2013 QCCA 1744, 2013 QCCA 1744

Unofficial English Translation of the Judgment of the Court Gagnon c. R. 2013 QCCA 1744 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-10-004919-112, 500-10-004949-119, 500-10-004950-117 (450-01-065500-105) (455-01-008141-073) DATE: October 10, 2013 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. GUY GAGNON, J.A. No.: 500-10-004919-112 BENOÎT GAGNON ANNE-LISE KYLING WERNER KYLING APPELLANTS – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix ____________________________________ No.: 500-10-004949-119 BENOÎT GAGNON APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix ____________________________________ No.: 500-10-004950-117 WERNER KYLING APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellants Benoît Gagnon, Werner Kyling, and Anne-Lise Kyling appeal from their convictions entered on April 12, 2011, following a jury trial presided by Yves Tardif J., for various offences related to the production and trafficking of cannabis. [1] Benoît Gagnon and Werner Kyling (“Gagnon and W.

Kyling”) also appeal from the sentences imposed on them on June 20, 2011. [2] Last, Werner Kyling appeals from the order issued on September 28, 2011 , [3] under the Controlled Drugs and Substances Act (“ CDSA ”) [4] imposing the forfeiture of some of his property.

[ 2 ] These appeals were heard at the same time as the appeals brought by Brian Bordo, Martin Castilloux, and Gilles Couture, [5] by Martin Clohosy, [6] and by Marthe Vandervalk. [7] [ 3 ] The judgments deciding these appeals will all be rendered today. BACKGROUND [ 4 ] Benoît Gagnon, Werner Kyling, Anne-Lise Kyling, and Marthe Vandervalk are members of the same family. Anne-Lise is Werner Kyling’s daughter and Benoît Gagnon’s spouse.

Marthe Vandervalk is Werner Kyling’s spouse. [ 5 ] The charges laid against them are the culmination of an investigation – code name: Project Cure – launched in 2001 by the Royal Canadian Mounted Police (“RCMP”) with respect to a presumed drug trafficking network in the Bedford-Saint-Armand region. The Sûreté du Québec (“SQ”) took over and began directing the joint operation of the two police forces in 2003.

On June 8, 2005, this investigation led to the arrest of some fifty people, including the appellants Benoît Gagnon, Werner Kyling, and Anne-Lise Kyling. [ 6 ] The same day, following an investigation conducted in collaboration with the RCMP and the SQ, the US authorities requested the extradition of Brian Bordo, Martin Castilloux, Martin Clohosy, Gilles Couture, and W.

Kyling, alleging a conspiracy to import and distribute 1,000 kg of cannabis in the territory of the United States of America. [ 7 ] On August 2, 2006, James Brunton J. of the Superior Court dismissed the extradition request on the ground that the evidence did not correspond to the offences described in the application (although, in his view, it corresponded to another series of offences committed in Canada for which extradition was not requested). [ 8 ] On March 15, 2007, the Attorney General of Quebec filed four preferred indictments, [8] two of which concerned the appellants in files 455-01-008142-071 and 455-01-008141-073.

The latter file, opened in the District of Bedford, was transferred at the Crown’s request to the District of Saint-François under number 450-01-065500-105. [9] [ 9 ] The trial began on September 8, 2010, with jury selection, and ended with the appellants’ convictions on April 12, 2011. [ 10 ] What follows is the list of charges laid against the appellants, [10] including Marthe Vandervalk, with the note “acquitted” or “guilty” for each count concerning them: The appellant Werner Kyling, the only one charged with these offences 1.

Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, as part of a criminal organization, did knowingly instruct, directly or indirectly, a person to commit an indictable offence under the Criminal Code or any other Act of Parliament, for the benefit of, or at the direction of, or in association with the criminal organization, thereby committing the indictable offence set out in

section 467.13 of the Criminal Code . acquitted 2. On or around June 8, 2005, in Saint-Armand, District of Bedford, did have in his possession various types of firearms, without being the holder of licences under which he may possess them or of registration certificates for those firearms, thereby committing the indictable offence set out in section 91(1) (3)(

a) of the Criminal Code . stay of proceedings (14/02/2011) 3. On or around June 8, 2005, in Saint-Armand, District of Bedford, did have in his possession an amount of money having a value exceeding $5,000, knowing that this amount was obtained by the commission in Canada of an offence punishable by indictment, thereby committing the indictable offence set out in

section 355 (

a) of the Criminal Code . acquitted The appellants Benoît Gagnon and Werner Kyling (Brian Bordo, Martin Castilloux, and Gilles Couture are also charged with the same offences) 4. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, did conspire together to produce a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in section 465(1) (

c) of the Criminal Code . acquitted 5. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District de Bedford, did conspire together to traffic a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in section 465(1) (

c) of the Criminal Code . guilty The appellants Benoît Gagnon, Werner Kyling, and Anne-Lise Kyling (Martin Clohosy, Rudy Kyling, Dany O'Shea, and Marthe Vandervalk are also charged with the same offence) 6. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, did produce a substance included in

Schedule II

of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in sections 7(1) and 7(2) (

b) of the Controlled Drugs and Substances Act . Benoît Gagnon and Werner Kyling: guilty Anne-Lise Kyling: acquitted The appellants Benoît Gagnon, Werner Kyling, and Anne-Lise Kyling (Martin Clohosy, Rudy Kyling, Dany O'Shea, and Marthe Vandervalk are also charged with the same offence) 7. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, did conspire together to produce a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in section 465(1) (

c) of the Criminal Code . Benoît Gagnon and Werner Kyling: guilty Anne-Lise Kyling: acquitted The appellants Benoît Gagnon, Werner Kyling, and Anne-Lise Kyling (Martin Clohosy, Rudy Kyling, Dany O'Shea, and Marthe Vandervalk are also charged with the same offence) 8. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, and elsewhere in Canada, did commit an indictable offence under the Criminal Code or any other Act of Parliament, for the benefit of, at the direction of, or in association with a criminal organization, that is, the production of a substance included in

Schedule II of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out in

section 467.12 of the Criminal Code . Benoît Gagnon and Werner Kyling: guilty Anne-Lise Kyling: acquitted The appellants Benoît Gagnon, Werner Kyling, and Anne-Lise Kyling (Dany O'Shea is also charged with the same offences) 9. On or around May 29, 2005, in Saint-Armand, District of Bedford, and in St. Catharines, Ontario, did traffic in a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in sections 5(1) and 5(3)(

a) of the Controlled Drugs and Substances Act . guilty 10. On or around May 29, 2005, in Saint-Armand, District of Bedford, and in St. Catharines, Ontario, did commit an indictable offence under the Criminal Code or any other Act of Parliament, or the benefit of, at the direction of, or in association with a criminal organization, that is the traffic in a substance included in

