2018 NBPC 6, 2018 NBPC 6

Citation No.: 2018 NBPC 06 Information No.: 06598912 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT STÉPHANE BEAUDIN Applicant - v. - HER MAJESTY THE QUEEN Respondent Judgment rendered by the Honourable Johanne-Marguerite Landry, of the Provincial Court, on an application by the defence for a stay of proceedings, at Caraquet, New Brunswick, on November 16, 2018. Counsel: Bertin Thériault, for the Applicant Nicole Poirier, Q.C., for the Respondent [TRANSLATION] INTRODUCTION 1 ) Mr. Stéphane Beaudin is charged with 8 counts of offences under the Fisheries Act , R.S.C., 1985, c. F-14 .

The Information is dated April 18, 2017, and set out on Form 2, as required by s. 849(3) of the Criminal Code , R.S.C., 1985, c. C-46 , which is a form printed in both official languages. The 8 counts are listed in

Schedule 1 of the said Form 2 Information, in the French language only. 2 ) The first 5 counts contained in the Information allege that Mr. Beaudin, at or near Shippagan, in the Province of New Brunswick, being the holder of a licence to fish herring, did fail to comply with the conditions of said fishing licence by catching and keeping more than 10205.6 kilograms of herring per 24-hour period, contrary to and in violation of s. 22(7) of the Fishery (General) Regulations , SOR/93-53 , thereby committing an offence under s. 78 (

a) of the Fisheries Act , R.S.C., 1985, c. F-14 , as amended. The date of offence for each of those 5 counts is different and set out as follows: Count 1: on or about August 22, 2016 Count 2: on or about August 24, 2016 Count 3: on or about August 25, 2016 Count 4: on or about August 26, 2016 Count 5: on or about August 29, 2016

3) Counts 6, 7 and 8 in the Information allege that Mr. Beaudin, at or near Pigeon Hill, in the Province of New Brunswick, being theholder of a licence to fish herring, did fail to comply with the conditions of said fishing licence by catching and keeping more than10205.6 kilograms of herring per 24-hour period, contrary to and in violation of s. 22(7) of the Fishery (General) Regulations,SOR/93-53, thereby committing an offence under s. 78(

a) of the Fisheries Act, R.S.C., 1985, c. F-14, as amended. The date of offencefor each of those three counts is different and set out as follows: Count 6: on or about September 5, 2016 Count 7: on or about September 6, 2016 Count 8: on or about September 7, 2016 4) Following the decision in Fox v. R., 2018 NBQB 107 a decision of the Court of Queen’s Bench of New Brunswickdated June 5, 2018, the defence filed an application alleging a violation of the rights of the accused on two grounds.

The first groundreads as follows: [TRANSLATION] “The Information filed on April 18, 2017, was drafted in French”, and the second submits that[TRANSLATION] “[w]hen the accused first appeared in court, on June 6, 2017, at no time did the trial judge inform him of his right tochoose the language of the proceedings, and he pleaded not guilty” (see paragraph 1 of the defence brief dated August 17, 2018).

CHRONOLOGY OF EVENTS 5) In the instant case, from June 6, 2017, date when the accused first appeared in court and entered his not guilty plea, to the presentdate, there were 13 appearances in total, including appearances relative to 2 adjournments of the trial, one hearing on a Jordanapplication as well as the court hearing dismissing that application, and finally, appearances relative to this particular application by thedefence following the Fox decision, supra, rendered by the Court of Queen’s Bench of New Brunswick on June 5, 2018, on the issue oflanguage rights. 6) Two pre-trial conferences were held in this case, one on May 2 and the other on May 25, 2018, during which the Court asked thedefence to confirm the chosen language of the trial.

The defence confirmed the chosen language of the trial to be French. 7) All appearances, documents submitted by the parties, pre-trial conferences as well as hearings were in French. 8) At the August 24, 2018, hearing on the Fox-type application, the accused testified in French and confirmed that he would havechosen the French language if the Court had offered him a choice of language, as required by s. 530(3) of the Criminal Code of Canada(“CCC”), at the outset of the proceedings.

