscarriage ofjustice occurred and the appellant suffered no substantial prejudice. This is the thrust of the Crown’s position.

It must therefore first bedecided if these curative powers may be exercised by an appellate court in such circumstances. [53] Para. 686(1)(b)(iii) allows an appellate court to dismiss an appeal against a criminal conviction notwithstanding a wrong decisionon a question of law if it is of the opinion that no substantial wrong or miscarriage of justice has occurred. The test under this provision iswhether the verdict would have necessarily been the same if the error had not been committed or whether there is any possibility that ajudge or a jury would have acquitted the accused absent such error.

Under either approach, “the task of an appellate court is to determinewhether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.”[47] [54] Para. 686(1)(b)(iv) Cr.C. also allows an appellate court to dismiss an appeal against a criminal conviction notwithstanding aprocedural irregularity at trial if it is of the opinion that the appellant suffered no prejudice thereby.[48] [55] In Tran, the Supreme Court of Canada clearly determined that these curative provisions do not apply when a breach of

section 14of the Charter has been established. Dealing directly with this issue, Chief Justice Lamer stated the following:[49] While denial of a Charter right constitutes an error of law, it is by its very constitutional nature a serious error of law, and certainly notone which, for Criminal Code purposes, can be characterized as minor or harmless, or as a "procedural irregularity". Therefore, I find asa matter of law that a violation of s. 14 of the Charter precludes application of both s. 686(1)(b)(iii) and s. 686(1)(b)(iv) of the Code.

Tothe extent that a particular Charter violation is more or less serious and/or prejudices an accused to a greater or lesser degree, this raisesremedial issues which fall squarely to be decided under s. 24(1) of the Charter , not under the Criminal Code. (…) As a general rule, the appropriate remedy under s. 24(1) of the Charter for a breach of s. 14 of the Charter will be the same as it wouldbe under the common law and under statutory guarantees, such as s. 650 of the Code or s. 2(

g) of the Canadian Bill of Rights — namely,a re-hearing of the issue or proceeding in which the violation occurred. For example, where the violation takes place within the trialproper, it will generally be necessary to quash the conviction being appealed from and to order a new trial. Where, on the other hand,the violation takes place in some discrete and severable part of the proceedings, such as in a bail or sentencing hearing, a new hearing ofthe issue will usually be the fitting remedy under s. 24(1) .

However, it is important to recognize that s. 24(1) empowers a court to dowhat it considers to be "appropriate and just" in the circumstances.

The remedial flexibility which is provided for in s. 24(1) may allowa court, in the right circumstances, to grant a remedy which either exceeds or falls short of the remedy I have suggested will normally beappropriate in cases where s. 14 of the Charter has been violated (i.e., a re-hearing of the issue). (…) In sum, recourse should be had to s. 24(1) of the Charter, not to the curative provisos of the Code, when dealing with an infringement ofthe right to interpreter assistance.

While the remedy for a violation will normally be an order directing a new hearing of the issue orproceeding in which the violation occurred, s. 24(1) allows a court to tailor the remedy to the particular circumstances of the violation.

Inlight of the fact that the violation of s. 14 of the Charter in this case occurred in the trial proper, and not in some discrete and severablepart of the proceeding, I find that the appropriate and just remedy under s. 24(1) of the Charter is to grant the appellant's request for anorder allowing the appeal, quashing the conviction and directing that a new trial be held. (Emphasis added) [56] In Beaulac, the Supreme Court of Canada took a similar approach with respect to violations of s. 530 Cr.C..

Justice Bastarachesets out that the language rights in s. 530 are not tied to the fairness of the trial but are rather meant to protect official language minoritiesthroughout Canada and to ensure the equality of status of English and French in criminal trials.[50] These language rights enhanceprotections for the English-speaking minority of Quebec and for the French-speaking minority in the other provinces of Canada.