Schedule II of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out in

section 467.12 of the Criminal Code . nolle prosequi (01/11/2010) The appellants Benoît Gagnon and Werner Kyling (Gilles Couture is also charged with the same offences) 11. On or around September 11, 2004, in Saint-Armand, District of Bedford, did traffic in a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in sections 5(1) and 5(3)(

a) of the Controlled Drugs and Substances Act . acquitted 12. On or around September 11, 2004, in Saint-Armand, District of Bedford, did commit an indictable offence under the Criminal Code or any other Act of Parliament, or the benefit of, at the direction of, or in association with a criminal organization, that is, the traffic of a substance included in

Schedule II of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out in

section 467.12 of the Criminal Code . nolle prosequi (01/11/2010) The appellant Werner Kyling (Brian Bordo, Martin Castilloux, Gilles Couture, Bessie Larose-Bordo, Michael Robinson, and Ruth Robinson are also charged with the same offences) 13. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, did produce a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in sections 7(1) and 7(2) (

b) of the Controlled Drugs and Substances Act . acquitted 14. On or around October 14, 2004, in Saint-Armand, District of Bedford, did have in their possession, for the purpose of trafficking, a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offences set out in sections 5(2) and 5(3)(

a) of the Controlled Drugs and Substances Act . acquitted

The appellant Werner Kyling (Brian Bordo, Martin Castilloux, Gilles Couture, and Michael Robinson are also charged with the same offence) 15. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, did commit an indictable offence under the Criminal Code or any other Act of Parliament, or the benefit of, at the direction of, or in association with a criminal organization, that is, the production of a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in

section 467.12 of the Criminal Code acquitted The appellant Werner Kyling (Amanda Bordo, Brian Bordo, Martin Castilloux, Gilles Couture, Claude Duchesneau, Joël Duchesneau, Luc Duchesneau, Philippe Duchesneau, and Anita Scott are also charged with the same offences) 16. Between June 2, 2004, and June 6, 2005, in Saint-Armand, District of Bedford, did produce a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in sections 7(1) and 7(2) (

b) of the Controlled Drugs and Substances Act . nolle prosequi (01/11/2010) 17. On or around October 16, 2004, in Frelighsburg, District of Bedford, did have in their possession, for the purpose of trafficking, a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offences set out in sections 5(2) and 5(3)(

a) of the Controlled Drugs and Substances Act . Acquitted The appellant Werner Kyling (Brian Bordo, Martin Castilloux, Gilles Couture, and Joël Duchesneau are also charged with the same offence) 18. Between June 2, 2004, and June 8, 2005, in Saint-Armand, District of Bedford, did commit an indictable offence under the Criminal Code or any other Act of Parliament, or the benefit of, at the direction of, or in association with a criminal organization, that is, the production of a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in

section 467.12 of the Criminal Code nolle prosequi (01/11/2010) The appellant Werner Kyling (Michel Bellefroid is also charged with the same offence) 19. Between June 2, 2004, and June 6, 2005, in Saint-Armand, District of Bedford, did produce a substance included in

Schedule II of the Controlled Drugs and Substances Act , that is, cannabis, thereby committing the indictable offence set out in sections 7(1) and 7(2) (

b) of the Controlled Drugs and Substances Act . nolle prosequi (01/11/2010) The verdicts [ 11 ] The grounds of appeal from the verdicts are numerous. Some are common to the three appellants and concern irregularities surrounding jury selection, various infringements of language rights, and the right to a fair trial. Others are specific to Gagnon and W. Kyling and refer to errors in the judge’s instructions to the jury. Others still are specific to W. Kyling alone and concern primarily his request for a separate trial in English only. (

i) The grounds common to the three appellants • the jury was unlawfully empanelled because: (1) in the case of a bilingual trial, it had to be composed of twelve bilingual jurors, not six French-speaking jurors and six English-speaking jurors (conflict between the Criminal Code and the Jurors Act ); (2) the prospective jurors should have been drawn from one box, not from two boxes as the trial judge did; and (3) the judge did not adequately verify the language skills of the prospective jurors; • the trial judge did not ensure that their language rights were respected during the trial in that: (1) he ordered the simultaneous

interpretation of the debates rather than their consecutive

interpretation; and (2) he did not ensure that the full recording of the simultaneous

interpretation was available; • their right to a fair trial was infringed in that the judge: (1) unduly limited the cross-examination of the police officers; and (2) informed the jurors that some of the accused in the same case had already been convicted. (ii) The grounds specific to Gagnon and W.

Kyling • the trial judge gave the jurors instructions that were incorrect in law concerning: (1) the acts and statements of co-conspirators as an exception to the hearsay rule; (2) count No. 5, by telling them that this count could cover two separate conspiracies; (3) the notion of “criminal organization”; and finally (4) count No. 8, by telling them that hearsay evidence could be used for the purpose of deciding. (iii) The grounds specific to W. Kyling

• the judge erred in refusing to ensure that his trial was held in English; • he erred in dismissing his application for a separate trial; and • he also erred in stating before the jury that he had noted 57 errors in his oral arguments. The sentences [ 12 ] The sentences in the files of Gagnon and W.

Kyling were rendered on June 20, 2011. [ 13 ] The judge sentenced Gagnon to an overall prison sentence of four years (less two months to account for his presentence detention), that is, two years for conspiracy to traffic in cannabis, two years (concurrent) for conspiracy to produce cannabis, production of cannabis, and traffic of cannabis, and two years (consecutive) for having acted for the benefit of a criminal organization with the obligation to serve at least half of this two-year sentence. [ 14 ] He sentenced W.

Kyling to an overall prison sentence of eight years (less two months to account for his presentence detention), that is, five years for conspiracy to traffic in cannabis, four years (concurrent) for conspiracy to produce cannabis and for production of cannabis, three years (concurrent) for trafficking in cannabis, and three years (consecutive) for having acted for the benefit of a criminal organization with the obligation to serve at least half of this three-year sentence. [ 15 ] They raise the following grounds of appeal: • the judge gave undue weight to the dangers of cannabis; • he erred in characterizing the “criminal organization” as [ translation ] “very sophisticated”; • he erred in attributing a leadership role to Werner Kyling; • he failed to consider several mitigating circumstances; • he failed to observe the principle of parity in sentencing; and • the sentences are unreasonably harsh.

The order of forfeiture [ 16 ] This aspect of the appeal concerns only W. Kyling. [ 17 ] The Director of Criminal and Penal Prosecutions (“DCPP”) sought five forfeiture orders from the Superior Court for the property of W. Kyling, Martin Castilloux, and Brian Bordo. The first application, filed on April 20, 2011, pursuant to

section 462.37 and subsection 490(9) Cr. C. , concerned the forfeiture of property characterized as “proceeds of crime”, that is, sums of money. The four others were filed on the same day under

section 16 et seq . of the CDSA in relation to property characterized as “offence-related property”, that is, road vehicles, a helicopter and the trailer used to move it, as well as buildings. [ 18 ] The impugned order of forfeiture was made on September 28, 2011. [ 19 ] In W. Kyling’s case, the forfeited property includes cash (CAN$245,000 and US$11,720), a helicopter and its trailer, and a building located at 637 Dutch Street in Saint-Armand. His appeal concerns all of this property, except the helicopter. [ 20 ] With respect to the cash , W.

