Barely weeks after the Supreme Court of Canada affirmed the right to a trial in one’s official language of choice, a Court of Quebec judge ruled that a provision of the French language charter that calls for the “immediate and simultaneous” filing of English rulings into French cannot apply to criminal proceedings in the province.
The decision, decried by some constitutional law experts and the Quebec government as judicial interventionism, will likely serve as a blueprint for criminal lawyers as it outlines a host of “unfair and highly problematic” issues that prevent a criminal court judge from rendering his verdict in a timely manner and fails to ensure the equal treatment of French and English accused because English-speaking accused could face delays because of translation delays, according to legal pundits.
“I hope the decision serves as a wake-up call,” said Dylan Jones, a Montreal criminal lawyer with Boro Frigon Gordon Jones. “Many of my clients will be affected by this new provision, but it’s good to see that the judiciary is addressing some of these issues. There’s a lot in our justice system that could be improved upon, but instead, we’re creating bureaucratic hurdles that are just going to make it more complicated for people to get their decisions heard. I’m happy he took the initiative.”
There is no motive for delaying the rendering of a judgment, particularly in criminal cases, asserts Montreal human rights lawyer Julius Grey. “Given the distress and consequences of criminal law, the accused should be given priority, not language politics,” said Grey.
But constitutional law expert Stéphane Beaulac believes the ruling “reeks” of judicial interventionism. It is an “obvious example of where a judge has taken it upon himself to proclaim himself, no more and no less, the great defender of the language rights of Quebec’s English-speaking minority,” remarked Beaulac, a law professor at the Université de Montréal and counsel at Dentons. “There is an absolute right to have your trial conducted in the language of your choice, but nowhere does it say there is an absolute right to receive your judgment in English at the same time. There’s something of a reasoning gap.”
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The issues first surfaced at the beginning of May when Court of Quebec Judge Dennis Galiatsatos warned of potential delays in the trial of Christine Pryde who was charged with dangerous and impaired driving and criminal negligence causing the death of a cyclist in May 2021 in Montreal. Pryde, whose trial is scheduled to take place in English on June 3, intends to invoke a s.11(b) Charter challenge. Judge Galiatsatos said that because of s. 10 of the Charter of the French Language in Québec (C.F.L.), which came into effect on June 1, the Court will have to file a French-translated copy of its original English judgment on the same day of delivery. This would imply, he added, that Pryde, the Crown and the victim’s family will be denied closure because they will have to wait several additional weeks or months to receive the final judgment. It is “uncontroversial” that the provincial government may automatically provide, even mandate, the translation of every English decision to French for the “benefit of the population” and to foster the “welfare” of the French language, said Judge Galiatsatos. But this becomes “problematic” because it imposes a rigid timeline that has the “effect of obstructing the basic operation of the criminal process, which falls under federal jurisdiction.” Judge Galiatsatos decided to examine the constitutional validity of s.10 on his own volition, even though the accused never brought up the issue. Both the attorney general of Canada and the attorney general of Quebec objected, arguing that he could not raise the issue propio motu because the defence expressly declined to do it. Both parties also maintained that the Notice of Constitutional Question was imprecise, incomplete and lacked context and a factual record. There was simply no need to address the issue, they added. Judge Galiatsatos dismissed their objections, holding that there are circumstances in which the Court may, and even must, raise legal issues on its own motion, provided interested parties are given enough opportunity to be heard. Judge Galiatsatos acknowledges that most cases where judges raised constitutional issues dealt with the Charter, but he held that the same reasoning also applies to constitutional issues regarding the division of powers. “To be abundantly clear, the amendment impacts how and when a judgment may be rendered by a Criminal Division Provincial Court judge at the end of a trial,” said Judge Galiatsatos in R. c. Pryde, 2024 QCCQ 1544. “This is no collateral detail. It is as basic as it gets. It goes to one of the judge’s core functions, exercised almost weekly. This is far from a purely intellectual exercise being raised out of caprice or boredom.” Beaulac is far from convinced. The precedents cited and relied upon by Judge Galiatsatos deal with the protection of individual freedoms and not matters of shared competencies, noted Beaulac. “He won’t convince any constitutionalist that it’s the same thing when it comes to the Charter as when it comes to sharing legislative powers,” added Beaulac. “When