R. v. T.D.M., 2008 YKCA 16

JudgeNewbury, Levine and Frankel, JJ.A.
CourtCourt of Appeal (Yukon Territory)
Case DateSeptember 18, 2008
JurisdictionYukon
Citations2008 YKCA 16;(2008), 261 B.C.A.C. 185 (YukCA)

R. v. T.D.M. (2008), 261 B.C.A.C. 185 (YukCA);

    440 W.A.C. 185

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. OC.039

Regina (appellant) v. T.D.M. (respondent)

(07-YU598; 2008 YKCA 16)

Indexed As: R. v. T.D.M.

Yukon Court of Appeal

Newbury, Levine and Frankel, JJ.A.

October 23, 2008.

Summary:

As a result of a report made by G.A., the accused was arrested and charged with sexual touching and sexual assault of his infant daughter. G.A., whose mother tongue was French, testified in English at the preliminary inquiry. The accused was committed for trial. In dealing with a post-committal bail application, the Territorial Court judge who heard the preliminary inquiry remarked on the fact that G.A. appeared to have "a problem understanding the more nuanced questioning of the lawyers and making himself clearly understood in his answers". See 2007 YKTC 74.

The Yukon Supreme Court, in a decision reported at 2008 YKSC 19, directed that G.A. testify in English, although a translator would be available to provide assistance if required. The accused was acquitted. The Crown appealed. The principal issue was whether a witness at a criminal trial in Yukon had the right to testify in the official language of his or her choice. The accused applied to adduce fresh evidence (two affidavits) on the appeal. The affidavits were offered to support his position that G.A.'s proficiency in English was such that he was not hampered by being required to testify in that language.

The Yukon Court of Appeal dismissed the application to admit fresh evidence, as it was not relevant to the issues on the appeal. G.A.'s proficiency in English had no bearing on the question of whether he had a statutory right to testify in French. Similarly, any assessment of the degree to which he was able to express himself in English was to be determined on the basis of the transcript of his evidence. The court also held that the Languages Act (Yuk.) conferred on a witness, at a criminal trial in Yukon, the right to testify in the official language of his or her choice. However, the court held that the trial judge's failure to permit G.A. to testify in French had no impact on the outcome of the trial and the court therefore dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Constitutional Law - Topic 6477

Federal jurisdiction - Criminal law - "Procedure in criminal matters" - Language - The Yukon Court of Appeal held that s. 5 of the Languages Act (Yuk.) gave a witness a right to testify in either English or French in federal criminal proceedings before Yukon courts - Further, there was no conflict or incompatibility between s. 5 of the provincial Act and Part XVII of the Criminal Code, which focussed on the language rights of an accused - See paragraphs 22 to 43.

Constitutional Law - Topic 7701

Language rights - General principles - The Yukon Court of Appeal stated that "There is no specific constitutional head of power dealing with language rights. Rather, the power to enact language laws is ancillary to the legislative authority otherwise assigned to Parliament and the provincial legislatures by the Constitution Act, 1867 ..." - See paragraph 28.

Constitutional Law - Topic 7706

Language rights - General principles - In courts - [See Constitutional Law - Topic 6477 ].

Criminal Law - Topic 4958

Appeals - Indictable offences - New trials - Grounds for refusing new trial - As a result of a report made by G.A., the accused was arrested and charged with sexual touching and sexual assault of his infant daughter - He was acquitted - The Crown appealed - The Yukon Court of Appeal held that the trial judge erred in refusing to allow G.A. to testify in French, his mother tongue - Section 5 of the Languages Act (Yuk.) gave a witness a right to testify in either English or French in federal criminal proceedings before Yukon courts - However, the court refused to order a new trial - Nothing in the transcript suggested that G.A. had any linguistic difficulty in describing the incident he said he had witnessed - Further, and more significantly, nothing supported the contention that G.A. had any linguistic difficulty in answering questions put to him in cross-examination with respect to inconsistencies in his evidence, or regarding why he did not tell anyone about the alleged incident for several weeks - The trial judge's concerns with respect to G.A.'s veracity were grounded in the substance of his testimony - In light of the completeness of G.A.'s evidence, these concerns would have existed even if G.A. had testified in French - In other words, the trial outcome was not affected by the fact that G.A. was directed to testify in English - See paragraphs 44 to 46.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - As a result of a report made by G.A., the accused was arrested and charged with sexual touching and sexual assault of his infant daughter - G.A., whose mother tongue was French, testified in English at the preliminary inquiry - In dealing with a post-committal bail application, the Territorial Court judge who heard the preliminary inquiry remarked on the fact that G.A. appeared to have "a problem understanding the more nuanced questioning of the lawyers and making himself clearly understood in his answers" - The trial judge directed that G.A. testify in English, although a translator would be available to provide assistance if required - The accused was acquitted - The Crown appealed - The principal issue was whether a witness at a criminal trial in the Yukon had the right to testify in the official language of his or her choice - The accused applied to adduce fresh evidence (two affidavits) on the appeal - The affidavits were offered to support his position that G.A.'s proficiency in English was such that he was not hampered by being required to testify in that language - The Yukon Court of Appeal dismissed the application to admit fresh evidence, as it was not relevant to the issues on the appeal - G.A.'s proficiency in English had no bearing on the question of whether he had a statutory right to testify in French - Similarly, any assessment of the degree to which he was able to express himself in English was to be determined on the basis of the transcript of his evidence - See paragraphs 20 and 21.