Notbeing tied to fairness, the curative provisions of the Criminal Code have no bearing on these rights:[51] [52] The respondent relies on s. 686(1) (b)(iii) and s. 686(1) (b)(iv) of the Criminal Code. Her position is that the trial was fair. Theposition of the appellant is based on the contrary premise. He argues that the language used at trial has a strong impact on findings ofcredibility and that there is a real possibility that the jury could have come to another result had it heard the evidence presented in Frenchand the evidence presented in English directly, in the French and English languages. [53]

Section 530 is not concerned with assuring a fairer trial or a more reliable verdict. In my view, there is an analogy to be made inthis case with R. v. Tran, (SCC), [1994] 2 S.C.R. 951, where the Court refused to apply the s. 686 proviso to a violationof s. 14 of the Charter . (…) (…) [54] Given the nature of language rights, the requirement of substantive equality, the purpose of s. 530, as described here, and the

objective of s. 686, I believe that the violation of s. 530 constitutes a substantial wrong and not a procedural irregularity. Accordingly, s. 686(1)(

b) has no application in this case and a new trial must be ordered. Clearly, there must be an effective remedy available for breach of s. 530 rights.

The application of the s. 686 proviso would make it illusory. (Emphasis added) [ 57 ] In Dow , this Court, relying on the reasons of Charron J.A. of the Ontario Court of Appeal (as she then was) in Potvin , as well as the judgments of this Court in Denver-Lambert [52] and Hatzidoyannakis, [53] concluded that the curative provisions of the Criminal Code did not extend to breaches of s. 530 and s. 530.1 , as both are closely interrelated. [54] While excluding the application of the curative provisions in such cases, Hilton J.A. nevertheless noted that the breaches to the language rights must be sufficiently serious or substantial as to justify the intervention of the Court. [55] In this respect, the following comments of Charron J.A. in Potvin are apposite, in that

section 530 C.cr . is only breached when the trial is not held in a manner which conforms to the essence of s. 530.1 Cr.C . However, once such a serious or substantial breach has occurred, it cannot be cured through paras. 686(1)( b )(iii) or (iv) Cr.C . : [56] [36] Finalement, l'intimée prétend que la disposition réparatrice à l'al. 686(1)

b) devrait s'appliquer en l'espèce. L'intimée reconnaît que la Cour suprême dans Beaulac a statué que l' art. 530(1) donne à l'accusé un droit absolu et substantiel, et non un droit procédural auquel on peut déroger. En conséquence, la violation de ce droit ne donne pas lieu à l'application de la disposition réparatrice prévue à l'al. 686(1)b). Cependant, l'intimée soumet que l' art. 530.1 représente des dispositions de procédure suite au droit prévu par l'art. 530(1) et par conséquence l'al. 686(1)b)(iv) peut s'appliquer à une violation de l'art. 530.1.

L'intimée argumente que, contrairement à l'affaire Beaulac , l'appelant n'a pas été refusé a priori son droit à un procès devant un juge et jury qui parlent la langue officielle qui est la sienne. La question ici est plutôt si toutes les dispositions de procédure ont été respectées. [37] À mon avis, le résultat qui s'impose en l'espèce ne dépend pas de la classification des dispositions à l'art. 530.1 comme étant procédurales plutôt que substantielles. Le droit prévu à l'art. 530 est un droit substantiel et important et l'art. 530.1, tel que le

titre l'indique, apporte certaines précisions à ce droit dans son application . Ce n'est pas à chaque fois qu'il y aura quelques mots parlés dans la langue officielle autre que celle de l'accusé qu'un procès sera nécessairement vicié. Mais, le procès unilingue ordonné en vertu de l' art. 530 doit être essentiellement conforme aux dispositions de l' art. 530.1 . En l'espèce, je suis d'accord avec la prétention de l'appelant que son procès a été tout autre. Dans l'ensemble, son procès a ressemblé beaucoup plus à un procès bilingue, même, en large partie, anglophone.

