COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Munkonda, 2015 ONCA 309

DATE: 20150505

DOCKET: C56089

Sharpe, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Munkonda

Appellant

Jean L. Richer, for the appellant

François Lacasse and Vanita Goela, for the respondent

Heard: October 21, 2014

On appeal from the order of Justice Robert L. Maranger of
    the Superior Court of Justice, dated July 24, 2012, dismissing an application
    for
certiorari
to quash the committal for trial ordered by Justice
    Robert N. Fournier of the Ontario Court of Justice, dated June 23, 2011.

Rouleau J.A.:

[1]

The appellant appeals from the decision of the Superior Court dismissing
    his application for
certiorari
. The
certiorari
judge found
    four violations of the appellants language rights, but nonetheless refused to
    grant a stay of proceedings or any other remedy.

[2]

The appeal raises important questions concerning the language rights of
    an accused at a bilingual preliminary inquiry or trial, as well as the
    procedure to be followed during those proceedings, and the remedies that a
    court should award as a result of a violation of those rights.

FACTS

[3]

On February 26, 2010, the appellant was one of eight persons charged
    with various offences relating to cocaine trafficking. The eight accused were
    divided into two sub-groups: four were alleged to be wholesale cocaine dealers,
    while the other four, including the appellant, were alleged to be buyers.

[4]

On June 3, 2010, the appellant was released on bail with surety. When
    his surety was withdrawn, he was taken back into custody. The Superior Court
    reviewed his detention and he was released on restrictive bail conditions,
    including house arrest. Those conditions are still in effect.

[5]

After they were charged, the appellant and another accused,
    Mr. Alanjian, exercised their right under s. 530 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to have their preliminary inquiry and trial
    held in French. The other six accused chose to be tried in English.

[6]

There was no formal order concerning the language of the proceedings,
    but the accused and the Crown seem to have agreed that the proceedings would be
    bilingual, in order to respect the language rights of both the francophones (including
    the appellant) and the anglophone accused.

[7]

Notwithstanding the appellants application under s. 530, the Crown
    served a series of notices in English only: three notices of intention to
    produce private communications under s. 189(5) of the
Criminal Code
and four notices of evidence under s. 540(8) of the
Criminal Code
.

[8]

One of the notices of intention under s. 189(5) of the
Criminal
    Code
was accompanied by 37 volumes of 200 to 300 pages each,
    compiling the transcripts of nearly 1,200 series of conversations or text
    messages. The conversations and texts were in various languages, including
    English, French, Italian, and Arabic.

[9]

However, with the exception of the conversations and texts in English,
    the transcripts were not in their original languages. All of the transcripts
    were in English, even where the conversation or text was in another language,
    because everything had been translated into English by the Crown. The original
    version of the texts or conversations in French was not included in the
    transcripts.

[10]

This
    meant that the anglophone accused had access not only to a transcript of the
    anglophone texts, but also to a translation of the conversations or text
    messages that took place or were sent in other languages. The francophone
    accused, on the other hand, had access only to texts or translations in
    English. Nothing had been transcribed in French, not even where the original
    language of the texts or conversations was French.

[11]

Appended
    to the notice transmitting the 37 volumes was a three-volume index (607 pages)
    indexing the 22,329 files in 400 folders recorded on a hard disk. Everything
    was in English only.

[12]

The
    other two notices of intention to produce private communications under s. 189(5)
    were prepared in the same way, but contained much less material.

[13]

One
    of the notices was addressed only to the appellant, and notwithstanding that
    fact, the notice and the appended documents were entirely in English.

[14]

The
    preliminary inquiry began on May 30, 2011. The Crown was represented by a team
    of three lawyers: Ms. Dumel, Ms. Larmondin and Ms. Liggett. Ms. Larmondin
    introduced herself as the lead counsel for the Crown.

[15]

At
    the commencement of the hearing, counsel for the appellant brought a motion to
    remove Ms. Larmondin and Ms. Liggett from the case. The appellant objected to
    the two lawyers acting for the prosecution because Ms. Larmondin did not speak
    French at all and Ms. Liggett spoke very little French. The prosecution opposed
    the motion, and proposed, as an alternative, that an order be made under s. 530.2
    establishing the linguistic framework for the preliminary inquiry.

[16]

The
    preliminary inquiry judge said that he wanted to avoid delays and that he was
    concerned about the costs that might result from such an order. He therefore
    denied the motion, and explained:

I could do one of two things here, I could say fine, I will go
    and impose the letter of the law very strictly and if there are to be three
    Crown Attorneys, all three need to be absolutely bilingual, I am not going to
    go that far. That is something I would like to do in a perfect world, but we do
    not live in a perfect world and although I am familiar with the case law, I
    know that  you know, expenses and everything else and resources are not to be
    the reason why we choose one option over the other, its not that we have
    endless resources, but the courts have ruled that we should not spare resources
    in order to accommodate those provisions, we should just spend what needs to be
    spent in the way of resources. We can do that. But I think at this particular
    stage of the proceedings, for me to insist that the three Crown Attorney be
    absolutely bilingual might mean that I would have to adjourn the matter . I
    would like to make that ruling, you know, in a perfect world, as I said
    earlier. But in order to avoid any undue delay, I am not going to do that.

[17]

As
    a compromise, he ordered that the lead prosecutor in the case for the Crown be
    bilingual. From the bench, he named Ms. Dumel as lead counsel for the Crowns case,
    and established the linguistic framework for participation by the other two
    unilingual prosecutors.

[18]

The
    judges reasons, which cover 4.5 pages of transcript, were given orally in
    English. They are followed by a summary in French about one page long.

[19]

The
    hearing was then held in the presence of those three Crown counsel. Their
    participation may be summarized as follows:

1)

For the vast majority of the preliminary inquiry, Ms. Liggett questioned
    witnesses and responded to objections;

2)

Ms. Larmondin spoke sporadically during the inquiry and argued certain
    motions; and

3)

Ms. Dumel made submissions at the end of the preliminary inquiry, but
    spoke only rarely during the inquiry itself.

[20]

Ms.
    Larmondin and Ms. Liggett used the simultaneous interpretation service to
    follow the proceedings when they were being conducted in French. Accordingly,
    when the simultaneous interpretation service broke down, Ms. Dumel was
    concerned that her colleagues were no longer following the proceedings and so informed
    the court: [translation] Excuse me, I think the simultaneous interpretation is
    not working, I just want to make sure that my colleagues can understand.

[21]

At
    the beginning of the second day of the hearing, counsel for the appellant noted
    that there were no bilingual court personnel present. He asked the court to
    remedy the situation, and in particular the fact that the court reporter was a
    unilingual anglophone. The judge denied the motion, and stated:

[translation] THE COURT: So in the circumstances I am taking no
    action in this respect because I am not in charge of administration, I have
    enough problems to solve without solving everybodys. So  I understand that it
    would be preferable for our reporters to be bilingual, it is not  I am not
    going to make orders to get one. So we are going to proceed with the resources
    available to us this morning.

[22]

Counsel
    for the appellant renewed his request for a bilingual court reporter a few days
    later. The judge stated that the request was noted, but no bilingual court
    reporter was assigned to the hearing.

[23]

During
    the hearing, Sgt. Paul, a francophone police officer from Montreal, was called
    to testify by the Crown. He was questioned by one of the anglophone prosecutors
    and he gave his testimony in English. When the prosecutor began questioning the
    police officer concerning his report, a report written in French, counsel for
    the appellant objected and pointed out the absurdity of having to use
    interpretation to question a francophone about a report written in French when
    the trial was bilingual.

[24]

The
    judge agreed and asked the witness to testify in French, since Crown counsel,
    Ms. Liggett, was the only one who wanted to use English. Ms. Liggett
    said that she was doing it for the benefit of the anglophones who, at that
    point in the inquiry, were no longer in court. The judge continued to ask why
    English would be used when the witness was francophone and his notes were in
    French. Ms. Liggett objected again and argued that the witness could
    choose the language of his testimony. The judge conceded this point, and
    allowed the police officer to continue in English, but insisted that when he
    quoted his notes or his report, he do so in French. The judge stated: You
    might want to question him in English if you want from time to time but you are
    referring to documents that are prepared in French, why would the officer not
    read them in French when they are?

[25]

Ms. Liggett
    persisted in questioning the officer in English. However, on cross-examination,
    the officer agreed to be cross-examined in his first language, French.

[26]

During
    the trial, a number of excerpts from wiretaps were introduced in evidence. As
    noted earlier, all of the transcripts of those oral communications and text
    messages that were intercepted by wiretap were in English even when the
    original language was not English. When the prosecutor introduced them into
    evidence, she played the original version of the oral communications, but in
    the case of the text messages, at least one was introduced only in the English
    version, in spite of the fact that a portion of the original text was in
    French.

[27]

At
    least twice, the sound recording of an oral communication was not easy to
    understand, and so a witness read the transcript aloud. Since the transcripts
    prepared by the prosecution were available only in English, regardless of the
    original language of the communication, the communications, one of which was in
    English and French and the other in English, French, and Italian, were read
    from a transcript that was entirely in English.

[28]

At
    the end of the hearing, only two accused were participating: the appellant and
    the other francophone accused, Mr. Alanjian. The judges decision was
    therefore given in French only, preceded by the following comment:
    [translation]: Mr. Richer, I hope you are going to be proud of me,
    because I have written my decision in French only.

[29]

Mr. Alanjian
    was discharged and the appellant was committed for trial on two of the
    individual counts (trafficking and possession for the purposes of trafficking)
    and discharged on the remaining counts.

[30]

According
    to the appellant, because no bilingual court reporter had been available and the
    transcripts of the preliminary inquiry needed to be written in French and
    English, the transcripts were available only six months later.