Kyling argues: • there is no evidence that this money came from the commission of the offences for which he was convicted; • there is no evidence that the money came from the commission of a criminal offence; and finally, • the judge erred by imposing on him the burden of proving that the forfeited money came from legitimate sources. [ 21 ] As for the trailer , he argues that there is no evidence that it was used in any manner whatsoever for the commission of an offence or that it corresponded in any manner to the definition of “offence-related property”. [ 22 ] Concerning the building , he submits that it is a family residence and that the judge did not analyze the disproportionate nature of the forfeiture and did not consider subsections 19.1(3) and

(4) CDSA . ANALYSIS (

I) The verdicts [ 23 ] Although the answers provided to the grounds of appeal shared by all the appellants concerning various infringements of their language rights are sufficient to decide the appeal from the verdicts, it is worth addressing these grounds and some of the other issues raised by one or all the appellants in the following order:

1. the decision to order a bilingual trial (W. Kyling); 2. the alleged errors surrounding the empanelling of the jury (all the appellants); and 3. the jury’s language skills (all the appellants). [ 24 ] The Court will also briefly answer the appellants’ arguments concerning the absence of part of the recording of the

interpretation of the hearings from the trial record. 1.

The decision to order a bilingual trial [ 25 ] The appellants are part of a group of several dozen people who were suspected at the time of being involved in the large-scale production and traffic of cannabis in the areas of Saint-Armand and Frelighsburg, two neighbouring municipalities. [ 26 ] The prosecution’s evidence was essentially made up of the following elements: – the wiretapping of close to 260 conversations involving the appellants; – the projection of videos and the testimony of the investigators who surreptitiously observed several locations where the appellants were, thereby capturing images of many of their activities between March 30, 2004, and June 8, 2005; and – the results of searches conducted at the appellants’ homes and other locations. [ 27 ] It should be noted that on April 25, 2008, counsel for W.

Kyling had to cease representing him, as the judge disqualified him from acting in this case. [11] [ 28 ] W. Kyling submits that on October 29, 2008, he asked that his trial be held in English only (subsection 530(1) Cr. C. ). That request was reiterated on May 6, 2009, during a preliminary hearing held before the start of the trial scheduled for November 2, 2010. The judge dismissed his application. [ 29 ] On April 7, 2009, the prosecution asked the judge to order W. Kyling to stand trial along with 18 co-accused before a judge and jury who speak both official languages of Canada (a bilingual trial ).

That application was granted on July 9, 2009. [12] Invoking subsections 530(1) and (6) Cr. C. , as well as

section 530.1 Cr.

C. , the judge gave the following reasons for his decision: [ translation ] [32] From all of this, the Court accepts that notwithstanding for the moment the other grounds invoked by some of the accused to obtain a separate trial, this file has all the characteristics required for a bilingual trial: - 12 French-speaking accused and 7 English-speaking accused; - At least 40% of the conversations intercepted were in each language; - Alleged conspiracies and criminal organization; - The presence of a strong English-speaking community in the District of Bedford; and - Bilingual counsel and judge. [References omitted.] [ 30 ] W.

Kyling submits that the judge made an overriding error by basing his decision on the practical advantages of a bilingual trial and on its fairness. He adds that such an order could only be made with his consent. This ground of appeal must fail. Here is why. [ 31 ] For ease of reference, it is worth reproducing the provisions of the Criminal Code relevant to the analysis of these issues: [13]

(1) On application by an accused whose language is one of the official languages of Canada, made not later than: (

a) the time of the appearance of the accused at which his trial date is set, if (

i) he is accused of an offence mentioned in

section 553 or punishable on

summary conviction, or (ii) the accused is to be tried on an indictment preferred under

section 577, (

b) the time of the accused’s election, if the accused elects under

section 536 to be tried by a provincial court judge or under

section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or (

c) the time when the accused is ordered to stand trial, if the accused: (

i) is charged with an offence listed in

section 469, (ii) has elected to be tried by a court composed of a judge or a judge and jury, or (iii) is deemed to have elected to be tried by a court composed of a judge and jury, a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada. …

(6) T he facts that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada. … 530

(1) Sur demande d’un accusé dont la langue est l’une des langues officielles du Canada, faite au plus tard :

a) au moment où la date du procès est fixée : (

i) s’il est accusé d’une infraction mentionnée à l'article 533 ou punissable sur déclaration de culpabilité par procédure

sommaire, (ii) si l’accusé doit être jugé sur un acte d’accusation présenté en vertu de l'article 577;

b) au moment de son choix, s’il choisit de subir son procès devant un juge de la cour provinciale en vertu de l'article 536 ou d’être jugé par un juge sans jury et sans enquête préliminaire en vertu de l'article 536.1;

c) au moment où il est renvoyé pour subir son procès : (

i) s’il est accusé d’une infraction mentionnée à l'article 469, (ii) s’il a choisi d’être jugé par un tribunal composé d’un juge seul ou d’un juge et d’un jury, (iii) s’il est réputé avoir choisi d’être jugé par un tribunal composé d’un juge et d’un jury, un juge de paix, un juge de la cour provinciale ou un juge de la Cour de justice du Nunavut ordonne que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury, selon le cas, qui parle la langue officielle du Canada qui est celle de l’accusé ou, si les circonstances le justifient, qui parle les deux langues officielles du Canada. …

(6) Peut constituer une circonstance justifiant une ordonnance portant qu’un accusé subira son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles du Canada le fait que des coaccusés qui doivent être jugés conjointement ont chacun le droit d’avoir un procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent une des langues officielles du Canada, mais que cette langue n’est pas la même pour tous les coaccusés. …

530.1 If an order is granted under

section 530: (

a) the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused; (

b) the accused and his counsel may use either official language in written pleadings or other documents used in any proceedings relating to the preliminary inquiry or trial of the accused; (

c) any witness may give evidence in either official language during the preliminary inquiry or trial; ( c.1 ) the presiding justice or judge may, if the circumstances warrant, authorize the prosecutor to examine or cross-examine a witness in the official language of the witness even though it is not that of the accused or that in which the accused can best give testimony; (

d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be; (

e) the accused has a right to have a prosecutor — other than a private prosecutor — who speaks the official language of the accused or both official languages, as the case may be; (

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

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

i) a transcript of everything that was said during those proceedings in the official language in which it was said, (ii) a transcript of any

interpretation into the other official language of what was said, and (iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered; and (

h) any trial judgment, including any reasons given therefor, issued in writing in either official language, shall be made available by the court in the official language that is the language of the accused. 530.1 Si une ordonnance est rendue en vertu de l'article 530 :

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

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

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

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

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

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

g) 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;

h) le tribunal assure la disponibilité, dans la langue officielle qui est celle de l’accusé, du jugement — exposé des motifs compris — rendu par écrit dans l’une ou l’autre langue officielle.

530.2

(1) If an order is granted directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages, the justice or judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language.