ARGUMENTS OF THE PARTIES 9) In its Notice of Application dated July 16, 2018, the defence relies on s. 20(1) of the Official Languages Act, S.N.B. 2002, c. O-0.5, which is the New Brunswick Official Languages Act, as well as on s. 20(2) of the Canadian Charter of Rights and Freedoms, PartI of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11. The defence is seeking a stay ofproceedings. 10) The parties submitted their respective initial briefs and their arguments before October 9, 2018, the date on which the NewBrunswick Court of Appeal reversed the decision rendered by the Court of Queen’s Bench in Fox, supra. 11) Following the New Brunswick Court of Appeal’s decision, the parties submitted further briefs to our Court. I will review thehighlights from the briefs submitted prior to October 9, 2018, the date of the New Brunswick Court of Appeal’s decision in R. v.

Fox,2018 NBCA 62 12) In its first brief, dated August 17, 2018, the defence raised a violation of s. 20(1) of the New Brunswick Official Languages Act, aswell as a violation of s. 20(2) of the Charter, and relied on the Fox decision, supra, rendered by the Court of Queen’s Bench.

Thedefence argues that the Provincial Court is bound by that decision and by way of relief it is seeking a stay of proceedings. 13) In response, the prosecution submits, in its brief dated August 20, 2018, that the New Brunswick Official Languages Act does notapply in this case, in that it provides an accused with the right to choose the language of a hearing in matters relating to provincialoffences. Its argument is based on the Supreme Court of Canada decision in Charlebois v. Saint John (City), 2005 SCC 74, and on theNew Brunswick Court of Appeal decision in Charlebois v.

Saint John (City), 2004 NBCA 49 , [2004] N.B.J. No. 237. In theinstant case, the charges were brought under a federal statute, namely the Fisheries Act. Therefore, we are not dealing with provincialoffences. 14) The Crown admits that there was a breach of s. 530(3) of the CCC, given that the applicant was not notified by the Court, at his first

appearance, of his right to choose the language of the trial. 15) As for s. 20(2) of the Charter, the Crown submits that according to the specific wording of that provision, its scope is limited toinstitutions of the legislature or government and that, at first glance, it does not apply to the judiciary. 16) Insofar as the laying of the Information goes, the Crown points out that the only relief sought by the applicant is a stay ofproceedings which is, by far, the most drastic relief available in the criminal justice system and one “which can be exercised only in theclearest of cases”. See R. v.

Jewitt, (SCC), [1985] 2 S.C.R. 128. 17) The Crown also refers to R. v.

Babos, 2014 SCC 16 , [2014] 1 S.C.R. 309, a decision where the Supreme Court of Canadaapplied a three-step analysis to determine the appropriateness of a stay of proceedings: (1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome, (2) there must be no alternative remedy capable of redressing the prejudice, and (3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour ofgranting a stay against the interest that society has in having a final decision on the merits. 18) Following the decision, on October 9, 2018, of the New Brunswick Court of Appeal in Fox, supra, the parties filed furthersubmissions. 19) In its further submission dated October 18, 2018, the Crown reiterates its position that the New Brunswick Official Languages Acthas no bearing in this case, as it applies to provincial legislation and regulations. 20) The Crown also reaffirms that there was a violation of s. 530(3) of the CCC, given that the applicant was not informed of his right tochoose the language of the proceedings at his first court appearance.

That being said, a stay of proceedings is not the appropriate remedy.Relying on case law, the Crown points out that courts tend to order a new trial if the violation is only discovered at the conclusion of theproceedings. In other cases, if the omission has not caused any real prejudice or brought into question the fairness of the trial, courts haveacknowledged the omission but refused to order a new trial. It is the Crown’s view in this case that it is still possible to remedy theviolation, as the applicant has not yet gone to trial. It refers to R. v. Caesar, 2015 NWTCA 4 , 2015 NWTCA 04 R.v.

Munkonda, 2015 ONCA 309 , R. v. Petitpas, [2017] N.B.J. No. 10 (NBCA) and R. v. Bujold, 2011 NBCA 24 ,[2011] N.B.J. No. 84 (NBCA). 21) On the question of filing an Information with a

Schedule describing the counts in French only, the Crown refers to paragraph 28 ofR. v. St-Amand, [2002] N.B.J. No. 233: Obviously, when the information is sworn by a police officer, it is his understanding of what is being sworn which is germane andtherefore he should be the one to choose the language of the information.

When the time comes for the accused to hear or read this sameinformation, it is the accused’s understanding of what is being sworn which is germane, and therefore, in my view, it is the accused, andthe accused alone, who has the responsibility of deciding what he understands or does not understand about an information which hasbeen read to him. The accused is the only person who is in a position to know what he or she understands or does not understandregarding the contents of an information.