[31]

The
    Crown applied to the Superior Court for
certiorari
to quash the
    discharge of Mr. Alanjian and the discharging of the appellant for certain
    charges. That application was dismissed by the court.

[32]

The
    appellant also applied to the Superior Court for
certiorari
. His
    application was for a stay of proceedings because of the persistent and serious
    violations of his language rights and his manifestly unequal treatment compared
    to the treatment afforded to those who had opted to proceed in English.

[33]

The
certiorari
judge gave his decision orally on July 24, 2012. He found
    that there were several violations of s. 530.1 of the
Criminal Code
and was of the opinion that the violations of the appellants language rights
    were not minor. He ruled on any violations that might have occurred before and
    after the preliminary inquiry. The violations of the requirements of the
Criminal
    Code
identified by the
certiorari
judge are as follows:

1)

Two of the Crown prosecutors, Ms. Liggett and Ms. Larmondin,
    were not bilingual;

2)

There was no bilingual court reporter;

3)

The preliminary inquiry judge gave his decision in English on the
    appellants motion, made in French, asking that all of the prosecutors be
    bilingual; and

4)

The notices under ss. 189(5) and 540(8) of the
Criminal Code
served on the appellant were in English only.

[34]

However,
    the
certiorari
judge decided that the principal remedy sought by the
    appellant, a stay of proceedings, would be extreme in the circumstances. He
    acknowledged that the case was unprecedented, but awarded no remedy. He stated,
    however, that he would have considered [translation] an order for a new
    preliminary inquiry that complies with [section] 530 as a remedy, if the
    appellant had requested it. The result was that no sanction was applied to the
    Crown for the violations of the appellants language rights.

[35]

The
    appellant appeals from the decision of the Superior Court of Justice. For the
    reasons that follow, I would allow the appeal.

ISSUES

[36]

Before
    this court, the appellant argued that the
certiorari
judge committed
    several errors. In the appellants submission, the
certiorari
judge:

1)

failed to identify all of the violations of the appellants language
    rights; and

2)

having found that there were major violations of the accuseds language
    rights, failed to award any remedy.

[37]

The
    appellant contends that taken as a whole, the violations show indifference, and
    even a degree of hostility, on the part of the Crown and the court to their
    language obligations. The different treatment afforded by the prosecution and
    the court to the accused who exercised their right to a preliminary inquiry in
    French, compared to those who chose to have it in English, was on stark display
    in this case. As a francophone, the appellant could not have helped feeling
    markedly inferior. A remedy was required in the circumstances.

[38]

As
    noted earlier, the
certiorari
judge found four violations of the appellants
    language rights:

1)

Only one of the Crown prosecutors was bilingual, the other two being
    unilingual anglophones;

2)

The court reporter was a unilingual anglophone;

3)

The preliminary inquiry judge gave an interlocutory judgment in English
    in response to a motion made by the appellant in French; and

4)

The prosecution served several notices of intention and evidence under
    ss. 189(5) and 540(8) in English only. One of those notices was addressed
    solely to the appellant.

[39]

The
    appellant submits that there were more than these four violations of the
    appellants language rights and that the
certiorari
judge erred by
    failing to identify the additional violations. For example, the appellant
    contends that Sgt. Paul should have been required to testify in French
    rather than in English. His testimony was given in English to accommodate one
    of the prosecutors, who did not speak French. In addition, the appellant challenged
    the fact that the transcripts of the wiretaps for which notices of intention
    had been given under s. 189(5) were prepared by the prosecution in English
    only, and as a result, even when the language spoken in the wiretap was French,
    only the English translation of the wiretap was included in the transcript
    provided to the accused. This clearly gave the anglophone accused an advantage,
    in that they had access to a complete transcript, in English, of all of the
    wiretaps. The appellant received no transcription in French, not even where the
    original language was French.

[40]

However,
    the appellants principal argument is that when viewed as a whole, the
    preliminary inquiry did not respect the appellants language rights. There was
    a systematic refusal by the court and the Crown to comply with the obligations
    created by ss. 530 and 530.1. The failure to respect those rights was
    particularly serious in that it stood in contrast with the treatment afforded
    to his co‑accused who had chosen to have their preliminary inquiry in
    English. In the appellants submission, a remedy is required in the
    circumstances and the
certiorari
judge should have granted a stay of
    proceedings or another appropriate and effective remedy.

[41]

The
    Crown also maintains that the
certiorari
judge erred. In the Crowns
    submission, however, the error was in finding any violations of the appellants
    language rights. The Crown argued that there was no violation of the
    appellants language rights and that no remedy should be awarded.

LEGISLATION

[42]

Sections
    530 and 530.1 of the
Criminal Code
are central to this appeal. The
    complete versions are reproduced in an appendix, and I reproduce here the
    portions of those sections that are of particular relevance to the issues
    raised.

530.
(1) On
          application by an accused whose language is one of the official languages of
          Canada,

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) The
          fact 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
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;

(
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;

(
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.

530.2
(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.
(1) Sur
          demande dun accusé dont la langue est lune des langues officielles du
          Canada,

un juge de
          paix, un juge de la cour provinciale ou un juge de la Cour de justice du
          Nunavut ordonne que laccusé 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 parlent la langue officielle du Canada qui est celle de laccusé ou,
          si les circonstances le justifient, qui parlent les deux langues officielles
          du Canada.

(6) Peut
          constituer une circonstance justifiant une ordonnance portant quun 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 davoir 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 nest pas la même pour tous les
          coaccusés.

530.1
Si une ordonnance est rendue en vertu de larticle 530 :

a) laccusé et son avocat ont le droit demployer lune ou
          lautre langue officielle au cours de lenquête préliminaire et du procès;

b) ils peuvent utiliser lune ou lautre langue officielle dans
          les actes de procédure ou autres documents de lenquête préliminaire et du
          procès;

c) les témoins ont le droit de témoigner dans lune ou lautre
          langue officielle à lenquête préliminaire et au procès;

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

e) laccusé a droit à ce que le poursuivant  quand il ne
          sagit pas dun poursuivant privé  parle la même langue officielle que lui
          ou les deux langues officielles, selon le cas;

f) le tribunal est tenu doffrir des services dinterprétation
          à laccusé, à son avocat et aux témoins tant à lenquête préliminaire quau
          procès;

h) le tribunal assure la disponibilité, dans la langue
          officielle qui est celle de laccusé, du jugement  exposé des motifs compris
           rendu par écrit dans lune ou lautre langue officielle.

530.2
(1) En
          cas dordonnance exigeant que laccusé 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 lenquête
          préliminaire ou le juge qui préside le procès peut, au début de linstance,
          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 linstance.

(2) Lordonnance
          respecte, dans la mesure du possible, le droit de laccusé de subir son
          procès dans la langue officielle qui est la sienne.

AnalysIS

(1)

Organizing principles

[43]

Before
    undertaking an analysis of the facts of this case, it will be useful to
    identify the relevant principles and formulate an analytical framework that can
    guide us in our consideration of the various points raised in the appeal. The
    Crown favours a technical approach that is limited to examination of the words
    and strict meaning of the text of ss. 530 and 530.1 of the
Criminal Code
.
    In my opinion, that approach is neither desirable nor supported by the case
    law. When Parliament enacted ss. 530 and 530.1, it intended to ensure equal
    access to the courts by accused persons who speak either official language.
    Those sections must be given a large and liberal interpretation in order to
    achieve that objective.

[44]

An
    order that a trial or preliminary inquiry be held before a judge or justice of
    the peace who speaks both official languages is an exception to the rule that
    an accused has an absolute right to a trial before a judge who speaks the
    official language of the accused. An order that a trial or preliminary inquiry
    be held before a bilingual judge will be made only if the circumstances
    warrant (ss. 530(1), 530(4), 530(5)). However, s. 530(6) provides:
    The fact 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  judge
    ... who speak[s] both official languages of Canada. In such a case, the trial
    or preliminary inquiry is really a bilingual trial or preliminary inquiry, in
    the sense that there are accused who have the right to a trial in each of the
    two official languages and both rights operate within a single trial.

[45]

The
    principles addressed in this judgment apply to bilingual trials of this type,
    and cannot necessarily be transposed to other forms of trials before a judge or
    justice of the peace who speaks both official languages. As noted, the parties
    agreed that the preliminary inquiry would be held before a judge who spoke both
    official languages and that the language rights of the anglophones and
    francophones should be respected.

[46]

In
    a bilingual proceeding, it can be more complicated to ensure that accused
    persons of both official languages have equal access to the courts than it is
    in a proceeding where there is only one accused and one official language is
    used. It is no longer simply a matter of using the official language of the
    accused. Both languages must be used. However, the principle of equal access
    must be respected. Thus, we can identify two principles from the case law and
    the relevant legislation that must govern the conduct of a bilingual trial or
    preliminary inquiry. They are as follows:

1)

Accused retain their right to equal access to proceedings in their
    language notwithstanding the imposition of a bilingual proceeding; and

2)

The court and the prosecution must be bilingual and must not favour
    either of the official languages.

(a)

Accused
    retain their right notwithstanding the imposition of a bilingual proceeding

(i)

The nature of the right

[47]

Section 530
    of the
Criminal Code
provides that an accused has the right to a
    preliminary hearing in his or her official language. The Supreme Court of
    Canada has explained that language rights, such as the right to a preliminary
    hearing in ones language, must
in all cases
be
    interpreted purposively, in a manner consistent with the preservation and
    development of official language communities in Canada:
R. v. Beaulac
,
    [1999] 1 S.C.R. 768, at para. 25 (emphasis in the original).

