Bessette v British Columbia: Access to French Language Trials in B.C.
English and French language disputes have been a reoccurring feature of Canadian history and Canadian law. The most high-profile of these in Canadian law have tended to be constitutional challenges about the provision of government services in French and English. The Reference Re Manitoba Language Rights,  1 SCR 721, for example, concerned whether the Constitution Act, 1867 required laws in Manitoba to be written in both French and English to be valid. Although Bessette v British Columbia (Attorney General), 2019 SCC 31 [Bessette] is not a constitutional challenge, it continues the Canadian tradition of fighting over access to services in both of the official languages. In Bessette, the Supreme Court of Canada [“the Court” or the “SCC”] was asked if defendants in Provincial Court for provincial offences in British Columbia can elect to be tried in French or if defendants have to be tried in English.
The defendant, Mr. Bessette, was charged with driving while prohibited, a provincial offence, contrary to s. 95(1) of British Columbia’s Motor Vehicle Act, RSBC 1996, c. 318. Before his trial in Provincial Court, Mr. Bessette made an application for the trial to be conducted in French.
The problem for Mr. Bessette was that the statute governing trials for provincial offences in British Columbia, the Offence Act, RSBC 1996, c. 338 does not specify the languages that can or must be used during trials. As a result, Mr. Bessette instead argued that s. 530 of the Criminal Code, RSC 1985, c C-46 allows him to choose if the trial is conducted in English or French (Bessette, para 1). However, this position created a new issue for Mr. Bessette. It is unclear if s. 530 of the Criminal Code applies to provincial offences in British Columbia. The Offence Act indicates in s. 133 that if it is silent about any matter that it applies to, that provisions in the Criminal Code related to the punishment of summary convictions apply in so far as they are applicable. Therefore, the question that was put to the Provincial Court was if s. 133 the Offence Act incorporates s. 530 of the Criminal Code and gives those being tried for provincial offences in British Columbia the ability to select the language of their trial.
In response, the Crown argued that an old British statue called An Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language (G.B.), 1731, 4 Geo. II, c. 26, was incorporated into British Columbia law by statute and requires provincial offence trials to be in English (Bessette, para 6).
The Provincial Court judge dismissed Mr. Bessette’s application and found that the only language of provincial offence trials was English (Bessette, para 1). This decision created three issues for reviewing courts. The first issue was whether Mr. Bessette could seek immediate review of the Provincial Court’s decision to not grant him a trial in French, or if Mr. Bessette had to wait until the trial was over and appeal the decision for it to be reviewed (Bessette, para 19). The problem with the latter possibility was that Mr. Bessette could only appeal the decision if he was convicted. If he was acquitted at his trial in English, he could not challenge the Provincial Court’s ruling that trials are only to be conducted in English (Bessette, para 40). The second issue was that even if Mr. Bessette could seek immediate review of the decision, could reviewing courts correctly use their discretion to not review it (Bessette, para 19)? The final challenge for reviewing courts was the substantive issue of whether s. 133 the Offence Act incorporates s. 530 of the Criminal Code.
After the Provincial Court found that the language of provincial offence trials was English, Mr. Bessette sought immediate review of the decision by the Supreme Court of British Columbia (“BCSC”). The BCSC declined to review the decision on the basis that there was an adequate alternative remedy to certiorari.
Where there exists an adequate alternative remedy to judicial review, a court may use its discretion to not review a decision. In order to determine if an adequate alternative remedy exists a court must consider several factors. The Court decided in Strickland v Canada (Attorney General), 2015 SCC 37 [Strickland] that the relevant considerations include the convenience of the alternative remedy, the kind of error, the nature of the proposed forum, what remedies the proposed forum has, the adequacy of the existing available remedies, how expeditious each forum would be, the relative expense of the proposed forum, if it is an economical use of judicial resources, and the cost (Strickland, para 42). The BCSC decided that the Provincial Court had the competence to make that ruling, its decision did not result in any ongoing infringement of the defendant’s rights, and that judicial economy strongly favoured declining judicial review (Bessette, para 17). The Court of Appeal for British Columbia unanimously reaffirmed the decision to decline judicial review on the basis that such a decision attracted deference (Bessette, para 18).
