2011 QCCA 1179, 2011 QCCA 1179

Unofficial English Translation Roy Martin c. R. 2011 QCCA 1179 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004064-083 (500-01-011441-067) DATE: June 22, 2011 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. JOSEPH ROY MARTIN APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] THE COURT : On appeal from a verdict pronounced on February 10, 2008 by a jury presided over by the Honourable Jean- François Buffoni (Superior Court, District of Montreal) which declared the appellant guilty of second degree murder; [ 2 ] On the four grounds of appeal raised in the original Inscription in appeal and Factum of the Appellant, for the reasons of Duval Hesler, J.A., with which Forget, J.A. and Dalphond, J.A., agree; [ 3 ] On the fifth ground of appeal concerning appellant’s linguistic rights, raised in a supplementary Factum, for the reasons of Dalphond, J.A., with which Forget, J.A., agrees, and for the reasons of Duval Hesler, J.A.; [ 4 ] DISMISSES the appeal.

ANDRÉ FORGET, J.A. PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. Mtre Mylène Lareau For the Appellant Mtre Benoit Lauzon Crown Prosecutor’s Office For the Respondent Date of hearing: December 15, 2010 REASONS OF DUVAL HESLER, J.A.

[ 5 ] Appellant was found guilty of second degree murder, as well as of assault and aggravated assault on two other victims, by a judge and jury. [ 6 ] Initially, Appellant raised four grounds of appeal, which he formulated thus: [ translation ] 1.

The Honourable trial judge erred in law by ruling that the oral statement made by the APPELLANT-Accused to Constable Barlow was admissible, since this statement was made only a few minutes after other statements that he had already excluded due to breaches of the APPELLANT-Accused’s rights to silence and to counsel; the Honourable trial judge thus erred by ruling that there was no sufficient relationship of temporal proximity between the various statements, and consequently, by ruling that the last statement was admissible and should be put to the jury; 2.

The Honourable trial judge erred in law by not immediately correcting, in an appropriate and effective manner, the highly prejudicial comments made by the Crown during its oral argument in specifically asking the jury to draw an inference of guilt from the statement made by the APPELLANT-Accused, in which he admitted having knowledge of the weapon used during the crime, knowing that the circumstances surrounding the statements already excluded from the evidence by the trial judge furthered the understanding of and provided an explanation for his knowledge of the weapon used to commit the crime; these comments were not only unlawful, but also highly prejudicial, and could have misled the jury and deprived the APPELLANT-Accused of his right to a fair trial; 3.

The Honourable trial judge erred in law by dismissing the APPELLANT-Accused’s motion for a mistrial following the Crown’s oral arguments on the reference to the APPELLANT-Accused’s oral statement to Constable Barlow; 4.

The Honourable trial judge erred in law by allowing the Crown to present evidence of post-offence conduct that had not been properly introduced into evidence. [ 7 ] He then sought and obtained leave to amend the Inscription in Appeal in order to raise a fifth ground of appeal, complaining that he was denied a unilingual English trial and the right to obtain a complete English transcript of his trial: [ translation ] The APPELLANT-Accused was denied his right to a unilingual English trial and his right to have the entire transcript of the trial in English in accordance with sections. 530 and 530.1, and in particular paragraph 530.1(

g) of the Canadian Criminal Code and

section 14 of the Canadian Charter of Rights and Freedoms . [1] [ 8 ] In my view, the second and third grounds of appeal are one and the same, in that the alleged error by the first judge is the same. I will otherwise deal with each ground of appeal in the same order as that proposed by Appellant. 1. THE ADMISSIBILITY OF THE DECLARATIONS OF THE ACCUSED [ 9 ] The murder was committed on the streets of Montreal, with a knife, on the person of a cyclist. According to several witnesses, Appellant was involved in a dispute with his then companion, and in the course of that dispute, threatened her with a knife.

The victim happened by and intervened, but then went on his way. [ 10 ] While the victim was waiting for the light to turn green at the next street corner, Appellant caught up with him, stabbed him in the chest and then fled in the direction of a subway station nearby. [ 11 ] The central issue at trial was the identification of Appellant as the aggressor in that fatal stabbing. [ 12 ] Appellant made four declarations to the officers who came to arrest him at his uncle's apartment, in Ottawa. [ 13 ] The admissibility of those declarations was determined by the trial judge in a judgment dated January 31, 2008.

The following account of the facts is based on the judge's findings as stated in that judgment. [ 14 ] Appellant's aunt had just told the officers that Appellant was upstairs when the latter was heard to say, at the top of the stairs: "I've been waiting for you guys." [ 15 ] The trial judge deemed that statement to have been spontaneous, free and voluntary and allowed it into evidence. [ 16 ] Once Appellant was handcuffed and informed that he was under arrest for murder, one of the officers asked him whether he had a knife.

Appellant replied: "I don't have it." [ 17 ] Immediately after that exchange, a third officer came in the room and started body searching Appellant. He asked him whether he had a weapon or sharp object. Appellant replied: "No, I don't have it any more." [ 18 ] Because Appellant had not at that point been read his rights, the trial judge excluded statements 2 and 3. [ 19 ] Appellant was then given, by instalments, the standard cautions regarding his right to keep silent and his right to counsel.

While he was being taken to the police station by a patrol car, he read a message that flashed on the car's computer screen, asking whether the officers had "recovered the weapon". He volunteered the following statement: "The knife is not at the residence".