[48]

Accordingly,
    language rights, such as ss. 530 and 530.1 of the
Criminal Code
,
    are fundamental tool[s] for the preservation and protection of official
    language communities where they do apply (
Beaulac
, at para. 25).
    The state has a duty to put in place the necessary structures and deploy the
    necessary resources to ensure that this right is respected. As the Supreme
    Court of Canada stated:

I wish to emphasize that mere administrative inconvenience is
    not a relevant factor. The availability of court stenographers and court
    reporters, the workload of bilingual prosecutors or judges, the additional
    financial costs of rescheduling are not to be considered because the existence
    of language rights requires that the government comply with the provisions of
    the Act by maintaining a proper institutional infrastructure and providing
    services in both official languages on an equal basis. (
Beaulac
, at
    para. 39)

[49]

The
    objective of s. 530 of the
Criminal Code
is to provide equal
    access to the courts to accused persons speaking one of the official languages
    of Canada in order to assist official language minorities in preserving their
    cultural identity (
Beaulac
, at para. 34). To achieve that
    objective:

[s]ection 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. (
Beaulac
, at para. 28).

(ii)

Impact of imposing a bilingual proceeding on the right

[50]

Section 530
    also provides that notwithstanding an accuseds exercise of the right to be
    tried in his or her official language, the trial or preliminary inquiry must,
    in certain circumstances, be bilingual and be held in French and English. That
    was the case here. The Crown chose to include several accused with different official
    languages in a single indictment. There was nothing to prevent the Crown from
    doing this, and this possibility is covered by s. 530(6) of the
Criminal
    Code
. Accordingly, since there were several accused and some of them had
    chosen to be tried in French while others had chosen to be tried in English,
    the preliminary inquiry had to be bilingual.

[51]

However,
    it was in no way the appellants choice to have a bilingual preliminary
    inquiry, and in my opinion, his right to a preliminary inquiry in his own language
    cannot be diminished except to the extent that it is necessary and reasonable
    in the circumstances.

[52]

When
    an order for a bilingual trial is made, the equality of the two languages
    established by s. 530 and the duty imposed on the Crown and the court to
    ensure the equal use of those languages are not discarded. As the Supreme Court
    of Canada explained, the basic right of the accused is met in both cases (
Beaulac
,
    at para. 49).

[53]

In
R. v. Sarrazin
(2005), 75 O.R. (3d) 485 (C.A.), this court explained
    that in a bilingual trial in which some accused choose to be tried in French
    and others choose to be tried in English, both French and English will
    inevitably have to be used at different times. A bilingual trial is therefore

a trial before a judge and jury who speak both official
    languages of Canada but in which both English and French are used
    interchangeably as the working languages, depending upon who is speaking and in
    what context, and interpretation and translation are available if needed. I
    think this meaning accords more with what is generally understood by that term
    in daily practice: the triers and prosecutors are bilingual, but the working
    language of others may be either official language, and
    translation/interpretation services are provided, should they be required (at
    para. 40).

[54]

As
    the Quebec Court of Appeal has stated:

[translation] In spite of the fact that his co-accused did not
    all speak the same language, that fact undeniably could not diminish [the
    accuseds] absolute right to have his fundamental language rights respected.

A bilingual trial is a trial that, to the extent possible,
    respects the right of the accused to be tried in his or her official language.
    A trial of this nature must guarantee the accused and their counsel the
    opportunity to communicate with the judge and the prosecution in the official
    language of their choice, both orally and in writing. (
R. c. Gagnon
,
    2013 QCCA 1744, at paras. 32 and 35)

[55]

That
    interpretation is confirmed by s. 530.2. That section provides that in a
    bilingual preliminary inquiry or trial, the court may 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, but that the order must, to
    the extent possible, respect the right of the accused to be tried in his or her
    official language.

[56]

In
    conceptual terms, a bilingual trial or preliminary inquiry is a merger of a
    proceeding in French and a proceeding in English. Whether the accused are
    francophone or anglophone, they do not lose their language rights; rather, and
    by necessity, each accuseds language rights must be accommodated. Each accused
    cannot have the right to have all of the evidence presented in his or her own
    language. Oral evidence can be presented in only one or the other of the two
    official languages. Similarly, the prosecution and the judge cannot speak both
    languages at the same time. There will therefore be times when the testimony
    given by a witness and the comments made by the judge will not be in the
    official language of one or another of the accused.

[57]

However,
    to the extent possible, and provided that it is reasonable, the language rights
    of each of the accused must be respected. This means, for example, that if an
    accused or his or her counsel addresses the court or the prosecution in the
    language of that accused, the prosecution or the court should interact with
    that accused or his or her counsel in that language. The duty to deal with each
    accused in his or her own language does not evaporate and is not diminished by
    the fact that the proceeding becomes a bilingual proceeding. Proceeding in any
    other fashion, unless it is required by the situation, would be a violation of
    the accuseds language rights.

(b)

The court
    and the prosecution must be bilingual and must not favour either of the
    official languages

[58]

In
Beaulac
, the Supreme Court explained that when an accused relies on s. 530
    of the
Criminal Code
to obtain a service in the language of the
    official language minority, that application must not be treated as though
    there was one primary official language and a duty to accommodate with regard
    to the use of the other official language. The governing principle is that of
    the equality of both official languages (
Beaulac
, at para. 39). That
    governing principle, the equality of the two official languages, is
    particularly important in a bilingual trial or preliminary inquiry since both
    languages, English and French, have the same official status in the proceeding.
    Any inequality of treatment will be particularly apparent to the participants
    in that situation.

[59]

The
    Court also stated that language rights are a special kind of right, distinct
    from the principles of fundamental justice (
Beaulac
, at para. 25). It
    is therefore not a question of trial fairness, but rather of assuring that Canadas
    official language minorities have access to services in their language, and
    that the quality and content of those services are equal to the quality of
    service received by the majority. This is important, because the rights of the
    accused and the obligation of the state and the court to provide the service
    are not reduced or diminished by the fact that an accused understands and
    speaks the language of the majority. The linguistic ability of the accused

is irrelevant because the choice of language is not meant to
    support the legal right to a fair trial, but to assist the accused in gaining
    equal access to a public service that is responsive to his linguistic and
    cultural identity. It would indeed be surprising if Parliament intended
    that the right of bilingual Canadians should be restricted when in fact
    official language minorities, who have the highest incidence of bilingualism ,
    are the first persons that the section was designed to assist. (
Beaulac
,
    at para. 45)

[60]

Thus,
    the fact that the appellant understands English and did not use interpretation
    services has no relevance to his language rights.

[61]

Section 530
    of the
Criminal Code
imposes positive obligations on the attorney
    general and the courts (
R. v. Bujold
, 2011 NBCA 24, 276 C.C.C. (3d)
    442, at para. 5). This is based on the observation by the Supreme Court that
    [l]anguage rights
are not negative rights, or passive
    rights; they can only be enjoyed if the means are provided
. ...
[T]he freedom to choose is meaningless in the absence of a duty
    of the State to take positive steps
to implement language guarantees (
Beaulac
,
    at para. 20 (emphasis added)). In the context of a bilingual preliminary
    inquiry in which there are accused using each of the official languages, this
    duty is to ensure that the two languages are treated equally: in other words,
    that there is no primary language, with the other language merely being accommodated.
    Equality must be the norm and not the exception, and must be achieved without
    creating conflict.

[62]

It
    follows that an accused should not be required to remind the court and the
    prosecution of their linguistic obligations. An adversarial approach to
    language rights risks not only undermining those rights but also creating fear in
    accused persons that if they insist their rights be respected, they will
    antagonize the court and the prosecution, and not receive a fair trial.

(c)

Summary

[63]

The
    two principles I have identified above must guide the prosecution and the court
    in a bilingual trial or preliminary inquiry where there are accused using both
    official languages. When the prosecution exercises its right to include both
    francophone and anglophone accused in a single indictment, the prosecution does
    not thereby escape its linguistic obligations, and the accused do not lose
    their rights under ss. 530 and 530.1. Some adjustments are needed in the
    conduct of the trial or preliminary hearing as a result of the fact that a
    single evidentiary record will be presented and the participants will not be able
    to speak both languages at the same time. However, the adjustments made must
    not give an advantage to either of the language groups and, to the extent
    possible and reasonable, must respect the language rights of each accused.
    Unequal treatment of one language group during a bilingual trial or preliminary
    inquiry, if it gives an advantage to one group and disadvantages the other,
    does not comply with s. 530 and may give rise to concerns as to bias.

[64]

That
    being said, I acknowledge that the standard is not perfection. There will
    always be challenges in implementing the rights granted by ss. 530 and 530.1
    and differences between how the accused, the prosecution, and the court
    interpret these sections. A degree of flexibility is therefore necessary. The
    mere fact that a judge or prosecutor erroneously speaks English when addressing
    a francophone accused in a French or bilingual trial, or that a procedural
    omission occurs during the trial and is quickly corrected once it is noticed, will
    not constitute an infringement of the accuseds language rights giving rise to
    a remedy (
R. v. Potvin
(2004), 69 O.R. (3d) 641 (C.A.), at para. 37).

[65]

In
    the next section of my reasons, I will consider the four violations of the
    appellants language rights found by the
certiorari
judge, in light of
    the two principles I stated above. In the course of that analysis, I will also address
    the other violations alleged by the appellant. In the section that follows it,
    I will answer the questions that must, in my opinion, be asked in cases of this
    nature: do the violations found entitle the appellant to a remedy, and, if so,
    what remedy?

(2)

The four violations
    identified by the
certiorari
judge

(a)

The
    Crown prosecutors were not all bilingual

[66]

The
    respondent acknowledges its obligation to assign a bilingual prosecutor to a bilingual
    preliminary inquiry. However, the Crown contends that since a bilingual
    prosecutor was present in this case, the presence of two additional unilingual
    prosecutors did not violate the appellants rights.