He is the only person, therefore, who is, for example, in a position to decide or express whetheror not a translation of the information would be necessary or beneficial to him. It follows, therefore, that it is up to him to request atranslation. 22) The Crown points out as well that the above decision is on all fours with other constitutional analyses made by the Supreme Court ofCanada regarding language rights as they pertain to Informations, i.e. MacDonald v. City of Montreal, (SCC), [1986] 1S.C.R. 460, at paragraph 69, and Bilodeau v.

A.G. (Man.), (SCC), [1986] 1 S.C.R. 449, at paragraph 16. 23) The Crown is of the view that there was no violation of the applicant’s rights under the Charter, and that, as such, the remedyprovided for under s. 24 of the Charter is unavailable to him. However, Mr.

Beaudin’s rights under s. 530(3) of the CCC having beenviolated, the remedy available is a common law remedy. 24) In response, the defence argues, in its October 23, 2018, submission, that this Court is still required to render a decision on thequestion of whether the New Brunswick Official Languages Act applies to an offence under the Fisheries Act, a federal statute.

Thedefence argues that the Court cannot examine a violation of rights under s. 530 of the CCC without taking into account the Charterprovisions pertaining to language rights that are specific to New Brunswick, more precisely sections 16, 19 and 20. 25) Section 16(2) of the Charter provides the following: English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their usein all institutions of the legislature and government of New Brunswick. 26) Section 19(2) of the Charter provides the following: Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. 27) Section 20(2) of the Charter provides the following: Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of aninstitution of the legislature or government of New Brunswick in English or French. 28) The position of the defence is that in New Brunswick, given the constitutional rights guaranteed under ss. 16(2), 19(2) and 20(2) of

the Charter, where there is a violation of the substantive right provided for under s. 530 of the CCC, there is also a violation of importantconstitutional rights, and that triggers a recourse under s. 24(1) of the Charter. 29) It bases its argument on a decision of the Nova Scotia Court of Appeal, R. v.

MacKenzie, 2004 NSCA 10, and argues that in thatcase, the Court would undoubtedly have found that there had been a violation of a constitutional language right if the Provincial Court ofNova Scotia had been bound by a provision similar to s. 16(2) of the Charter. 30) The defence also submits that the New Brunswick Official Languages Act is relevant, at least for its definition of the word“institution” in the context of language rights.

That definition includes “courts”. 31) In response, in its last further submission dated October 30, 2018, the Crown points out that the New Brunswick Court of Appeal hashad the opportunity to deal with a violation of s. 530(3) of the CCC in the matters of Petitpas, supra, and Bujold, supra, which weredecided after MacKenzie, supra, and that in neither one of those cases did the Court identify a violation of a constitutional rightstemming from the failure to comply with that provision of the CCC.

According to the Crown, a finding to the effect that a violation ofs. 530(3) of the CCC triggers a violation of the Charter would amount to a novel statement that has neither been supported nor upheld byour Court of Appeal. 32) With regard to s. 20(2) of the Charter, the Crown submits that it does not contain the word “court” and that a court is not an officeof an institution of the legislature or government. It applies the same reasoning to s. 16(2) of the Charter. In support of that argument,the Crown relies on paragraph 45 of MacKenzie, supra, where the Nova Scotia Court of Appeal quotes to R. v.

Simard, (ONCA): [45] In R. v. Simard, above, Justice Lacourcière for the Ontario Court of Appeal stated at p. 126: I agree with Macdonald, J. in R. v. Rodrigue, [cited above p. 468], that ss. 16(1) to 20(1) of the Charter pertain to the general principle ofequality of status of the official languages applicable to federal institutions and non judicial communications. These sections coverdistinct and water-tight compartments of parliamentary, judicial and governmental activities of the federal state.

The judiciary is discussed in s. 19, not s. 16(1). 33) The Crown maintains its position that there has been a violation of the applicant’s rights under s. 530(3) of the CCC, but that thisviolation does not amount to a Charter breach. Therefore, there is no recourse under the Charter. The remedies available for a violationof s. 530(3) of the CCC are found in the case law. 34) Once again according to the Crown, s. 530.01(1) of the CCC provides the appropriate relief where an Information is concerned,namely the translation of documents. This

section reads as follows: Translation of documents 530.01

(1) If an order is granted under

section 530, a prosecutor — other than a private prosecutor — shall, on application by theaccused, (

