



Court of Appeal for British Columbia




Citation:


R. 
          v. L'Espinay,







2008 
          BCCA 20



Date: 20080118

Docket: CA033817

Between:

Regina

Respondent

And:

Eric 
    Claude LEspinay

Appellant




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Huddart




The 
          Honourable Mr. Justice Chiasson








E. 
          C. LEspinay


Appellant appearing In Person




F. 
          Lacasse


Counsel for the Respondent,
Public Prosecution Service of Canada




Place 
          and Date of Hearing:


Vancouver, British Columbia




14 November 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




18 January 2008








Written 
          Reasons by:




The 
          Honourable Madam Justice Huddart




Concurred 
          in by:




The 
          Honourable Chief Justice Finch
The Honourable Mr. Justice Chiasson



Reasons 
    for Judgment of the Honourable Madam Justice Huddart:

[1]

M. LEspinay appeals his conviction on charges of trafficking in cannabis 
    resin, possession of cannabis resin for the purpose of trafficking, and possession 
    of marihuana for the purpose of trafficking.

At trial in Provincial Court, the appellant sought an 
    order that the trial court or the Crown provide transcripts of the proceedings 
    pursuant to
ss. 530.1, 540(6) 
    and 603
of the
Criminal Code
,

R.S.C. 1985, c. C‑46
.

The application was refused.  An order 
    was made for a division of this Court to hear the transcript issues, in advance 
    of a hearing on the merits of the conviction appeal.

[2]

The essence of the appeal on the transcript issues is that the trial 
    judge erred in her interpretation of ss. 530.1, 540(6) and 603 of the
Criminal 
    Code
.  The appellant considers that these sections require the evidence 
    of the witnesses for the prosecution be transcribed and that he be entitled 
    to inspect the transcripts.  Additionally, the appellant submits, the trial 
    judges failure to require the court administrators to make a written transcript 
    violated his rights under ss. 11(d) and 15 of the
Canadian Charter of Rights and Freedoms
.  Finally, he asks this Court to order the 
    making of a written transcript of the evidence, pursuant to s.682(2) of the
Criminal Code
, before he is required to prosecute his appeal 
    on other grounds.

The Privilege of Audience to Mr. Parsons

[3]

At the commencement of this appeal, M. LEspinay appeared in person 
    and, asked to be represented on the hearing of his appeal by David Parsons 
    who is not a lawyer.  The Crown opposed this request, and asked the Court 
    for directions that Mr. Parsons not be granted the privilege of audience.

[4]

We were told that Mr. Parsons, the proposed agent, spoke only English 
    and would have addressed us in English.  M. LEspinays trial in Provincial 
    Court was conducted in French, as that is his first language.  Arrangements 
    were made for an interpreter to be present in this Court so that M. LEspinay 
    could address this Court in French if he wished.  It was evident from speaking 
    with M. LEspinay that he is an educated, intelligent and articulate young 
    man well capable of expressing himself in both English and French.  A translation 
    of the submissions into French for M. LEspinay would have been unnecessary, 
    time consuming and counterproductive to the effective and efficient hearing 
    of the appeal.

[5]

However, the Crown did not oppose Mr. Parsons appearance as agent 
    on the basis of any concerns over language use or translation.  Rather, the 
    Crown opposed Mr. Parsons acting as agent because it said it would not be 
    in the interests of justice for him to do so.  The Crown put before us materials 
    which show that Mr. Parsons has, in the past, demonstrated contempt for the 
    courts and the judicial system, and that he lacks a proper understanding of 
    the courts processes.  By his own statements, he has attempted to goad the 
    courts into citing him for contempt.

[6]

The Court has a discretion whether to hear representations for a party 
    by a person who is not authorized to act as counsel under the
Legal 
    Profession Act
, S.B.C. 1998, c.9.  In
Venrose Holdings Ltd. 
    v. Pacific Press Ltd.
(1978), 7 B.C.L.R. 298 (C.A.), Mr. Justice McIntyre 
    for the Court said at 304:

[T]he 
    courts as masters of their own proceedings must retain a discretion whether 
    to hear from time to time in the course of the dispatch of their business 
    such persons other than barristers as they may consider should be heard in 
    the interests of justice.  The court in its discretion may grant a privilege 
    of audience to such persons in any case where it deems it necessary or proper 
    and deny it in other cases.  This, no doubt, is a power which should be exercised 
    rarely and with caution, and it is one the courts will be zealous to preserve.

See also
R. v. Dick
, 2002 BCCA 27 and
R. 
    v. Romanowicz
(1999), 124 O.A.C. 100; 138 C.C.C. (3d) 225 (C.A.).