The SCC’s Take
In an unanimous opinion of the Court, written by Justices Côté and Martin, the panel decided that certiorari review was available, the reviewing courts incorrectly used their discretion to decline judicial review, and that Mr. Bessette was entitled to a French trial.
The Court held that the BCSC ought to have found that certiorari review was available. Generally speaking, superior courts should not review criminal or quasi-criminal matters that are ongoing in provincial court. The risk with reviewing ongoing criminal matters is that it will fragment the proceedings, which can result in significant delay and inefficiency (Bessette, para 22). However, pre-trial or mid-trial judicial review is available where it is alleged that the court failed to follow a mandatory provision of a statute or when it breaches the principles of natural justice (Bessette, para 23). The rationale for this exception is that when a court fails to abide by a mandatory statutory provision, it loses jurisdiction over the accused (Bessette, para 23).
The Court found that s. 530 was clearly a mandatory statutory provision because of the language used in the section and therefore judicial review was available (Bessette, para 25). In this case when the Provincial Court misinterpreted s. 133 of the Offence Act, it failed to apply s. 530 of the Criminal Code and lost jurisdiction (Bessette, para 32).
The BCSC also made an error in finding that there was an adequate alternative remedy. Since the finding of an adequate alternative remedy is a form of judicial discretion, it is subject to deference. However, if a judge failed to give weight to all the relevant considerations, was clearly wrong, or based their ruling on an error in principle, the decision may be interfered with upon appeal (Bessette, para 35). Here, the Court found that the BCSC erred by wrongly finding that the issue before them was not a jurisdictional issue, that it did not create an ongoing significant infringement of the defendant’s rights, and that it was best left for appeal (Bessette, para 35).
Conducting a trial in a language other than the one selected by Bessette would have been a significant violation of his rights (Bessette, para 47). The risk of delay and inefficient use of judicial resources was increased by declining to hear Bessette’s petition. Instead of deciding the issue prior to the trial, declining judicial review created a ground of appeal and the potential of a retrial (Bessette, para 46). Concerns about judicial economy, delay, and the fragmentation of proceedings all favour judicial review of the language issue before trial (Bessette, para 46).
The Court applied the modern approach to statutory interpretation and decided that Mr. Bessette was entitled to a French trial under s. 530 of the Criminal Code (Bessette, para 55). The Offence Act in s. 3(1) sets out that it applies to proceedings and s. 133 states that any gaps in the Offence Act are to be filled by the Criminal Code. Consequently, the Offence Act creates a hierarchy of applicable law. If the legislation creating the offence does not offer guidance, apply the Offence Act. If the Offence Act is silent on the matter, apply the Criminal Code. Only then, if the Criminal Code is silent would you turn to other sources of law, like the British statute suggested by the Crown (Bessette, paras 55–56).
Bessette does not have broad implications for provincial offence trials in Canada. The scheme in British Columbia where the language of trial is unspecified, but the statute fills in the blanks with the Criminal Code, appears unique to British Columbia. In Ontario, for example, the Courts of Justice Act, RSO 1990, c. C.43, ss. 125 and 126 mandate that if someone who speaks French is charged with a Provincial Offences Act matter, they are entitled to request a bilingual trial, which includes a prosecutor and a judge who speaks both French and English. In this way, Bessette, does not seem to have a significant impact on provincial offence trials, as it appears to resolve statutory interpretation problems specific to the Offence Act in British Columbia.
However, Bessette does have a couple of other implications. First, it reflects the Court’s continued commitment to the equality in status of English and French in Canadian institutions. Although the defendant in Bessette did not raise a violation of the Canadian Charter of Rights and Freedoms (Charter), the decision embodies the value of protecting bilingualism found in ss. 16 through 23 of the Charter. Another key take-away is that the relatively short length of a trial may be of little consequence in the adequate alternative remedy analysis. The trial was estimated to only be an hour in length. One would think that the length of the trial would be significant to the analysis given the Court’s past emphasis on economical use of judicial resources, expediency, and avoiding delay. However, the Court only mentions the length of the trial to dismiss the claim that the trial’s short duration reduces the impact of the language rights violation (Bessette, para 39). In this way, it appears that the Court may not in the future give much weight to the length of the trial in its adequate alternative remedy analysis.