Par conséquent, il n'y a pas lieu d'appliquer la disposition réparatrice et un nouveau procès doit être ordonné . (Emphasis added) [ 58 ] However, as the Crown points out, in Roy Martin this Court held, a contrario , that redress under s. 686(1)( b )(iii) Cr.C . was available to cure a lack of complete transcripts in the language of the accused of arguments made in the absence of the jury, apparently resulting in part from the agreement of the appellant, who was represented at trial. [57] The Court rejected any violation of a substantial right or constitutional right, stating that it was simply a failure to secure the complete record of the proceeding as per 530.1(

g) Cr.C . The Court was thus evaluating the seriousness of the error. The Court found that it was a minor one in the relevant circumstances, as it was found that the trial met the essential requirements of s. 530.1 Cr.C . [58] It is thus apparent that the result would have been the same had the Court applied the sufficiently serious or substantial test set out by Hilton, J.A. in Dow .

As the Court subsequently noted in Clohosy , [59] the result in Roy Martin – which largely concerned a question of transcripts – is basically an application of the principle set out by the Supreme Court of Canada in Hayes that a “new trial need not be ordered for every gap in a transcript”. [60] [ 59 ] As the Supreme Court found in both Tran and Beaulac , the better view is that the curative provisions do not apply in the case of a breach of language rights.

This is particularly the case with respect to s. 530 and 530.1 Cr.C . , since the purpose of these provisions is the protection of linguistic minorities in Canada by enforcing the equal access to courts in criminal trials in either official language.

As noted by Bastarache J. in Beaulac , the application of the curative provisions is thus fundamentally incompatible with the purpose of these sections as it would render the rights they set out illusory in many instances. [61] As further noted by Chief Justice Lamer in Tran , even if a trial is objectively a model of fairness, if an accused operating under a language handicap is not given full and contemporaneous

interpretation of the proceedings, the very legitimacy of the justice system is at issue. [62] [ 60 ] This does not mean that any breach of language rights will necessarily result in a new trial. The standard is not perfection. Rather, only sufficiently serious and substantial breaches may lead to a judicial reparation on appeal. There will always be challenges in implementing s. 530 and s. 530.1 and a degree of flexibility is thus required. [63] The mere fact that a prosecutor or a judge speaks French during an English language trial to deal with minor administrative issues, or where there are minor lapses in

interpretation or in the transcript of the

interpretation which go unnoticed during a trial, will not necessarily lead to the conclusion that a serious or substantial breach of the language rights has occurred. Each case must be decided on its particular facts and in the overall context in which the trial was held. [ 61 ] However, when a substantial breach of the rights has occurred, then irrespective of any analysis under paras. 686(1)( b )(iii) or (iv) Cr.C ., a judicial remedy is required, including, in appropriate circumstances, an order for a new trial. Simultaneous as Opposed to Consecutive

Interpretation [ 62 ] In this case, it is apparent that the appellant consented to the use of simultaneous

interpretation, subject, however, to having a record of the

interpretation preserved. This raises two questions: first, under what conditions may simultaneous

interpretation be used in a criminal trial where s. 530 Cr.C . rights are at issue and, second, can the accused agree to waive these conditions? [ 63 ] It is useful to specify that there are two principal methods of

interpretation: consecutive and simultaneous. [ 64 ] Consecutive

interpretation is where the interpreter interprets the words spoken during the proceedings after they are uttered. In a criminal trial, this takes place directly in the presence of the judge, the parties and the jury, as the case may be, so that all may hear. As a practical matter, consecutive

interpretation almost invariably entails that the

interpretation is recorded in the same way as the rest of the trial. [64] The inconvenience of the consecutive technique is that the amount of time needed for a trial will be much greater and it obviously increases with the number of witnesses not speaking the official language of the accused. The advantage is that it is possible to

hear and to record both the original and its

interpretation on the same sound recording track or in the same stenographic record, as the case may be. This method can be very useful in order to verify the accuracy of the

interpretation since it is often relatively easy to detect

interpretation errors so that they may be immediately rectified. [ 65 ] As for simultaneous

interpretation, it is provided almost immediately after the words are spoken during the proceedings. There are two basic forms of simultaneous

interpretation, electronic and whispering. In the electronic form, the interpreters sit in soundproof booths and listen through headphones to what is being said during the proceedings and translate immediately to listeners using electronic listening devices. This method requires special installations and equipment. Because of the pressure and consequent strain on the interpreters, the better practice seems to require at least two interpreters to share the work in any particular language. Indeed, one author notes that this mode of

interpretation “has been described as one of the most demanding human information processing tasks” [65] and as a result interpreters using this method “should not work alone, all day, on one case”. [66] Again, the workload will vary depending on the number of witnesses requiring

interpretation and the length of their testimony. [ 66 ]

