R. v. Maurice Doiron, 2011 NBPC 36

R. v. Maurice Doiron – 2011-NBPC36 PROVINCE OF NEW BRUNSWICK File: 04272011 PROVINCIAL COURT HER MAJESTY THE QUEEN - v - MAURICE DOIRON Decision of the Honourable Judge Ronald LeBlanc of the Provincial Court, Bathurst, New Brunswick, December 12 th , 2011. Counsel: P.J. Veniot, Q.C., for the Attorney-General of New Brunswick Wendell Maxwell, Q.C., for the accused RULING ON A MOTION FOR TRANSLATION OF DOCUMENTS 1 . Occasionally, courts are asked to rule upon what may appear at first blush to be a relatively minor matter but which, in effect, could have far reaching consequences.

In this matter the Regional Crown Prosecutor, representing the Attorney General of New Brunswick, has drawn the proverbial line in the sand. He has refused to have translated a grand total of six pages of documents for the benefit of counsel for the accused who has requested such a translation to allow him to adequately represent his client. In the grand scheme of things pertinent to the judicial process, such an intractable stance may appear somewhat frivolous, particularly considering the low cost in having these documents translated.

The prosecution however, takes the position that there is no obligation on the state to furnish translation of disclosed evidence where that translation will benefit only counsel for the accused, rather than the accused personally and for this reason no fair trial interest is jeopardized. The Court is now being called upon to resolve this dispute. 2 . More particularly, Mr. Maxwell is requesting that the Court order the state to supply him an official translation of two and one half pages of personal notes and three pages of the “Case File Synopsis”, both of which were written and prepared by Cst. R.

Doiron, the investigating officer in this breathalyzer case. The accused is charged with operating a motor vehicle with a blood alcohol concentration in excess of 80 mgs of alcohol in 100 milliliters of blood. At the time of initial detention, the police officer made the active offer to his client, Maurice Doiron, regarding his choice of language. This offer is made in compliance with the requirement under

section 31 of the Official Languages Act of New Brunswick . That

section reads as follow: 31

(1) Members of the public have the right, when communicating with a peace officer, to receive service in the official language of their choice and must be informed of that right .

3. Mr. Doiron was advised of that right and replied “French” as his language of choice. As a result of this choice of language, theprosecution, in response to Mr. Maxwell’s subsequent demand for translation of the specified documents, replied that since Mr. Doironunderstands the French language, they were denying the request. 4. This motion’s evidentiary foundation rests upon two filed Affidavits by Mr. Maxwell and certain admissions made during theactual hearing. The prosecution has not contested the contents of the Affidavits. No oral evidence was presented by either side.

Thefirst Affidavit is dated October 18, 2011 and includes attachments consisting primarily of correspondence between Mr. Maxwell and Mr.Veniot. That Affidavit states that Mr. Maxwell has practiced law in the Province of New Brunswick for the past 44 years, that up untilrecently his requests for translation were always provided by the local Crown’s office and that in the past months the Department ofPublic Prosecutions in Fredericton started denying his requests.

He maintains also that it is “absolutely impossible” to prepare a defence,raise Charter issues and cross-examine witnesses unless he has the translation requested and that it is absolutely imperative that the filebe translated in order for his client to make full answer and defence. Mr.

Maxwell’s second Affidavit, the one dated November 4, 2011,states that he does not speak the French language, that his client is not capable of translating the file from the French language to theEnglish language, and that he would not be able to obtain evidence from a preliminary inquiry considering that the Crown is proceedingby way of

Summary Conviction. 5. During the hearing of this motion, Mr. Maxwell specified, in relation to this second Affidavit, that although his client is bilingualand able to communicate with him in the English language, he does not feel comfortable translating the contents of the two documentsfor his lawyer. When questioned further by the Court on this point, Mr. Maxwell specified that his client’s working language is Frenchand he could translate most of the contents of the six pages in question but not with the legal precision required for effective cross-examination. On this point, Mr.

Maxwell specified that he requires an official translation to mount an effective cross-examination of thepolice officer since his client’s working knowledge of English would not suffice in the context of a criminal trial. Interestingly, whenMr. Maxwell requested from his client, following their initial meeting, a written

summary of the events surrounding his arrest, Mr.Doiron wrote him a one-page

summary in the French language. 6. The jurisprudential landscape for this application is set out by Madame Justice Young in the case of R v. Butler [1997] N.B.J. No604. I attempted to summarize that case, and others, in R v Maurice Frenette 2007 NBPC 33. The state of the law, as far as I know,remains unaltered. For the sake of brevity I adopt paragraphs 12 to 24 of the Frenette case and apply them here. Two recent NewBrunswick Provincial Court judgments have been cited to me, neither of which has altered my understanding of the germane law and itsapplication. 7.