(2) Any order granted under this

section shall, to the extent possible, respect the right of the accused to be tried in his or her official language. 530.2

(1) En cas d’ordonnance exigeant que l’accusé subisse son procès devant un juge de paix, un juge de la cour provinciale, un juge seul ou un juge et un jury qui parlent les deux langues officielles, le juge de paix qui préside l’enquête préliminaire ou le juge qui préside le procès peut, au début de l’instance, rendre une ordonnance prévoyant dans quelles circonstances et dans quelle mesure chacune des langues officielles sera utilisée par lui et par le poursuivant au cours de l’instance.

(2) L’ordonnance respecte, dans la mesure du possible, le droit de l’accusé de subir son procès dans la langue officielle qui est la sienne. [ 32 ] Even though his co-accused did not all speak the same language, it is undeniable that this situation could not limit W. Kyling’s absolute right to the respect of his fundamental language rights.

However, in the exercise of his discretion, the judge had the necessary latitude to decide that these rights could be respected otherwise than by a trial held in English only. [ 33 ] In Sarrazin , the Court of Appeal for Ontario identified the principles applicable to a bilingual trial. Blair J.A., on behalf of the Court, wrote: [52] Since sections 530 and 530.1 provide the statutory framework for the linguistic rights of an accused at trial, Parliament must have been directing its mind to something relating to the trial process.

What it intended to provide for, in my opinion – where circumstances warrant – is a trial process where the judge or judge and jury are bilingual (s. 530) and in which the working language of the trial is both French and English, depending upon who is speaking (s. 530.1(a)-(e)), with

interpretation and translation services available to be utilised where needed (s. 530.1(f)-(h)). [53] … (

a) A bilingual judge and jury permits witnesses to testify in the official language of their choice but to be understood without the filtering process of

interpretation ; (

b) documents and exhibits can be understood by the triers in the language in which they come before the court; (

c) the accused can retain counsel who speaks either English or French and who will have the right and ability to use either language for all purposes throughout the trial; (

d) should the accused decide to testify, he or she can do so in either official language, and “tell [the] story directly without the wall of

interpretation ” ( Le , para. 53); (

e) the presiding judge speaks both official languages, thus recognizing the right of the accused to have the presiding judge speak the language of his or her choice; (

f) the triers of fact are able to weigh the evidence as given by witnesses for both the Crown and the defence in the two official languages ; (

g) the need for translation of all exchanges between counsel and the judge – often lengthy throughout a trial, and frequently complex, rapid and difficult to decipher – is greatly diminished; (

h) importantly, addresses to the jury can be given by counsel for the accused in the language of choice; and, (

i) there may be situations where several accused, whose official language is not the same, must be tried jointly for reasons that can’t be avoided ( Gauvin , at para. 28). [14] [References omitted; emphasis added.] [ 34 ] The Court agrees with these statements. [ 35 ] In

summary, a bilingual trial is a trial that “to the extent possible, respect[s] the right of the accused to be tried in his or her official language”.

A trial of this nature must guarantee the accused and his or her counsel the possibility of communicating with the judge and the prosecution in the official language of his or her choice, both orally and in writing. [ 36 ] The accused must also be assured that the jurors responsible for determining the verdict adequately understand, without the filter of an interpreter, the precise meaning of the debates held in the courtroom, regardless of the official language used by the participants concerned. [ 37 ] If the “circumstances of the case” allow it and unless the judge’s discretion was exercised unreasonably on this issue, an accused who requests that his or her trial be held in English only cannot validly contest an order for a bilingual trial.

In both cases (trial in the

accused’s official language only or bilingual trial), the accused’s language rights are respected: 49 No argument was made concerning the discretion of the judge to order a trial before a judge and jury who speak both officiallanguages of Canada as opposed to a trial before a judge and jury who speak only the language of the accused. There is therefore noissue to be decided with regard to the type of order that should have been made in the present case. I would only say on this question thatthe basic right of the accused is met in both cases. Therefore, s. 530.1 applies in both cases.

Its provisions provide a useful backdropagainst which the trial judge can determine, in his discretion, whether the circumstances of the case warrant the appointment of a judge,or a judge and jury who speak both official languages of Canada.[15] [Emphasis added.] [38] The commentary endorses this statement of principle: It seems absurd to interpret

section 530 as not authorizing a bilingual joint proceeding where the co-accused wish to proceed in differentofficial languages.

Section 530 requires that courts dealing with criminal matters be institutionally bilingual. In our view, where a court istruly bilingual, neither the administration of justice nor the accused’s right to a fair trial will be jeopardized where a bilingual proceedingis conducted. This approach is also consistent with subsection 530(5) which authorizes a proceeding in both official languages.[16] [39] As for the conditions giving rise to an order for a bilingual trial, our colleague Côté J.S.C., as she then was, stated the followingin R. v. Perras:[17] [translation] 21 I think that the principles recognized by the case law to order a bilingual trial may be summarized as follows: 22 1-

Section 530 recognizes the accused’s right to stand trial in his or her language, that is, one of the official languages of Canadathat is the language of the accused or that represents for the accused the language that allows him or her to most easily testify without itnecessarily being the accused’s first language. (See R. c. Leblanc (8 May 1996), Longueuil No. 505-01-003303-944 (Sup.

Ct.),unreported judgment of the Honourable Herbert Marx J.) 23 2- Only when circumstances warrant will the trial be held before a judge and a jury that speak the two official languages of thecountry, and it is up to the State to establish that these circumstances exist. (See Edwards et al. c. Procureur Général, supra note 6 at31.) 24 3- In joint trials where the accused are part of a common enterprise, the rule that they must be tried jointly must prevail andconstitutes a circumstance for ordering a bilingual trial if the co-accused speak different official languages, see R. c.

Garcia, (QC CS), [1990] R.J.Q. 2312, a judgment of the Honourable Claire B. Joncas. As Béliveau J. stated in Edwards: [translation] But separate trials cannot be ordered for the sole purpose of granting each group of accused a trial in their language; the principle that theparties to a common enterprise must de tried jointly takes precedence. [References omitted; emphasis added.] [40] In

summary, the applicable principles in such cases require that the decision to order a bilingual trial be based on the trial judge’sdiscretion supported by the “circumstances of the case”. Contrary to what W. Kyling submits, the judge’s discretion in this regard is inno way dependant on the accused’s consent.[18] [41] Among the circumstances that may justify the use of both official languages, subsection 530(6) Cr. C. refers to the case of anaccused who is to be tried together with co-accused for a crime committed jointly where the accused’s first language is not the same asthat of the co-accused. That is W.

Kyling’s situation. [42] When he made his order, the judge considered W. Kyling’s participation in a common enterprise with several co-accused whospeak different official languages.[19] He was accompanied by six English-speaking accused and twelve French-speaking accused. Inaddition, the judge considered the wiretap evidence of 260 conversations held in each of the official languages in more or less equalproportion. Last, he considered the nature of the charges laid against W.

