Appeal court orders new trial after language rights not respected

For the third time since 2005 the Quebec Court of Appeal has allowed an appeal and ordered a new trial because of the failure to respect the language rights of an accused in a ruling that admonishes trial judges and Crown counsel for failing to protect them.

In setting aside the guilty verdict of second degree murder delivered on June 2006 by a Quebec Superior Court jury, the appeal court found that the rights of Bertam Dow under under governing appellate case law interpreting s. 530.1 of the Criminal Code, and s.14 of the Canadian Charter of Rights and Freedoms were not respected, and hence the curative provisions of sub-section 686(1)(b) Cr. C. cannot be applied.

“Trial judges and Crown counsel therefore have every interest in being alert to the existence of these rights by acting to protect them to avoid orders for new trials, even if, as in the case of Mr. Dow, defence counsel do not fully assert them,” said Judge Alan Hilton in a unanimous 26-page ruling in Dow c. R., 2009 QCCA 478.

Even more striking, according to McGill constitutional law professor Robert Leckey, the ruling underlines the fact that it has never been necessary in Quebec to make an application under s. 530(1) of the Criminal Code for the trial of an anglophone to take place before an English-speaking jury with a trial judge and Crown prosecutor able to fully participate by using the English language. Continue reading “Appeal court orders new trial after language rights not respected”