it comes to the separation of powers, you need to tread carefully, especially when dealing with substantive law, on language issues in a jurisdiction that historically has been struggling with language protection.” Dylan, while recognizing that “some people would be bothered” by the judge’s “unusual” initiative to examine constitutional issues in a proceeding where parties did not seem “interested” engaging in it, nevertheless asserts that the focus should be on the substantive issues raised by Judge Galiatsatos rather than the process itself. “He’s right to ring the warning bell,” said Jones. “He’s telling the government and all the actors in the legal system, this is what’s coming, and it’s going to cause a huge problem.” The Quebec government sought a judicial review of the decision before the Quebec Superior Court and lost. In Procureur général du Québec c. Pryde, 2024 QCCS 1825, Justice Marc St-Pierre held that while the Attorney General of Quebec “certainly has good arguments to justify why” the Court of Quebec should not deal with the issue, he held that it did not meet the test of serious or irreparable harm for a stay to be granted. That opened the door for Judge Galiatsatos to issue his second ruling on the matter, focusing on the substantive issues raised by s. 10 of the C.F.L. The Attorney-General of Quebec contended that the notwithstanding clause invoked by the Quebec government to shield the C.F.L. (also known as Bill 96) from judicial review also safeguards translation delays from any 11(b) Charter considerations. The government further argued that any added delays faced by English-speaking accused are “minor,” acceptable and justified by the importance of granting “instant” access to Francophones of English rulings. It noted that measures are being taken to ensure the “smooth application” of s. 10 of the C.F.L., and maintained that s. 10 does not cause conflict with the spirit of ss. 530-530.1 of the Criminal Code. Finally, it claimed that the “language of justice” in Quebec is French. Judge Galiatsatos dismissed all of the attorney general of Quebec’s contentions. He held that the notwithstanding clause protects s. 10 as well as all of the French language charter from Charter scrutiny under s. 11(b). But, he added, the notwithstanding clause “cannot shield” the criminal process itself from the Charter’s s. 11(b) scrutiny as the Quebec legislature does not have jurisdiction to dictate criminal procedure. “Ironically, the C.F.L. itself is 11(b)-proof and will, therefore, surely survive,” said Judge Galiatsatos in R. c. Pryde, 2024 QCCQ 1794. “However, because of s. 10’s very existence, the criminal trial process might be left picking up the 11(b) pieces. Those pieces include added delays caused exclusively by the provincial legislation for grounds unrelated to the criminal process.” He predicts that s. 10 C.F.L. will provoke an “avalanche” of 11(b) Charter applications in English-language criminal trials in Quebec. Judge Galiatsatos, heeding guidance from the seminal decision by the Supreme Court of Canada in R. v. Beaulac [1999], 1 S.C.R. 768 and its recent ruling in R. v. Tayo Tompouba, 2024 SCC 16, said the objective behind s. 530 of the Criminal Code is to provide equal access to the criminal courts to the accused speaking one of Canada’s official languages “in order to assist official language minorities in preserving their cultural identity.” He concluded, after briefly surveying the doctrine of paramountcy and stating that the assessment must be grounded in “reality,” that s. 10 of the C.F.L. is in “irreconcilable” conflict with the s. 530 Criminal Code regime in terms of both its legal and practical effects. It “frustrates” the federal objective aimed at securing equal treatment in criminal proceedings for English and French accused, and it “firmly prevents” a criminal court judge from rendering his verdict in the absence of a French-language translation of the ruling, held Judge Galiatsatos. He added that “even a one-day additional delay” while awaiting an “unnecessary” translation obstructs the operation of the criminal law and is therefore incompatible with Part XVII of the Criminal Code. “The incompatibility is real and unavoidable here,” said Judge Galiatsatos To hold that even a one-day delay impedes criminal proceedings is a stretch, said Beaulac. He points out that the Supreme Court (and in New Brunswick) issue rulings in both languages while in Quebec it “would become unacceptable and deemed to be an untenable delay. I’m not convinced. He seems to have built a straw house.” The Crown suggested that problems raised by the application of s. 10 of the C.F.L. could “simply dissipate” if trial judges in English criminal trials rendered their decisions orally, with reasons to follow — a proposition struck down by Judge Galiatsatos, describing it as artificial, unworkable, inappropriate and a “grave affront” to judicial independence. “It is a desperate patchwork solution that underscores how problematic the situation actually is,” said Judge Galiatsatos, before outlining a series of practical challenges that would surface if the Crown’s submission were adopted. He rhetorically asked how would the Crown be able to exercise its rights of appeal if an acquittal was rendered with reasons to follow