Canadian Crowdsourced Judicial Decision Translations Project

[81] This application for a stay of proceedings for delay was brought because the trial could not be completed within the initially-scheduled time. In my view, the change of trial language was the most important factor affecting the progression of the matter. The Crown argues that if the proceedings have taken longer than 30 months as prescribed by Jordan, the trial language change constitutes a exceptional circumstances which could not have been foreseen.

[82] The accused's position is that an accused who elects to a French-language trial does not waive their s. 11(b) Charter rights and they should have to do so. The argue that given the Jordan ceilings, the Crown ought to have opposed the French language election.

[83] There is no doubt that trials with consecutive interpretation can take twice as long as trial without interpretation since, in the former case, the interpreter must repeat every word. Therefore, if there is one hour of anticipated testimony from a witness, there needs to be another hour allocated for interpretation.

[84] In reality, trials with consecutive interpretation can exceed this estimate. First, there must be a voir dire with each interpreter to test their qualifications. For longer trials, there could be multiple interpreters. Second, it could be necessary to discuss the accuracy of specific translations. This scenario is more likely where the judge or lawyer is bilingual and can verify the correctness of the translation. Finally, every speaker has to speak slowly and speak in short sentences so that the interpreters can repeat everything that is said. Despite instructions to use short sentences, witnesses can have difficulty adapting to the presence of an interpreter.

[85] It is not contested that Mr. Bernier was informed to his right to a French-language trial. The evidence shows that pursuant to s. 530(3) of the Criminal Code, Mr. Bernier was informed of his right to a trial in French on September 14, 2020 at his first appearance before a Justice of the Peace.

[86] S. 530 of the Criminal Code requires that an accused apply for a trial in one of Canada's two official languages before trial dates are set. The right to pick a trial language is absolute if the accused makes their election before trial dates are set. Given the constraints in Alberta, a timely language elections guarantees the availability of a bilingual judge, clerk and prosecutor. It also allows for the scheduling of sufficient time for trial.

[87] The right to a trial in an official language belongs to an accused and not to their lawyer. A lawyer has an ethical obligation to inform their client of their rights as soon as possible. In general, only defence counsel can discuss the accused's choice when trial dates are set. Unless there are reasons to doubt the accused's capacity to understand the trial language, the prosecution has a right to rely on the accused's language choice as communicated by defence counsel.

[88] The Jordan principles apply whether trial proceeds in English, in French or in both official languages: see also R c Vaillancourt, 2019 ABQB 859 in another context. The principles apply even if additional time is required for trial. To clarify, if the accused asks for a French-language trial with interpretation before trial dates are set, the Court and the Crown must plan for a longer trial. As I will explain in the paragraphs that follow, the Court and the Crown would have been available to complete trial within 30 months if there was no late trial language election.

[89] Excluding the dates for the Jordan application, 9 weeks were allocated for this trial, as follows:

February 21 - March 3, 2023 (14 days)
May 29 - June 2, 2023 (5 days)
July 4-7, 2023 (4 days)
October 30 - November 2, 2023 (5 days)
January 8-12, 2024 (5 days)
February 5-9, 2024 (5 days)
March 4-8, 2024 (5 days)

[90] I find that this trial could have been completed within 4 weeks if it was conducted in English. Given that at least double the time is required for a trial in French in this case, that is with consecutive interpretation for all witnesses and the accused, and considering that defence counsel also requires interpretation services, I conclude that a reasonable estimate for the length of this trial is between 9 and 10 weeks.

[91] According to the accused's evidence, in March 2022, the Court proposed the following periods of 3 weeks for trial:

January 3-20, 2023
January 30 - February 17, 2023
February 13 - March 3, 2023
February 21 - March 10, 2023

[92] Even though the Crown indicated a preference for period from February 21 to March 10, a letter from the Crown's legal assistant dated March 10, 2022 indicated that the prosecutors could be made available with potential changes to their schedule.

[93] I find that up until trial dates were fixed, the Court and the Crown were proceeding in a manner which respected Mr. Bernier's s. 11(b) Charter rights.

