Judges, prosecutors blasted over language rights
Crown’s conduct ‘reprehensible’ in denying access to bilingual hearing, top court says
Ontario’s top court has put judges and prosecutors on notice: do not mess with language rights in the courtroom.
The Court of Appeal recently quashed a French-speaking Ottawa man’s order to stand trial on cocaine charges and, in a rare move, ordered the Crown to pay his costs after it found his right to a bilingual court proceeding had been violated.
“The number and severity of the violations of the appellant’s language rights and the conduct of the Crown and the court were reprehensible in this case,” wrote Justice Paul Rouleau in a 64-page ruling rendered in both official languages, on behalf of a unanimous three-judge panel.
The decision has been hailed by language rights experts and advocates as a strong message to lower courts that the request for proceedings in either official language must be taken seriously.
“The law is clear. The Criminal Code is clear. The Charter of Rights (and Freedoms) is clear. Ontario legislation is clear. In this day and age, there should be no excuse to deny language rights,” said Uni- versity of Ottawa law professor Pierre Foucher.
Christian Munkonda, 34, was one of eight people charged in February 2010 with various cocaine trafficking offences. Six of the accused opted for a preliminary inquiry — where a judge must decide if there’s sufficient evidence to proceed to trial — in English, while Munkonda and another coaccused asked to be tried in French, as is their right under the Criminal Code.
“In this day and age, there should be no excuse to deny language rights.” PIERRE FOUCHER UNIVERSITY OF OTTAWA LAW PROFESSOR
Munkonda was ultimately ordered to stand trial by Ontario Court Justice Robert Fournier at the end of the preliminary inquiry on charges of trafficking cocaine and possession for the purposes of trafficking.
The Appeal Court listed several violations of Munkonda’s language rights at the preliminary inquiry:
Two of the three Crown prosecutors were not bilingual, and handled virtually the entire case. The Crown argued the presence of the one bilingual prosecutor meant that Munkonda’s rights were not violated.
Notices prepared by the Crown and served on Munkonda were in English only. It also provided Munkonda with transcripts of conversations captured over wiretaps during the police investigation solely in English, including an English translation of conversations that took place in French. The Crown argued that in a bilingual proceeding, it can choose to provide documents in either language, and in this case chose English.
When Munkonda’s lawyer made a motion to remove the two unilingual prosecutors, Fournier gave his ruling dismissing the motion in English, followed by a brief French summary.
The court reporter was a unilingual anglophone, and the judge refused a motion by Munkonda’s lawyer to replace the reporter with someone bilingual.
“Any observer of these proceedings, including the appellant, cannot help but conclude that the accused who chose to proceed in English received a distinct advantage from the Crown,” wrote Rouleau, who also laid blame at the feet of Fournier for the rights violations.
Munkonda’s lawyer, Jean Richer, had requested that the Court of Appeal stay the charges against his client — essentially permanently halting his prosecution.
But the appeal court did not go that far, meaning Munkonda will have to face a new preliminary inquiry, but Richer said he will be asking for a stay in the lower court due to delay, as well as to have his client’s strict bail conditions lifted. The issue of how much the Crown will have to pay Munkonda is still being determined.
“I’m glad the message went out. I’m now glad I brought the case,” he told the Star. “But I keep telling people: The case isn’t over yet. My client is still back at square one.”
The case was prosecuted by the Public Prosecution Service of Canada, a federal agency, because it focused on drug charges. A spokesman said the service is studying the ruling “carefully.”
“While data is not available at this time on the full number of bilingual trials conducted in the Province of Ontario, the PPSC is confident that it has the resources to ensure that bilingual trials are conducted when requested by the accused,” Dan Brien wrote in an email.
Rouleau touches on concerns that lawyers say many of their French- speaking clients have when facing a trial: that if they request to have the proceedings in French, they risk irritating the prosecution and the judge, or that the proceedings could be lengthier and more expensive.
“An adversarial approach to language rights risks not only undermining those rights, but also creating fear in accused persons that if they insist their rights be respected, they will antagonize the court and the prosecution, and not receive a fair trial,” he wrote.
Rouleau also makes clear that, based on past case law, even if the accused understands English, or has access to an interpreter, that should play no role in the decision to grant a proceeding in French or in both languages. “The rights of the accused and the obligation of the state and the court to provide the service are not reduced or diminished by the fact that an accused understands and speaks the language of the majority,” he wrote.
Numbering over 600,000, Ontario’s francophone population is the largest in Canada outside Quebec. There are 41 judges (out of 284 full-time judges) and 44 justices of the peace (out of 345) who can preside over matters in French, according to the Ontario Court of Justice. Of those, six judges and four JPs sit in Toronto.
The Superior Court of Justice, whose judges are appointed by the federal justice minister, did not return a request for comment.
There are 40 designated bilingual Crown attorney positions in the provincial Criminal Law Division (which was not responsible for Munkonda’s case), and a further 45 prosecutors have varying levels of French. The ministry is launching a pilot project in Ottawa on May 29 to provide “seamless services” in French, said spokesman Brendan Crawley.
Ontario’s French Language Services Commissioner has repeatedly made note of the difficulties francophones face in accessing the court system.
“It’s about making sure that the individual and their family and the community are being well treated and respected in this province of ours,” said François Boileau.