R. v. Schneider (A.), (2004) 228 N.S.R.(2d) 344 (CA)

• Judge: Roscoe, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 14, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 228 N.S.R.(2d) 344 (CA);2004 NSCA 151

R. v. Schneider (A.) (2004), 228 N.S.R.(2d) 344 (CA);

 723 A.P.R. 344

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.043

Her Majesty The Queen (appellant) v. Annie Marthe Schneider (respondent)

(CAC 213742)

Annie Marthe Schneider (appellant) v. Her Majesty The Queen (respondent)

(CAC 212755; 2004 NSCA 151; 2004 NSCAF 151)

Indexed As: R. v. Schneider (A.)

Nova Scotia Court of Appeal

Roscoe, Oland and Fichaud, JJ.A.

December 14, 2004.

Summary:

A francophone accused was scheduled for trial on May 17, 2001, before a French-speaking Provincial Court judge, having elected a trial in French under s. 530 of the Criminal Code. One month before trial, the accused's request for an adjournment (in English) was denied by an English-speaking judge. Another request for an adjournment (on health grounds) was heard three days before trial (in French) before the same English-speaking judge. The judge directed that the accused seek an adjournment before the French-speaking judge at trial. The trial judge refused an adjournment, noting, inter alia, that a Crown witness had flown in from Alberta and it would be a waste of financial resources if the trial did not proceed. The accused was subsequently tried, found guilty and fined for assault and causing a disturbance. The accused appealed, submitting that her right to be tried in French under s. 530 and s. 16 of the Charter was denied. Specifically, she submitted that she had a right to address the court in French on a pre-trial motion for an adjournment. Further, the accused alleged that the trial judge did not act judicially in exercising his discretion to refuse an adjournment.

The Nova Scotia Supreme Court, in a judgment reported (2003), 219 N.S.R.(2d) 10; 692 A.P.R. 10, allowed the appeal, quashed the convictions and ordered a new trial. The accused's constitutional and statutory rights were denied by failing to afford her an opportunity to have her pre-trial motion for an adjournment heard in French three days before the trial. Further, the trial judge, in refusing an adjournment, did not exercise his discretion reasonably and judicially. Had the request been heard before trial, the exercise of discretion may have been tipped in the accused's favour.

The Nova Scotia Supreme Court, in a supplementary judgment reported at (2003), 221 N.S.R.(2d) 201; 697 A.P.R. 201, held that the s. 530 right to trial by a court in French or English applied to summary conviction proceedings in the Provincial Court. The Crown appealed, submitting that the judge erred in finding a breach of the accused's language rights. The accused appealed, submitting that, inter alia, the judge erred in ordering a new trial rather than granting a stay of proceedings or substituting an acquittal.

The Nova Scotia Court of Appeal allowed in part the appeals of both the Crown and the accused. The court held that there was no breach of the accused's language rights under s. 16 of the Charter or s. 530 of the Criminal Code. The court agreed with the accused that the judge did not judicially exercise his discretion in dismissing the adjournment application. The judge did not err in ordering a new trial rather than substituting an acquittal or granting a stay of proceedings.

Civil Rights - Topic 2707

Language - General principles - Institutions of Parliament and government of Canada - Section 16(1) of the Charter of Rights and Freedoms provided for equality of status and an equal right and privilege to use French or English in "all institutions of the Parliament and government of Canada" - The Nova Scotia Court of Appeal restated that a breach of s. 530 of the Criminal Code could not constitute a breach of s. 16(1), because a Provincial Court was neither an institution of Parliament nor an institution of government or the executive - See paragraph 19.