[ 20 ] That last and fourth statement was admitted into evidence. [ 21 ] In my opinion, the trial judge correctly applied the law regarding each of Appellant's statements and the issue deserves no further scrutiny, except that a second ground of appeal deals with the consequences of excluding statements 2 and 3 from the evidence while allowing statement 4. Before going on to that issue, I add that there is no need to consider the application of Grant [2] in the present matter, Appellant having suffered no violation of his rights. 2.

THE LACK OF SPECIFIC INSTRUCTIONS DURING THE CROWN'S ARGUMENT [ 22 ] Here is what the Crown attorney said with respect to the impact of the fourth declaration of the accused to police officers: Constable Barlow arrested Mr. Martin for a murder. That's what he told him in the apartment, on the main floor, with a Canada-wide warrant and a murder in Montreal. He didn't say what kind of a weapon was used. He said, "You're under arrest for a murder. We have a Canada-wide warrant. It happened in Montreal. Sixteen o eight (16:08). Sixteen fifteen (16:15).

Or a little bit… I don't remember if he said the time, but they were in the car a few minutes later, Constable Barlow, alone with the accused, gave the rights to the accused. The accused said that he understood. Then, he heard the "ping-ping", the message that came across the terminal screen, from the communications center, asking if we had recovered the weapon. The weapon. Not a knife, not the knife – the weapon. The accused at that point was able to see the screen, stated the knife was not at the residence. Constable Barlow testified in front of you.

He never mentioned to the accused that there was a knife involved. He just said, "You're under arrest for a murder in Montreal. We have a Canada-wide warrant". That was done in the apartment. Again, in the car, repeated to the accused, "You're under arrest. You can call a lawyer, right to silence", gave his rights, and repeated that he was arrested for a murder. In the car, he never said, "You're under arrest for a murder with a knife." And the accused, by himself, answered this, the knife was not at the residence.

Another coincidence, the murder was made with a knife. […]. [3] [ 23 ] Appellant immediately submitted that those comments were prejudicial and unfair, in that the jury was misled as to the inference of guilt that may flow from Appellant's declaration.

He asked for a mistrial or at the very least, for an immediate instruction to the jury to remedy the harm done. [ 24 ] According to Appellant, the Crown's submission to the jury was misleading in that it erroneously implied that no mention of a knife was made to him prior to that statement, while officer Barlow specifically asked him whether he was in possession of a knife.

Appellant's second and third statements being excluded from the evidence, the jury, according to him, is left with the impression that Appellant had to know about the murder weapon, while the truth is that the idea that it was a knife had in fact been planted in his mind by previous questioning. [ 25 ] The Crown answers that while the police officers did ask Appellant whether he had a knife or weapon or sharp object, they never told him that the murder weapon was a knife. [ 26 ] The trial judge ruled that there was no cause for a mistrial and that an immediate instruction would do more harm than good: [2] […] [I]n my opinion, to give an immediate instruction to the jury at this point would run the risk of endangering the fairness of the trial and causing to the Accused an even greater damage than the damage which he perceives might have been sustained by him as a result of the Crown's final argument. [3] Giving an immediate instruction is not only unwarranted, it would have the effect of putting before the jury that portion of the extrinsic evidence that the Defence succeeded in keeping out. [ 27 ] I believe that the trial judge properly exercised his discretion and that the trial was not made unfair by the Crown's argument: […] While the Crown's obligation is to seek the truth, not to win at any cost, the trial process, including closing addresses, remains an adversarial one.

Thus, Crown counsel must have the freedom to pursue the Crown's position in a convincing, dynamic and eloquent fashion, always recognizing their special position in serving justice. […] [4] [ 28 ] In this instance, Appellant cannot at once ask for his second and third statements to the police to be excluded from the evidence, and then complain about the impact of his fourth statement as a result of those two previous statements being excluded.

An accused must accept the consequences of a strategic choice in the conduct of his defence. [ 29 ] Even had an immediate instruction been warranted, the jurisprudence holds that not every failure to give such an instruction justifies a new trial: Not all failures of the trial judge to intervene will result in a new trial.

The Court of Appeal will need to determine whether, in light of the evidence presented at trial and the entire charge to the jury, a miscarriage of justice resulted from the judge's failure to intervene. [5] [ 30 ] This is in keeping with the principles enunciated in s. 686(1)b)(iii) of the Criminal Code . In my opinion, there was no cause for giving a specific instruction here, let alone declaring a mistrial. In any event, had a new trial ensued, the verdict would not have been different in light of the evidence as a whole [6] , which gives rise to the application of those principles. 3.

POST OFFENCE CONDUCT [ 31 ] Appellant argues that the Crown asked the jury to draw an inference of guilt from the fact that Appellant's companion did not see

him again after the murder: When he left, and she never see him again, she said that she never see the accused again, not even that night. That was the last time she saw him, and keep that in mind, because the accused was arrested in Ottawa on August thirtieth (30 th ) two thousand and six (2006). So, she didn't see him. This is the last time she saw him. It's her boyfriend, they are together, homeless, he bought a tent, that's what she said, to live… to sleep in the park on l'Île ste-Hélène.

And she said: "I never saw him again", And she stated that she was scared at that point. [7] [ 32 ] Appellant contends that this statement calls for an inference that he fled after the murder in order to escape the consequences of his actions.

