Appeal Watch: BCCA Denied Accused’s Assertion of Linguistic Rights in R v Tayo Tompouba

On January 12, 2023, the Supreme Court of Canada (“SCC”) granted a leave to appeal on a linguistic rights case appealed from the British Columbia Court of Appeal (“BCCA”), R v Tayo Tompouba, 2022 BCCA 117 [Tayo]. In this case, Mr. Franck Yvan Tayo Tompouba, the accused, appealed a conviction for sexual assault on the grounds that the trial judge failed to inform him of his right to be tried in an official linguistic under s. 530(1) of the Criminal Code, RSC 1985, c C-46 (“CC”). Specifically, Mr. Tayo argued if he was aware of this right, he would have opted to be tried in French, rather than English.

Justice Dickson, writing for a unanimous BCCA bench, dismissed Mr. Tayo’s appeal by concluding that while the trial judge did fail to inform Mr. Tayo, this did not cause him to be prejudiced by being tried in English.

Facts

Mr. Tayo was born in Cameroon. His first spoken language is French, however he speaks English as well. In 2013, he immigrated to Quebec and a few years later, he relocated to B.C.

In 2017, Mr. Tayo met H.C. (the complainant) on Tinder, where they chatted for a few weeks. They decided that Mr. Tayo would visit Kamloops, B.C., to meet H.C sometime late December 2017. After his arrival, Mr. Tayo and H.C. went to a hotel bar where H.C. consumed alcohol and became intoxicated, while Mr. Tayo accompanied her because he does not consume alcohol. They left the hotel bar early in the morning and went back to H.C.’s home where they cuddled and fell asleep. At some point, H.C. woke up because she found Mr. Tayo’s penis in her mouth. She pretended to remain asleep while Mr. Tayo went on to engage in sexual activity with her. After Mr. Tayo left that day, H.C. confronted his behavior over the phone. She attempted to extort some money in exchange for not involving the police in this matter. Few days later, H.C. reported the incident to the police and provided them with evidence of her bedsheets.

On March 5, 2018, Mr. Tayo was arrested for sexually assaulting H.C. He gave a statement to the police in which he admitted to engaging in sex with H.C. despite knowing she was asleep. Before he was released from police custody, Mr. Tayo made an undertaking to appear before the police or court as required. In doing so, he signed two documents, both of which contained a “notice of linguistic rights at trial” section, under the signature line, pursuant to s. 530(1) of the CC. This notice was written in both English and French.

At Trial

The judge found both H.C. and Mr. Tayo were credible witnesses, however he could not reconcile that Mr. Tayo’s testimony changed at trial from the statement he gave to the police. Additionally, the judge had reasonable doubt about whether Mr. Tayo had oral intercourse with H.C. because she did not have corroborative evidence for this. However, considering the evidence as a whole, the judge was satisfied beyond a reasonable doubt that Mr. Tayo had vaginal intercourse with H.C., that H.C. did not consent to vaginal intercourse and that Mr. Tayo did not have an honest but mistaken belief in communicated consent (Tayo, para 35). Hence, at trial, Mr. Tayo was guilty of sexual assault. Mr. Tayo appealed to the BCCA.

Issues on Appeal

There are primarily two issues on appeal before the BCCA:

(i) Whether the provincial court judicial officers committed a jurisdictional error by failing to advise Mr. Tayo of his rights as required by s. 530(3) and, if so, what remedy should this court grant on appeal?

(ii) Whether the provincial court judicial officers or the trial judge commit an error of law by failing to apply s. 530 and, if so, what remedy should this court grant?

Section 530 Principles

S. 530(1) creates an absolute right for an accused to be tried in an official language of their choice. The prerequisites for this section are: (i) the accused must have knowledge about this right, (ii) then they must assert that right, (iii) then an application under this provision must be filed in a timely manner. If the s.530 application is not brought in a timely manner, then its approval is subject to the trial judge’s discretion under s. 530(4).

Pursuant to s. 530(3), judicial officers have a duty to advise accused persons, who first appear before them, about their s. 530 linguistic rights. While a trial judge may not be required to execute this duty in all cases before them, they may be required to make additional inquiries in some cases. For example, if the accused before the trial judge does not understand the questions they are being asked, or they are struggling to answer in English or French, then this should trigger the trial judge to make further inquiries about the accused’s spoken linguistic and whether they know their s. 530 linguistic rights.