Civil Rights - Topic 2947

Language - Criminal proceedings - Right to trial in either official language - Section 530 of the Criminal Code gave the francophone accused the right to be tried before a French-speaking judge - Section 16 of the Charter guaranteed equality of the two official languages - A francophone accused, who elected a French trial under s. 530, had her application for an adjournment scheduled for three days before trial before an English-speaking judge - That judge directed that the application be heard by the French-speaking trial judge at trial - The court held that the accused's rights under s. 16 of the Charter and s. 530 of the Criminal Code were denied where she was denied the right, three days before trial, to have her adjournment application heard in French - The accused's right to a "trial" in French included the right to have essential pre-trial motions heard in French - The Nova Scotia Court of Appeal held that the accused's right to be tried in French was not infringed - Since an adjournment application need not be heard by the trial judge, it was not a breach of s. 530 for the person hearing the adjournment application not to understand French - However, a purposive interpretation of s. 530 required that an accused not be prejudiced by an administrative failure to assign the trial judge, or another judge who spoke French, to hear pre-trial motions - See paragraphs 1 to 29.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - An accused who elected a trial in French under s. 530 of the Criminal Code requested an adjournment - The application was heard by an English-speaking judge three days before trial - That judge directed that the French-speaking trial judge hear the application - The trial judge refused an adjournment, partly because the Crown had incurred the expense of flying a witness from Alberta for the trial - An English-speaking accused, seeking an adjournment three days before trial, would have been in a better position to obtain an adjournment because it would have been heard before the witness flew to Nova Scotia - The Nova Scotia Court of Appeal affirmed that the trial judge did not exercise his discretion judicially and reasonably - The decision was not responsive to the grounds of the request (illness, lack of time to prepare, etc.) - Although the main concern was the cost of flying in the witness, there was no acknowledgment that the expense might have been avoided had the adjournment application been heard earlier - Further, "given the difficulties presented to the accused by not being able to be heard in her language of choice on her earlier requests for adjournment, the request to the trial judge should have been considered in light of her language rights" - See paragraphs 30 to 37.

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - The Nova Scotia Court of Appeal discussed when an accused was entitled to have an acquittal substituted for a conviction rather than being subjected to a new trial - See paragraphs 39 to 41.

Cases Noticed:

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 7].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 7].

R. v. Cole (D.) (1996), 152 N.S.R.(2d) 321; 442 A.P.R. 321 (C.A.), refd to. [para. 8].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 8].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 12].

R. v. MacKenzie (N.M.) (2004), 221 N.S.R.(2d) 51; 697 A.P.R. 51; 2004 NSCA 10, refd to. [para. 18].

R. v. Beals (E.W.) (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), refd to. [para. 30].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, refd to. [para. 30].

R. v. Manhas, [1980] 1 S.C.R. 591; 32 N.R. 8, refd to. [para. 31].

Sharp v. Wakefield et al., [1891] A.C. 173 (H.L.), refd to. [para. 32].

R. v. Stratton (M.) et al. (2003), 218 N.S.R.(2d) 23; 687 A.P.R. 23; 2003 NSCA 104, refd to. [para. 38].

R. v. Reid and Stratton - see R. v. Stratton (M.) et al.

R. v. Timmons (W.J.), [2003] N.S.R.(2d) Uned. 105; 2003 NSCA 107, refd to. [para. 38].

R. v. S.H.P-P. (2003), 215 N.S.R.(2d) 66; 675 A.P.R. 66; 2003 NSCA 53, refd to. [para. 38].

R. v. D.C.S. (2000), 184 N.S.R.(2d) 299; 573 A.P.R. 299; 2000 NSCA 61, refd to. [para. 40].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, refd to. [para. 44].

R. v. Sophonow (1986), 38 Man.R.(2d) 198; 25 C.C.C.(3d) 415 (C.A.), refd to. [para. 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 16(1), sect. 16(3) [para. 17].

Criminal Code, R.S.C. 1985, c. C-46, sect. 530(1)(a)(i), sect. 530(3), sect. 530(5), sect. 530.1 [para. 22]; sect. 669.1(1), sect. 669.1(2), sect. 803(1) [para. 26].

Counsel:

Lloyd Lombard, for the Crown;

Annie Schneider, on her own behalf.

These appeals were heard on October 4, 2004, at Halifax, N.S., before Roscoe, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On December 14, 2004, Roscoe, J.A., delivered the following judgment for the Court of Appeal.