BESSETTE v. BRITISH COLUMBIA (ATTORNEY GENERAL), 2019 SCC 31

Accused to be tried under the provincial court of British Columbia shall be given the right to be tried in either English or French on application by accused.

Before starting his trial for the driving offence, Mr. Bessette asked the provincial court of British Columbia to be tried in French language. He claimed that under s. 530 of criminal code, he has a right to be tried under Canada’s official language, which he knows. However, the court of British Columbia denied this request. Relying on English colonial law (the 1731 Act), the court stated that the Criminal Code could not be applied in the present case because British Columbia accepts the English language. The court also relied upon the reasoning given in the judgment of R. v. Laflamme, B.C. Prov. Ct., No. 19739, February 17, 1997, where it was established that the language of the courts in British Columbia is English.

The accused unsuccessfully appealed in the Supreme Court of British Columbia, where the application for prerogative relief through the writ of certiorari was dismissed because the application was premature and that the appeal should be filed to review the judgment of the provincial court. Further, on similar grounds, the Court of Appeal in British Columbia dismissed the accused’s appeal, stating certiorari application attract deference as it is discretionary in nature.

At last, the appeal went to the Supreme Court of Canada that dealt with two primary issues. Firstly, the court analyzed whether the supreme court of British Columbia was responsible for reviewing the certiorari petition. If yes, then did the supreme court commits an error in denying this right to the accused. Secondly, the court answered the substantive question on the law as to whether s.530 of criminal code would be incorporated under s.133 of the offence act?

The court held that superior courts are generally not supposed to interfere in ongoing criminal, quasi-criminal proceedings in the provincial courts. As appeals in criminal matters are statutory in nature, and there are no interlocutory appeals. However, parties in criminal matters are given pre- and mid-trial right to file a certiorari application against the courts’ jurisdictional error. A jurisdictional error occurs when the court (in this case, the provincial court) fails to apply the state’s compulsory laws. To view whether the provincial court committed a jurisdictional error, the supreme court had the discretion to allow the application and review for correctness. The application of the accused claimed jurisdictional error. Therefore, the certiorari review was a right available to him to check whether s.530 was a mandatory provision and must be applied by the provincial court. The court held that the supreme court erred in deciding not to allow the certiorari matter, and the court should have decided the matter on the merits of the accused petition.

Further, it was held that s. 530 applies to the present case. Since the case deals with the offence act and motor vehicle act, language provision is neither mentioned. Moreover, s.133 of the offence act defines the term proceeding with the proviso that if other particular legislation states something else, it shall go with that legislation. Therefore, the criminal code would apply as if it was enacted and formed part of the Offence Act itself. And its incorporation under the offence act would implicitly repeal the act of 1731 regarding offence act trials. Finally, the bench unanimously held that the right to be tried in the French language should have been given to the accused and denying him this right is a jurisdictional error by the provincial court because of which provisional court lost the trial rights over Mr. Bessette’s trial.