This week on Legally Speaking with Michael Mulligan:
Section 530 of the Criminal Code provides a right to a trial in either English or French. It also requires a judge or justice “before whom an accused first appears” to inform accused people of this right.
If someone requests a trial in French or English no later than the time set for their trial, it is mandatory that this be provided. If a request is made later, a judge has discretion, but this is required to be exercised in a permissive way.
If two or more people are being tried together, they might make elections concerning the official language that they wished to use. In such a case, a bilingual judge or jury would requried.
In a BC Court of Appeal case discussed on the show, a bilingual man, whose first language was French, sought a new trial, after being convicted, because he wasn’t informed of his right to have a trial in French.
In dismissing his appeal, the Court of Appeal pointed to several factors.
The man was bilingual and had no apparent difficulty communicating in English that could have resulted in a need for a judge to make further inquiries concerning the language of the trial.
The man had a lawyer assisting him and no issue concerning the language of the trial was raised prior to the appeal.
The paperwork to attend court the man had been given following his arrest included notice of the right to have a trial in French or English, printed in French and English.
At the first court appearance, where someone should be informed of their right to trial in English or French, the accused man was not present as he had retained a lawyer to appear for him.
The Court of Appeal decision does suggest that, if the preference for a trial in French had been raised prior to the conviction and appeal, there may well have been a different outcome.
Also, on the show, the reasons for judgment in the case of Craig James, the former Clerk of the Legislative Assembly of British Columbia are discussed.
Mr. James was charged with several counts of fraud and breach of trust relating to matters including the payment of a “long service” or “retirement allowance” of $257,988, the purchase and use of a log splitter and trailer, as well as numerous other purchases including clothing.
Mr. James was found not guilty of all the charges he was facing, with the exception of fraud under $5,000 relating to the purchase of two suits, a tie, and a dress shirt.
While the judge found that Mr. James was likely not entitled to the $257,988 he had paid to himself, he had recieved an opinion from a senior lawyer that suggested he might have been entitled to the money. As a result it wasn’t possible to conclude beyond a reasonable doubt that there had been fraud or breach of trust.
The history of the “long service” or “retirement allowance” was that prior to Mr. James taking over as Clerk, the people who served as “table officers” in the legislature had been lawyers in private practice who did this work but did not receive pension, vacation, or other benefits paid to regular government employees. The allowance was intended to make up for this when they retired.
Mr. James did receive the pension, vacation, and other benefits for the entire period of his employment, however, the policy with respect to the allowance was still in place.
The conviction relating to the suits, tie and dress shirt was because Mr. James mischaracterized these expenses to make them look like they related to the uniform he would wear in the legislature. For example, he wrote “tabs” on the receipt for the tie.