Generally on appeal, the appropriate remedy for a breach of substantive linguistic rights will be a new trial in the accused’s chosen official linguistic. However, to achieve this remedy, the accused has the burden of showing a s. 530 breach caused them prejudice or was a miscarriage of justice regarding their linguistic rights. If the accused cannot demonstrate this, then even if the appellate court finds that the judicial officers breached the accused’s s. 530 rights, the appellate court will dismiss the appeal because the breach did not have a significant impact on the accused (i.e., curative proviso).

Judicial Officers Did Commit A Jurisdictional Error But No Remedy For Mr. Tayo

Mr. Tayo’s position is that the provincial court judicial officers lost their jurisdiction because they failed to advise him of his s. 530 linguistic rights. Mr. Tayo supports his position by noting the obligatory nature of s. 530(3) and that he suffered substantial prejudice from the jurisdictional error in that his linguistic rights were oppressed as a French-speaking resident of B.C. (Tayo, para 110). Hence, he sought the remedy of certiorari (i.e., quash his sexual assault conviction at trial) and order a new preliminary hearing with a French-speaking judge (Tayo, para 108). 

Justice Dickson was not persuaded by Mr. Tayo’s arguments regarding this issue, primarily because Mr. Tayo failed to establish how the s. 530(3) breach caused him prejudice or assisted in the miscarriage of justice. To Justice Dickson and to this author, it seems that Mr. Tayo alleged these claims without any substantial proof of their impact on him. Further, Justice Dickson notes that while a jurisdictional error did occur which may empower the BCCA to conduct a certiorari review, this error does not allow the BCCA to quash a conviction given the trial has already been conducted (Tayo, para 112). Though it is well-known that certiorari is an administrative law remedy where an applicant can seek to have a lower court’s decision quashed or set aside, the point of contention is whether this administrative law remedy can be imported to a conviction in the criminal law context. Thus, Justice Dickson did not grant any remedy here.

Provincial Court Judicial Officers and Trial Judge Did Not Commit an Error of Law by Failing to Apply s.530(3)

Mr. Tayo alleges that the failure of the provincial court judicial officers to inform him of his linguistic rights was also a legal error (Tayo, 116). He supports his position by arguing this prejudiced his personal linguistic rights and that a remedy is required to raise awareness about s. 530 among judicial officers and judges (Tayo, 116). In the alternative, he argues the trial judge failed to apply s. 530(4) because the trial judge failed to conduct proactive inquiry when they saw Mr. Tayo was struggling for words while testifying in English (Tayo, 117). Additionally, since Mr. Tayo was not made aware of his s. 530 linguistic rights, he should not be accountable for delaying the assertion of his s. 530 rights (Tayo, 118). 

Justice Dickson is not convinced of Mr. Tayo’s arguments because it requires Justice Dickson to make inferences which are unfounded in the record. While Justice Dickson agrees with Mr. Tayo that his ability to express himself in English would not reduce any prejudice he suffered if his substantive linguistic rights were violated, Mr. Tayo has the burden of establishing that his substantive rights were violated (Tayo, para 121). To meet this burden, there must be something in the record that supports Mr. Tayo’s position. If the record does not support him, then he can present fresh or new evidence which can help the court make reasonable inferences (Tayo, para 121). Since Mr. Tayo does not do that and the record is not sufficient to support the inferences Mr. Tayo wants the court to make, Justice Dickson is not satisfied that Mr. Tayo meets his burden.

Discussion

For this author, this is somewhat of an unpredictable case. On one hand, the SCC may disagree with BCCA’s decision and affirm that s. 530 right to be tried in an official linguistic of Canada is an absolute right. Considering the provincial judicial officers and trial judge’s failure to meet their duty under s. 530(3), Mr. Tayo is entitled to the remedy of a preliminary hearing before a French-speaking judge. Additionally, the SCC may provide their comments on whether the administrative law remedy of certiorari is applicable to a conviction under the CC.

In contrast, the SCC may agree with BCCA and the trial judge’s decision that despite the s. 530 rights breach on the accused’s linguistic rights, the accused failed to establish if this breach substantially prejudiced his right or there was miscarriage of justice. Further, the SCC may note that Mr. Tayo’s counsel leveraged a tactical strategy by using s. 530 rights to quash Mr. Tayo’s conviction. This would allow Mr. Tayo to have a hearing and potentially a trial in French where he may present fresh new evidence to establish the significance of the breach. Essentially, if the SCC decides in their favor, the trial would be a “do-over” in the accused’s chosen linguistic. Whether the SCC is persuaded by the arguments of Mr. Tayo or Crown counsel, time will tell. For now, we can speculate and build our understanding of the law in this area.