[94] In the autumn of 2022, it became clear to defence counsel and Crown counsel that Mr. Bernier wanted a trial in French. Even though the Crown consented to the change, Mr. Sockett now argues that the Crown ought to not have done so.

[95] However, on what basis had the Crown ought to have opposed? If the Crown had opposed the change, the accused would have brought a formal application for a trial in French. On the other hand, in this trial, when Mr. Bernier applied to change his choice again from French to English, I noted that Mr. Bernier has not sufficiently fluent in English to proceed without a translator. A trial cannot proceed without an interpreter if the accused doesn't understand the language spoken by the trial participants. Even if the right to an interpreter under s. 14 is not included in the language rights proscribed by s. 530, in the circumstances of this case, it is highly likely that Mr. Bernier's application to change the trial language from English to French would have been allowed over Crown objections, had they objected. I thus reject the argument that the Crown ought to have opposed the language change.

[96] On the other hand, even if the Crown had taken steps to ensure that there was sufficient time earlier in the matter, it must be noted that the parties did not apprehend the significant impact of a French-language trial in the circumstances. This impact was first brought up during a hearing held before trial on January 19, 2023 when the court brought up the practical reality of holding a trial in French.

[97] During this pre-trial hearing, Mr. Genest confirmed Mr. Bernier's preference on mode of interpretation. Mr. Genest was of the view that since the trial would be held in French it would be preferable for the Crown to first ask questions in French and then have the question be translated to English. Then, answers would be translated into French. They relied on Tran for the proposition that consecutive interpretation is preferable: R v Trans, 1994 CanLII 56 (SCC), [1994] 2 SCR 951 at pages 989-990. The court allowed the application for consecutive translation. Mr. Sockett argued that the trial could have been held with simultaneous interpretation. Given defence counsel's pre-trial preference, simultaneous interpretation was not one of the options envisaged.

[98] Additionally, during this pre-trial hearing, it was determined that Mr. Sockett would also require consecutive interpretation into English. Given that Mr. Sockett doesn't speak nor understand French, there was also a need for consecutive interpretation from French into English. This meant that there would be no time savings by having French-language submissions, objections, rulings or testimony. For example, a witness testified in French and this testimony had to be translated into English for Mr. Sockett's benefit. Mr. Sockett also argues that simultaneous interpretation ought to have been used. However, this practically would have labour-intensive given that the questions have been given in French and that most of the witnesses until now have been anglophone. In my view, it would have been complicated and unwise in this context to provide simultaneous interpretation to Mr. Bernier and Mr. Sockett where the official language for the trial was French, where the Crown and the Court were bilingual and where there were multiple questions and objections on the evidence and interpretation of law. There are large potential challenges in a trial for murder. It is important to protect the accused's rights.

[99] I agree with the Crown that it was not possible to predict the change in language. However, even if the prosecution's view is that the language change was an exception circumstance, they were able to do everything necessary to ensure that the trial could complete under the Jordan ceiling. In fact, the Court was also available. I highlight that defence counsel was obligated to consult with their client on the issues of language and interpretation before setting trial dates. This comes from s. 530 of the Criminal Code, s. 14 of the Charter and lawyers' ethical obligations.

[100] I accept that the parties did not completely understand the impact of consecutive interpretation before the trial began and that they felt the impact during trial.

[101] The Crown was informed of the possibility of a French-language trial on July 11 but this was not confirmed until October, when the Court contacted the parties to confirm the language of trial. The Crown responded to the court on October 11, indicating that they understood that the trial would be held in French. It wasn't until Mr. Sockett responded indicating that Mr. Genest would be acting as counsel and that he spoke French that the Court was officially notified of the language change.

[102] After this, the Crown continued to follow up with the defence concerning the admissions. There were also efforts to obtain an additional week for trial as set out above. The defence did not respond before November 24.

[103] The Crown bears some responsibility for not recognizing that the trial would take significantly longer. This factor, along with the other circumstances, has been considered in my evaluation of the delay in this matter. However, as I will explain, there is no doubt that as soon as the Crown understood that more time was needed, they took stops to add dates to complete trial under the Jordan ceiling.