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 orthat 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. 35) Following the November 1, 2018, hearing, the parties provided the Court with additional case law. The Crown submitted twodecisions, R. v. Goodine, (NS CA), and R. v. Simard, supra, whereas the defence provided additional argumentsbased on R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768, and Goodine, supra. 36) The defence refers to paragraph 54 of Beaulac, supra, where the Supreme Court of Canada stated the following: Given the nature of language rights, the requirement of substantive equality, the purpose of s. 530, as described here, and the objective ofs. 686, I believe that the violation of s. 530 constitutes a substantial wrong and not a procedural irregularity. Accordingly, s. 686(1)(

b) hasno application in this case and a new trial must be ordered. Clearly, there must be an effective remedy available for breach of s. 530rights. The application of the s. 686 proviso would make it illusory. ANALYSIS The Official Languages Act of New Brunswick

37) The defence maintains that there has been a violation of s. 20(1) of the New Brunswick Official Languages Act . 38) That

section reads as follows: A person who is alleged to have committed an offence under

an Act or a regulation of the Province or under a municipal by-law has the right to have the proceedings conducted in the language of his or her choice and shall be informed of that right by the presiding judge before entering a plea. 39) The wording is clear: “[…]

an Act or a regulation of the Province or […] a municipal by-law”. In the instant case, the accused is charged under a federal statute, namely the Fisheries Act . Consequently, the Court finds in this case that the rights of the accused under the New Brunswick Official Languages Act have not been violated. The Information 40) Section 788(1) of the CCC deals with the manner in which proceedings are commenced and reads as follows: Commencement of proceedings 788

(1) Proceedings under this Part shall be commenced by laying an information in Form 2 . 41) It is s. 849 of the CCC that deals with the format of Form 2, one of 54 forms in the CCC . Sections 849(1) and (3) of the CCC provide the following: Forms 849

(1) The forms set out in this Part, varied to suit the case, or forms to the like effect are deemed to be good, valid and sufficient in the circumstances for which they are provided . […]

(3) Any pre-printed portions of a form set out in this Part, varied to suit the case, or of a form to the like effect shall be printed in both official languages . 42) Section 789(1) of the CCC describes the formalities regarding the laying of Informations: Formalities of information 789

(1) In proceedings to which this Part applies, an information (

a) shall be in writing and under oath[.] 43) Therefore, to summarize, proceedings are commenced by laying before the court an Information in Form 2, which can vary on a “case by case” basis to suit the particulars of the case, and the content of the form is printed in both official languages. The Information is laid before the court in writing and under oath. 44) The person laying the Information in writing and under oath before the judge is called the informant.

Upon laying the Information, the informant must affirm or swear before the court that the information contained in the Information is true to the best of his knowledge, belief or information. Needless to say, the informant must have an understanding of the content of the document he affirms or swears to, namely the Information. 45) In the instant case, the Court must decide if the Information, as it stands, is valid or not. The form in which the Information is set out is in both languages, therefore it is in compliance with the format to be used for Form 2 under the CCC .

However, the counts are drafted in French only and are attached in a schedule. Does this constitute a violation of the rights guaranteed under the Charter ? 46) As mentioned earlier, s. 19(2) of the Charter deals specifically with proceedings before the courts in New Brunswick, and reads as follows: Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick .

(Underlining is mine.) 47) As mentioned earlier, the New Brunswick Court of Queen’s Bench dealt with the issue in R. v. St-Amand, supra, at paragraph 28.Once again, to summarize, the police officer lays the Information under oath, and the important thing is for him to understand what he isswearing to. The accused is the only person who is in a position to know what he understands from the wording of an Information.Therefore, it is up to him to request a translation. 48) Remember that s. 19(2) of the Charter says “any person”, and that means not just the accused.

In the laying of an Informationbefore the court, the informant must absolutely be able to swear an oath in the official language he or she understands. The words “anyperson” include the informant. 49) In Simard, supra, the Ontario Court of Appeal shared the same view and held that an Information containing a description inEnglish only of the alleged offence was not in violation of the Charter.

That decision would stand for the proposition that the trial judgemay not determine an Information to be invalid on that basis. 50) At paragraph 37 of Simard, supra, the Ontario Court of Appeal said the following: I am of the opinion that the trial judge erred when he stated that an information written in English only on a bilingual form was a nullity.The information laid by a unilingual Anglophone sergeant of the City of London had to be written in English in order to be sworn by theinformant. 51) The Court also said, in part, at paragraph 46: […] in this case, the information was not a nullity […] In the absence of irreparable prejudice, the trial judge could have, on his ownaccord, or should have, on request, remedied the problem of the preparation of the defence by ordering a written translation of theinformation[.] 52) In the next paragraph, the Court added the following: The learned justice of the General Division should have noted, however, that the appellant, if he asks for it pursuant to s. 530, has theright to obtain a written translation of the information[.] 53) I therefore find that there has been no violation of the rights guaranteed to the accused under s. 19(2) of the Charter.