[67]

I
    do not accept that argument. Although the question of the bilingualism of a
    team of prosecutors has not been specifically addressed in the case law, the
    decisions of the courts suggest that all Crown prosecutors in a bilingual trial
    must be bilingual and capable of participating fully in the trial in both
    languages. At para. 40 of
Sarrazin
, this court explained that it
    is generally understood that a bilingual trial is a trial where the judge and
    prosecutors  plural  are bilingual. The Quebec Court of Appeal adopted a similar
    position in
Gagnon
, at para. 60, stating, [translation] the
representatives
of the Crown are also required to be
    institutionally bilingual (emphasis added). Additionally, in
R. v. Dow
,
    2009 QCCA 478, [2009] R.J.Q. 679, at para. 89, leave to appeal to S.C.C.
    refused, [2009] S.C.C.A. No. 204, the Quebec Court of Appeal held that courtroom
    interpretation services are provided for the benefit of witnesses and accused
    persons, and not for the prosecutor. This suggests that all representatives of
    the Crown must be bilingual.

[68]

The
    right granted to the appellant in ss. 530 and 530.1 is to have his preliminary
    inquiry conducted in French, and includes the right to address the Crown in his
    language. That right exists throughout the preliminary hearing, whoever the
    prosecutor representing the Crown may be at any given time. I see no reason why
    the appellant would lose that right simply because the preliminary inquiry has
    become a bilingual proceeding.

[69]

In
    this case, the two unilingual prosecution counsel handled virtually the entire
    case. If counsel for the appellant made an objection in French to the testimony
    called by one of the anglophone prosecutors, that prosecutor was unable to
    reply in French. She had to use the interpretation service or ask the bilingual
    prosecutor to answer. The appellant was therefore forced to make a choice. He
    could make the objection in French, but in so doing he would cause delays and
    risk irritating the court. Or, he could make the objection in English, which
    would be simpler for everyone but would not respect the appellants choice to
    have his preliminary inquiry proceed in French. Or he could choose not to make
    an objection. The anglophone accused were not required to make those kinds of
    choices.

[70]

It
    seems to me to be highly likely that Sgt. Paul, a Montreal police officer whose
    first language is French, gave his testimony in English because his testimony
    was prepared and presented to the court by an anglophone prosecutor. The fact
    that Sgt. Pauls evidence was presented by an anglophone prosecutor is
    also why, after a comment from the judge asking why he would testify in English
    when all his notes were written in French, the prosecution continued to
    question him in English. This is a good example of indirect effects stemming
    from the fact that some of the Crown counsel assigned to a trial or preliminary
    inquiry are unilingual. Prosecution counsel, in that case, cannot be neutral
    when it comes to the choice of the language of the witness testimony when they
    themselves are not bilingual. French is accommodated rather than offered as of right.

(b)

The
    notices and accompanying documents in English only

[71]

Several
    notices were served on the appellant before the start of the preliminary
    inquiry. The notices and the documents that accompanied them were all prepared
    by the Crown and were in English only. The language used for the notices and
    the language used in the accompanying documents each raise different and
    complex issues.

[72]

The
Public Prosecution Service of Canada Deskbook
states: Where an order
    has been made pursuant to s. 530 of the Code for a bilingual trial, and
    there are Francophone and Anglophone accused, the documents prepared by Crown
    counsel must be in both official languages where practicable and unless the
    judge orders otherwise. The policy of the Director of Public Prosecutions is
    set out in the section of the Deskbook entitled Written Pleadings and
    certainly applies to the notices. The reference to documents prepared by Crown
    counsel suggests that all of the documents prepared by the prosecution and
    sent to the accused, including, for example, the index of wiretaps, must be
    bilingual
.

[73]

The
    Crown acknowledges that since the notices were not prepared in both official
    languages, that policy was violated in this case. It notes, however, that the
Deskbook
is an administrative document, so the policies it contains do not have the
    force of law.

(i)

The notices

[74]

Documents
    prepared by the Crown, such as notices under ss. 189(5) and 540(8) of the
Criminal
    Code
that are served on the appellant, are communications with the accused
    initiated by the prosecution. Since those communications take place after an accused
    has exercised the right to a trial or preliminary inquiry in his or her own
    language, it seems to me to be logical and necessary that those communications (here
    the notices under ss. 189(5) and 541(8) of the
Criminal Code
) should
    either be bilingual or be prepared in the language of the accused to whom they
    are addressed.

[75]

The
    Crown argued that there is no such obligation and cited case law that held that
    an accused was not entitled to receive a translation of the indictment when the
    indictment was not in the accuseds language (
R. v. Simard
(1995), 27
    O.R. (3d) 116 (C.A.)). To remedy that situation, an amendment to s. 530.01(1)
    of the
Criminal Code
was necessary. That amendment gave accused the
    right to require a translation of the indictment into their own language, but
    no right to receive a translation of other documents.

[76]

In
    my view, those decisions are not relevant. The notices are not documents akin
    to an indictment. An indictment is prepared before the accused exercise their language
    rights under s. 530. The notices, on the other hand, are formal
    communications with the accused prepared by the Crown after the accused
    exercise their rights and are directly connected with the trial or preliminary
    hearing that must be held in the language of the accused or be bilingual.

[77]

Section 530.1(b)
    gives the accused the right to use either official language in written
    pleadings or other documents at the preliminary inquiry and trial. The Crown is
    not given the same right. This suggests that the written pleadings and other
    documents relating to the preliminary inquiry must be prepared by the Crown in
    the language of the accused to whom those documents are addressed.

[78]

That
    interpretation is also consistent with the purpose of the notices: to give the
    accused reasonable notice of the Crowns intention to introduce certain
    communications or documents in evidence at the trial or preliminary hearing
    (see the text of ss. 189(5) and 540(8) of the
Criminal Code
). It seems
    reasonable to me to require that the notices be in the language of the accused.
    In Ontario, anglophone accused expect that the notices sent to them by the
    Crown will be in their language, English, and not French. Sending a notice in
    French to an anglophone accused would be unreasonable. A francophone accused is
    entitled to expect the same treatment.

[79]

That
    means that in this case, sending the notices under ss. 189(5) and 540(8)
    in English only violated the appellants language rights. In a bilingual trial
    or preliminary inquiry, those notices must either be bilingual or be written in
    French for accused who have exercised the right to a trial or preliminary
    inquiry in French, and written in English for accused who have chosen English.
    The violation in this case is particularly flagrant since sending the notices
    in English only does not comply with the policy on bilingual trials set out in
    the
Public Prosecution Service of Canada Deskbook
. In addition, one of
    the notices was addressed to only one person, the appellant, yet it was
    prepared in English only.

(ii)

Translation of the appended documents

[80]

I
    will now turn to the language obligations of the Crown in relation to the
    appended documents. Those documents do not constitute formal communications
    like the notices. They are similar to the documents provided to an accused as
    part of the Crowns duty of disclosure. It is settled in the case law that the
    prosecution must disclose all of the evidence it has assembled but is not
    obliged to translate all of the evidence thus disclosed into the language of
    the accused (see
R. v. Stadnick
, [2001] Q.J. No. 5226 (S.C.), affd
sub
    nom

R. v. Stockford
, 2009 QCCA 1573, at paras. 11, 13;
R. v.
    Rodrigue
(1994), 91 C.C.C. (3d) 455 (Y.T.S.C.), at para. 12, appeal
    dismissed on motion (1994), 95 C.C.C. (3d) 129 (Y.T.C.A.);
R. v. Rose
,
    [2002] Q.J. No. 8339 (S.C.), at para. 27).

[81]

There
    are certain exceptions, however. At the request of the accused, the court may,
    where it considers it to be just and reasonable, require that the Crown provide
    the accused with a summary of the disclosure in his or her language (
Stockford
and
R. v. Couture
, 2007 QCCS 6845).

[82]

In
    this case, the appellant did not ask the judge to require that the Crown
    prepare a translation of the disclosure or the wiretaps, or to prepare a
    summary of them in French. What he did argue is that the Crown did everything
    to accommodate the anglophone accused and did nothing to acknowledge the
    presence of the accused persons who had exercised their right to a preliminary
    proceeding in French. The most flagrant example is that the Crown not only
    prepared a transcript of all of the wiretaps that were in English and provided it
    to the anglophone accused, but also prepared a transcript of the English
    translation of all of the wiretaps where the original language was French or
    another language. In addition, the anglophone accused received a detailed index
    (three volumes) of those wiretaps in English.

[83]

This
    contrasts sharply with what the francophone accused received. They received no
    index in their language and did not even receive a transcript in French of the
    wiretaps where the original language used was French. In at least one case, the
    version of the intercepted text placed in evidence was the translated English
    version of an intercepted text where the original language was French.

[84]

The
    Crown argued that with the exception of the latter intercepted text, which
    should have been introduced in French, there are no grounds for complaint. According
    to the Crown, in a bilingual trial or preliminary inquiry, the Crown may choose
    to prepare the disclosure and any other documents in English or French. In this
    case, the fact that it chose to do so in English only meets its language obligations.

[85]

In
    my opinion, the only conclusion that can be drawn from the fact that virtually
    all of the documents were prepared in English only is that Crown counsel
    decided to prepare everything for the preliminary inquiry in English and to do
    the minimum to meet the obligations they were under because the preliminary
    inquiry was bilingual. That approach to the preliminary inquiry is very
    possibly a result of the fact that two of the counsel assigned by the Crown to
    prosecute the charges were not bilingual and thus had to work with English
    versions of all the documents and evidence. The result is that all their
    efforts helped facilitate the job of counsel for the anglophone accused and
    they did not even provide the minimum, a transcript of the French wiretaps in
    French, for the francophone accused.