He argues that such an inference is unfair and that the trial judge should have given the jury an appropriate caution to avoid that it be misled as to what conclusions it could draw from the facts put in evidence. [ 33 ] First, it is to be remembered that after-the-fact conduct is admissible in evidence: Evidence of after-the-fact conduct is commonly admitted to show than an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.

The after- the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations.

It is for the trier of fact to determine what inference, if any, should be drawn from the evidence. [8] [ 34 ] On the other hand, care must be taken that the jury not draw an inappropriate inference from after-the-fact conduct, which may call for an appropriate instruction [9] , depending on circumstances. [ 35 ] In the case at hand, however, it is quite clear that the Crown was not seeking to invite the jury to infer guilt from this particular evidence, but rather to establish the time of Appellant's departure from Île Ste-Hélène and thus strengthen the evidence regarding his whereabouts at the time of the murder.

The purpose was not to demonstrate consciousness of guilt. [ 36 ] That is why the trial judge did not see fit to correct the argument of the Crown prosecutor in this respect: So, seeing that the…that part of the testimony came in answer to a question by counsel for the defence and that was…there was…it was not objected to, I think that the jury has the right to be reminded that that is what this witness said and the statement in the position of the Crown is not unfair, is not biased. It's mere facts that the jury will have to ponder.

So I will not order the striking of a portion of… of that portion of the position by the Crown. [10] [ 37 ] There was no need for a special instruction in such circumstances, as there was no risk that the jury would misconstrue this part of the evidence. 4. THE LANGUAGE OF THE TRIAL [ 38 ] The transcript of the pre-trial conference, held in English before Justice Barrette-Joncas, shows that the accused chose to undergo his trial in English, before an English jury.

A French-English interpreter was to be provided for the testimony of French witnesses in order to provide consecutive translation, which would then be transcribed. [ 39 ] The indictment was in English. The trial took place in English. The judge spoke in English, gave his instructions in English and wrote all judgments on voir dires and procedural matters in English. However, the simultaneous or "whisper"

interpretation of some exchanges which took place in French between the judge and the attorneys on points of law is not available for transcription, "whisper"

interpretation not being taped, hence this last ground of appeal. [ 40 ] It is appropriate to mention that this had been anticipated, as shown in the following excerpts of the transcript: THE COURT Yes, maybe I should make mention of the consensus reached during the pre-trial conferences , that sometimes the attorneys would wish to make their comments on the law outside the jury in French, so you understand that you're going to have an interpreter for that case, therefore you can follow everything that is said even it it's in the other language. Mtre MYLÈNE LAREAU Yes, Your Honour, we just explained that to Mr.

Martin that the questions of law will most probably be pleaded in French and he agreed for us to do that for the questions of law, so it has been discussed with Mr. Martin. [11] (Emphasis added) [ 41 ] As is clear from the above, the issue is not that Appellant was denied a trial in English from beginning to end, but rather that it is not possible to transcribe the simultaneous

interpretation provided to him during various exchanges on points of law conducted in French, with his leave. [ 42 ] I add that Appellant in no way contends that the "whisper"

interpretation was inadequate, nor that he has somehow suffered a prejudice as a result of this arrangement, to which, again, he consented. I find it appropriate to quote the Supreme Court in R. v. Hayes:

As a general rule, a new trial will only be ordered where there is some reason to believe that there may possibly have been an error in the passage of the charge which was missing or that the omission otherwise may have deprived the appellant of a ground of appeal. [12] [ 43 ] In Bellefroid v. R., [13] there was similarly no taping of the simultaneous "whisper"

interpretation provided to the accused, and therefore no possibility of a transcript of that

interpretation. The judge held that this did not justify a mistrial, as no prejudice was alleged. [ 44 ] In the absence of a prejudice, the lack of a complete transcription constitutes a procedural irregularity which, again, gives rise to redress under s. 686 (1)b)(iii) Cr. C. In this respect, the present case bears no similarity to the case of R. v. Beaulac, [14] in which the accused had made several requests for a bilingual trial, which had been denied without valid reason.

Such a violation of linguistic rights did constitute an important prejudice, as opposed to a mere procedural irregularity. [ 45 ] The case of R. v. Potvin, [15] in which, among other failings, the transcript of the translation of the testimony of witnesses was unavailable, bears no resemblance to the present one. [ 46 ] This case is also to be distinguished from the matters of R. v. Tran [16] and Dow v. R. [17] . Had Mr.

Martin made a request for the consecutive translation of exchanges taking place between the presiding judge and the attorneys on points of law in the absence of the jury, and had that request been denied, that would have constituted a breach of linguistic rights. Such is not the case here. [ 47 ] In Dow, the judge's decisions on points of law were not in English and there was no

interpretation available at all during parts of the trial. No valid consent was obtained from the accused, who was simply told how the trial would unfold and actually pressured into accepting the situation, as is made clear by the following exchange: "Do you mind if we speak French?

We are talking about technical things but we don't have the translator, if you insist that it's in English, that will be in English." [18] [ 48 ] This is vastly different from the present case, as is apparent from the excerpts of the transcript previously quoted. [ 49 ] In short, the trial in this case meets the essential requirements of s. 530.1 Cr. C.

