2. Ask for a French trial

The Criminal Code says that you must be told about your right to have your trial and preliminary inquiry before a judge who speaks French or both official languages.

The judge or justice of the peace before whom you first appear must tell you about this right and the timelines for making your request.

The deadline for making your request depends on what you’ve be charged with and the court where your trial will be held.

You can ask to have a French or bilingual trial as early as your first court appearance.

But you must ask for a French trial no later than:

• when setting your trial date,
• when making your election to have your trial before a judge alone or a judge and jury, or
• at the time you’re ordered to stand trial after committal at your preliminary inquiry

If you make your request on time, you must have a French trial.

If you make your request late, it is up to the judge to decide whether you will have a French or bilingual trial using the “best interests of justice” test.

The judge will look reasons for your delay including things like:

• when you were made aware of your right
• whether you waived the right and later changed your mind
• why you changed your mind
• whether it was because of difficulties encountered during the proceedings

The judge will then look at factors related to the trial, such as:

• whether you have a lawyer
• the language in which the evidence is available
• the language of witnesses
• whether a jury has been selected
• whether witnesses have already testified
• whether witnesses are still available
• whether proceedings can continue in a different language without the need to start the trial afresh
• whether there are one or more co-accused (which may indicate the need for separate trials)
• whether you’ve changed lawyers
• the need for the Crown to change counsel
• the language ability of the presiding judge

Administrative inconvenience is not a relevant factor. This includes things like:

• the availability of court reporters
• the workload of the Crown
• the workload of judges
• additional costs of rescheduling