Supreme Court orders new trial for B.C. francophone who was not given French option

OTTAWA — A francophone man in British Columbia convicted of sexual assault will get a new trial because he was not informed of his right to be tried in French, the Supreme Court ruled Friday. 

Franck Yvan Tayo Tompouba appealed his conviction on the basis that his language rights were violated because he was not told his trial could be conducted in his preferred official language. 

“There may be cases in which accused persons are not duly informed of this fundamental linguistic right and of how it is to be exercised,” Chief Justice Richard Wagner wrote in the 5-2 decision. 

“This appeal is an example of such a situation, and it is a reminder that Canada’s linguistic minorities too often still experience difficulties in accessing justice in the official language of their choice.”

The case arrived at the Supreme Court after the B.C. Court of Appeal dismissed the matter.

The top court heard the initial judge did not ensure Tayo Tompouba had been informed of his right to have a trial in French, as is required by the Criminal Code when an accused’s language is either French and English.

The Appeal Court erred in dismissing his bid by saying it was the accused’s responsibility to prove that his language rights had been violated, Wagner wrote for the majority. 

As a result, the top court quashed his conviction and ordered that a new trial be held in French. 

Wagner described as “fundamental” and “absolute” the right of an accused to be tried in the official language of their choice.

The decision details how the right is so essential that an accused only has to “assert” which language “is their own language,” unless the Crown chooses to challenge that. 

Judges are not to try and determine an accused’s cultural identity or wade into the issue of their personal language preferences, it added. 

“In a context as intimidating as that of a criminal trial, when the accused’s freedom is at stake,” Wagner wrote, it is crucial that a judge help protect one’s language rights “by being vigilant, cautious and proactive.”

It’s the role of a judge to remove the “fear” connected to exercising such rights, and to make sure their decision is both “free” and “informed,” the decision says.

“The judge cannot presume what the accused’s choice is or assume that the accused has been or will be advised of their right,” including by their own lawyer. 

In a dissenting decision, justices Andromache Karakatsanis and Sheilah Martin acknowledged the language rights of an accused, but disputed whether a failure to provide notice of such rights amounts to a “miscarriage of justice.”

They believe the appeal should have been dismissed. 

The judges warn that public confidence in the system risks being undermined by granting someone a new trial who waited until after their conviction to raise their language rights.

They contend an accused must do more than simply point to how a court failed to inform them of their right. 

This report by The Canadian Press was first published May 3, 2024.

Stephanie Taylor, The Canadian Press