Chief Justice Richard Wagner called the case of Franck Yvan Tayo Tompouba, 'a reminder that Canada’s linguistic minorities too often still experience difficulties in accessing justice in the official language of their choice.'Justin Tang/The Globe and Mail
The Supreme Court of Canada has strengthened the right to a trial in English or French, by throwing out a sexual-assault conviction even though the accused raised the language issue for the first time on appeal.
The court split five to two, with all three Quebec judges in the majority. While both sides affirmed the importance of bilingual courts, they disagreed on how the court should go about determining whether the language issue caused a miscarriage of justice.
Chief Justice Richard Wagner, writing for the majority, called the case of Franck Yvan Tayo Tompouba, a bilingual man who was tried in English, “a reminder that Canada’s linguistic minorities too often still experience difficulties in accessing justice in the official language of their choice.”
But the dissenters, Justice Sheilah Martin and Justice Andromache Karakatsanis, said the ruling has the potential to undermine public confidence in the justice system, by giving convicted offenders a means to challenge convictions when the offender knew of their rights but waited till an appeal to exercise them. They would have upheld the conviction. A lower court had found that Mr. Tompouba was competent in English.
Mr. Tompouba, who emigrated from Cameroon in 2013, was charged in late 2017 with sexually assaulting a woman he met on Tinder. She invited him back to her home and they shared the same bed, kissing and cuddling in their underwear before she fell asleep, turned away from him. She said she woke to find him having intercourse with her without her consent.
At trial, he argued that she was awake and consented – even though he had previously confessed to police that he knew she had been asleep.
He tried to have this confession thrown out, because police hadn’t told him of his right to French-speaking counsel, but the trial judge, Justice Leonard Marchand, who is now B.C.’s Chief Justice, said his English was good enough that police had no reason to question his competence. Justice Marchand found him guilty of sexual assault. Justice Marchand was not the initial judge who failed to inform Mr. Tompouba of his right to a trial in French.
In his appeal, Mr. Tompouba relied on a federal law requiring a criminal-court judge, at an early stage in proceedings, to inform the accused – whether self-represented or with counsel – of their right to a trial in the official language of their choice. And both the 1867 Constitution and the 1982 Charter of Rights and Freedoms protect the right to a trial in English or French.
The B.C. Court of Appeal upheld the conviction in a 3-0 ruling in 2022, expressing concern that essentially harmless violations would be used for tactical purposes.
The question for the Supreme Court of Canada was how the courts should treat challenges regarding this language right raised at appeal for the first time.
The majority said the initial judge’s failure to inform Mr. Tompouba of his right to choose a trial in French had the effect of “tainting” the trial court’s judgment. The dissenters, both of whom are fluently bilingual, said the trial court’s judgment did not undermine the correctness of the verdict. They also noted that Justice Marchand, the trial judge, was not involved in the failure to inform Mr. Tompouba.
This was important because the majority said that, once Mr. Tompouba showed the judge hadn’t informed him of his rights, the burden fell to the Crown to show that no miscarriage of justice had occurred.
In this context, a miscarriage of justice is defined as the trial of an accused who did not know his language rights – not of a wrongful verdict. The Crown would have to show that Mr. Tompouba, who was represented by counsel, knew from other sources that he had the right to a trial in French, or would have chosen English anyway.
The dissenters, on the other hand, said it was up to Mr. Tompouba himself to show that he truly had not known of his right. His lawyers did not provide any evidence on this point, or on why he had waited till his appeal to assert his language right. They argued that the judge’s failure to inform him of his right was a serious enough injustice on its own, in light of Canada’s constitutional values of equality between the English and French languages.
Chief Justice Wagner stressed the importance of the judge’s role in informing the accused individual of their language rights, “in a context as intimidating as that of a criminal trial, where the accused’s freedom is at stake.”
He said the majority ruling struck a balance between the preservation of linguistic minorities through equal access to the courts and the danger some will try to exploit the language rights to overturn convictions.
Raymond Théberge, the federal Commissioner of Official Languages, said in a statement that being informed of one’s rights is crucial to exercise those rights.
“In this decision, the court recognized this fundamental right once and for all. It ensures that lower courts will take the appropriate measures to fully respect their obligations,” he said.
Chief Justice Wagner’s majority ruling was endorsed by Justice Suzanne Côté, Justice Nicholas Kasirer, Justice Malcolm Rowe and Justice Michelle O’Bonsawin. (The Chief Justice, Justice Côté and Justice Kasirer are the court’s three Quebec judges.)
The court ordered a new trial for Mr. Tompouba.