Interpretation may also be provided simultaneously in a form that does not require electronic installations. This method involves whispering into someone’s ear or speaking softly so that one or a small number of people can follow what is being said in another language. The whispering method (known as “ chuchotement ” in French) can be tiring for the interpreter if he or she must strain to hear what is being said while still translating, and involves some overlap with the original speech which often leads to gaps in

interpretation. Moreover, as a general rule, whispering

interpretation is difficult to record. [ 67 ] In Tran , the Supreme Court of Canada firmly held that consecutive

interpretation is the better practice in criminal trials, without, however, completely excluding the use of simultaneous

interpretation. Chief Justice Lamer expressed himself as follows on this issue: [67] A further factor which needs to be taken into account when defining the proper standard for

interpretation is that of timing. To meet the constitutionally guaranteed standard of protection under s. 14 of the Charter ,

interpretation must take place contemporaneously with the proceeding in question. Here, it may be useful to keep in mind the distinction between "consecutive" (after the words are spoken) and "simultaneous" (at the same time as words are spoken). While it is generally preferable that

interpretation be consecutive rather than simultaneous, the overriding consideration is that the

interpretation be contemporaneous. Although I need not decide the matter, I would tend to agree with Steele, at pp. 248-49 of his article, that, although consecutive

interpretation effectively doubles the time necessary to complete the proceedings, it offers a number of advantages over simultaneous

interpretation . Simultaneous

interpretation is a complex and demanding task for which court interpreters, unlike conference interpreters, are seldom trained. Moreover, it requires expensive sound equipment with which our trial courtrooms are rarely equipped. In addition, simultaneous

interpretation works best when there is a minimum of distraction both for the interpreter and the listener(s), a feature which will not always be present in our busy courtrooms. Consecutive

interpretation, on the other hand, has the advantage of allowing the accused to react at the appropriate time, such as when making objections. It also makes it easier to assess on the spot the accuracy of the

interpretation, something rendered more difficult when one has to listen to the original language and its translation at the same time, as would be the case with simultaneous

interpretation . All of these factors suggest that consecutive

interpretation is the better practice as compared to simultaneous

interpretation. (…) (Emphasis added) [ 68 ] This Court has also consistently held that consecutive

interpretation is to be favoured in the context of a criminal trial held in English in Quebec. [68] The same applies for French trials with witnesses testifying in English. [69] Notwithstanding these clear admonishments, it is apparent – as this case illustrates – that simultaneous

interpretation is nevertheless used in certain trials held in one of the official languages of Canada, with varying success. [ 69 ] Consecutive translation must remain the preferred method of

interpretation in a criminal trial. This method allows the

interpretation to be recorded in the same way as the original words uttered at trial, thus substantially reducing the risk of omitting to record or of losing the record of the

interpretation. Moreover, mistakes in

interpretation can often be immediately identified by the attorneys and the judge when interpreting from one official language to the other. Furthermore, it readily allows for direct communication between the interpreter and the judge as well as the other participants, thus giving the interpreter an opportunity to ask a speaker to repeat or slow down the flow of the speech when this is required to properly carry out the

interpretation. There are clearly fewer risks involved in consecutive

interpretation, and this should remain the better practice in all criminal trials. [ 70 ] The principal drawback to consecutive

interpretation is that it slows the pace of the trial considerably. In a post- Jordan [70] context, this is certainly a serious concern. However, it is the responsibility of government to provide

interpretation services which answer the legal standards of continuity, precision, impartiality, competency and contemporaneity established by the Supreme Court while still ensuring that the trial is carried out in a reasonable timeframe under the principles set out in Jordan .