The judge and the Crown prosecutor do have the duty to use the official language of the accused, [19] but that does not prevent the accused from giving a valid consent to some other formula which remains respectful of his or her linguistic rights. [ 50 ] I would add that while Dow expresses a preference for consecutive

interpretation, which can be transcribed, it does not rule out a waiver of consecutive

interpretation in favour of simultaneous

interpretation, which cannot always be transcribed. Similarly, whereas the Supreme Court of Canada has determined that the threshold for waiving the right to interpreter assistance is very high, such a waiver remains possible. [20] In the present case, the accused received the assistance of the interpreter throughout, and has access to a transcript of what was said at all times during the trial, including a transcript of all the evidence, translated into English where that evidence was given in French. As already mentioned, the judge pronounced all his decisions in English.

What Appellant does not have is a transcript of the translation provided to him during some discussions on points of law that took place in French in the absence of the jury. It is clear that he understood that he did not have to consent to those exchanges being in French and that he was satisfied with the whisper

interpretation of such exchanges. I do not see how his waiver could somehow be viewed as invalid. [ 51 ] In short, the accused was aware of his right to a completely English trial, expressly waived that right concerning exchanges between the judge and the attorneys in the absence of the jury but did receive the assistance of an interpreter during those exchanges.

No prejudice is even hinted at. [ 52 ] On the issue of prejudice, and so that my reasons are not misconstrued, I do not believe that lack of prejudice would defeat Appellant's argument were we, indeed, in the presence of a violation of his linguistic rights. [ 53 ] For the above reasons, I would dismiss the appeal. NICOLE DUVAL HESLER, J.A. REASONS OF DALPHOND, J.A. [ 54 ] I have had the benefit of reading the reasons of my colleague Duval Hesler, J.A., and I agree with her rulings on the appellant’s first four grounds of appeal.

With respect to the fifth ground, concerning an accused’s language rights, I agree that it should be dismissed, but for the reasons that follow. CONTEXT RELEVANT TO THE FIFTH GROUND [ 55 ] The appellant is Aboriginal. On August 23, 2006, when the murder he is accused of occurred, he was homeless and living in the Montreal area. [ 56 ] The accused elected trial by jury in English. Furthermore, during the pre-trial conferences in 2007, that were presided by the trial judge, the attorneys chosen by the appellant requested permission to make oral arguments in French in the absence of the jury.

It was agreed that these parts of the trial could take place in French, which meant that the presiding judge would need to be bilingual, as would

the Crown’s representative.

Thus, with the judge’s consent, it was agreed that the trial would be held on the following terms: everything said in the presence of the jury would be in English, but French could be used for comments made in the absence of the jury, in which case a translator would be available to translate the French comments into English. [ 57 ] As appears from the following extract from the transcript of the first day of trial, January 28, 2008, during a voir dire held before the first witnesses, police officers, were heard by the jury, a statement was made in English in the presence of the accused, to the effect that this manner of proceeding had been agreed to before the start of the trial, that it had been explained to the client by the attorneys he had chosen, and that his consent had been obtained: Mtre HÉLÈNE DI SALVO (for the Crown): … The three police officers will testify in English, but there will be some comments made by my colleagues and myself and those will be in French.

THE COURT: Yes, maybe I should make mention of the consensus reached during the pre-trial conferences, that sometimes the attorneys would wish to make their comments on the law outside the jury in French, so you understand that you're going to have an interpreter for that case, therefore you can follow everything that is said even if it's in the other language. Mtre MYLÈNE LAREAU: Yes, Your Honour, we just explained that to Mr. Martin that the questions of law will most probably be pleaded in French and he agreed for us to do that for the questions of law, so it has been discussed with Mr.

Martin. [ 58 ] The interpreter was sworn in, and comments were then made in French for approximately two minutes, during which the attorneys informed the judge of the order in which the police officers would be examined, and of the accused’s statements that were excluded from the consent. The three police officers were then examined and cross-examined in English. After approximately one and a half hours, at 4:02 p.m., the attorneys for the Crown and the appellant stated, in French, that their respective cases were closed and they submitted their books of authorities.

At 4:06 p.m., the trial was adjourned to the following morning. The next morning, January 29, 2008, after the production of a medical file upon the request of the accused’s attorney, oral arguments began, in French, on the appellant’s motion to exclude from evidence certain short statements made in English at the time of his arrest in Ottawa. The verbatim record, in English, of the statements made is not challenged, nor is its context. The challenge is related solely to their admissibility into evidence.

The accused’s attorney first presented, almost entirely in French, arguments on the exclusion of evidence under

section 24 of the Canadian Charter , [21] citing extracts from decisions of the Supreme Court of Canada and other courts. The attorney for the Crown then responded, also in French. At around 12:30 p.m., the exchange ended with a discussion of procedural matters, and the Court adjourned to the next morning.

During these discussions, held in the absence of the jury, all comments made in French, which consisted essentially of arguments on points of law, were simultaneously translated for the accused by the interpreter. [ 59 ] On January 30, 2008, the morning’s hearing lasted approximately ten minutes, in the absence of the jury, and consisted of procedural issues discussed in French. These comments, made in the absence of the jury, were simultaneously translated for the accused by the interpreter. The trial, in the presence of the jury, began in the afternoon.

It took place entirely in English, except with respect to the testimony of francophone witnesses, for which a consecutive translation was provided by the interpreter. The Crown’s evidence continued on January 31 in the same manner. From 12:31 to 12:41 p.m. and from 2:12 to 2:57 p.m., in the absence of the jury, various issues were discussed, including the possibility that the Crown attempt to prove adverse one of its witnesses, the accused’s former spouse (

section 9 of the Canada Evidence Act [22] ), to which the accused’s attorney objected. This discussion, which took place in the absence of the jury, was entirely in English. [ 60 ] On Friday, February 1, after a ten-second conversation about the snow, discussions in the absence of the jury took place for some ten minutes, entirely in English. At 10:26 a.m., the jury returned and presentation of the evidence continued until 11:51, at which time the Crown wanted to refresh the memory of its witness with a prior written statement, to which an attorney for the accused objected.