and if the translation took more than thirty days. He also wondered how parties could possibly schedule or prepare sentencing arguments or determine an appropriate sentence before knowing what facts were found by the trial judge. “It’s like justice delayed, and justice denied,” remarked Jones. “You’re getting a judgment without any reason. It doesn’t solve anything. It doesn’t move things forward. Practically speaking, the Crown’s suggestion makes zero sense. But I wouldn’t be surprised if it could impact the way some judges decide to write their judgments in English or render them.” Some of the issues raised by Judge Galiatsatos were raised by both the Barreau du Québec and the Canadian Bar Association, Quebec division (CBA-Quebec), when Bill 96 was being examined before the National Assembly of Quebec in 2021. The amendment that requires a French version of a ruling “immediately and without delay” to any judgment rendered in writing in English poses a “serious risk” that judges will not exercise their “true choice” protected by article 133 of the Constitution Act of 1867, said the Quebec bar in a brief. This requirement could also undermine public confidence in the administration of justice, as the Supreme Court pointed out in Jordan, added the Quebec Bar who called on the provincial government to strike out the phrase “immediately and without delay” contained in s. 10 of the C.F.L. CBA-Quebec too called on the provincial government to eliminate that requirement as it “will necessarily result” in additional delays for the delivery of judgments that must be translated into French “since the time required to obtain a French translation will have to be added to the duration of the deliberation.” However, if the Quebec government decided to retain that prerequisite, it “must necessarily” be accompanied by an adequate budget for its implementation, said CBA-Quebec. Moreover, the government must ensure that the translation of judgments remains “under full control” of the courts, with translators being subjected to the same confidentiality obligations as court personnel to protect deliberative secrecy and judicial independence, added the legal organization. The Quebec Court of Appeal has, over the years, also had its say over securing trial transcripts for English-speaking appellants. Since 2016, the Quebec Appeal Court has underlined at least eight times in its decisions the “current and unmitigated delays” in the preparation and production of trial transcripts due to a lack of resources. In Dhingra c. R., 2021 QCCA 22, the appeal court pointed out that it must deal with issues of delayed trial transcripts in criminal appeals which have been placed on the special roll of the Appeal court almost every other week. The Quebec government, two years after the implementation of Bill 96, is still negotiating with the Société́ québécoise d’information juridique (SOQUIJ) over the translation of transcripts, revealed Judge Galiatsatos. Several options are being considered, including outsourcing of translation services, hiring translators and using artificial intelligence (AI) to perform translations. The province’s chief justices are, however, concerned about storage, security and confidentiality of judgments being passed around for translation, noted Judge Galiatsatos. Ann Catherine Lavoie Marquis, who heads the department dealing with drafting, the reception of rulings, documentation and translations at SOQUIJ, said in an affidavit that English-to-French translation capacity is approximately 7,575 pages per year. According to an internal study commissioned by the provincial government, SOQUIJ estimates that judgments covered by s. 10 of the C.F.L. will require the translation of roughly 3,000 pages, which is within its operational capacity. But Judge Galiatsatos notes that Lavoie Marquis does not say how long it would take for a given judgment to be translated and returned to the trial judge. (SOQUIJ declined to comment). The use of artificial intelligence to translate rulings is as disquieting as the prospect of sending unpublished, pre-lease judgments to translators, said Judge Galiatsatos. “Even assuming that software or artificial intelligence will dramatically increase the speed of the translation, the process will still not be instantaneous,” said Judge Galiatsatos. “It is not uncommon” for a judge to draft his reasons until the day before their delivery, he said. SOQUIJ’s standard practice is to ask the judge to review and approve translations, he pointed out. “The experience of bilingual judges in the district of Montreal is replete with examples where early drafts were considered inadequate,” he added. Beaulac has a more optimistic take on the use of AI for translations. It’s a fast-moving field that yields almost instantaneous translations that will very likely reduce delays, even if it is revised by a legal expert. “Without being an expert, I think that, in the very near future, we’ll be able to have situations that won’t be reproached as in the Quebec Appeal Court judgments with excessively long delays, especially in criminal matters,” said Beaulac. The Quebec government not surprisingly intends to appeal the decision. This story was originally published in Law360 Canada.
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