[86]

It
    is important to note that the voluminous documentation prepared by the Crown
    included more than just disclosure. The transcripts of all the wiretaps,
    including translations of the wiretaps in other languages, and the three-volume
    index, were tools developed by the prosecution to facilitate the job of the
    lawyers, witnesses, and preliminary inquiry judge. If there had been only
    anglophone accused, the documents prepared by the Crown would have been substantially
    the same. However, if the accused had all been francophone, all or certainly a
    good portion of the documents would certainly have been in French. If the Crown
    had wanted to treat the two language groups in a genuinely equal manner, it
    would have made an effort to meet the needs and expectations of both language
    groups. A bilingual trial or preliminary inquiry should not mean that the Crown
    can choose to give preference to one language, thereby facilitating the job of
    the accused who use that language, and do nothing for the accused who use the
    other. Indeed, the Crowns own policy provides that at a bilingual proceeding,
    documents prepared by Crown counsel must be in both official languages where
    practicable.
Here, all the documents prepared
    by the prosecution and appended to the notices were in English only
.

[87]

Any
    third party aware of the different treatment of the two language groups could
    not help but conclude that the francophone accused were put at a disadvantage
    and that the anglophone accused were given an advantage. The effect of the
    approach taken by the Crown was to treat the applicants request for a
    preliminary hearing in his own language as if there were a primary official
    language, in this case English, and a duty to accommodate when it came to the
    use of the other official language, namely French. That approach does not
    respect the governing principle established in
Beaulac
: the equality
    of the two languages (at para. 39).

[88]

It
    seems to me that in a case such as this one, the transcript should, at a
    minimum, be in the original language of the wiretaps where the wiretaps were in
    French or English. Where a language other than English or French was used, the
    translation could be into either official language. It would then be up to
    counsel for accused who wanted a transcript or index to be prepared in their
    language to make the request to the judge.

[89]

The
    judge may, having regard to considerations such as cost, delay in making the
    request, the delays that might arise from responding to the request, whether
    counsel and the accused are bilingual, and the principles I have stated,
    require that the prosecution provide a translation of some of the documents or
    produce summaries in the language of the accused, depending on what is just and
    reasonable in the circumstances.

(c)

The
    interlocutory judgment given in English

[90]

At
    the beginning of the preliminary inquiry, the appellant brought a motion to
    remove the Crown prosecutors who were not bilingual from the file. The motion
    was argued in French but the judge gave his decision in English, followed by a
    brief summary in French. The appellant argued that by doing this, the
    preliminary inquiry judge failed to respect the accuseds language rights. The
certiorari
judge found for the appellant.

[91]

The
    respondent argued that the preliminary inquiry judge did not err and was
    entitled to proceed as he did. In the respondents submission, the essence of
    the decision was set out in the French summary, and so the appellants rights
    were respected.

[92]

I
    am not persuaded by the respondents arguments. An analysis of the two texts,
    in French and English, clearly shows that the English version laid out the
    judges complete reasons, including the judges justification and reasoning.
    The French version is merely a summary, and does not present all of the
    elements that are needed in order to understand the basis of the judges
    decision.

[93]

Section 530
    gives the appellant the right to appear before a judge who speaks his official
    language. For the preliminary inquiry, that right is granted by s. 530.1(d).
    In addition, the courts obligation to make judgments available in the language
    of the accused is set out in s. 530.1(h), which reads as follows:

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.

[94]

The
    Quebec Court of Appeal has already considered the meaning of s. 530.1(h).
    It concluded that the obligation to make judgments available in the official
    language of the accused that is set out in s. 530.1(h) applies to all
    judgments, including interlocutory judgments (
R. c. Clohosy
, 2013 QCCA
    1742, at paras. 78-82). Accordingly, the phrases du jugement in French and
    any trial judgment in English that appear in s. 530.1(h) include all
    decisions made in the course of a trial (
Clohosy
, at para. 79).

[95]

The
    accused is entitled to receive the complete decision in his or her language. A
    summary or synopsis is not sufficient. As the Quebec Court of Appeal explained,
    [translation] When a judgment is only partially written in the language of the
    accused, the accuseds rights have only been partially respected. Section 530.1(h)
    requires more. The language rights of an accused cannot be accommodated by half
    measures (
Clohosy
, at para. 81).

[96]

In
    my opinion, the fact that an interlocutory judgment was given orally in no way
    lessens the judges obligation to make the decision and the reasons available
    in full in the language of the accused. The Quebec Court of Appeal has held
    that oral interlocutory judgments given during the trial must be made available
    in the language of the accused (
Dow
, at para. 93). This is based on
    the obligation imposed on the judge by ss. 530 and 530.1(d) to address the
    accused in his or her own language. Section 530.1(h) merely specifies that
    the obligation extends to decisions given in writing.

[97]

In
    this case, the appellants objection to the participation of the unilingual
    Crown prosecutors was made in French and the appellant was entitled to receive
    the judges decision, including his reasons, in his own language. Argument took
    place in French, except that counsel for some of the co-accused stated in
    English that they supported the appellants position. An incomplete summary of
    the reasons in French is not sufficient. Where argument took place in the
    language of the accused, the judge must give the judgment in full in the
    language of the accused, and the preliminary inquiry judge did not do this.

(d)

The
    unilingual court reporter

[98]

At
    the preliminary inquiry, the appellant asked that the unilingual court reporter
    be replaced by a bilingual court reporter. The judge simply refused to accede
    to the request. He replied as follows:

[translation] So in the circumstances I am taking no action in
    this respect because I am not in charge of administration, I have enough
    problems to solve without solving everybodys. So  I understand that it would
    be preferable for our reporters to be bilingual, it is not  I am not going to
    make orders to get one. So we are going to proceed with the resources available
    to us this morning.

[99]

The
    appellant renewed his request a few days later. The judge noted his request,
    but did nothing to address it.

[100]

In the
    appellants submission, the judges failure to act is a violation of his rights
    under ss. 530 and 530.1. The
certiorari
judge agreed. In
    addition, the appellant argued that the absence of a bilingual court reporter
    contributed to the delay in the preparation of the transcripts that were needed
    in order to bring his application for
certiorari.

[101]

The Crown
    contended that there had been no violation. It argued that ss. 530 and
    530.1 impose no express obligations concerning the presence of a bilingual
    court reporter. In addition, given technological advances, the preliminary
    inquiry is tape recorded, and it is not necessary for there to be a court
    reporter present. Accordingly, the fact that a bilingual court reporter was not
    present does not constitute a violation of the appellants linguistic rights.

[102]

There has been
    no decision dealing specifically with the right to a bilingual court reporter during
    a bilingual trial or preliminary inquiry. In
Beaulac
, however, the
    Supreme Court of Canada seems to have assumed that a bilingual court reporter
    would be present in a bilingual trial. At para. 39, the Court explained:

I wish to emphasize that mere administrative inconvenience is
    not a relevant factor. The
availability
    of court stenographers and court reporters
, the workload of
    bilingual prosecutors or judges, the additional financial costs of rescheduling
    are not to be considered because the existence of language rights requires that
    the government comply with the provisions of the Act by maintaining a proper
institutional infrastructure
and
    providing services in both official languages on an equal basis. [Emphasis
    added.]

[103]

In my opinion,
    the judges inaction in the circumstances constitutes a violation of the
    appellants language rights. The effect of an order for a bilingual trial or
    preliminary inquiry under s. 530 is that all court personnel whose
    presence is necessary to the proper conduct of the proceeding must be
    bilingual. To the extent that the presence of the court reporter is necessary
    for the proper conduct of the inquiry or the trial, then the judge must ensure
    that the reporter is bilingual.

[104]

It is impossible
    for us, on appeal, to conclude that in this case the court reporter played no
    role during the preliminary inquiry. It is quite probable that the court
    reporter was available, for example, to replay or read back extracts of
    witness testimony, in the event that the judge or the parties so requested.

[105]

With respect to
    the Crowns argument that there can have been no violation since there was no express
    obligation to have a court reporter present, no evidence was presented to us to
    establish the rules and practices of the court governing whether a court
    reporter is to be present. The fact remains that the court thought it
    appropriate to have a court reporter present during this preliminary inquiry.
    When the appellant objected, the judge did not simply say that the court
    reporter had no role to play. The judge seemed to be of the opinion that a
    court reporter should be present. It is therefore reasonable to conclude that
    in this case, the court reporter was an integral part of the preliminary
    inquiry and of the proper conduct of that proceeding, and had to be able to
    work in both languages.

[106]

In response to the
    appellants complaint, the judge should have determined whether the court
    reporter might be required to play a role in the proper conduct of the inquiry
    and, if so, ensured that a bilingual court reporter was present. He should not
    simply have washed his hands of the problem. If the presiding judge refuses to
    be responsible for ensuring respect of the accuseds language rights in the
    courtroom, the accused is left with no option for remedying the problem.

[107]

I therefore
    conclude, as did the
certiorari
judge, that the absence of a bilingual
    court reporter was a violation of ss. 530 and 530.1. The violation was
    particularly serious in that the judge refused to act despite the appellants
    request.

[108]

With respect to
    the appellants argument that the absence of a bilingual court reporter caused
    a delay in the preparation of the transcripts needed for the application for
    review, the appeal record is not clear or complete on that point. In the
    absence of a sufficient factual record, in this case, it cannot be concluded
    that the appellants language rights were violated on this ground.

(3)

Are the rights
    violations serious and do they entitle the appellant to a remedy, and, if so,
    what remedy?

(a)

The
    seriousness of the violations

[109]

In my opinion,
    there are a number of reasons why the violations of the appellants language
    rights here are serious and require that the court award an appropriate remedy.
    The following are some of the factors that have led me to conclude that a
    remedy is required:

1)

The number of violations: The violations are many and varied. We are not
    talking here about a few words spoken in the other official language, as has
    happened in other cases (see
Potvin
, at para. 37).

