In the decision of R. v. Tayo Tompouba, 2024 SCC 16, the Supreme Court of Canada ruled in favour of Franck Yvan Tayo Tompouba, a bilingual Francophone, who was convicted of sexual assault after a trial conducted in English. The basis of his appeal was that Tayo Tompouba was never informed of his right to be tried in either of the official languages of Canada (French or English). The Supreme Court quashed his conviction and ordered a new trial in French.
This case reaffirmed the critical importance of language rights in the Canadian legal system by clarifying the need for courts to inform accused persons of their right to be tried in either French or English under section 530(3) of the Criminal Code, and establishing a clear framework for identifying when one’s language rights have been breached.
Background
Tayo Tompouba was convicted of sexual assault following a trial held in English. During his court appearances, the court failed to inform him of his right to be tried in either of Canada’s official languages, as stipulated by section 530 of the Criminal Code.
Section 530 states:
530(1) On application by an accused whose language is one of the official languages of Canada, made not later than the time of the appearance of the accused at which their trial date is set, a judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace 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.
[…]
(3) The judge, provincial court judge, judge of the Nunavut Court of Justice or justice of the peace before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.
The section provides for two rights: first, the fundamental right to be tried in the official language of one’s choice under section 530(1) and, second, the right to advised of this fundamental right under section 530(3).
On appeal, Tayo Tompouba argued that his language rights were violated. He contended that the failure to notify him of his fundamental right to a trial in either English or French constituted an error of law that impacted the fairness of his trial, and sought an order for a new trial in French.
The British Columbia Court of Appeal upheld Tayo Tompouba’s conviction.
Supreme Court of Canada: The Crown Must Show Prejudice
In a 5-2 decision, the majority of the Supreme Court of Canada confirmed that failing to inform Tayo Tompouba of his right to be tried in either English or French under section 530(3) is a legal error. The Supreme Court held that breaching Tayo Tompouba’s language rights was presumptively prejudicial and placed the burden on the Crown to demonstrate the absence of prejudice to Tayo Tompouba. This meant that once Tayo Tompouba demonstrated that he was not advised of his right to a trial in either French or English, the onus shifts to the Crown to show that he was not prejudiced by the failure to inform him of his language rights.
Three Routes The Crown Can Take To Show Prejudice
If an accused demonstrates that his right under section 530(3) was breached, the court provided for three “routes” the Crown can take to demonstrate the accused’s right was not prejudiced by the failure to inform the accused of their language rights:
- The Crown can show that the accused did not have sufficient proficiency to instruct counsel and follow legal proceedings in the other language.
- The Crown can demonstrate that the accused would have chosen the same language regardless of the breach.
- The Crown can establish that the accused otherwise knew of their right to choose the trial language in a timely manner.
To prove one of these routes, the Crown can rely on evidence on the record from the court below or seek to adduce new or “fresh” evidence. The Supreme Court indicated that any material fresh evidence the Crown seeks to adduce should be admitted.
Application to Tayo Tompouba’s Case
In Tayo Tompouba’s case, the Supreme Court found that the Crown failed to provide sufficient evidence that his language rights were not violated. In doing so, they made a number of important findings as to what evidence can and cannot be used to rebut the presumption of prejudice.
First, the fact that Tayo Tompouba spoke English was not sufficient to exclude the possibility that he would have chosen a trial in French. As mentioned, he was a bilingual Francophone.
Second, the Crown could not simply rely on the fact that Tayo Tompouba signed an Undertaking and a Promise to Appear. The Supreme Court held Tayo Tompouba’s signature on those documents was not sufficient evidence that he was aware of his right to a trial in either official language. While those documents state in writing that an accused person has the right to a trial in either English or French pursuant to section 530, the principal purpose of those documents is to ensure that an accused understands the conditions by which they are bound. Tayo Tompouba’s signature on these forms was not an express acknowledgment that he was notified of his language rights.
Third, the fact that Tayo Tompouba was represented by counsel did not negate the procedural requirement to explicitly inform Tayo Tompouba of his right to be tried in either official language. The Supreme Court noted that amendments to the law in 2008 emphasized the necessity of notifying all accused individuals of their right to a trial in French or English, not just those who are self-represented as was the case prior to 2008. The Supreme Court also noted that if Parliament meant to include a presumption that counsel notify their clients, then they would have written that into the Criminal Code as they did in other sections of the law.
Lastly, the majority of the court held that Tayo Tompouba’s silence could not be used against him. In other words, he was not required to testify in his defence stating that he did not know about his right to be tried in either official language or that he would have chosen French if he had known. Instead, Tayo Tompouba relied on the presumption in his favour; he did not give any direct evidence as to his intentions.
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Conclusion and Impact
In the result, the Supreme Court of Canada allowed Tayo Tompouba’s appeal and ordered a retrial in French. The decision affirmed that the breach of section 530(3) constituted an error of law and created a presumption of a violation of Tayo Tompouba’s right to be tried in his preferred official language. The Crown’s inability to rebut this presumption on appeal resulted in a new trial.
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