[7]

It is evident that Mr. Parsons has his own agenda to pursue that 
    would be inconsistent with a full, fair and effective representation of M. 
    LEspinays interests on this appeal.  In addition to being unnecessary and 
    inconvenient for the reasons relating to the language question, it was not 
    in the interests of justice to permit Mr. Parsons to act as the appellants 
    agent on the appeal.  For these reasons, we denied him the privilege of audience.

Facts

[8]

The incident giving rise to the charges against the appellant took 
    place on 30 June 2004 on Salt Spring Island.  The hearing of evidence 
    at the trial began on 24 January 2006.  At the beginning of the trial, M. 
    LEspinay filed a notice of motion seeking an order that the audio recording 
    of the evidence of the witnesses for the Crown be transcribed so that he might 
    verify it before entering on his defence.  The trial judge dismissed that 
    application as premature because the witnesses had not yet given their evidence.

[9]

M. LEspinay again 
    asked the court to provide, under s. 540(6) of the
Criminal Code
, 
    a transcription of the evidence given by the Crowns witnesses.  He also 
    sought an adjournment until he received those transcripts.  The trial judge 
    dismissed the application.  She reasoned that M. LEspinay took notes at the 
    trial and never asked the Crown, a witness or the interpreter to repeat anything 
    to him.  She held that the
Criminal Code
does not give an accused 
    the right to a written transcript during the trial.  M. LEspinay was provided 
    with the necessary forms to obtain a written transcript, and his further application 
    to have the court complete the forms was dismissed.

[10]

After the trial judge 
    ruled on the
voir dire
and admitted the evidence of the Crowns witnesses, 
    M. LEspinay sought an adjournment so he might obtain an order for
mandamus
directing the trial judge or the Attorney General to make available a written 
    transcript for his inspection.  The application for an adjournment was refused.  
    M. LEspinay then made another application for the court to provide a transcript. 
     M. LEspinay did not want to use the services of the private company indicated 
    on the forms.  The trial judge dismissed his application.  She held that ss. 
    572 and 603 of the
Criminal Code
were not relevant and that 
    s. 530.1 of the
Criminal Code

did not give the accused a right 
    to receive a transcript during the trial nor an adjournment to obtain that 
    transcript.

[11]

Although M. LEspinay 
    could listen to the audio recording or obtain a copy of the audio recording 
    from the Provincial Court Registry at nominal cost, M. LEspinay did neither, 
    nor has he since.  When the adjournment was refused, he entered no defence 
    to the indictment because, he says, he wished to pursue the transcript issues 
    in this Court.

Discussion

(a)
Section 540(6
)

[12]

M. LEspinay was tried in the Provincial Court for indictable offences 
    under s. 5(4) of the
Controlled Drugs and Substances Act
, 
    S.C. 1996, c.19 the trial of which is, by
Criminal Code
s. 553(c)(xi), 
    within the absolute jurisdiction of a Provincial Court Judge.  Section 557 
    incorporates other, more broadly applicable provisions, into absolute jurisdiction 
    trials (
R. v. Reimer
(1959), 30 W.W.R. 92 (B.C.C.A.)); it provides:





If 
            an accused is tried by a provincial court judge or a judge of the 
            Nunavut Court of Justice in accordance with this Part, the evidence 
            of witnesses for the prosecutor and the accused must be taken in accordance 
            with the provisions of Part XVIII, other than subsections 540(7) to 
            (9), relating to preliminary inquiries.





Lorsquun prévenu est jugé par un juge de la cour provinciale 
            ou, au Nunavut, un juge de la Cour de justice en conformité avec la 
            présente partie, les dépositions des témoins à charge et à décharge 
            sont recueillies selon les dispositions de la partie XVIII relatives 
            aux enquêtes préliminaires, à lexception des paragraphes 540(7) à 
            (9).




[13]

The appellant argues that one of the provisions incorporated by s.557 
    is s.540(6) which provides:





(6)       
            Where, in accordance with this Act, a record is taken in any proceedings 
            under this Act by a sound recording apparatus, the record so taken 
            shall, on request of the justice or of one of the parties, be dealt 
            with and transcribed, in whole or in part, and the transcription certified 
            and used in accordance with the provincial legislation, with such 
            modifications as the circumstances require mentioned in subsection 
            (1).





(6)        Lorsque, en conformité avec la présente 
            loi, on a recours à un appareil denregistrement du son relativement 
            à des procédures aux termes de la présente loi, lenregistrement ainsi 
            fait est utilisé et transcrit, en totalité ou en partie, à la demande 
            du juge de paix ou de lune des parties, et la transcription est certifiée 
            et employée, avec les adaptations nécessaires, conformément à la législation 
            provinciale mentionnée au paragraphe (1).