2)

The violations were not accidental: Counsel for the appellant objected
    several times but the Crown and the preliminary inquiry judge refused to remedy
    the problem. In the case of the unilingual court reporter, the judge washed his
    hands of the appellants request because he had [translation] enough problems
    to solve without solving everybodys. In the case of the unilingual prosecutors,
    the Crown simply refused, and the judge refused to do anything, explaining, in
    English, that he would have made the decision the appellant wanted in a perfect
    world but decided not to do so for fear that such an order would result in
    additional costs and delays. There was no evidence in the record to show that
    any time would have been needed or additional costs would have been incurred.
    In addition, these are not appropriate considerations, according to
Beaulac
.
    The Crown had been informed well in advance that it would be a bilingual
    preliminary inquiry and has no shortage of bilingual prosecutors.

3)

The violations were the fault of both the preliminary inquiry judge and the
    Crown prosecutors.

4)

The Crown gave the anglophone accused an advantage: Because the
    preliminary inquiry was bilingual and there were anglophone and francophone
    accused, the appellant was able to compare the treatment received by the two
    language groups. The anglophones language rights were not violated. In fact,
    the anglophone accused were given an advantage. As noted earlier, the Crown not
    only sent its notices in English only, it gave the anglophones a transcript in
    their language of all the wiretaps and a detailed index, while the francophones
    did not even receive a transcript in French when that was the language used.
    Any observer of these proceedings, including the appellant, cannot help but
    conclude that the accused who chose to proceed in English received a distinct
    advantage from the Crown.

5)

The requests for the rights to be respected created an atmosphere of
    conflict: The court has a duty to ensure that the language rights of accused persons
    are respected in full and to facilitate the exercise of those rights. If requesting
    that their language rights be respected puts accused persons in conflict with
    the judge, they are less likely to insist on their rights being respected, out
    of fear that their insistence will annoy the presiding judge and that the judge
    might become negatively predisposed toward them. In this case, appellants
    counsel and the judge exchanged words several times concerning the language
    rights of the accused. There is nothing to suggest that the appellant was
    unreasonable in his requests, and in fact it appears that his objections were
    well-founded. However, those conflicts took on such significance that at the
    conclusion of the preliminary inquiry, when the judge announced that he was
    committing the appellant for trial, he saw the need to add: [translation]
    Mr. Richer, I hope you are going to be proud of me, because I have
    written my decision in French only. That comment reflects a failure by the
    trial judge to view the accuseds language rights with the appropriate
    seriousness.

6)

The lack of effort on the part of the Crown to acknowledge that this was
    a bilingual proceeding: Well before the preliminary inquiry, it was obvious
    that the proceedings would be bilingual. Nonetheless, the Crown assigned two
    unilingual prosecutors to the case. They had the largest role to play before
    and during the preliminary inquiry. Since they are not bilingual, it would be
    expected that they would arrange for the hearing to be conducted in English,
    and in French only in a secondary manner. No effort was made by the prosecutors
    to present evidence in French (see, for example, Sgt. Pauls testimony),
    or to treat the two languages equally (all of the disclosure, including the
    translations, was in English). The prosecution did not even comply with its own
    internal guidelines, which provide that, in a bilingual trial, notices must be
    prepared in both languages. By choosing to include francophone and anglophone
    accused in a single indictment, the Crown imposed a bilingual preliminary
    inquiry on the appellant, thereby taking away his right to a preliminary
    inquiry exclusively in French. In my opinion, the Crown has a responsibility in
    those circumstances to make reasonable efforts to ensure that the bilingual
    nature of the proceeding is preserved.

(b)

The
    remedy

[110]

The appellant
    submits that the numerous violations of his language rights constitute
    violations of not only ss. 530 and 530.1 of the
Criminal Code
,
    but also ss. 7 and 11(b) of the
Canadian Charter of Rights and
    Freedoms
. In the appellants submission, a stay of proceedings under s. 24(1)
    of the
Charter
or the common law would be an effective remedy for the
    violations of his rights. The Crown submits that there was no violation of the
    appellants rights, and in the event that this court concludes otherwise, the
    appropriate remedy would be continuation of the proceedings with an order for a
    unilingual trial in French.

[111]

In my opinion,
    given the number and severity of the violations of the appellants rights, it
    is essential that an effective remedy be imposed. It should be recalled that
    language rights are not procedural rights; rather, they are substantive rights.
    An appropriate remedy must correct the situation to the extent possible, while also
    ensuring that the Crown is held accountable for the failure to meet its
    obligations.

[112]

Before moving on
    to the appropriate remedy, I will consider whether there was a violation of a
Charter
right that would entitle the appellant to a remedy under s. 24(1).

(c)

Section 7
    of the
Charter

[113]

The appellant
    submits that the treatment he received, compared to the treatment received by
    the anglophone accused, was unequal to the point that it constituted a deprivation
    of life, liberty, and security of the person contrary to the principles of
    fundamental justice, thereby infringing s. 7 of the
Charter
.

[114]

In my opinion,
    the violations of language rights in this case do not constitute a violation of
    the principles of fundamental justice. Bastarache J. in
Beaulac
referred to the complete distinctiveness of language rights and trial
    fairness (at para. 41). Accordingly,

[i]t would constitute an error either to import the
    requirements of natural justice into ... language rights ... or vice versa, or
    to relate one type of right to the other.... Both types of rights are
    conceptually different.... To link these two types of rights is to risk
    distorting both rather than reenforcing either (at para. 41).

[115]

Certainly, it is
    possible that in some circumstances, the violation of an accuseds language
    rights could be such as to constitute a violation of the principles of fundamental
    justice guaranteed in s. 7 of the
Charter
. In this case, however,
    the language rights violations and the unequal treatment of the two language
    groups that occurred do not, in my opinion, constitute such a violation.

(d)

Section 11(b) of
    the
Charter

[116]

The appellant
    also seeks to rely on s. 11(b) of the
Charter
and asks that a
    stay of proceedings be granted in light of the intolerable delays the appellant
    has experienced because he had to initiate these proceedings in order to have
    his language rights respected.

[117]

This issue was
    raised by the appellant for the first time before this court. The Crown has
    therefore been denied an opportunity to submit relevant evidence. The record
    contains no transcripts of the various court appearances made before the preliminary
    inquiry was held. Nor does it contain the evidence required to apply the other
    factors relevant to assessing the reasonableness of the delays beyond those
    caused by the application for
certiorari
, such as waivers of time
    limits, the reasons for the delays, or the prejudice suffered by the appellant.

[118]

In my opinion,
    the record presented to us does not allow us to conduct the necessary analysis.
    The question of delay and of whether s. 11(b) can be relied on to obtain a
    stay of proceedings as a remedy should be the subject of a motion in the trial
    court if the appellant wishes to pursue it.

[119]

However, nothing
    in these reasons should be taken as suggesting that the appellant is not free
    to make that request, supported by the necessary evidence, including the delays
    caused by the failure to respect his language rights.

(e)

The
    appropriate remedy

[120]

It is clear that
    ss. 530 and 530.1 of the
Criminal Code
were not complied with and
    that the appellant did not receive the preliminary inquiry to which he was
    entitled under those sections. In the appellants submission, the appropriate
    remedy is a stay of proceedings. Even absent a
Charter
violation, the
    appellant submits that he is entitled to a stay under the common law doctrine
    of abuse of process.

[121]

In
R. v.
    Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada
    explained that a stay of proceedings is the most drastic remedy in criminal law
    and should be granted only rarely, in the clearest of cases. Those cases are
    divided into two categories:

1)

The main category, which covers abuses of process that compromise the
    fairness of the trial; and

2)

The residual category, which covers abuses of process that risk undermining
    the integrity of the justice system.

[122]

In this case,
    the appellant is not claiming that the violations of the language rights
    guaranteed in ss. 530 and 530.1 of the
Criminal Code
had an
    impact on the fairness of the preliminary inquiry. This means that only the
    residual category could be relevant.

[123]

The test for a
    stay under the residual category has three steps:

(1)

There must be prejudice to  the
    integrity of the justice system that "will be manifested, perpetuated or
    aggravated through the conduct of the trial, or by its outcome";

(2)

There must be no alternative
    remedy capable of redressing the prejudice; and

(3)

Where there is still uncertainty
    over whether a stay is warranted after steps 1) and 2), the court is required
    to balance the interests in favour of granting a stay, such as denouncing
    misconduct and preserving the integrity of the justice system, against
    "the interest that society has in having a final decision on the
    merits" (
Babos
, at para. 32 [Citations omitted]).

(i)

Prejudice to the integrity of the justice system

[124]

The Supreme
    Court of Canada has described this requirement as follows: For a stay of
    proceedings to be appropriate in a case falling into the residual category, it
    must appear that the state misconduct is likely to continue in the future or
    that the carrying forward of the prosecution will offend societys sense of
    justice (
Babos
, at para. 36, quoting
Canada (Minister of
    Citizenship and Immigration) v. Tobiass
, [1997] 3 S.C.R. 391, at para. 91).

[125]

The number and severity
    of the violations of the appellants language rights and the conduct of the
    Crown and the court were reprehensible in this case. The aspect that offends
    societys sense of justice is the contrast between the treatment of the
    anglophone accused and the francophone accused. In a proceeding in respect of
    which Parliament has legislated to ensure the equality of the two languages, it
    appears that, in one prosecution, the Crown denied the language rights of the
    francophones, including the appellant, while respecting the anglophones
    language rights. As noted, the prosecution did not even follow its internal
    directives concerning the obligation to translate the notices in a bilingual
    trial. Moreover, the preliminary inquiry judge not only participated in the
    violations, he also seemed, at times, to be exasperated by the appellants requests
    that his language rights be respected. In this case, the repeated violations by
    the prosecution and the fact that neither the judiciary nor the court
    administration acted to remedy the violations or ensure equality in the
    treatment of the two language groups suggest that absent a clear statement and
    an appropriate remedy, full respect for the rights conferred by ss. 530
    and 530.1 of the Code will remain illusory.