In this respect, “mere administrative inconvenience”, including “additional financial costs” are not relevant to the issue, as the language rights require the government to maintain a proper institutional framework and to provide services in both official languages on an equal basis where criminal trials are concerned. [71] All have a responsibility to ensure that cases are diligently dealt with. That being stated, whether or not

interpretation issues, and more specifically consecutive

interpretation, were factored in the presumptive ceilings or the analytical framework set out in Jordan is a determination better left for another day. [ 71 ] However, since neither the Criminal Code nor the Supreme Court has banned simultaneous

interpretation from criminal trials in which s. 530 Cr.C . rights apply , it is still possible for a trial judge to allow this. Nevertheless, in light of the serious known drawbacks of this method of

interpretation and the risks it entails in a criminal trial context, simultaneous translation should be avoided unless stringent conditions are fulfilled. While it may appear less time consuming, simultaneous

interpretation does have its drawbacks, whether by having a team of interpreters, which is the best practice, or by assuring numerous and extended breaks to ensure the quality of the

interpretation. [ 72 ] First, in a trial held pursuant to s. 530 Cr.C . simultaneous

interpretation should not be considered unless the accused and counsel specifically and explicitly waive consecutive

interpretation and the judge is satisfied that the necessary preconditions are fulfilled. Such a

waiver is possible since it is not the right to

interpretation itself which is being waived, but rather the preferred method of providing the

interpretation. [72] However, such a waiver is permissible for this purpose only if the judge ascertains that the represented accused personally understands the full implications of the waiver, namely the impossibility to immediately monitor the quality of the

interpretation and the possible difficulties for the record of the proceedings resulting from technical failures detected after the fact. The accused should personally consent. This requires the judge to personally address the accused on this subject so as to ensure that the accused fully understands what he or she is waiving as well as the consequences of such waiver. [73] The judge must further ascertain that the waiver is not the result of pressure in any form by Crown or even defence counsel, but rather that it results from a true personal preference of the accused for simultaneous

interpretation. As for the unrepresented accused, no valid waiver should be accepted unless independent counsel opinion, appointed by the trial judge, if need be, is obtained. [ 73 ] Second, the judge must ensure throughout the trial that the standards of continuity, precision, impartiality and competency of

interpretation are maintained. This should normally be ascertained by means of a voir dire held before the trial addressing specifically the question of the

interpretation. The judge must verify that the proper equipment and the required personnel are at all times available for the

interpretation. [ 74 ] Moreover, since simultaneous translation does not allow the judge to readily and immediately detect

interpretation errors and since the task of simultaneously translating is extremely strenuous on the interpreter, the judge must ensure proper safeguards with respect to the quality of the

interpretation and that the

interpretation is preserved on a sound recording that forms part of the court record and which may be readily used for the purpose of producing an official transcript, as specifically required under s. 530.1(

g) Cr.c. [74] If the judge is not satisfied that such recording equipment is continuously available or that the record of the entire

interpretation will form part of the court record, only continuous

interpretation should be allowed, irrespective of the consent of the accused. [ 75 ] Be that as it may, and whatever the quality of judicial monitoring, by accepting simultaneous

interpretation and thus waiving consecutive

interpretation, an accused must understand that he may not have, at all times, the exact

interpretation of what is said during the proceedings and that technical difficulties that impair the record of the

interpretation of the proceedings may only be detected after the fact. [ 76 ] Third, the judge must ensure that the requirements of s. 530.1 Cr.C . are maintained, notably that he or she and the prosecutor use only the accused official language of Canada throughout the trial, as provided in and required by s. 530(1) and (2) and 530.1 (

d) and ( e ). In this context simultaneous

interpretation, or consecutive for that matter, is provided for the witnesses who testify in a language that is not that of the trial. It is not an excuse for the judge and prosecutor to start conducting the trial in an official language of Canada other than that of the accused. [ 77 ] Finally, no whispering

interpretation is to be used where s. 530 and 530.1 Cr.C . apply since this type of simultaneous

