Thank you, Mr. Chairman, ladies and gentlemen. Just to clarify one thing, I appear before you this morning purely in my capacity as a criminal defence lawyer, not representing any group or organization.
It's interesting when I listen to my colleagues from out west. I thought only Quebec had language problems, but I guess not.
I'd like to walk you folks through section 530 and subsection 530(2), which essentially is how the process works. By walking through it, I'll show you how I've experienced an English trial, because obviously if you want a French trial in Quebec, it's pretty easy to have. It's the English trial that is a little bit more complicated.
Section 530 simply says that you have to make an application at a certain point in the process. But that doesn't really have any great importance, because regardless of when you make your application—as long as it's not made on the morning of the trial, because then the judge won't be happy—if you make it virtually any time before the trial, the judge will grant it. It's interesting to note that section 530 says the judge “shall” grant it. So there is actually no discretion given to the judge. There's no linguistic contest here. There's no “Prove to me that you really are anglophone. How many years of English school did you have? I think you're lying. I think you're actually a French person who's trying to hide; therefore, I'm going to refuse the request to order an English trial.” I've never seen that kind of thing happen, and I've never heard of it happening in Quebec.
Subsection 530(3) says the judge or the provincial court judge is to advise the accused person of this right. I've seen one courthouse in which they have preprinted forms that they give to a person who's being arraigned—two courthouses, I should say. But besides those, I've never heard a judge tell a person who's appearing, either represented or not represented, that he has a right under section 530 for a trial in English. I've never heard it.
You have, of course, sections that talk about a trial in English and in French, because you have the difficult situation, and it's becoming more and more common—I would venture a guess it's a question of finance—that more and more trials are not just one accused. They're groups of accused people. I'm involved in one right now, a fraud case with 38 co-accused. You can imagine that these 38 people speak more than one language. It becomes a nightmare to figure out what language the trial will be in, notwithstanding foreign-speaking people—there's Punjabi, there's Greek, there's Italian, and so on.
So the code does set out to a certain degree how you're supposed to proceed in that fashion. Section 530.01 talks about once the order is granted, once the judge says they will proceed in English, what that means on a practical basis. Well, it's supposed to mean that the accused has the right to have the information or the indictment translated into English.
Frankly, that's relatively useless, because all the information or the indictment is going to say is that on or about this date, Johnny Smith did assault Peter Harris, with information on where, how, whether there are statements, police reports, executed search warrants, and so on. Our courts have already decided that you do not have a right to the disclosure materials in English. Here you go. Here they are. You do what you want with them. And it's becoming more and more à la mode, at least in Quebec, to furnish defendants with huge quantities of disclosure—10, 15, 20 DVDs. Well, try to have 20 DVDs translated. And then, interestingly enough, paragraph 530.01(1)(a) says you have the right to have the information or the indictment translated.
Why exactly does 530.01(1)(b) say that you have a right to receive that copy? Well, if you're going to translate it.... What, the translator is going to keep it on his desk? It doesn't make sense.
The only thing that I can think is that again there is a certain réticence to translate, there is a certain hesitation to work in the other language.
Again, the order is granted. What do you have the right to do? You have the right to speak English. Simply put, what does that mean? You have a right to plead in English, you have a right to written proceedings in English, your lawyer has the right to plead in English. Interestingly enough, 530.1(c) talks about how any witness may give the evidence in either official language. An English trial in Quebec basically looks like this almost always: French prosecutor, French judge, English accused, French defence lawyer, French clerk. Artificially you have to drop in English in there. So you sometimes end up with strange situations. You'll end up with a francophone asking a question in his or her broken English translated into French for the witness, witness answers in French, translated into English, that's the end of the first question. You can be here for a long time but frankly that's the only way to proceed.
As I said 530.1(c.1) is a bit of a strange one because it authorizes the prosecutor to examine the witness in his or her language. Frankly, I never knew that 530.1(c.1) existed because if I saw the prosecutors speaking French to a French witness I would move for a mistrial because how can the accused have a trial in English if the prosecutor is speaking French and the witness is speaking French?
What we used to have in Quebec up until probably 2000 was an English trial that worked as follows. Everybody in the court system worked in French. Mister or Madame accused, you can go sit in the corner, we'll put an interpreter next to you, don't make too much noise, and everything will be translated for you. That worked up until decisions that came before Beaulac. And then of course when Beaulac came you couldn't have that anymore. It was just completely absurd.
While it is true that you have a right to an English trial that right, in my opinion at least, is never a problem in a major metropolitan city such as Montreal. I firmly believe that there is a certain amount of judge-switching in order to allow the more comfortable anglophone judge to sit on this case. Of course, you don't see that, that's done behind the wall so to speak.
In outlying regions that's a different story. I have seen bail hearings postponed because frankly the presiding judge couldn't do it. That's very serious. You're talking about an individual who's detained. So we're going to tell him, “You just sit in jail for a few more days, we'll get another judge who can handle the case.” That kind of situation, needless to say, is completely unacceptable.
One of the interesting things is the accused has a right to have a prosecutor who speaks the language. You have a right to have a prosecutor who speaks English, but in Quebec a prosecutor cannot be forced to speak English. So you're saying, “If you have a right to speak English and you can't be forced to speak English, how does English come out?” If you remember back to the Oka Crisis, that stemmed a number of cases.
One of the famous cases was R. v. Cross. Mr. Cross wanted an English trial and the prosecutors from Saint-Jérôme said, “You have a right to an English trial but I'm not speaking English.” Needless to say you have the whole sphere of Bill 101 and the obligatory language, employer, employee and so forth, so eventually the Court of Appeal said, “You have a right to a trial in English, but you can't force him to speak English.” What happens now is when you make a request for an English trial, it's supposed to be noted on some kind of document and the system is supposed to make sure that an English-capable judge is presiding and an English-accepting prosecutor is presiding.
Perhaps the thing that I find most problematic, and I would say unacceptable, is section 531. Section 531 is very simple: if you can't proceed in my case with an English trial, you can get a change of venue.
Well, that's like saying that if you can't get your constitutional rights executed or carried out in this place, go to this place, because they're better on the charter in this place.
That's unacceptable in a country such as ours, with a Criminal Code that specifically says “bilingual trial”.