As such, norelief is available under s. 24(1) of the Charter. 54) As the Court stated in St-Amand, supra, it is up to the accused, if he has difficulty understanding the wording of the Information, toask for a translation of the part of the Information in this case which is in French only, and the Court can and will order such a translationbe provided if requested by the accused. Violation of s. 530(3) of the CCC 55) The defence maintains that the violation of the rights of the accused under s. 530(3) of the CCC triggers a violation of his rightsunder ss. 16, 19 and 20 of the Charter.

Sections 16(2) and 20(2) of the Charter deal respectively with “institutions of the legislature andgovernment of New Brunswick” and with “any office of an institution of the legislature or government of New Brunswick”. Section19(2) of the Charter deals with any “court of New Brunswick” and with “any pleading or process issuing [therefrom]”. The word “court”therefore does not appear in either s. 16(2) or s. 20(2) of the Charter. 56) The defence claims that the definition of the word “institution” in the New Brunswick Official Languages Act, which includes thecourts, applies to the

interpretation given to the wording of the Charter. The Court rejects that argument. 57) Regarding the

interpretation of the wording of the Charter, in Canada v. Operation Dismantle Inc., (FCA), (FCA), 49 N.R. 363, 3 D.L.R. (4th) 193 (F.C.A.), the Federal Court of Appeal had this to say, at paragraph 7: The words used in the Charter […] should not be given so wide an

interpretation that the courts would, as a result, be invited to substitutetheir opinion for those of Parliament […] 58) The Court of Queen’s Bench of Saskatchewan said very much the same thing at paragraph 9 of Qually v. Qually, (SK QB): […]The words of Parliament must be given their ordinary meaning, not some fanciful and imaginative scope that would encourageresourceful counsel and sympathetic judges to make up whatever deficiency they perceive in the existing list of protected rights[...](Underlining is mine.)

59) Those decisions inform us that the words used in the Charter should be given their ordinary meaning and that if Parliament hadwanted to include the courts in ss. 16(2) and 20(2) of the Charter, it would have done so, just as it did in s. 19(2). 60) Sections 16(2) and 20(2) of the Charter do not apply in the instant case and consequently the relief sought under s. 24(1) of theCharter is not available. 61) That being said, it is clear that the Court has not complied with s. 530(3) of the CCC.

And even though no relief is available underthe Charter, there is relief available at common law. 62) In MacKenzie, supra, at paragraph 84, the Nova Scotia Court of Appeal stated that, had there been an abuse of process, the Courtwould have had to determine if a stay of proceedings was the appropriate remedy, whether at common law or under s. 24(1) of theCharter. The Court referred to paragraphs 88 to 92 of Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), where it was unanimously decided that in both instances the test is the same, namely the test established in R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, a decision of the Supreme Court of Canada, at paragraph 75: Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the power to confer“such remedy as the court considers appropriate and just in the circumstances”.

Professor Paciocco, supra, at p. 341, has recommendedthat a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice. 63) The Supreme Court added the following, at paragraph 77: There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedythrough reasonable means the prejudice to the accused’s right to make full answer and defence.

In such cases, the drastic remedy of astay of proceedings may be necessary. […] A stay of proceedings is a last resort, to be taken when all other acceptable avenues ofprotecting the accused’s right to full answer and defence are exhausted. (Underlining is mine.) 64) In MacKenzie, supra, the Nova Scotia Court of Appeal reversed the decision of the court below. It bears noting that the court belowhad granted a stay of proceedings.

Therefore, the Nova Scotia Court of Appeal set aside the stay of proceedings and ordered a new trial,given that the test established in O’Connor, supra, had not been satisfied. 65) In this matter, if I were to grant the application made by the defence and order a stay of proceedings, I would have to rule that thefailure to comply with the requirements of s. 530(3) of the CCC has caused a prejudice which will be “manifested, perpetuated oraggravated through the conduct of the trial, or by its outcome” and that “no other remedy is reasonably capable of removing theprejudice”.

Our case law informs us that a stay of proceedings is only appropriate as a remedy in exceptional circumstances, where it isimpossible to redress the situation through less drastic means.

