R. v. Bessette Date:, 2015 BCPC 230

Citation: R. v. Bessette Date: 20150713 2015 BCPC 0230 File No: 207335-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JOSEPH ROY ERIC BESSETTE RULING ON APPLICATION OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: T. Shaw Counsel for the Defendant: G. Garih Place of Hearing: Surrey , B.C. Date of Hearing: May 15, 2015 Date of Judgment: July 13, 2015

[ 1 ] THE COURT : Joseph Bessette seeks an order that his trial on a charge of driving while prohibited under the Motor Vehicle Act be conducted in French. He does not seek a remedy under the Charter of Rights , but rather argues that his right to have a trial in the French language arises from the proper

interpretation of s. 133 of the Offence Act , which he says should be interpreted to incorporate sections 530 to 533 of the Criminal Code which permit an accused to apply for a trial in French, or for that matter, in English, depending on the circumstances. [ 2 ] The Crown replies that the law of British Columbia has been ever since its creation in 1858 that proceedings in all of its courts must be in the English language.

The Crown argues that merely because the legislature has not passed any legislation to alter the operation of that law does not mean that the provisions of s. 530 of the Code are applicable to the defendant's case. The Crown argues that it means the opposite; the law has not been changed and, therefore, Mr. Bessette's trial must be in English. [ 3 ]

Section 133 of the Offence Act reads: If, in any proceeding, matter or thing to which this Act applies, express provision has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable on

summary conviction apply, with the necessary changes and so far as applicable, as if its provisions were enacted in and formed part of this Act. [ 4 ] Previous versions of the current Offence Act , then referred to as the

Summary Convictions Act , have contained a provision with almost exactly the same wording. [ 5 ]

Section 2 of the Law and Equity Act provides: Subject to

section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits. [ 6 ] The parties agree that one of those laws referred to by the Law and Equity Act includes

an act passed by the British Parliament in 1731 (the 1731 Act) . I will just refer to it as that. The statute prohibited the use of what was called "Law French" in British courts and prohibited the use of Latin in the pleadings and court records. It provided that all proceedings must be held in the English language. The courts in British Columbia have held on many occasions that this law is still in force in British Columbia. [ 7 ]

Section 530 to 533 of the Criminal Code provide that any accused person, including a person charged with an offence punishable on

summary conviction, may apply to a judge to have a trial held in one of the official languages of Canada and in most circumstances the court must grant the application. [ 8 ] There is no question that all trial courts in British Columbia can provide and have, in fact, provided trials in the French language pursuant to the provisions of the Criminal Code . [ 9 ] Now, the three main aspects of the Crown's response to the defence argument are as follows. [ 10 ] First, the Crown relies upon the decision of this court in R. v. Laflamme, decided in Prince Rupert on February 17th, 1997 by the late Judge Agnes Krantz.

The defendant in that case applied for a trial in French on a charge under the Motor Vehicle Act . The learned judge rejected this application on the basis that, first, the language of the courts in British Columbia is English as decided in many previous decisions of the courts in B.C. Second, the equivalent provision to s. 133 of the Offence Act is intended to provide procedural assistance to the court and the defendant and is not intended to provide substantive rights. The right to a trial in a language other than English relates to a substantive right.

Third, granting a right to a trial in French would not be a procedural remedy, but rather would be essentially a political decision. [ 11 ] Second, the Supreme Court of Canada in the case of Conseil Scolaire v. British Columbia 2013 SCC 42 , confirmed that the law in British Columbia remained as provided for in the 1731 Act; that the language of the courts in all civil proceedings must be in English.

The court pointed out that although bilingualism was an important aspect of the Canadian Constitution, an equally important part of the Constitution was the concept of federalism and the division of powers between the provinces and the federal government.

The matter of language used in the courts in the provinces is a matter clearly within the jurisdiction of the province, (see, for example, paragraph 56 in that decision). [ 12 ] The court also remarked at paragraph 47 that the 1731 Act of the British Parliament is not a procedural law statute; rather, it is directly concerned with the language to be used in the courts. [ 13 ] I note that the court specifically limited its decision to all civil proceedings in British Columbia, no doubt because all criminal proceedings are governed by the Criminal Code .

Criminal law is solely within the jurisdiction of the federal government, thus the enactment of sections 530 to 533 of the Code obviously concerns language rights within the context of criminal trials conducted under the Criminal Code and apply to all courts in Canada. [ 14 ] Prosecutions governed by the Offence Act are not criminal prosecutions.

They enforce provincial regulatory statutes, but they cannot properly be called civil matters. [ 15 ] Provincial prosecutions are brought in the name of The Queen in the Right of the Province of British Columbia, and violations of some statutes such as the Motor Vehicle Act may result in fine or imprisonment, just as in criminal cases. Nonetheless, the Supreme

Court ruling on the language issue logically applies to those provincial prosecutions brought under provincial statutes other than those statutes which involve the exercise of both federal and provincial jurisdictions, such as Fisheries. [ 16 ] A third aspect of the Crown's argument is that the mere absence of a provision in the Offence Act does not mean for that reason alone that a provision in the Criminal Code is thereby incorporated in the provisions of the Offence Act . The Crown relies on R. v.

Corbett 2005 BCSC 1437 , a decision of our Supreme Court, where the court on appeal overturned a decision which had held that conditional sentences were available on convictions for a provincial offence because no express provision had been made to force such sentences in the Offence Act or Motor Vehicle Act or at least had only provided partial provision for those sentencing options. [ 17 ] Madam Justice Gill remarked at paragraph 23, and I quote: The argument of the respondent relies on the fact that the Offence Act is silent on the matter of conditional sentences.

In my view, the mere fact that this option has been omitted cannot lead to the conclusion that only partial provision has been made or that express provision has not been made. [ 18 ] The decision in R. v. Enax 2006 BCSC 736 , cited by the defence ruled that conditional sentences were available to the sentencing judge by operation of s. 133 of the Offence Act . In my view, that decision is clearly wrong for the reasons cited by Madam Justice Gill in paragraphs 12 and 13 of Corbett . I prefer, therefore, to follow the decision in Corbett . [ 19 ] I see no reason not to follow the decision in Laflamme .

Although it is not binding on me because it is a decision of another Provincial Court judge, it is a considered decision based on accepted legal principles. In particular, I agree with Judge Krantz' characterization of the nature of language rights as being substantive rather than a procedural issue. I agree with her conclusion that the decision to order a French trial in the circumstances would be a political decision rather than a legal one. [ 20 ] In my view, the Conseil Scolaire decision reinforces the decision in Laflamme .

The issue of what language is to be spoken in the courts of the province in civil matters or, in my view, in prosecutions under provincial statutes with the exception of cases involving both federal and provincial jurisdiction is constitutionally a matter within the sole jurisdiction of the province. [ 21 ] While Canada is a bilingual country and all provinces should support the ability of those who speak either official language to actually use those languages effectively in any province, including participating in court proceedings, ultimately the decision to pass laws for that purpose is completely up to the province. [ 22 ] British Columbia has chosen not to specifically provide that persons being prosecuted under the provincial statutes may be granted the right to have their trial in French.

The mere fact that the province has not done so does not in itself result in the incorporation of sections 530 to 533 of the Criminal Code into the provisions of the Offence Act . [ 23 ] For these reasons, the application is dismissed. (RULING CONCLUDED)