[Indexed as: R. v. Ohelo]
Superior Court of Justice, Pardu J.
September 8, 2009
Criminal law — Appeals — Procedural irregularity — Francophone accused not advised of his right to trial in official language of his choice — Violation of s. 530 of Code constituting substantial wrong and not procedural irregularity — Section 686(1)(b) of Code not applying — Accused’s appeal from conviction allowed — Criminal Code, ss. 530, 686(1)(b).
Criminal law — Language rights — Francophone accused not advised of his right to trial in official language of his choice — Violation of s. 530 of Code constituting substantial wrong and not procedural irregularity — Section 686(1)(b) of Code not applying — Accused’s appeal from conviction allowed — Criminal Code, R.S.C. 1985, c. C-46, ss. 530, 686(1)(b).
The accused, a francophone, was not advised of his language rights under s. 530 of the Criminal Code, despite the fact that he stated several times that his English was not very good. The trial took place in English. The accused appealed his conviction for drinking and driving and failing to provide a breath sample.
Held, the appeal should be allowed.
The accused’s right to a trial in the official language of his choice was infringed. A violation of s. 530 is a substantial wrong and not a procedural irregularity. Accordingly, s. 686(1)(b) of the Code has no application.
Cases referred to
R.v. Beaulac,  1 S.C.R. 768,  S.C.J. No. 25, 173 D.L.R. (4th) 193, 238 N.R. 131, J.E. 99-1082, 121 B.C.A.C. 227, 134 C.C.C. (3d) 481, 62 C.R.R. (2d) 133, 42 W.C.B. (2d) 217
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 530 [as am.], (1), (2), (3)
Appeal by the accused from a conviction.
D. Carbonneau, for Crown.
L. Leclair, for applicant.
 Pardu J.: — The appellant is appealing convictions imposed by the Ontario Court of Justice. He is a Francophone, but at the trial level was tried in English. Subsection 530(3) of the Criminal Code, R.S.C. 1985, c. C-46 requires that “the justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made”, that is, that his or her trial may take place before “a judge . . . who speak[s] the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak[s] both official languages of Canada” (subs. 530(1)).
 The accused was not advised of his language rights. The accused stated several times that his English was not very good and that his mother tongue was French. Two witnesses called by the accused testified in French. It was clear that he did not understand the finer points of the charges against him.
 In the Supreme Court judgment R. v. Beaulac,  1 S.C.R. 768,  S.C.J. No. 25, the court held at para. 28:
Section 530(1) creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. In my view, this is a substantive right and not a procedural one that can be interfered with.
The court went on to say [at para. 54]:
Given the nature of language rights, the requirement of substantive equality, the purpose of s. 530, as described here, and the objective of s. 686, I believe that the violation of s. 530 constitutes a substantial wrong and not a procedural irregularity. Accordingly, s. 686(1)(b) has no application in this case and a new trial must be ordered.
 In R. v. Beaulac, the court concluded that the accused’s right to a trial in the official language of his choice had been infringed. In the case at bar, the accused had no counsel and there is no evidence that he knew he was entitled to a trial in French. The lack of notification deprived him of his language rights and the infringement is as serious as the one described in R. v. Beaulac.
 Counsel for the Crown agreed to the appeal being allowed. I am in agreement. The convictions for being under the influence and refusal to comply with an order to give a breath sample, the driving prohibition, the fine and the period of probation imposed by Judge Moore on April 22, 2008 are quashed and the case is referred back for a new trial.