Kyling, including conspiracies with certain co-accused tocommit the alleged offences and the charge of having participated in a criminal organization with other co-accused. [43] W. Kyling is therefore wrong to question the recognized principle stating that all those who participate in a common criminalenterprise must, save exception, be prosecuted jointly.[20] In this case, the order for a bilingual trial resulted from the sound applicationof this principle, while respecting W.

Kyling’s language rights. [44] That said, even if the judge’s decision was based partly on administrative considerations,[21] that error is not overriding and hasno actual repercussions on the protections afforded to W. Kyling. [45] When rendering his decision, the judge also wrongly associated the respect of W.

Kyling’s language rights with the notion of a“fair trial”.[22] Although, at that stage of the proceedings, the fairness of the trial could not be considered a relevant factor to decide theappropriateness of an order for a bilingual trial, the judge directed himself properly in law by essentially applying the criteria specific tosuch a trial. Thus, that error is also not overriding. [46] Last, W. Kyling’s assertion that the judge reversed the burden of proof when making his order is unfounded.

His argument insupport of the contestation of the prosecution’s application was limited to asking for its dismissal on the basis of a supposed absoluteright to a trial in English only. The judge was right to reject that assertion.

[47] In light of the foregoing, W. Kyling has not demonstrated any error in the trial judge’s decision to order a bilingual trial. 2. The empanelling of the jury [48] The appellants submit that the judge erred by empanelling a mixed jury, that is, a jury composed of French-speaking andEnglish-speaking persons in equal proportions.[23] They are of the view that this manner of proceeding is not consistent with theprovisions of the Criminal Code. [49] The Supreme Court in R. v. Find described the process leading to the selection of a jury as follows: 19 The jury selection process falls into two stages.

The first is the “pre-trial” process, whereby a panel (or “array”) of prospectivejurors is organized and made available at court sittings as a pool from which trial juries are selected. The second stage is the “in-court”process, involving the selection of a trial jury from this previously prepared panel. Provincial and federal jurisdictions divide neatlybetween these two stages: the first stage is governed by provincial legislation, while the second stage falls within the exclusive domainof federal law (see C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at pp. 83-84; R. v.

Barrow, (SCC),[1987] 2 S.C.R. 694, at pp. 712-13).[24] [50]

Section 14 of the Quebec Jurors Act reads as follows:[25] 14. Juries are unilingual or mixed. A French unilingual jury is composedexclusively of French-speaking personsand an English unilingual jury, ofEnglish-speaking persons. A mixed jury is composed of French-speaking and English-speaking personsin equal proportions. 14. Un jury est unilingue ou mixte. Un jury unilingue français est forméexclusivement de francophones et un juryunilingue anglais d'anglophones.

Un jury mixte est formé pourmoitié de francophones et d'anglophones. [51] At trial, the appellants never formally raised the issue of the invalidity of this provision, nor was its constitutionality questionedon appeal. It is therefore presumed valid.[26] [52] That said, contrary to what the appellants assert, the application of

section 14 of the Jurors Act in this case does notfundamentally conflict with the objectives of sections 530 et seq. of the Criminal Code. Here is why. [53] The requirement of a jury composed of French-speaking and English-speaking persons in equal proportions adds little to thebilingual nature of the trial. It does ensure, however, an equal representation of the English-speaking and French-speakingcommunities[27] on the jury.

In this case, that reality was an additional asset for the appellants in that at least six jurors, in addition tobeing bilingual, were from their respective language community. [54] In Stuart c. R.,[28] our colleague Hilton J.A. wrote: [104] Section 626(1) Cr. C. provides that a person "summoned as a juror in accordance with, the laws of a province is qualified to serve as a juror in criminal proceedings in that province". In Quebec, the law governing the formation of juries is set out in the Jurors Act.22

Section 14 of the Jurors Act specifies that there are three types of juries: those that are French unilingual, composed exclusively ofFrench-speaking persons; those that are English unilingual, composed exclusively of English-speaking persons; and those that are mixed, composed of both French-speaking and English-speaking persons in equal numbers.23 Sections 17 to 20 of the Jurors Act then specifythe manner in which the arrays for each of the three types of jury is assembled and the jurors eventually chosen.

They differ dependingon the type of array to be formed, especially as it relates to what the Jurors Act refers to as a mixed jury, but what the Criminal Coderefers to as a bilingual jury. This jury was not assembled in the manner contemplated by the Jurors Act for the composition of the lattertype of jury. Rather, the jury was selected from an array of candidates who were presumptively English-speaking, but, as an additional criterion, understood French very well.24 … [108] As a result, I have no hesitation in rejecting this incident as a basis for appellate intervention.

The trial judge acted in anexemplary manner in the process he followed to select the members of the jury, given the acquiescence of all concerned to thenon-compliance with the process in the Jurors Act for the selection of a bilingual jury. It is difficult to imagine what more he could havedone in the circumstances, especially since the array was composed of persons who were meant to be considered for an English speakingjury. ______________________ 22 R.S.Q. c.

J-2. 23 Curiously, the French language text of the Jurors Act uses the words "Francophone" and "Anglophone", which are quite differentfrom being French speaking and English speaking.

24 The issue of the legality of proceeding in a manner other than the one provided for in the Jurors Act for the composition of a bilingual jury was not raised as an issue before the Court, which is not surprising in light of the request originating with the two defence counsel. According to the third paragraph of

section 14 of the Jurors Act , for example, a mixed jury, meaning a bilingual jury, is meant to be composed of English speaking and French speaking jurors in equal proportions. Such was not the case with the jury selected for the trial of Mr. Stuart and Mr. D’Alessandro. [ 55 ] In Dow , [29] he added: [42] As we have seen, the count in the indictment that is set out in paragraph [1] was drafted in English. The record is also clear from comments the trial judge made during the jury selection process that Mr. Dow had elected to be tried before a jury composed exclusively of English-speaking persons, as contemplated by the second paragraph of

section 14 of the Jurors Act . 17 That fact is reflected in the array of jurors selected by the Sheriff pursuant to

section 25 of the Jurors Act , 18 as appears from the list of candidate jurors in the Superior Court file, which I have examined. It is equally clear from the transcript of the pre-trial conference that took place on April 5, 2006 (about five weeks before the commencement of the trial) that Mr. Dow’s counsel reminded the trial judge of the necessity of having an interpreter present. ______________________ 17

Section 14 of the Jurors Act contemplates three distinct types of juries, French speaking, English speaking and mixed. A mixed jury consists of six French speaking and six English speaking jurors. In the latter case, all of the jurors must be bilingual if they are to act as jurors at a bilingual trial, that is, one where there would be no translation provided of the proceedings or the exhibits. 18

Section 25 of the Jurors Act provides as follow: The sheriff shall summon the jurors not less than thirty days before the day their attendance is required in court or within such other number of days as may be ordered by the judge, provided it is not less than eight. [ 56 ] The preliminary step leading to the empanelling of a mixed jury does not neutralize the requirements of a bilingual trial within the meaning contemplated by the Criminal Code . Even though the empanelling of the jury was inspired by

section 14 of the Jurors Act (mixed jury), the fact remains that the jurors were also required to speak both of Canada’s official languages pursuant to the Criminal Code . [ 57 ] In short, the judge’s decision to choose the prospective jurors by alternating the drawing of names from two separate boxes [30] was an uncommon selection technique in relation to the usual practice, but it did not result in the appellants’ language rights being infringed. [ 58 ] This ground of appeal must therefore fail. 3.