The jury retired, and an exchange lasting almost ten minutes took place between the attorneys and the Court. The discussion began with the Crown’s arguments, which were in English, but continued in French when the attorney referred to a text written in French and asked that the

interpretation headset be provided to the accused, which it was. The attorney finished her arguments in French. She spoke for a total of four minutes. The attorney for the accused answered in French, and the judge recalled the jury. In all, this incident lasted less than ten minutes, including at least three minutes in English. The trial continued until 12:18 p.m., at which time the jury was excused for lunch. The judge and the attorneys remained in the courtroom to discuss the date of a photo lineup that an attorney for the accused wanted to introduce into evidence through one of the Crown’s witnesses.

The discussion in French lasted approximately ten minutes and gave rise, on the judge’s suggestion, to an admission that was formalized by the parties during the lunch break. The hearing resumed with a four- minute discussion in English on procedure and the admission, and the jury was then recalled. The accused’s attorney filed the photo lineup and presented the admission in regard to its date and its use.

The presentation of evidence continued until approximately four o’clock, and the hearing was then adjourned until Monday. [ 61 ] On February 4, 2008, after the mid-morning break, a procedural discussion in the absence of the jury, which lasted approximately ten minutes, took place entirely in English. The presentation of evidence resumed until 11:17 a.m., at which time, after what appears to be an objection by the accused’s attorney on the Crown’s right to ask an additional question following his cross-examination, the jury was asked to leave the courtroom for approximately twelve minutes.

The incident was clarified by a discussion in French that gave rise to an agreement on the order of questions to close the witness’s examination. The evidence continued, and they adjourned for lunch. The hearing resumed with procedural questions, in English, and the jury was recalled and remained in the courtroom until 4:11 p.m. After the jury’s departure, the Court addressed procedural issues in English for nine minutes, including the treatment of an audio CD that the jury was to listen to the next day. [ 62 ] The final day of evidence was held on February 5th.

It began by five minutes of procedural discussions in the absence of the jury, entirely in English. After the morning break, the attorneys responded to a question from the jury. This discussion, which lasted

approximately three minutes, was in English. The jury returned to the courtroom, and the Crown’s proof was declared closed at 11:17 a.m. The defence then announced that it had no evidence to present. The judge declared the proof closed, and the jury retired for six minutes, during which time the next steps were scheduled, in English. The jury was informed of the agreed

schedule and then discharged until oral arguments the next day. [ 63 ] The hearing then became a pre-argument and pre-instruction conference, held in French: THE CROWN: With your permission, I spoke with my colleague, it is possible for this part, I know it won't be very long, if we can do it in French with the permission of my colleague. We spoke about that. Is that okay. Madame Davis is here. THE DEFENCE: The translator is here. THE COURT: So, Madame the interpreter, you are asked to approach the banc. Thank you.

When you're ready. [ translation ] Very well, so the purpose of the discussion is, firstly, the principal issues, the live issues, and then, afterwards, I will also speak briefly about final instructions. … During this conference, the judge referred to written instructions in English and read a part of them. [ 64 ] Oral arguments were held on February 6th, in English.

They were interrupted three times for statements and discussions in the absence of the jury, lasting a total of one and a half hours, entirely in English, including oral arguments and a judgment on the accused’s motion for a mistrial. [ 65 ] On the afternoon of February 7th, the judge gave his instructions to the jury in English. Two discussions were held in the absence of the jury, lasting a total of approximately thirty-two minutes. One of these discussions gave rise to a judgment, in English, dismissing an application to strike part of the Crown’s arguments.

The judge continued on the morning of the 8th, completing his instructions. Two discussions in the absence of the jury were noted in the minutes, lasting a total of eighty minutes, entirely in English. [ 66 ] In total, discussions in the absence of the jury were held fourteen times in English, six times in French, and once in both languages. [ 67 ] I will end this contextual

summary by emphasizing that at no time did any of the attorneys or the trial judge feel the need to correct the consecutive translation, which was done entirely by the same interpreter, Ms. Davies, of the testimonies given In French before the jury. Moreover, the accused did not criticize the quality of Ms.

Davies’ translation in his factum, nor did his attorneys do so during their oral arguments. [ 68 ] This translation was performed simultaneously in the absence of the jury, with the accused wearing a headset, and consecutively when the jury was present so that it could be heard by all, including the accused and the members of the jury.

