Date Closed

May 3, 2024

Lead Office

Toronto

In a judgement rendered on May 3, 2024, the Supreme Court of Canada ("SCC") clarified the legal framework applicable to language rights in criminal proceedings in the case, R. v. Tayo Tompouba, 2024 SCC 16. McCarthy Tétrault acted as the solicitor for the intervener, the Canadian Bar Association.

Background

The Appellant, Mr. Tayo Tompouba is a bilingual Francophone who was convicted of sexual assault following an English trial in the Supreme Court of British Columbia ("BCSC"). During the judicial process, Mr. Tompouba was not clearly advised of his right to be tried in French. The right of Canadians to be tried in the official language of their choice is set out in s. 530 of the Criminal Code.

Decision

In a split decision, the SCC allowed the appeal, quashed the conviction from the BCSC trial, and ordered a new trial that would be held in French. Writing for the majority, Chief Justice Wagner stated that s. 530(3) imposes a two-pronged informational duty on the judge before whom an accused first appears to (1) ensure the accused is informed of their right and how it is to be exercised, and (2) where the circumstances so require, to take necessary steps to inform the accused of the same. The trial judge failed to ensure that Mr. Tayo Tompouba was advised of this right, which was presumed to violate his fundamental right to be tried in the official language of his choice. The Crown failed to discharge its burden to rebut this presumption, as it could not prove on a balance of probabilities that Mr. Tayo Tompouba was aware of his right or that he would have chosen a trial in English even if he had been informed of the right. The inconclusive nature of the evidence weighed in favour of Mr. Tayo Tompouba.

McCarthy Tétrault represented the Canadian Bar Association. The McCarthy Tétrault team was led by Connor Bildfell, with strategic advice from Michael Feder and support from Lindsay Frame. The Canadian Bar Association’s intervener submissions focused on the importance of both solicitor-client privilege and the accused’s right to be tried in the official language of their choice.