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See Statutes - Topic 1806 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - Section 5 of the Languages Act (Yuk.) provided, in the English and French versions, respectively, that "Either English or French may be used by any person in, or in any pleading in or any process issuing from, any court established by the Legislative Assembly." and "Chacun a le droit d'employer le français ou l'anglais dans toutes les affaires don't sont saisis les tribunaux établis par l'Assemblée législative et dans tous les actes de procédure qui en découlent." - The Yukon Court of Appeal had regard to both versions of s. 5 in determining its effect - Both versions had equal status and it was their shared, or common, meaning that governed - The English version used the expression "may be used", which could be interpreted as permissive only - However, when read together with the French version, "chacun a le droit d'employer", it was clear that the legislature intended to confer, amongst other things, a "right" to testify in either official language - See paragraphs 25 and 26.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 21].

Ponomoroff v. Ponomoroff, [1925] 3 W.W.R. 673 (Sask. C.A.), refd to. [para. 22].

R. v. Wong On (1904), 8 C.C.C. 423 (B.C.S.C.), refd to. [para. 22].

Donkin Creeden Ltd. v. Chicago Maru (No. 1) (1916), 22 B.C.R. 529 (Ex. Ct.), refd to. [para. 22].

Radic v. Teply, [1974] B.C.J. No. 294 (S.C.), refd to. [para. 22].

Skorski v. St. Catherines Canadian Polish Society (1999), 90 O.T.C. 95; 30 C.P.C.(4th) 90 (Gen. Div.), refd to. [para. 22].

Dairy Farmers Co-operative Milk Co. v. Acquilina (1963), 109 C.L.R. 458 (Aust. H.C.), refd to. [para. 22].

Kilrich Industries Ltd. v. Halotier (2007), 246 B.C.A.C. 159; 406 W.A.C. 159; 2007 YKCA 12, consd. [para. 24].

R. v. Mac (M.K.), [2002] 1 S.C.R. 856; 287 N.R. 75; 159 O.A.C. 33; 2002 SCC 24, refd to. [para. 25].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 25].

R. v. Abel (D.L.) (2008), 251 B.C.A.C. 184; 420 W.A.C. 184; 229 C.C.C.(3d) 465; 2008 BCCA 54, refd to. [para. 25].

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. 27].

Singer (Allan) Ltd. v. Québec (Procureur général) et al., [1988] 2 S.C.R. 790; 90 N.R. 48; 19 Q.A.C. 33, refd to. [para. 28].

Devine v. Québec (Procureur général) - see Singer (Allan) Ltd. v. Québec (Procureur général) et al.

Official Languages Act, Re, [1975] 2 S.C.R. 182; 1 N.R. 582; 7 N.B.R.(2d) 526, appld. [para. 30].

Jones v. New Brunswick (Attorney General) - see Official Languages Act, Re.

R. v. Murphy; Ex parte Belisle and Morneau (1968), 69 D.L.R.(2d) 530 (N.B.C.A.), consd. [para. 34].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 36].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 38].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 2000 SCC 50, appld. [para. 44].

Statutes Noticed:

Languages Act, R.S.Y. 2002, c. 133, sect. 5 [para. 14].

Counsel:

E. Marcoux, for the appellant;

B.A. Beresh, Q.C., for the respondent.

This application and appeal were heard at Vancouver, B.C., on September 18, 2008, by Newbury, Levine and Frankel, JJ.A., of the Yukon Court of Appeal. Frankel, J.A., delivered the following reasons for decision for the court on October 23, 2008.

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