Focus On

PROCEDURE - Language of accused

Thursday, May 16, 2019 @ 2:13 PM  


Lexis Advance® Quicklaw®
Appeal from a judgment of the British Columbia Court of Appeal affirming a decision dismissing an application for certiorari against a decision refusing Bessette a trial in French. Bessette was charged with a provincial driving offence in British Columbia. Before the start of his trial in Provincial Court, he asked to be tried in French, relying on s. 530 of the Criminal Code. The Prosecution contested Bessette’s application, arguing that English was the language of provincial offence prosecutions according a law from 1731 (the 1731 Act) which directed that proceedings in British Columbia courts be conducted in English. The provincial court judge accepted the Prosecution’s argument and dismissed Bessette’s application, holding that British Columbia law did not provide for French-language trials of provincial offences. Bessette brought a petition in the Supreme Court of British Columbia to quash the provincial court judge’s ruling and order that his trial be conducted in French. The Court held that his petition was premature and that he should instead wait to challenge the language of his trial through an appeal of the trial decision if he was ultimately convicted. Bessette appealed. The Court of Appeal for British Columbia held that the superior court judge’s decision was entitled to deference and dismissed Bessette’s appeal.

HELD: Appeal allowed. Whether Bessette was entitled to be tried in French raised a jurisdictional question, and certiorari review was therefore available before the trial was heard. Although superior courts retained a residual discretion to refuse certiorari review, even in the face of alleged jurisdictional errors, no such refusal was warranted in the circumstances. On an application by a party for certiorari in the course of a criminal (or, as was the case here, quasi-criminal) trial, the alleged error would be jurisdictional in nature if making it resulted in a failure to comply with a mandatory statutory provision or a breach of natural justice. Whether Bessette had a right to a French-language trial for the provincial offence for which he was charged was a jurisdictional question. The superior court judge erred in exercising his discretion not to engage in certiorari review and consider the substantive issues raised in Bessette’s petition. As the violation of the accused’s trial language right was a harm in itself, an appeal following a conviction by an English-speaking court could not represent an adequate alternative remedy to deciding, before the trial had taken place, whether the accused was indeed entitled to this fundamental right. Section 133 of the Offence Act clearly stated that the provisions of the Act and, residually, the Criminal Code, governed “proceedings” in priority to other legislation. It incorporated s. 530 of the Criminal Code without heed to the 1731 Act. Because the Offence Act applied to Motor Vehicle Act proceedings, and neither the Motor Vehicle Act nor the Offence Act made provision for the language of trials, s. 530 of the Criminal Code applied as if it were enacted in and formed part of the Offence Act. Just as s. 530 of the Criminal Code implicitly repealed the 1731 Act in respect of criminal trials, it implicitly repealed the 1731 Act in respect of Offence Act trials. The provincial court judge erred in holding otherwise and in denying Bessette his right to a trial in French.

Bessette v. British Columbia (Attorney General), [2019] S.C.J. No. 31, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., May 16, 2019. Digest No. TLD-May132019011-SCC