A French-speaking British Columbia man convicted of sexual assault will be retried because he was not informed of his right to be tried in French, the Supreme Court ruled Friday.
Franck Yvan Tayo Tompouba appealed his conviction on the grounds that his linguistic rights were violated because he was not told that his trial could be held in his preferred official language.
“There may be cases where defendants are not adequately informed of this fundamental language right and how it should be exercised,” Chief Justice Richard Wagner wrote in the 5-2 decision.
“This appeal is an example of such a situation and is a reminder that linguistic minorities in Canada still too often experience difficulties in accessing justice in the official language of their choice.”
The case reached the Supreme Court after the British Columbia Court of Appeal dismissed the matter.
The high court heard that the initial judge failed to ensure that Tayo Tompouba had been informed of his right to have a trial in French, as required by the Criminal Code when the accused’s language is French or English.
The Court of Appeals erred in dismissing his bid, saying it was the defendant’s burden to prove that his language rights had been violated, Wagner wrote for the majority.
As a result, the high court overturned his conviction and ordered a new trial in French.
Wagner called a defendant’s right to be tried in the official language of his or her choice “fundamental” and “absolute.”
The decision details how the right is so essential that a defendant need only “affirm” which language “is his own language,” unless the Crown decides to challenge it.
Judges should not attempt to determine a defendant’s cultural identity or meddle with the issue of his or her personal language preferences, he added.
“In a context as intimidating as that of a criminal trial, when a defendant’s freedom is at stake,” Wagner wrote, it is crucial that a judge help protect one’s language rights by “being vigilant, cautious, and proactive.”
It is a judge’s role to remove the “fear” associated with exercising such rights and ensure that his or her decision is “free” and “informed,” the decision says.
“The judge cannot presume what the defendant’s choice is or assume that he has been or will be informed of his right,” even by his own lawyer.
In a dissenting decision, Justices Andromache Karakatsanis and Sheilah Martin recognized a defendant’s language rights but questioned whether failure to notify those rights amounts to a “miscarriage of justice.”
They consider that the appeal should have been dismissed.
Judges warn that public confidence in the system risks being undermined by granting a new trial to someone who waited until after his conviction to claim his language rights.
They maintain that a defendant must do more than simply point out how a court failed to inform him of his right.
This report by The Canadian Press was first published May 3, 2024.