interpretation is of doubtful accuracy and does not readily allow for a control of the required standard of

interpretation and a recording of the

interpretation. Whispering

interpretation is therefore inconsistent with s. 530.1( g ), which sets out that the record of the proceedings must include a transcript of the

interpretation of what was said in the proceedings. It is also inconsistent with Tran in that the quality of

interpretation which forms part of the standard set forth by the Supreme Court can rarely be upheld with whispering. [ 78 ] In the case of the appellant, it is readily apparent that these requirements were not complied with. There is no disagreement that the appellant consented to simultaneous

interpretation by electronic means. However, that consent was clearly and specifically given on the understanding that adequate equipment would be available and that a full audio recording of the

interpretation would be made and would form part of the court record. [ 79 ] In this case, the judge made no serious effort to ascertain that the required equipment, including proper audio recording equipment, would be available. Nor did the judge exercise any control over the standard of the

interpretation. After being informed of systemic problems in other trials, the judge instead commented that “Well, I cannot guarantee anything.” [75] Yet, it is the duty of the judge to ensure that the trial is properly conducted. If the government services responsible for providing

interpretation are deficient with respect to simultaneous

interpretation or if they cannot provide reasonable assurances to the judge with respect to the legal standards of continuity, precision, impartiality, competency and contemporaneity of the

interpretation, then it is incumbent upon the judge to make the required orders to ensure that these standards are fulfilled or to adopt consecutive

interpretation. In the circumstances of this trial, where no assurances were provided, the judge should have ordered the use of consecutive

interpretation since the conditions under which the appellant consented to simultaneous

interpretation could not be ensured. [ 80 ] In fact, the required equipment was deficient on many occasions, which resulted in providing

interpretation by means of whispering to the appellant, a method which is clearly contrary to the terms of s. 530.1 Cr.C .; in addition, many of the record ings of the

interpretation were misplaced, as it took the government close to two years to locate and transcribe the

interpretation. Despite orders from this Court to locate them, the Crown acknowledges that the records of the

interpretation of at least eight days of the proceedings remain lost [76] and that some parts of other days were not recorded. [77] Moreover, numerous judgments were rendered in French during the proceedings, and in many instances the recording of the

interpretation of these judgments is missing. [78] [ 81 ] The appellant also submits that the quality of the

interpretation is deficient, not necessarily as a result of the incompetence of the interpreters, but rather because the method of simultaneous translation used in this case did not allow the interpreters to ask the parties and the judge to slow the pace of their speech, rendering at times the

interpretation difficult, if not impossible. Though the Crown and the appellant do not agree on the extent of

interpretation errors and slips which occurred, it suffices to state that these are numerous and it is not the only violation. The Language Used by the Prosecutor and the Judge [ 82 ] In this case, both the Crown prosecutor and the judge used French as the usual language of communications throughout the proceedings. This is a substantial breach of the language rights of the appellant as set out in ss. 530 and 530.1 Cr.C . [ 83 ] In Cross v. Teasdale , [79] this Court ruled on a constitutional challenge to para. 530.1 (

e) Cr.C . - which requires the prosecutor to speak the same official language as that of the accused -, on the ground that it violated s. 133 of the Constitution Act, 1867 which allows

for the use of either the English or French language in any of the courts of Quebec. The Court held that while a Crown prosecutor has an individual right to address the court in French during an English criminal trial, the Crown, as a party, has a legal duty to be represented by a lawyer who both speaks and agrees to use the English language throughout such a trial. The Court consequently affirmed the constitutional validity of the provision. As noted by Hilton J.A. in Dow , the Court’s judgment in Cross v.

Teasdale remains the standard that governs the language a Crown counsel in Quebec must use during a trial when s. 530.1 Cr.C . is applicable to its conduct. [80] As further noted by Hilton J.A. in Dow : [81] [89] In any event, in this instance the trial judge and Crown counsel misapprehended the purpose for which an interpreter is present at the trial of an English-speaking accused. The only reason for an interpreter is because one or more French-speaking witnesses will testify .