Only the consecutive translation was recorded by the digital recording system in use at the Montreal courthouse. [ 69 ] The stenographic notes filed before this Court include a complete transcription: - of the testimonies, in the language they were given, accompanied by their English translation, where applicable; - of the attorneys’ arguments and the judge’s comments in the presence of the jury, entirely in English; - of the statements made in the absence of the jury, in the language they were made, without translation for the French statements made on January 28th (six minutes on procedural issues), January 29th (three hours of legal argument on the scope of section 24(2) of the Charter ), January 30th (ten minutes on procedural issues), February 1st (ten seconds on the snow; seven minutes, including the quotation of a French text on

section 9 of the Canada Evidence Act ; and ten minutes resulting in a written admission), February 4th (twelve minutes resulting in an agreement on the order of the questions), and February 5th (forty-six minutes consisting of a pre-argument and pre-instruction conference held after the close of evidence). GROUNDS OF APPEAL [ 70 ] Belatedly, the appellant raised a fifth ground of appeal. He asserted that there had been a breach of paragraph (

g) of

section 530.1 Cr. C. in regard to the content of the transcripts, constituting a violation of his language rights guaranteed by

section 530 Cr. C., for which the only remedy is an order for a new trial. At paragraphs 39 and 40 of his supplementary factum, his attorney summarized this ground of appeal as follows: [ translation ] [39] The APPELLANT is aware that certain distinctions must be made with the violations in Dow .

For example, in the present case the trial judge rendered his decisions in the language of the APPELLANT-Accused, except in regard to one objection, and it appears from the record that an interpreter was always present during the discussions that took place in French. [40] Notwithstanding these distinctions, the fact remains that the APPELLANT’s right to obtain a transcript in his language was breached in this regard, and consequently the remedial provision is not applicable. [Emphasis added.]

ANALYSIS [71] First of all, I am of the opinion that

section 14 of the Charter was fully respected. This provision provides: 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or whois deaf has the right to the assistance of an interpreter. In the present case, the trial was held in English, the language chosen by the accused and understood by him, and in French in theabsence of the jury with the services of a qualified interpreter. Consequently, there was no violation of the constitutional right guaranteedby

section 14. [72] I will now address the issue of compliance with the specific provisions found in the Criminal Code regarding language rights, i.e.sections 530 and 530.1. [73] The purpose of

section 530 Cr. C. is to confirm the importance of Canada’s official languages and to guarantee every accusedperson’s right to be tried in the official language of his or her choice, the whole in order to promote linguistic equality between Frenchand English in criminal trials, and subsidiarily, to preserve cultural identities. Bastarache J. stated the following in R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768 at paragraphs 34 and 39: 34 The solution to the problem, in my view, is to look at the purpose of s. 530.

It is, as mentioned earlier, to provide equal access tothe courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities inpreserving their cultural identity; Ford, supra, at p. 749. The language of the accused is very personal in nature; it is an important part ofhis or her cultural identity. The accused must therefore be afforded the right to make a choice between the two official languages basedon his or her subjective ties with the language itself.

The principles upon which the language right is founded, the fact that the basicright is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and thesubstantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language. I notethat s. 530(2) will apply to individuals who do not speak either of the two official languages. An accused’s own language, for thepurposes of s. 530(1) and (4), is either official language to which that person has a sufficient connection.

It does not have to be thedominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he or she will be able to assertthat that language is his or her language, regardless of his or her ability to speak the other official language. The Crown may challengethe assertion made, but it will have the onus of showing that the assertion is unfounded. The court, in such a case, will not inquire intospecific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused.

It will only satisfyitself that the accused is able to instruct counsel and follow the proceedings in the chosen language. 35 The assertion of language is a prerequisite to an application under s. 530(1) or s. 530(4). Once entitlement is established and anapplication is made under s. 530(4), the judge will be required to determine whether the best interests of justice will be served bygranting the application. … 39 I wish to emphasize that mere administrative inconvenience is not a relevant factor.

The availability of court stenographers andcourt reporters, the workload of bilingual prosecutors or judges, the additional financial costs of rescheduling are not to be consideredbecause the existence of language rights requires that the government comply with the provisions of the Act by maintaining a properinstitutional infrastructure and providing services in both official languages on an equal basis.

As mentioned earlier, in the context ofinstitutional bilingualism, an application for service in the language of the official minority language group must not be treated as thoughthere was one primary official language and a duty to accommodate with regard to the use of the other official language. The governingprinciple is that of the equality of both official languages. … 41 Another important consideration with regard to the

interpretation of the “best interests of justice” is the complete distinctivenessof language rights and trial fairness. Unfortunately, the distinctions are not always recognized, as can be seen from the reasons ofSouthin J.A. of the Court of Appeal: The phrase “the best interests of justice” [encompasses several further principles] . . . : 1. An accused is entitled to make full answer and defence. 2.

He is entitled to be present at his trial . . . . 3. . . . the jurors . . . must be mentally competent and capable of understanding the evidence given before them. . . . [T]he language of thetrial must be a language that the jurors and, . . . the judge, understand. . . . Can it be said that an accused who understands both official languages is deprived of his right to make full answer and defence or, to putit another way, that his trial is not fair, if his trial against his wishes is in the other official language, albeit he had an interpreterthroughout?

If the answer is “yes”, it may be argued that the right to make full answer and defence is different for those whose languageis English or French from those persons who possess neither language, for instance, many First Nations persons. ((1997), (BC CA), 120 C.C.C. (3d) 16, at paras. 63 and 66.)

The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand andmust be understood at his trial. But this is already guaranteed by s. 14 of the Charter, a

section providing for the right to an interpreter. The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking otherlanguages. Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this countryand to insure the equality of status of French and English. This Court has already tried to dissipate this confusion on severaloccasions. Thus, in MacDonald v.

City of Montreal, supra, Beetz J., at pp. 500-501, states that: It would constitute an error either to import the requirements of natural justice into . . . language rights . . . or vice versa, or to relate onetype of right to the other. . . . Both types of rights are conceptually different. . . . To link these two types of rights is to risk distortingboth rather than reenforcing either. I re-affirm this conclusion here in the hope that these rights will no longer be confused.