The language skills of the jury [ 59 ] While the judge did not err by ordering a bilingual trial, he nevertheless had to ensure that such trial had the essential attributes of that characterization. The appellants question the language skills of the jurors who heard their trial. They are of the view that some of them did not have adequate knowledge of the country’s two official languages. Let us now consider this. (

i) The standard applicable to the language skills of the jury [ 60 ] Beaulac [31] insists on the importance of ensuring the absolute right of accused to enjoy equal access to the courts in the official language they declare to be their own. Judges, jurors, and representatives of the Crown are therefore bound to be institutionally bilingual if the nature of the trial in which they are acting requires it. [ 61 ] It is difficult to precisely establish the degree of bilingualism required by law when characterizing a juror as bilingual.

However, that should not stop us from agreeing on a standard below which a prospective juror should not be chosen to sit on a bilingual jury. [ 62 ] While the notion of a fair trial does not come into play in determining the relevance of a bilingual trial, the same cannot be said where the accused does not have the assurance that what unfolds at the hearing is properly understood by the trier of fact. Proof beyond a reasonable doubt requires that this level of conviction be reached only if the decision-maker is able to properly understand all aspects of the demonstration made before him or her.

Trial fairness cannot tolerate that the disjointed hearing of evidence made partially inaccessible due to the language used by a participant could lead to a guilty verdict. [ 63 ] A bilingual juror, without the assistance of

interpretation, can easily assess the probative value of the evidence, while remaining sensitive to the subtleties surrounding its presentation, regardless of the official language used. This level of understanding allows him or her to grasp the true meaning of the judge’s instructions to the jury, which are often technical.

Also, when the time comes, the bilingual juror will be able to participate effectively in jury deliberations in both official languages, without being overpowered by the others’ ease of communicating their own opinions on the evidence heard. [ 64 ] Based almost word for word on the respondent’s brief, the essential skills of a bilingual juror may be summarized as follows: - The bilingual juror can easily follow the evidence, whether it is presented in French or English. - The bilingual juror can follow the language used by counsel in their questions and objections and easily understand the answers of

witnesses and the decisions of the Court. - The bilingual juror can deliberate in both languages, express himself or herself in his or her language and easily understand thelanguage used by the other members of the jury. - The bilingual juror’s adequate understanding of the evidence, the judge’s instructions, and the jurors’ deliberations allow him or herto participate effectively in the verdict. [65] It is important to note that the very nature of a bilingual trial implies that the judge and jury hear everything in the witness’schosen language, if it is English or French, or that of the accused (English or French), if the accused chooses to testify.

In R. v. Le, theOntario Superior Court of Justice emphasized the importance for the accused to be heard and understood in the official language of his orher choice “without the wall of

interpretation”:[32] 41 The language used at trial has a strong impact on credibility. The language of the drug trade is filled with nuances.

A bilingualtrial would enable the witnesses to give their testimony in either official language. 42 There would be no barrier between the evidence given and those hearing it, since the judge and jury would be bilingual. … 52 A bilingual judge and jury permits witnesses to testify in the official language of their choice and for documents to be tendered inthe official language in which they were created. 53 It recognizes the right of the accused to be heard and understood in the official language of her choice. The accused, should shetestify, will not be removed from the jury.

She can tell her story directly without the wall of

interpretation a factor mentioned in R. v.GARCIA (QC CS), 58 C.C.C. (3d) 43. 54 Ms.

Le can retain counsel and her counsel will have the right and ability to use either official language for all purposes during thetrial. 55 The presiding judge will speak both official languages thus recognizing the right of the accused to have the presiding judge speakthe language of her choice, French. 56 It enables the triers of fact to hear and weigh the evidence as given by witnesses for both the Crown and the defence in the twoofficial languages. 57 It recognizes the complexity of this particular case and the technical nature of much of the evidence as well as the nuances of thelanguage involved in the drug culture. [Emphasis added.] [66] During arguments on appeal, counsel tried to establish a distinction between understanding a language and speaking it(subsection 530(1) Cr.

C.). That subtlety is merely theoretical. In fact, it is reasonable to believe that a person who speaks a languageadequately has an equivalent level of understanding in that same language. [67] In any event, the requirement of speaking both official languages set out in subsection 530(1) Cr.

C. is readily understandable inthat it constitutes an excellent tool that allows the trial judge to better assess the language skills of a prospective juror through informaldiscussions with that person, before he or she is chosen as a bilingual juror. [68] In Stuart, the trial judge engaged in a sustained conversation with each of the prospective jurors to verify their level ofunderstanding of both official languages.

Hilton J.A., when called upon to comment on this manner of proceeding, stated the following: [100] When the jury selection process began in the presence of the accused, the judge took pains to inquire of each juror whether theywould be able to function adequately in both languages, even though their understanding of their second language need not be perfect. Hegranted exemptions when he was not satisfied that their understanding of French or English would be satisfactory. In one instance herejected the candidacy of a juror who said she was 75% – 80% fluently bilingual.

In another case he told a jury candidate that his Frenchhad to be better than merely getting by, and when that candidate assured him that it was, he was accepted as a juror. [101] It was apparent that in any case of doubt as to the level of bilingualism of a candidate juror, the trial judge excused that personfrom service. He also took at face value any candidate’s statement that their French or English, as the case may be, was not up to thetask.

In short, the trial judge was appropriately generous in the circumstances of an array composed of presumptively English speakingpersons by granting exemptions for lack of sufficient bilingualism. By the time the process had been completed, no one could havecomplained about the thoroughness the trial judge displayed in ensuring that to the extent possible, the jurors were capable ofcompetently fulfilling their role from a linguistic perspective.

Indeed, both defence counsel and the Crown counsel all indicated theiracceptance of the necessary degree of bilingualism of each candidate that was eventually sworn as a juror. [102] All of the candidates chosen were administered the appropriate oath, in English, to act as jurors pursuant to section 631(4) Cr. C.Once the selection process was completed, the jury was composed of six men and six women. Most of the jurors’ names would suggestthey were Anglophones, one had a name that suggested she might be a Francophone, and a minority had names that suggested they wereAllophones.

My reading of the transcript of the jury selection process, however, leads me to conclude that none of those selectedindicated the slightest difficulty in understanding the English language.[33] [Emphasis added.] [69] In light of the foregoing, the issue is therefore whether the jurors’ language skills in both official languages were adequate.

