The expression “judge and jury” is usually a metaphor. But with Judge Dennis Galiatsatos, it should be taken at face value. The magistrate took the initiative to tackle the CAQ reform of the Charter of the French language.
According to this new law, any judgment rendered in English must be translated into French “immediately and without delay”.
The judge of the Court of Quebec recalls that the Criminal Code protects the right to be judged in both official languages. He maintains that Quebec is interfering in the Criminal Code. And he predicts it will cause unfair delays for English speakers who are being tried in their language.
He raised his concerns with lawyers ahead of the trial of a woman accused of dangerous driving causing the death of a cyclist.
The accused’s lawyer, an English-speaking woman, told her: no, it’s okay, there’s no problem.
The Crown told him the same thing.
The judge then decided to launch the debate himself. And since no one was making the argument he was interested in, he did so. Not surprisingly, he agreed with himself.
The judge organized a fight. Nobody wanted to participate. So he then put on the gloves against the enemy he made for himself, before declaring himself victorious.
Could he take this initiative? 1er May, he asked the parties to submit their pleadings to him in this regard. Barely an hour after this meeting, he had already written his 17-page decision.
After concluding that he was right to be interested in the case, he wrote a second decision on the merits of the case.
As a judge of the Court of Quebec, Mr. Galiatsatos does not have the jurisdiction to invalidate a law. He can only make it inoperative in the specific cause before him.
Observers had already predicted that the translation requirement would be contested. Among other things, there were fears of delays in cases that had to be dealt with urgently, such as child care or a psychiatric evaluation.
What is surprising, however, is that the challenge is the initiative of a judge of the Court of Quebec, against all odds.
The defense didn’t want this fight. Even the Attorney General of Canada repeated that everything was fine. According to these jurists, the requirement of translation is a question of administration of justice. It therefore falls under Quebec.
The Canadian prosecutor reminded him that French-speaking defendants in Alberta, who wish to obtain a judgment in their language, also face direct or indirect delays.
But Judge Galiatsatos has another interpretation of federalism and jurisprudence. He fears delays for the English-speaking defendants and has decided to take up their defense.
The translation requirement will not come into effect until 1er June. Until then, it is impossible to know precisely the deadlines. And in the meantime, the laws are presumed constitutional.
But any delay is unacceptable, according to the judge. He further fears that trials will be aborted due to unconstitutional delays.
In its now famous Jordan decision, the Supreme Court established maximum time limits for a trial. Deliberation is not included in this calculation. In March 2020, the Court clarified that the duration of the deliberation must still be reasonable. It is the accused who must demonstrate that this delay was “longer than was reasonably necessary”.
Under oath, the Quebec Legal Information Society assured that translation times would be measured in days, and at worst, in weeks for complex files. The Director of Criminal and Penal Prosecutions added that the judge could deliver his judgment orally in French at the same time as he reveals his decision in English.
Judge Galiatsatos does not budge. Based on his own assumptions, he concludes that this right will be violated.
However, he places little importance on the National Assembly’s objective of protecting the right of the legal community to work in the official language of Quebec.
In law, every word counts. Even if a lawyer is bilingual, he or she may be more comfortable reading a decision in their language.
And there are the victims and their families. A French-speaking victim may want to understand the decision in their language, even if the accused obtained a trial in English.
Finally, we must emphasize that this debate is part of a sad story. The trial concerns a cyclist who was fatally struck. And neither the accused nor the victim’s family expressed any desire for the cause to be used in this way.