[126]

Access to
    justice in French in the majority anglophone provinces presents major
    challenges for francophones appearing in the courts. Numerous studies and
    reports on access to justice in French confirm that the appellants experience
    is not unique and is part of a larger problem.

[127]

As an example, I
    would cite several reports on the subject produced by the federal government or
    the government of Ontario:

1)

In 2002, the federal government published a study entitled Environmental
    Scan: Access to Justice in Both Official Langua
ges
. The main
    conclusion in the report was a pessimistic one:

A number of studies done before this one have reported the gaps
    in the judicial system's fulfillment of its obligations in respect of access to
    the courts in both official languages. Most of those studies, including this
    one, have made the same finding: that members of official language minority
    communities who appear before the courts encounter a number of difficulties in
    accessing the judicial system in their own language. (
Environmental Scan
,
    n.p.)

That report also
    contains statistics that give pause for thought: in a survey of Ontario lawyers,
    59% of respondents thought that trials in French were not heard within the same
    timelines as trials in English, and 31% thought that requesting a trial in
    French would involve additional costs. Even more disturbing is that 15% of
    respondents were concerned about the effect that a request for a trial in
    French might have on the outcome of the case (
Environmental Scan
,
    Table 10.8).

2)

In its annual report for 2008-2009, the Office of the French Language
    Services Commissioner of Ontario wrote: There are numerous cases of citizens
    who have encountered difficulty exercising their rights (
2008-2009 Annual
    Report of the OFLSC
, at p. 37).

3)

In its annual report for 2011-2012, the Office of the French Language
    Services Commissioner of Ontario noted that in spite of the initiatives
    undertaken by the government and the courts, it continued to receive worrisome
    complaints (
2011-2012 Annual Report of the OFLSC
, at p. 31).

4)

In 2012, the French Language Services Bench and Bar Advisory Committee
    to the Attorney General of Ontario, of which I was a member, found that
    proceeding in French exposed individuals appearing before the courts to
    additional delays and costs (
Report of the Advisory Committee
, at pp. 26-27).
    The Committee concluded: In spite of the goodwill on the part of participants
    in the justice system, the French-speaking community continues to experience
    barriers to accessing justice in French (
Report of the Advisory Committee
,
    at p. 48).

5)

In 2013, the Office of the Commissioner of Official Languages of Canada (OCOL)
    published a report on the appointment of bilingual judges. In its report, the
    OCOL noted the shortcomings that still limit access to justice in both
    official languages for members of minority language groups (
Access to
    Justice in Both Official Languages
, at p. 6). Those shortcomings mean that
    access to justice in the minority language is still a particular challenge
    for the members of that community (
Access to Justice in Both Official
    Languages
, at p. 37).

[128]

As explained in
Beaulac
,
    at para. 45, failure to respect language rights will rarely make a trial
    unfair. The Crown will always be able to argue, as it does in this case, that a
    remedy is not necessary.

[129]

However, every
    failure to respect language rights has a subtle but significant impact. As this
    court said in a decision concerning language rights in civil cases:

Violation of these rights, which are quasi-constitutional in
    nature, constitutes material prejudice to the linguistic minority. A court
    would be undermining the importance of these rights if, in circumstances where
    the decision rendered on the merits was correct, the breach of the right to a
    bilingual proceeding was tolerated and the breach was not remedied (
Belende v. Patel
,
    2008 ONCA 148, 89 O.R. (3d) 502, at para. 24).

[130]

No accused in
    Ontario will choose to exercise the right to a trial or preliminary inquiry in
    French if he or she is penalized for doing so or has to fight to have this
    right respected. In addition, no application for review by way of
certiorari
will be brought if there are violations of these rights, if no remedy will be
    awarded. Accordingly, in my opinion, the first step of the test has been met.

(ii)

Other remedies

[131]

It is settled
    law that an accused can bring
certiorari
to quash a committal for
    trial where there is a lack or loss of jurisdiction (
R. v. Forsythe
,
    [1980] 2 S.C.R. 268, at p. 271). A magistrate will lose jurisdiction if he or
    she fails to observe a mandatory provision of the
Criminal Code
 (
Forsythe
,
    at pp. 271-72).

[132]

The Quebec
    courts have held that ss. 530 and 530.1 of the
Criminal Code
are
    mandatory provisions. For example, the Superior Court of Quebec concluded that
    [translation] the interpretation of sections 530 and 530.1 raises a
    jurisdictional issue, and so any error by the justice of the peace on that
    point will affect his or her jurisdiction (
R. c. Edwards
, [1998] R.J.Q.
    1471 (S.C.), at para. 60).

[133]

In my opinion,
    the failure of the judge in this case to ensure that the requirements of ss. 530
    and 530.1 were met resulted in a loss of jurisdiction, and we have the
    authority to quash the committal for trial.

(iii)

The balancing exercise

[134]

However, the
    appellant submits that quashing the committal for trial would simply result in
    a second preliminary inquiry being held, and that this does not constitute an
    effective remedy. In a sense, that result would be a punishment for the
    appellant rather than a remedy. The appellant was released on bail on
    June 3, 2010. Except for a brief period when he was taken back into
    custody after his bail was withdrawn, he was and continues to be subject to
    very onerous house arrest conditions. Quashing the committal for trial, without
    more, would simply add to the delay already experienced, prolong the appellants
    onerous house arrest conditions, and oblige the appellant to incur the costs of
    a second preliminary inquiry. By contrast, the impact on the Crown, which was
    responsible for the violations, along with the court, would be minimal.

[135]

On the other
    hand, although a stay of proceedings would be an effective remedy for the
    appellant, the respondent submits that this remedy, the most drastic in
    criminal law, is not justified in this case. In the Crowns submission, the
    appellant has not met the heavy burden that rests on him to be entitled to a stay.
    As the Supreme Court stated in
Babos
, at para. 44:

Undoubtedly, the balancing of societal interests that must take
    place and the clearest of cases threshold presents an accused who seeks a
    stay under the residual category with an onerous burden. Indeed, in the
    residual category, cases warranting a stay of proceedings will be exceptional
    and very rare . But this is as it should be. It is only where the affront
    to fair play and decency is disproportionate to the societal interest in the
    effective prosecution of criminal cases that a stay of proceedings will be
    warranted.

[136]

In my opinion, a
    stay of proceedings could be the appropriate remedy, in an appropriate case,
    for serious violations of language rights. In this case, however, the
    violations took place during a preliminary inquiry and not at trial. Further,
    in spite of the fact that they are serious, I am not able to conclude that
    there was bad faith, given that there is no case law clearly establishing the
    Crowns obligations in a bilingual trial or preliminary inquiry of this kind.
    Accordingly, the challenge in this case is to fashion a remedy that is less
    extreme than a stay of proceedings, but that nonetheless constitutes a genuine
    remedy for the appellant.

[137]

If the order
    quashing the committal for trial was accompanied by an order awarding the
    appellant his costs, this would compensate the appellant and would hold the
    prosecution responsible and accountable for its misconduct. In addition, given
    the significant delays for which the court and the prosecution are responsible,
    the appellant could very possibly obtain a change to his conditions of release
    and could pursue a request for a stay of proceedings under s. 11(b) of the
Charter
.

[138]

Accordingly, in
    these circumstances, I am of the opinion that an order consisting of quashing
    the committal for trial and awarding the appellant his costs would constitute
    an appropriate remedy.

[139]

This brings me
    to the next question: is it possible, in this case, to require that the
    prosecution pay the appellants costs?

(f)

Awarding court costs

[140]

Historically, it
    was very rare for court costs to be awarded against the Crown in criminal
    cases, and such awards were used to call attention to bad faith on the part of
    the Crown or intentional misconduct by the prosecution (
R. v. C.A.M.
,
    [1996] 1 S.C.R. 500, at para. 97). As explained in
R. v. 974649 Ontario
    Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, the Supreme Court made that
    approach more flexible if costs are awarded as a remedy under s. 24(1) of
    the
Charter
. There, the Supreme Court held that the courts may require
    that the Crown reimburse the accused for costs incurred as a constitutional
    remedy if they find marked and unacceptable departure from the reasonable
    standards [of conduct] expected of the prosecution (
974649 Ontario
,
    at para. 87). The Supreme Court stated: In recent years, costs awards
    have attained more prominence as an effective remedy in criminal cases (
974649
    Ontario
, at para. 81).

[141]

The Supreme
    Court considers that awarding costs can often constitute the most appropriate
    remedy to sanction the prosecutions marked and unacceptable departures from reasonable
    standards that do not rise to the threshold required for a stay of proceedings
    but that are nonetheless very serious (
974649 Ontario
, at
    para. 80). The fact that the accused must be tried a second time because
    of a
Charter
violation is a factor that operates in favour of awarding
    costs or even awarding damages (
974649 Ontario
, at paras. 99‑100).

[142]

Apart from
Charter
violations, cost awards in a criminal case remain rare. Costs are typically
    awarded as a consequence of acts of bad faith on the part of the Crown.
    However, the categories of circumstances in which costs may be awarded in a
    criminal context are never closed (
R. v. King
(1986), 26 C.C.C. (3d)
    349 (B.C.C.A.)). The Supreme Court has confirmed that in remarkable (
R. v.
    Trask
, [1987] 2 S.C.R. 304, at p. 308) or unique circumstances (
R. v.
    Curragh Inc.
, [1997] 1 S.C.R. 537, at p. 546), a court may award costs
    even in the absence of bad faith on the part of the Crown.