(ii) The standard established by the trial judge [ 70 ] When selecting the jurors, the judge told them the following: [ translation] By this, I mean that it is not necessary for you to speak French and English. The issue is whether you understand both languages sufficiently to understand what is being said in the other language during in camera deliberations and to reply … [ end of translation] This trial will be held in both languages. We have simultaneous

interpretation and you will not be asked to speak both languages. However, during your deliberations, which will take place in the jury room, there won't be any

interpretation at all and therefore, you must be able to understand what is being said in French and react, whether you agree or not. So, you don't have to be perfectly bilingual, but to understand sufficiently both languages. [ 71 ] This instruction was essentially repeated to each prospective juror. The judge also told them that they did not have to speak the other official language, but that they did have to understand it sufficiently. He expressed this idea as follows: [ translation ] Are you able to follow a debate in English? You will never be asked to speak English.

And if someone says in English, I think A is guilty and B is innocent, are you able to understand and to respond in French? To say, no, it’s the opposite. I think that he is innocent, and the other one is guilty. That’s all you will be … that’s all we ask of you. You don’t have to be perfectly bilingual. The issue is whether your English is functional and operational. [ 72 ] The following conversation with a prospective juror elucidates the true scope of the instruction: examination by the court: Q. The reason you're asking for an exemption? A. I'm not fully bilingual. Q.

But reasonable good enough to participate in the debates? You're the only one who can answer this. A. Yes, I suppose. Q. Well, okay. We'll try to see a little bit more. As I said, myself, I'm not flawlessly bilingual, but the question is if there is a debate, six French, speaking French, six English will speak English, they debate, pro and con and so on, I think guilty, not guilty, innocent, the police officer, the witness so and so, will you be able to understand and speak English, okay? You won't speak French. I'll start with this. So, you're the one who can answer. A. Well, I could try.

I know because this is serious, because you… Q. Yes, it is. That's right. That's the reason why I'm asking you. A. … because it's… Q. But I imagine you've been in situations where you had to understand what was said in French. I don't know if you… A. Yes, I'm married to a French man. Q. So, when he tells you one thing, do you understand what he says? A. Oh yes! [ translation] I understand just fine. [ end of translation ] Q. Now, it's garbage night. You understand this? A. Yes. Q. And you tell him do it? A. [ translation] Yes. [ end of translation ] Q.

So, I think you seem to be good enough , but you're the one… at the end of the day, you're the one… I'll be able to do it, I know it, but you're the one who has to say if you're good enough. [Emphasis added.] [ 73 ] With respect, the judge first made an overriding error by conducting an overly cursory investigation of the language skills of certain prospective jurors and by giving them the task of assessing their own skill level in this regard. At that stage of the process, this issue was at the judge’s sole discretion.

The order for a bilingual trial required the implementation of a rigorous verification process that guaranteed the appellants that jurors qualified to act in such a trial would be selected. [ 74 ] Next, the judge made an overriding error by requiring the prospective jurors to have only a rudimentary knowledge of both official languages. The level of bilingualism needed in a bilingual trial required more than what the following example given by the

judge suggested: [ translation ] “I think that he is innocent, and the other one is guilty. That’s all you will be … that’s all we ask of you”. [ 75 ] This level of understanding was clearly below the acceptable threshold to characterize a juror as bilingual.

The bilingual juror must have skills in both official languages that allow him or her to “recogniz[e] the complexity of this particular case and the technical nature of much of the evidence as well as the nuances of the language”. [34] [ 76 ] Effective jury deliberations require the active participation of all its members without language being an obstacle depriving any of them from discussing the opinion of others.

This also supposes the use of vocabulary that is more sophisticated than merely saying [ translation ] “he is innocent” or [ translation ] “he is guilty”. [ 77 ] Also, the judge could not limit the importance of understanding both official languages to the sole purpose of jury deliberations.

It was imperative for him to ensure that the jurors were able to adequately understand the evidence that would be presented before them and that they could grasp his instructions, regardless of the official language used. [ 78 ] Last, it was not open to the judge to reassure prospective jurors by saying, “[w]e have simultaneous

interpretation and you will not be asked to speak both languages”. In so doing, he led those who may have had doubts about their ability to speak both official languages to believe that this weakness would in any event be compensated by

interpretation. (iii) Doubts about the jury’s language skills [ 79 ] The consequences of establishing an inappropriate standard for the jurors’ language skills materialized concretely during the trial, in four separate incidents. [ 80 ] During the first days of the trial, two presumably French-speaking jurors asked the judge for headphones to take advantage of the English to French

interpretation service, like the accused. This request is not surprising in some respects as these jurors had previously been informed by the judge that “[w]e have simultaneous

interpretation and you will not be asked to speak both languages”. [ 81 ] The judge authorized them to use the headphones but reminded them that [ translation ] “the evidence is what you hear in the original language”. This statement was made immediately before the prosecution’s second witness was sworn in. [ 82 ] From the moment a juror relied on the

interpretation, it became difficult, if not impossible for that juror to simultaneously listen to the evidence in the language it was given.

That decision thus contravened the bilingual juror’s duty to listen to the evidence as it unfolds without the assistance of an intermediary. [ 83 ] Even assuming that the headphones were not used constantly by certain jurors, the fact remains that it is impossible to know exactly how many jurors chose to listen to the evidence through the interpreter and the extent of the evidence listened to that way. [ 84 ] The appellants’ language rights required that all the jurors devote their full attention to listening to the live evidence, for the purpose of properly understanding its content and assessing the nuances.

A reading of the file reveals that this was not the case. [ 85 ] The second incident occurred in the moments preceding the beginning of the judge’s instructions to the jury. The jury sent the following note to the judge: [35] [ translation ] Your Honour, after having discussed it and reached an agreement, we would like you to provide your instructions in French only. Thank you for your understanding. The members of the jury. [ 86 ] After the judge refused this request, a third incident occurred. A juror asked to speak to the judge to explain the reasons for this request.

He said to him: [ translation ] I think that the instructions mainly concern us, and perfectly bilingual, that’s pretty broad, but some of us … we understand English.

But to say that we understand it perfectly, we certainly do not want to miss any term to be sure of what you tell us. … … our English-speaking members understand French very well, as opposed to some of us who are not a hundred percent but … [ 87 ] Last, on August 5, 2010, at the end of the second day during the judge’s instructions to the jury, the parties noted that jurors No. 1 and No. 8 were using headphones at certain moments during the instructions in English and that juror No. 10 was also using headphones occasionally during the instructions in French. [ 88 ] The reality is brutal.

A juror speaking on his own behalf and on behalf of some of his colleagues said he was worried that they might [ translation ] “miss” certain terms that might be used by the judge during his instructions, while maintaining that the [ translation ] “English-speaking [jurors] understand French very well”, which was not the case for certain French-speaking jurors in regard to English. The judge had ordered a bilingual trial.

The various manifestations referred to above raise serious doubts about whether that order was effectively carried out. [ 89 ] The requirement that the pleadings, the evidence, and the judge’s instructions to the jury must be followed in the original language of the trial is absolute, and no exception is tolerated. As soon as one of the two official languages is no longer possible due to the lack of understanding of one of them by the judge or the jury, the accused’s right to stand trial before an institutionally bilingual court of justice is infringed.

