In this case, the accused person relied on s.133 of the Offence Act, which incorporates the Criminal Codeon matters not provided for in the provincial Act. Similar legislation exists in various Provinces within the dominion of Canada. The accused made an application to the Court, under s.530 of the Codeto be tried by a provincial court judge who speaks the official language of Canada that is the language of the accused. That application was rejected by the trial court. The Trial Judge reasoned that the accused’s application on the basis of a 1731 English statute, which directs that all proceedings in British Columbia courts be conducted in English. What is more, the courts below dismissed the accused’s subsequent application for judicial review on the basis that the trial judge’s ruling was not the type of decision which should be reviewed on an interlocutory basis.
The Supreme Court of Canada first held that a jurisdictional issues was raised by the Applicant/Accused. As such, certiorari review was available before the trial. The critical question turned on whether the alleged error would result in a loss of jurisdiction over the proceedings. It is tritely known that where a court fails to properly comply with s.530, it loses jurisdiction. Given this procedural reality, if there is an error it the interpretation of s.133 of the Offence Act, the lower Court would have failed to observe a mandatory statutory provision. Therefore, it would lose jurisdiction.
In addition to the above error, the SCC held that the lower court erred in exercising his discretion not to engage in certiorari review and consider the substantive issues raised by the accused. That issue should not have been deferred until the end of the trial because the right to a trial in the official language of one’s choice is a fundamental, substantive right. The availability of a new trial for a language rights violation was not an adequate alternative remedy to deciding the issue before the trial.
With respect to the substantive issue, a correct interpretation of the Offence Actavers that where that Act is silent on the matter in question or only deals with it partially, the Criminal Codeapplies. It is only when the matter is not addressed in any of that legislation, does one turn to other sources of law, including other British Columbia legislation. Since section 133 of the Offence Actincorporates s.530 of the Criminal Code and in doing so implicitly repeals the 1731 English statute (Specifically, An Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language (G.B.), 1731, 4 Geo. II, c. 26, preamble)in respect of Offence Actproceedings.
The accused was therefore entitled to stand trial in French.
If you have been charged with a criminal offence and are seeking a criminal trial, call Mr. J.S. Patel, Barrister, at 403-585-1960, for a referral for a lawyer that can conduct a trial in the French language.