[143]

Doherty J.A. of
    this court, in an appeal relating to a summary conviction case, summarized the
    cases concerning awards of costs as follows:

The cases in which costs have been awarded against the Crown in
    summary conviction appeal proceedings fall into two broad categories. The
    first, and by far the largest, category consists of cases where the conduct of
    the prosecution is said to merit sanction in the form of an award of costs
    against the Crown.
The second category consists of cases
    where there is no Crown misconduct, but other exceptional circumstances exist
    such that fairness requires that the individual litigant not carry the
    financial burden flowing from his or her involvement in the litigation
(
R.
    v. Garcia
(2005), 194 C.C.C. (3d) 361, at para. 13 [Emphasis added]).

[144]

This court has
    confirmed that what was said in
Garcia
applies equally to prosecutions
    under the
Criminal Code
:
R. v. B.(D.)
(2006), 79 O.R. (3d)
    698, at para. 96;
Canada (Attorney General) v. Foster
(2006), 215
    C.C.C. (3d) 59, at para. 63;
R. v. Tiffin
, 2008 ONCA 306, 90
    O.R. (3d) 575, at para. 94.

[145]

It is worth
    noting that in
Curragh Inc.
, the Supreme Court of Canada awarded costs
    to two accused without finding a
Charter
violation. In that case, the
    conduct of the trial judge was such as to raise a reasonable apprehension of
    bias against the prosecution, but the trial judge refused to recuse himself
    from the case. The court held that the accused should not suffer the grievous
    financial burden that arose from systemic problems that were beyond their
    control and to which they had in no way contributed.

[146]

I am therefore
    of the opinion that in spite of the fact that there was no violation of the
    accuseds
Charter
rights, we can award him his costs for the
    preliminary inquiry. In this case, the facts are indeed exceptional in many
    respects. The prosecution failed in several ways to respect the appellants
    language rights. Additionally, the treatment it afforded to the accused who
    exercised their right to have their preliminary inquiry held in English was
    distinctly superior to the treatment it afforded to the accused who chose
    French. The prosecution not only respected the language rights of the
    anglophones, it went beyond its obligations to them. As I noted earlier, an
    observer with knowledge of the facts would have been left in no doubt that the
    accused who chose to proceed in French were put at a disadvantage. As in
Curragh
    Inc.
, this disadvantage arose from systemic failures; the appellant,
    having objected in a timely manner, cannot be faulted for what transpired.

[147]

In this case,
    much like in
Curragh Inc.
, the preliminary inquiry judge also bears a
    large share of the responsibility for the failure to respect the appellants
    rights, and hence for the need for a new preliminary inquiry. He did not ensure
    that the appellants language rights were respected, citing reasons of
    convenience and a lack of resources. In addition, when giving his decision to
    commit for trial, rather than thank counsel for the appellant for his efforts
    to ensure that the appellants language rights were respected, he added a
    comment to the effect that counsel for the appellant should be proud of him for
    giving his decision in French, reflecting a failure by the trial judge to view
    the accuseds language rights with the appropriate seriousness. I note that at
    the time he gave his decision, it affected only the two francophones, since the
    anglophones had all pleaded guilty or consented to their committal for trial.
    There was no reason to give judgment in English.

[148]

In my opinion,
    the
certiorari
judge was right to find several violations of the
    accuseds language rights but erred by failing to award any remedy. The appellant
    correctly argued that, standing alone, an order quashing the committal for
    trial would not constitute an appropriate remedy since it would simply lead to
    a new preliminary inquiry. That kind of remedy would place a heavy financial
    and psychological burden on the accused (see
R. v. Taillefer;

R.
    v. Duguay
, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 128). If the
    appellant were not awarded his costs, quashing the committal for trial would,
    for the reasons I have stated, be an inadequate remedy.

[149]

Accordingly, in
    this case, unless the appellant is granted an order quashing the committal for
    trial and an order that the Crown pay the appellants costs, there is no order
    other than a stay of proceedings that would constitute an appropriate response
    to the violations identified. Given that, as was the case in
Curragh Inc.
,
    the additional delays and costs incurred by the appellant arise solely from
    systemic problems and the conduct of the judge and the prosecution, the
    appellant, who is in no way responsible, should be awarded costs. I note that
    in
Curragh Inc.
, the Supreme Court of Canada awarded not only the
    costs already incurred by the accused, but also the costs to be incurred for
    the new trial. However, I see no need to go that far in this case.

[150]

Before
    concluding, I would reiterate that this is an exceptional remedy. I do not
    believe it would be appropriate if the violations were minor or had been
    corrected quickly. Bilingual proceedings are demanding and the standard should
    not be perfection: see e.g.
R. v. Wilcox
, 2014 QCCA 321, 381 D.L.R.
    (4th) 383, at paras. 110‑12, affd on other grounds, 2014 SCC 75,
    [2014] 3 S.C.R. 616.

Conclusion

[151]

For these
    reasons, I would quash the committal for trial and allow the appellant his
    reasonable costs of the preliminary inquiry incurred to date.

[152]

If the parties
    are unable to agree on the costs, I would ask the appellant to provide us with
    his written submissions, of no more than five pages, within 30 days after
    publication of this decision. I would ask the respondent to provide a reply of
    no more than five pages within 15 days following service of the
    appellants submissions.

Released: May 5, 2015

(P.R.)
    Paul Rouleau J.A.

I agree Robert J.
    Sharpe J.A.

I agree Gladys Pardu
    J.A.

APPENDIX: LEGISLATION

530.
(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
          accuseds 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.

(5) An
          order under this section that a trial be held in one of the official
          languages of Canada may, if the circumstances warrant, be varied by the court
          to require that it be held in both official languages of Canada, and vice
          versa.

(6) The
          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.

530.01
(1) If
          an order is granted under section 530, a prosecutor  other than a
          private prosecutor  shall, on application by the accused,

(a) cause the portions of
          an information or indictment against the accused that are in an official
          language that is not that of the accused or that in which the accused can
          best give testimony to be translated into the other official language; and

(
b
) provide the
          accused with a written copy of the translated text at the earliest possible
          time.

(2) In
          the case of a discrepancy between the original version of a document and the
          translated text, the original version shall prevail.

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

530.2
(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.
(1) Sur
          demande dun accusé dont la langue est lune des langues officielles du
          Canada, faite au plus tard :

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

(i) sil est accusé dune
          infraction mentionnée à section 553 ou punissable sur déclaration de
          culpabilité par procédure sommaire,

(ii) si laccusé doit être
          jugé sur un acte daccusation présenté en vertu de section 577;

b) au moment de son choix,
          sil choisit de subir son procès devant un juge de la cour provinciale en
          vertu de section 536 ou dêtre jugé par un juge sans jury et sans
          enquête préliminaire en vertu de section 536.1;

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

(i) sil est accusé dune
          infraction mentionnée à section 469,

(ii) sil a choisi dêtre
          jugé par un tribunal composé dun juge seul ou dun juge et dun jury,

(iii) sil est réputé avoir
          choisi dêtre jugé par un tribunal composé dun juge et dun jury,

un juge de
          paix, un juge de la cour provinciale ou un juge de la Cour de justice du Nunavut
          ordonne que laccusé 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
          parlent la langue officielle du Canada qui est celle de laccusé ou, si les
          circonstances le justifient, qui parlent les deux langues officielles du
          Canada.

(5) Toute
          ordonnance rendue en vertu du présent article prévoyant le déroulement dun
          procès dans lune des langues officielles du Canada peut, si les
          circonstances le justifient, être modifiée par le tribunal pour prévoir son
          déroulement dans les deux langues officielles du Canada, et vice versa.

(6) Peut
          constituer une circonstance justifiant une ordonnance portant quun 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 davoir 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 nest pas la même pour tous les
          coaccusés.

530.01
(1) Le poursuivant  quand il ne sagit pas dun poursuivant privé  est
          tenu, à la demande de laccusé visé par une ordonnance rendue en vertu de
          section 530, de faire traduire, dans la langue officielle de laccusé ou
          dans la langue officielle qui permettra à celui-ci de témoigner le plus
          facilement, les passages des dénonciations et des actes daccusation qui ont
          été rédigés dans lautre langue officielle et de lui remettre une copie de la
          traduction dans les meilleurs délais.

(2) En cas
          de divergence entre loriginal dun document et sa traduction, loriginal
          prévaut.

530.1
Si une ordonnance est rendue en vertu de section 530 :

a) laccusé et son avocat ont le droit demployer lune ou
          lautre langue officielle au cours de lenquête préliminaire et du procès;

b) ils peuvent utiliser lune ou lautre langue officielle dans
          les actes de procédure ou autres documents de lenquête préliminaire et du
          procès;

c) les témoins ont le droit de témoigner dans lune ou lautre
          langue officielle à lenquête 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 nest pas celle de laccusé ni celle qui permet à ce dernier de
          témoigner le plus facilement;

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

e) laccusé a droit à ce que le poursuivant  quand il ne
          sagit pas dun poursuivant privé  parle la même langue officielle que lui
          ou les deux langues officielles, selon le cas;

f) le tribunal est tenu doffrir des services dinterprétation
          à laccusé, à son avocat et aux témoins tant à lenquête préliminaire quau
          procès;

g) le dossier de lenquête préliminaire et celui du procès
          doivent comporter la totalité des débats dans la langue officielle originale
          et la transcription de linterprétation, ainsi que toute la preuve
          documentaire dans la langue officielle de sa présentation à laudience;

h) le tribunal assure la disponibilité, dans la langue
          officielle qui est celle de laccusé, du jugement  exposé des motifs compris
           rendu par écrit dans lune ou lautre langue officielle.

530.2
(1) En
          cas dordonnance exigeant que laccusé 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 lenquête
          préliminaire ou le juge qui préside le procès peut, au début de linstance, 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 linstance.

(2) Lordonnance
          respecte, dans la mesure du possible, le droit de laccusé de subir son
          procès dans la langue officielle qui est la sienne.