This application must be placed in its proper context. The essence of this application is as remarkable for what it is not as for whatit is. What it is not is a language rights case. Mr. Doiron’s language rights were respected in their entirety by the police force who dealtwith him and by the Court before whom he is to be tried. Mr. Maxwell stipulates as much. He seeks no redress for any language rightsviolation. 8. This application is founded on Mr. Doiron’s constitutional rights under

section 7 and 11(

d) of the Charter, which guarantee theright to fundamental justice and to a fair trial. The

section reads as follow: s. 7 “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice.” S. 11(d) “Any person charged with an offence has the right (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartialtribunal.” 9. Under

section 7, everyone has the right not to be deprived of life, liberty or security of the person except in accordance with theprinciples of fundamental justice. A breach of

section 7 only occurs where there has been a failure to comply with the principles offundamental justice: Canada v Chiarelli (SCC), [1992] 1 S.C.R. 711. Fundamental justice includes both procedural andsubstantive justice: Reference Re Motor Vehicle Act (British Columbia) (SCC), [1985] 2 S.C.R. 486 per Lamer, J. 10. What Mr. Maxwell is alleging is that because the state has refused to furnish him, a unilingual Anglophone lawyer, with an

officially translated version of six pages of documents written by the police in the language chosen by his client at the time of hiscommunication with them, there has been a failure by the state to comply with the principles of fundamental justice, and moreparticularly the right to make full answer and defence. 11. With respect, I disagree. The principles of fundamental justice do not have such a far-reaching and all-encompassing scope.

Mr.Maxwell was required to prove on a balance of probabilities that the Crown's failure to provide the translation to the defence hasimpaired the accused's ability to make full answer and defence. He has failed to do so. 12. Mr. Justice Laforest in the Supreme Court of Canada case of R v Lyons (SCC), [1987] 2 S.C.R. 309, stated atparagraph 88: “It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favorableprocedures that could possibly be imagined...” 13.

That principle was recently reiterated by the Saskatchewan Court of Appeal at paragraph 96 of R v Bitternose

(2009) SKCA 54: 96 “Justice LaForest, speaking for the Court in R. v. Lyons,32 observed that the requirements of fundamental justice were notimmutable; rather, they varied according to the context in which they were invoked.

Section 7 of the Charter entitled the accusedto a fair hearing, but it did not entitle him to the most favorable procedures that could possibly be imagined. To similar effect are the comments of McLachlin J., as she then was, in R. v. O'Connor,33 that an accused is entitled to no more than a fundamentallyfair trial, a process taking into account "not only the perspective of the accused, but the practical limits of the system of justiceand the lawful interests of others involved in the process ..." 14. Mr. Doiron speaks both the English and French language.

He chose to speak in the French language when he communicated withCst. Doiron at the time of his arrest. Cst. Doiron wrote up his notes and his case synopsis in the French language, the language he knewMr. Doiron had chosen to communicate with the police. 15. Mr. Doiron then chose to retain the services of a unilingual Anglophone lawyer. That certainly is his right. But he chose a lawyerhe knew was at a linguistic disadvantage relative to his case. That was his choice; it was not made or compelled by the state.

It isentirely possible he was of the belief that the advantage of having competent counsel outweighed the drawback of hiring a lawyer whowas at a linguistic disadvantage. One could draw a parallel, for example, of hiring a competent lawyer from Vancouver to defend yourcase in New Brunswick: you may consider yourself to be at an advantage on the legal front, but the drawback is that it will cost youmore to defend your case. 16.

The issue is this: when an accused person chooses to hire competent counsel who is at a linguistic disadvantage, then under whatcircumstances would he be able to argue that his right to make full answer and defence has been compromised by the refusal of the stateto correct that imbalance? Without answering that question those circumstances do not, in my opinion, exist in this case. 17. Mr. Maxwell is able to communicate with his client. His client is able to instruct him on the contents of the documents obtainedfrom the prosecution in accordance with the disclosure obligations.

His client understands all of the evidence gathered against him andhe is able to prepare his defence in consultation with his lawyer. 18. Mr. Doiron has requested a trial in the English language and the Court will ensure compliance with this choice. He willundoubtedly understand all of the evidence that will be presented by the prosecution. In the event the prosecution intends to call awitness who will testify in a language other than English, an interpreter will be made available.

In the event the prosecution intends tointroduce a document in the French language, an interpreter will translate it for the benefit of the accused. The Court will see to this. 19. There are many options available to Mr. Doiron to assist his counsel. He can himself translate the documents; he can havesomeone translate the documents for his lawyer’s benefit, or he can hire another lawyer fluent in both languages to assist Mr. Maxwell. 20. What Mr. Maxwell in reality is seeking, to use his expression, is “legal precision”.

By having the documents translated by atrained professional, he will be in a better position to cross-examine the witness. That, in my estimation is exactly what was cautionedagainst by Mr. Justice Laforest in his admonition that an accused is not entitled to “the most favorable procedures that could possibly beimagined...” The application is dismissed.

Dated at Bathurst, New Brunswick this 12 th day of December, 2011. _____________________________ Ronald LeBlanc Provincial Court Judge