When analyzed in light of the incidents described above, the infringement is obvious.

In

summary [ 90 ] The objective of

section 530 Cr. C. is to ensure the absolute right of an accused to be tried in his or her official language. In this case, the order for a bilingual trial made on July 9, 2009, [36] met this imperative. [ 91 ] However, the file reveals that a serious doubt remains regarding the language skills of certain members of the jury, such that the appellants were not assured of being tried by a bilingual jury. [ 92 ] In the circumstances, the Court is of the view that the rights conferred on the appellants by subsection 530(1) Cr.

C. were infringed and that this infringement results in a risk of serious prejudice [37] that cannot be considered a mere procedural irregularity. Given the nature of the infringement at issue, the only effective remedy is to order a new trial. 4) The absence of a transcription of the

interpretation [ 93 ] On September 2, 2009, the judge dismissed an application for a mistrial brought by 13 accused, including the appellant W. Kyling. [38] The ground invoked in support of this application was based on the assertion that the trial record did not contain the entire transcription of the

interpretation of the hearings held between December 4, 2008, and April 16, 2009. [ 94 ] In his judgment, the judge stated that he had ordered that the simultaneous

interpretation be recorded and made available to the accused on compact disk. [39] That said, he acknowledged that the order was applied only as of April 16, 2009. [ 95 ] However, he refused to order a mistrial as the appellants suffered no prejudice from this breach, and there was no real danger of a miscarriage of justice in this case. [ 96 ] The judge did not err in refusing to stay the proceedings on this ground.

The record reveals that no witness was heard before April 16, such that there was no evidence to transcribe. [ 97 ] It should also be noted that before April 16, 2009, the Court’s time was mainly, if not exclusively, devoted to debating Rowbotham [40] applications and an application for recusation presented against the trial judge. The appellants cannot validly claim to have suffered prejudice from the absence of transcription of the

interpretation of the arguments heard on these applications because at that time, all the accused were represented by counsel, who chose to proceed in their official language. [ 98 ] Moreover, none of the appellants raise a ground of appeal related to the interlocutory decisions rendered by the judge concerning those applications, such that the absence of transcription can only amount to an inconsequential error that is not likely to result in a real danger of prejudice. [41] At most, it is a breach covered by the application of paragraph 686(1)(

b) Cr. C. This ground of appeal must be dismissed. [ 99 ] For the purpose of the appeal from the verdicts, it is not necessary to rule on the other issues raised by the appellants. In view of the foregoing, the appeal from the sentences has become moot. The Court must now rule on the order of forfeiture. (II) The order of forfeiture [ 100 ] Quashing the guilty verdicts against W.

Kyling of course entails quashing the forfeiture orders regarding the “offence-related property”, but the same is not necessarily true for the property forfeited as “proceeds of crime”, in this case, the amounts of CAN$245,000 and US$11,720. Indeed, with respect to this property, the Crown’s application was based not only on

section 462.37 Cr. C. , but also on subsection 490(9) Cr. C. [ 101 ] The Crown argues that at this stage of the analysis, it is no longer the trial of the individuals that is at issue, but rather that of the amounts of money seized. There could therefore be forfeiture even if the Court orders a new trial, as in this case. [ 102 ] Let us consider this. [ 103 ]

Section 462.37 Cr. C. provides that the Court must order the forfeiture of property is it is satisfied on a balance of probabilities, (1) that it is “proceeds of crime” and (2) that it was obtained through the commission of the designated offence that the accused was convicted of (or discharged).

If it is not established that the property was derived from the offence the accused was convicted of, the Court may nevertheless order its forfeiture if it is convinced beyond a reasonable doubt that it is indeed “proceeds of crime”. [ 104 ] The order of forfeiture must be rendered when the Court sentences an accused convicted of a designated offence. Therefore, under this section, there can be no forfeiture of property where the guilty verdict is quashed. [42] [ 105 ] There remains

section 490 Cr. C. , which provides a framework for the detention, return and, sometimes, where circumstances permit, the forfeiture of property seized under a warrant issued pursuant to the Criminal Code . [ 106 ] In Forseth , [43] the Court of Appeal for British Columbia recalled that it is not necessary for the accused to have been convicted (or discharged) for an order of forfeiture to be rendered under subsection 490(9) Cr. C. [ 107 ] In Desjardins , [44] this Court explained that it is [ translation ] “incorrect to think that the powers set out in section 490(9) Cr.

C. exist only at the time of sentencing” and found that the order of forfeiture could be made at the time of the accused’s appearance. [ 108 ] In Spindloe , [45] the Court of Appeal for Saskatchewan, per Jackson J.A., wrote that

section 490 Cr. C. “does not address disposal of exhibits, but rather regulates returns of things seized prior to proceedings instituted, and empowers the courts, in exceptional cases, to order forfeiture without proceedings having been instituted” (para. 120).

[ 109 ] In EchoStar Corporation, [46] adopting the reasoning of Jackson J.A., Vauclair J.C.Q. expressed the opinion that [ translation] “ the regime created by

section 490 Cr. C. is no longer applicable once proceedings are instituted and particularly if these proceedings are concluded” . [ 110 ] As we can see, the scope of application of this

section is quite limited. [ 111 ] In this case, the Crown is asking the Court to confirm an order of forfeiture made after the guilty verdicts in a context where the Court has concluded that a new trial should be ordered. This is a sensitive matter – too sensitive for the Court to proceed in the manner proposed by the Crown. [ 112 ] Indeed, even though the order of forfeiture is based on

section 462.37 Cr. C. and subsection 490(9) Cr. C. , the fact remains that when the judge made his decision, the appellant W. Kyling was convicted of various offences. His reasoning is thus based on

section 462.37 Cr. C. , not subsection 490(9) Cr. C. In this scenario, it would be imprudent to conclude today that the judge’s reasoning under

section 462.37 Cr. C. would have been the same under subsection 490(9) Cr. C. The Court is therefore of the view that it is preferable to quash the order of forfeiture made with respect to the amounts of money seized at 637 Dutch Road and to let the trial court decide the issue, if necessary.

For these reasons, THE COURT: [ 113 ] ALLOWS the appeal from the verdicts ; [ 114 ] QUASHES the convictions against the appellants in file 450-01-065500-105; [ 115 ] OrdERS a new trial on all counts for which the appellants were convicted in file 450-01-065500-105 before a judge and jury who speak both official languages of Canada; [ 116 ] DECLARES the appeal from the sentences to be moot; [ 117 ] allows the appeal from the orders of forfeiture made in file 455-01-008141-073 and QUASHES those orders. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. GUY GAGNON, J.A.

Mtre Louis Belleau LOUIS BELLEAU, AVOCAT Mtre Ronald Prégent SHADLEY BATTISTA For the appellants Mtre Robert Rouleau Mtre François Lanthier Mtre Marlène Archer Director of Criminal and Penal Prosecutions For the respondent Dates of hearing: December 11 and 12, 2012