Fairness of the trial is not to be considered at thisstage and is certainly not a threshold that, if satisfied, can be used to deny the accused his language rights under s. 530. [Emphasis added.] [74] This right requires the agencies of the state, including the judiciary and the Crown, to ensure the availability during the variousstages of the trial process of a judge (section 530.1(d)) and an attorney (section 530.1(e)) who are able to function in the officiallanguage chosen, as well as an interpreter (section 530.1(f)) for everything that is not in the official language chosen, and to translatecertain documents (section 530.01).

All of these obligations were fully met in the present case. [75] I find that there was substantial compliance with the appellant’s right to be tried in the language of his choice, unlike in Beaulac,supra; R. v. Potvin, (ON CA), 69 O.R. (3d) 654 (Ont CA); and Dow v. R., [2009] R.J.Q. 679, 2009 QCCA 478. Inote that in Beaulac, the judge had refused to order a new trial in French, finding that to do so would be contrary to the best interests ofjustice. In Potvin, the accused had requested a trial in French, which in reality ended up being a trial in English with a few bilingualportions.

In Dow, in which the accused chose a jury trial in English, my colleague Hilton J.A., the author of the unanimous reasons of theCourt, summarized the breaches of the accused’s language rights as follows:[23] - almost all of the discussions that took place in the absence of the jury were in French, including testimonies at voir dires; - the interlocutory judgments were rendered in French; - simultaneous translations were not provided in all cases (constituting a violation of

section 14 of the Charter); - from the bench, the judge asked the accused to consent, without the possibility of consulting his attorney. In other words, the trial judgeincited the accused to renounce his rights; - the accused’s attorney was unaware of the content of the Criminal Code provisions regarding language rights (which was also the casehere). [76] In the present case, however, the principal testimonies rendered in the absence of the juries (three police officers), as well as in itspresence, were in English, and the others were translated. Contrary to Dow, there was no violation of

section 14 of the Charter, nor is anysuch violation alleged by the appellant. All of the exchanges, discussions, and judgments in the presence of the jury were in English.Most of the discussions in the absence of the jury were in English, as indicated in my

summary of the evidence. The discussions inFrench in the absence of the jury generally led to agreements, not judgments, and these were then reduced to writing in English orpresented to the jury in English. The judgments rendered in the absence of the jury were in English. Finally, the use of French in theabsence of the jury, with an interpreter, had been agreed to during the pre-trial conferences and the accused had discussed this with hislawyers. The judge in no way incited the accused to consent to the use of French instead of English. In

summary, the present case is notanalogous to Dow, as the appellant’s lawyer acknowledged at paragraph 39 of his supplementary factum, reproduced above. [77] I would add that the exercise by an accused of the right to a trial in the language of his or her choice does not go so far as to forcethe accused and his or her attorney to use only the official language chosen. On the contrary, the attorney that the accused has chosenmay also use the other official language in his or her written pleadings (paragraph 530.1(b)) or during the trial (paragraph 530.1(a)).

Thisshould, however, be discussed beforehand with the client, who may then choose not to retain that attorney. It was thus open to either ofthe two attorneys retained by the appellant to draft and plead motions in French if they were more at ease in defending their client in thatlanguage. The appellant’s attorney drafted her severance motion dated January 14, 2008, and her motion for access to the medical files ofone of the prosecution’s witnesses, filed on January 23, 2008, in French.

She also presented an oral motion to exclude evidence, inFrench, on January 28, and pled that motion in French on January 29, 2008. [78] It was, of course, the responsibility of the appellant’s attorneys to explain this to their client before agreeing to represent him, andthey confirmed before the trial judge that they had done so, as appears from the extract cited at paragraph 57 of these reasons.

For theseportions of the trial, it was agreed that a translator would be present so that the accused would be able to fully understand the course ofevents at his trial, even in regard to points of law that may be beyond his comprehension. [79] In

summary, I am of the opinion that the accused chose a trial before an Anglophone jury, but consented, before the start of thetrial, to proceedings in French in the absence of the jury as needed, in particular to accommodate his attorneys with respect to argumentson points of law, considering that an interpreter would translate these portions of the trial into English for him.

The appellant made nocomplaint in this regard. [80] The attorneys and the judge agreed on a procedure for the translation of discussions held in French in the absence of the jury, i.e.simultaneous translation using headphones, which was no doubt faster than consecutive translation spoken aloud, but which had theunfortunate consequence of not being recorded by the courthouse system and could not therefore be transcribed. As a result, thetranscript before us does not fully satisfy the requirements of paragraph 530.1(g), which provides the following:

530.1 Si une ordonnance est rendue en vertu de l'article 530 : (…)

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; (...) 530.1 If an order us granted under

section 530, … (

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 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 ... [Emphasis added.] [ 81 ] In other words, the only error attributable to the attorneys and the judge was that they were unaware of the requirements of paragraph (

g) of

section 530.1 regarding the establishment of the trial record, specifically the content of the transcripts. Had they been aware of these requirements, they surely would have opted for consecutive rather than simultaneous

interpretation, or would have at least implemented procedures to ensure that the simultaneous

interpretation was recorded. [ 82 ] For the rest, there would be no difference. In fact, had a transcript of the translations of the portions conducted in the absence of the jury been available, the appellant would be left without any argument to make under sections 530 and following of the Criminal Code . Thus, as opposed to Beaulac, this is not a case of violation of the substantive right set out at

section 530, and even less so a violation of the right to an interpreter guaranteed by

section 14 of the Charter , but rather a violation of the provision regarding the establishment of the trial record. It is true that in different circumstances, the British Columbia Court of Appeal, in R. v. L'Espinay, 228 C.C.C. (3d) 129, 2008 BCCA 20 , [2008] B.C.J. No. 86, established a distinction between sections 530 and 530.1 Cr. C.