It is a last resort, when all other acceptable means of protecting the right ofthe accused to a full answer and defence have been exhausted. 66) In this case, the accused is a Francophone, his lawyer is a Francophone, the choice of language was confirmed in the course ofpre-trial conferences, the trial itself on the Information has not taken place, the Jordan application was heard in French, the Notice ofApplication was made in French by the defence and the hearing as such of that application was conducted in French. Would a stay ofproceedings constitute an appropriate remedy? 67) In R. v.

Caesar, supra, the accused was a member of the First Nations. There was nothing in the record before the court indicatingthat the accused was unable to understand the trial proceedings in English. He had testified in English without difficulty, and there wasno indication in the record that the accused spoke or understood French or that he would have chosen the French language if the appealhad been granted. The Court of Appeal for the Northwest Territories concluded that the accused had not established the existence of aprejudice or a denial of justice that would justify quashing the verdict of the jury.

The appeal was dismissed. 68) The defence in Caesar relied on R. v. MacKenzie, supra, and R. v. Beaulac, supra, to argue that the failure to provide the noticerequired under s. 530(3) of the CCC amounted to a fatal error. However, in its decision, the Court of Appeal for the Northwest Territoriesstated that when a trial is held absent compliance with the notice provision in s. 530(3) of the CCC, and there is no indication that thetrial was unfair, the curative power in s. 686(1)(b)(iii) of the CCC is available: 686

(1) On the hearing of an appeal against a conviction […] the court of appeal [...] (

b) may dismiss the appeal [...](iii) notwithstanding that the court is of the opinion that […] the appeal might be decided in favour of the appellant, it is of the opinionthat no substantial wrong or miscarriage of justice has occurred[.] 69) At paragraph 8 of Caesar, the Court stated the following: […]While Beaulac identifies the right to a trial in one’s own language as being fundamental in nature, those comments should be read asrelating to the substantive right to a trial, not the collateral right to notice of the right to apply for that option.

When a trial is held absentcompliance with the notice provision in s. 530(3), and there is no indication that the trial was unfair (for linguistic or other reasons), thecurative power in s. 686(1)(b)(iii) is available. 70) Again, in Caesar, the Court of Appeal for the Northwest Territories indicated that the decision rendered in MacKenzie confirms thatnon-compliance with the requirements of s. 530(3) of the CCC leads to a consideration of what constitutes a proper remedy. Where thefairness of the trial is not at issue and where a new trial is ordered, the process begins anew.

The court ensures that the choice oflanguage is made, then the court, the witnesses and the Crown repeat the proceedings in the same language as they were conducted inthe first place. Basically, such a process trivializes the importance of the right to a trial in the language of one’s choice. At paragraph 9,

the Court did not mince words: Here there has been no substantive effect on the fairness of the appellant’s trial. The Court is faced with the prospect of ordering a new trial, having the appellant elect a trial in English, and requiring the trial court, the witnesses, and the Crown to simply repeat the process. That could only serve to undermine the finality of criminal proceedings, undermine the jury verdict, and trivialize the importance of the right to a trial in one’s first language . (Underlining is mine.) CONCLUSION 71) In light of the foregoing, is a stay of proceedings the correct solution? No.

We have not reached that point, whether on the issue of the language used in the Information, or on the issue of the failure to provide notice as required by s. 530(3) of the CCC .

In the circumstances of this case, the Court finds that the use of French in the Information and the failure to provide notice at the outset of the first appearance in court, as required by s. 530(3) of the CCC , did not have a substantial impact on the fairness of the trial. 72) I repeat the circumstances: the accused is a Francophone, his lawyer is a Francophone, the choice of language was confirmed in the course of pre-trial conferences, the trial itself on the Information has not taken place, the Jordan application was heard in French, the Notice of Application was made in French by the defence and the hearing as such of that application was conducted in French. 73) As far as the Information is concerned, the proper remedy is translation.

That being said, should the Court order the translation from French into English of the

Schedule attached to the Information? If such a translation is requested by the defence, the Court will order it. 74) The appropriate remedy on the issue of non-compliance with s. 530(3) of the CCC , as confirmed in our jurisprudence, is not a stay of proceedings. Let us not forget that, when asked by the Court to do so, the defence confirmed its choice of language at the very first pre-trial conference. Any prejudice suffered was therefore redressed as of May 2, 2018. 75) FOR THE ABOVE REASONS, THE COURT: DISMISSES this application made by the defence. Dated this November 16, 2018, at Caraquet, New Brunswick. The Honourable Johanne-Marguerite Landry Judge of the Provincial Court