The proper role of the interpreter is thus limited to interpreting the questions of counsel from English to French for a French-speaking witnesses and the answers of such witnesses from French to English. The presence of an interpreter is for the benefit of French-speaking witnesses, the accused and the jury, but not for that of the trial judge and Crown counsel, who must conduct themselves as if there was no interpreter present in the courtroom. This is the only conclusion to be drawn from the absence of reference to the trial judge and Crown counsel in sub-

section 530.1 (

f) Cr. C. (Emphasis added) [ 84 ] It is therefore particularly surprising that, in this case, the Crown prosecutor assigned to the case insisted on using the French language throughout the trial which was to be held in English, in flagrant and direct breach of s. 530.1 Cr.C . Though defence counsel objected to this, it cannot be said that the objection was forcefully pursued. That, however, does not relieve the Crown of its legal duties and that of the trial judge to require Crown counsel to do so.

As previously noted, an accused cannot waive this right implicitly, assuming such a waiver is legally possible. [82] [ 85 ] As for the judge, s. 530 specifically sets out that he or she must speak the official language of the accused. This is the cornerstone of the language guarantees set out in the Criminal Code . A judge cannot rely on the

interpretation of his speech during a trial conducted pursuant to s. 530 Cr.C . , but must rather express himself or herself in the official language of the accused throughout the proceedings. This was not done. The Trial Transcripts [ 86 ] As previously noted, there are serious deficiencies with respect to the transcripts of the

interpretation of the proceedings. Though these deficiencies may not constitute in themselves serious and substantial breaches of the appellant’s rights under s. 530.1 Cr.C . justifying a new trial, [83] they nevertheless add to the other breaches of these rights. [ 87 ] What is particularly disturbing in this case is that the breaches with respect to the transcripts appear to be systemic in nature, as recognized by the Crown.

This matter was addressed in part by this Court in its judgment dealing with the release of the appellant. [84] We add that the systemic nature of the problem renders the breaches all the more serious. This Court should not and cannot condone this sorry state of affairs with respect to the administration of justice in this province. CONCLUSION [ 88 ] It is readily apparent in this case that the statutory rights of the appellant under s. 530 and s. 530.1 Cr.C . were substantially ignored and breached throughout the trial proceedings.

This is sufficient to allow the appeal without it being necessary to formally conclude that the appellant’ s. 14 Charter rights were also breached. [ 89 ] The breaches of the appellant’s language rights at trial, taken as a whole, are serious and substantial. In light of the circumstances, no order other than a new trial can be envisaged as a remedy to these breaches. [ 90 ] I would therefore allow the appeal, quash the convictions and order a new trial. ROBERT M. MAINVILLE, J.A. Traduction française non officielle de l’arrêt de la Cour Dhingra c.

R. 2021 QCCA 1681 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-006787-186 (500-01-099546-134, SEQ. 001) DATE : 11 novembre 2021

FORMATION : LES HONORABLES MARTIN VAUCLAIR, J.C.A. ROBERT M. MAINVILLE, J.C.A. PATRICK HEALY, J.C.A. SONINDER DHINGRA APPELANT – accusé c. SA MAJESTÉ LA REINE INTIMÉE – poursuivante ARRÊT [1] L’appelant se pourvoit contre le jugement du 6 juin 2018 prononcé par l’honorable juge Flavia K.

Longo de la Cour du Québec, division criminelle et pénale, district de Montréal ( 2018 QCCA 3839 ), le déclarant coupable de diverses infractions de trafic et d’importation de drogue et de conspirations criminelle afin de trafiquer des drogues. [2] Pour les motifs du juge Mainville, auxquels souscrivent les juges Vauclair et Healy, LA COUR : [3] ACCUEILLE l’appel; [4] ANNULE les déclarations de culpabilité; [5] ORDONNE la tenue d’un nouveau procès. MARTIN VAUCLAIR, J.C.A. ROBERT M. MAINVILLE, J.C.A. PATRICK HEALY, J.C.A.