Section 530 sets out the language guarantee (the right to be tried in either official language), while

section 530.1 outlines the application of the guarantee, which leads this Court to characterize

section 530.1 as a “procedural provision”. For my part, without suggesting that the entire content of

section 530.1 is procedural, I am of the opinion that paragraph (

g) of

section 530.1, pertaining to the establishment of the record, is certainly procedural in nature. [ 83 ] Assuming that the requirement of paragraph 530.1(

g) may be waived by the accused, [24] the fact remains that there was no such waiver in this case. It is apparent that the attorneys and the judge were unaware of or forgot about the provision. The accused could not have been advised in this regard and could not, therefore, have validly waived his right to this transcript. [25] The Crown concedes this point at paragraph 8 of its supplementary factum. [ 84 ] There remains the issue of the consequence of having neglected to implement a procedure that would have permitted the recording of the portions translated in the absence of the jury. [ 85 ] I am of the opinion that section 686 (1)(

b) Cr. C. may be applicable in this case as there was no violation of a constitutional right, i.e.

section 14 of the Charter , nor of the substantive right set out at

section 530 Cr. C., i.e. the right to be tried in the language of one’s choice, but rather an error in the choice of translation methods used, from which no indication of any prejudice, real or apparent, arises. The appellant alleges no specific prejudice, arguing instead that any violation of any facet of language rights must automatically result in an order for a new trial. With respect, that is not the state of the law as noted by Charron J.A. of the Court of Appeal of Ontario (as she then was) in Potvin, supra, at paragraphs 36 and 37:

(

c) The remedial provision [36] Finally, the respondent argues that the remedial provision at s. 686(1)(

b) should apply to the present matter. The respondent acknowledges that in Beaulac, the Supreme Court of Canada ruled that s. 530(1) grants the accused an unconditional and substantive right, and not a procedural right which can be waived. Consequently, the violation of this right does not trigger application of the remedial provision provided for at s. 686(1)( b ). However, the respondent submits that s. 530.1 amounts to a procedural implementation of the substantive right granted by s. 530(1) and consequently that s. 686(1)( b )(iv) may apply to a violation of s. 530.1.

The respondent furthermore argues that, contrary to the Beaulac affair, the appellant was not initially refused his right to a trial before judge and jury who speak his official language. The issue here is rather one of compliance with the relevant procedural provisions. [37] In my view, the resolution of this matter does not depend upon classifying s. 530.1 as procedural rather than substantive. The right set forth at s. 530 is a substantive and fundamental right.

Section 530.1, as the heading indicates, provides certain particulars concerning the implementation of this right. It does not necessarily follow that a trial is necessarily tainted each time a few words are spoken in the official language which is not that of the accused. However, the unilingual trial ordered in the present matter pursuant to s. 530 must essentially satisfy the provisions of s. 530.1. In the present matter, I agree with the appellant's argument that his trial was anything but that.

For the most part, his trial bears much more resemblance to a bilingual trial, even in large part to a trial conducted in English.

Consequently, there is no reason to apply the remedial provision and a new trial must be ordered. [Emphasis added.] [ 86 ] In the present case, I note that everything that was said in the absence of the jury, the times when French was used, was fully translated for the accused’s benefit, that everything indicates that the quality of the translation was high, [26] that the main discussion lasting three hours for which it is not possible to produce a transcript of the translation pertained essentially to points of law, and that the record, as established, allows this Court to consider the trial as a whole and to rule with full knowledge on the grounds of appeal raised.

I would add that the trial record as a whole reveals great respect for the accused’s choice to be tried in English. In the circumstances, the violation of

section 530.1(

g) Cr. C., i.e. the lack of a transcript of the translation of the portions held in French in the absence of the jury because of the translation method used is without prejudice to the accused and constitutes a procedural irregularity that does not in itself justify an order for a new trial within the meaning of section 686 (1)(b)(iv) Cr. C. [ 87 ] In

summary, an error was committed in the translation method chosen in this case, which resulted in a record that was incomplete under

section 530.1(

g) Cr. C., but this did not cause any prejudice to the appellant. There was a miscarriage of justice, but it does not, in itself, justify an order for a new trial. [27] [ 88 ] Since the time of the impugned judgment, this Court has rendered its decision in Dow, supra, in which it clearly established that compliance with the language guarantee provisions of the Criminal Code requires the use of consecutive

interpretation and excludes simultaneous

interpretation (whisper translation). One would thus expect that from now on, in both the Superior Court and the Criminal and Penal Division of the Court of Quebec, the language rights of Anglophone accuseds will be fully respected, including during preliminary inquiries and voir dires, and that when translation is required, it will always be conducted in a manner that may be recorded and transcribed, which only consecutive translation appears capable of in the courthouses of this province. CONCLUSION AND DISPOSITION [ 89 ] For these reasons, I would dismiss the appeal. PIERRE J. DALPHOND, J.A.