Me Véronique Robert ROY ROBERT AVOCATS Pour l’appelant Me Richard Audet DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Pour l’intimée Date d’audience : 11 juin 2021 MOTIFS DU JUGE MAINVILLE [6] Le 6 juin 2018, l’appelant fut déclaré coupable de diverses infractions de trafic et d’importation de drogue et de complot de trafic de drogue [85] . [7] Le 16 janvier 2019, il s’est vu imposer une peine de 15 ans d’emprisonnement [86] .

La détention provisoire de 4 ans, 1 mois et 13 jours fut déduite de cette peine selon un ratio d’un jour et demi pour chaque jour de détention provisoire, pour une peine effective totale d’emprisonnement de 8 ans, 9 mois et 25 jours. [8] Un appel du verdict sur des questions de droit fut déposé le 4 juillet 2018 et une demande pour permission d’appeler du verdict sur des questions de fait ou mixtes de droit et de fait fut accordée le 18 octobre 2018 [87] . La peine ne fait pas l’objet d’un appel.

[9] L’appelant soutient que son droit à un procès dans la langue officielle de son choix a été brimé et qu’il a ainsi droit à un nouveau procès. Le ministère public reconnaît qu’il avait droit à un procès en langue anglaise, qu’il a demandé un tel procès et que cette demande lui fut accordée [88] .

Le ministère public reconnaît aussi qu’il y a eu des manquements quant à la langue du procès [89] , mais soutient néanmoins que ceux-ci ne justifient pas d’écarter la condamnation et d’ordonner un nouveau procès, vu les circonstances en l’espèce [90] . [10] Pour les motifs ci-après énoncés, l’appel devrait être accueilli, les condamnations devraient être mises de côté et un nouveau procès devrait être ordonné. Une revue du droit applicable quant à la langue des procès tenus en anglais au Québec et quant aux normes qui doivent être maintenues dans de tels cas fait

partie intégrante de l’analyse. CONTEXTE ET HISTORIQUE PROCÉDURAL [11] La langue maternelle de l’appelant est le Punjabi, mais il possède aussi une bonne connaissance de l’anglais. Il s’identifie d’ailleurs comme un anglophone.

Malgré cela, les accusations sérieuses de trafic et d’importation de drogue portées contre lui le 28 novembre 2013 dans le dossier 500-01-098838-136 de la Cour du Québec ont toutes été rédigées en français. Peu après ces premières accusations, soit le 29 novembre 2013, l’appelant a obtenu sa liberté sous condition en attente du procès. [12] Le 13 décembre 2013, de nouvelles accusations, similaires aux premières, furent portées contre l’appelant dans le dossier 500-01- 099546-134 de la Cour du Québec. Toutes ces accusations étaient aussi rédigées en français.

Les accusations initiales dans le dossier 500-01-098838-136 furent retirées et les conditions de mise en liberté de l’appelant ont été appliquées au nouveau dossier. [13] Un an plus tard, en décembre 2014, l’appelant a aussi fait l’objet d’accusations dans un autre dossier portant le numéro 500-01- 115300-144 de la Cour du Québec et concernant d’autres infractions de trafic de drogue qui auraient été commises alors qu’il était en liberté sous condition; il a aussi été accessoirement accusé dans le dossier 500-01-115010-149 de la Cour du Québec de bris de ses conditions de mise en liberté.

L’appelant a été détenu en regard de ces deux dossiers. Cela a mené à une enquête portant sur la révocation de sa mise en liberté dans le dossier principal 500-01-099546-134. [14] Le 6 décembre 2016, le juge Gilles Cadieux de la Cour du Québec a révoqué la mise en liberté de l’appelant dans un jugement prononcé en français. Cette décision était largement fondée sur les allégations d’infractions additionnelles liées à la drogue que l’appelant aurait commises alors qu’il était en liberté sous conditions et qui ont mené aux nouvelles accusations dans les dossiers 500-01- 115300-144 et 500-01-115010-149.

Cependant, l’appelant ne fut jamais déclaré coupable de ces infractions

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