[14]

The starting point for this Courts analysis of the issues M. LEspinay 
    raises must be the decision of the Supreme Court of Canada in
Collinge 
    v. Gee
, [1968] S.C.R. 948, affg
(1968), 
    64 W.W.R. 321
(B.C.C.A.).  In that case, the accused was 
    tried for the indictable offences of fraud and false pretences, on his own 
    election, by a Provincial Court Judge.  The issue was whether the
Criminal 
    Code
,
the
Canadian Bill of Rights
,

S.C.1960, 
    ch. 44, or article 29 of the
Magna Carta
obliged the court reporter 
    to transcribe the proceedings, to make such transcription available to the 
    inspection of the convicted person or his agent and to supply such transcript 
    free of charge to the convicted person or his agent.  This Court dismissed 
    the applications.  The Supreme Court of Canada affirmed that order in brief 
    oral reasons.  Cartwright C.J. said simply:

We are all of opinion that when s. 471 [now s.557] of the
Criminal 
    Code
, 1953-54, ch. 51, directs that the evidence of witnesses for the 
    prosecutor and the accused shall be taken in accordance with the provisions 
    of Part XV [now Part XVIII] relating to preliminary inquiries it refers to 
    and incorporates,
mutatis mutandis
, s. 453 [now s.540] (1)(a) and (b) 
    and none of the other subsections of that section.

[15]

The wording of s. 540(6) has not changed materially since it was excluded 
    from absolute jurisdiction trials by the decision in
Collinge
.  
    The insertion of the words on request of the justice or of one of the parties 
    into s. 540(5) and (6) (by S.C. 1997, c.18, s. 65(2)) removed any possibility 
    of an inference that the transcription of a sound recording into writing was 
    obligatory.  Their insertion also makes clear that provincial legislation 
    applies to any request for a transcription of the original recording.

[16]

However, in 2002, additional subsections (7)-(9) were added to follow 
    s. 540(6) (S.C. 2002, c.13, s. 29).  These new subsections allow information 
    that would not otherwise be admissible to be admitted in certain circumstances 
    during a preliminary inquiry.  At the same time, s.557 was correspondingly 
    amended to exclude these new subsections from trials within the absolute jurisdiction 
    of a Provincial Court Judge (S.C. 2002, c.13, s. 35).  Therefore, s. 557 now 
    contains specific exclusions that were not present at the time of the decision 
    in
Collinge
. On the interpretive principle of
expressio 
    unius est exclusio alterius
it 
    might be suggested all other subsections apply to absolute jurisdiction trials. 
     But that would be to ignore the words of s. 557.  They incorporate only the 
    provisions of s. 540 that deal with the taking of evidence.  The specific 
    exclusion of ss. 540(7)-(9) ensures the same interpretation as in
Collinge
. 
     Only s. 540(1)(a) and (b) apply to trials within the absolute jurisdiction 
    of a Provincial Court Judge.

(b)
Section 603

[17]

M. LEspinay also relies upon
Criminal Code

s. 603 which 
    provides that the accused is entitled to a copy of the evidence on payment 
    of a reasonable fee; s. 603 states:





An 
            accused is entitled, after he has been ordered to stand trial or at 
            his trial,

(a)     
            to inspect without charge the indictment, his own statement, the evidence 
            and the exhibits, if any; and

(b)     
            to receive, on payment of a reasonable fee determined in accordance 
            with a tariff of fees fixed or approved by the Attorney General of 
            the province, a copy

(i)   of the evidence,

(ii)  of his own statement, if any, and

(iii) of the indictment;

but 
            the trial shall not be postponed to enable the accused to secure copies 
            unless the court is satisfied that the failure of the accused to secure 
            them before the trial is not attributable to lack of diligence on 
            the part of the accused.







Un 
            accusé a droit, après quil a été renvoyé pour subir son procès ou 
            lors de son procès:

(a)    dexaminer sans frais lacte daccusation, sa 
            propre déclaration, la preuve et les pièces, sil en est;

(b)    de recevoir, sur paiement dune taxe raisonnable, 
            déterminée daprès un tarif fixé ou approuvé par le procureur général 
            de la province une copie:

(i)         de la prevue,

(ii)        de sa proper déclaration, sil en est,

(iii)       de lacte daccusation;

toutefois, le procès ne peut être remis pour permettre 
            à laccusé dobtenir des copies, à moins que le tribunal ne soit convaincu 
            que le défaut de laccusé de les obtenir avant le procès nest pas 
            attribuable à un manque de diligence de la part de laccusé.






[18]

Section 603 applies to a trial within the absolute jurisdiction of 
    a Provincial Court Judge by virtue of s. 572 of the
Criminal Code
which 
    reads:





The 
            provisions of Part XVI, the provisions of Part XVIII relating to transmission 
            of the record by a provincial court judge where he holds a preliminary 
            inquiry, and the provisions of Parts XX and XXIII, in so far as they 
            are not inconsistent with this Part, apply, with such modifications 
            as the circumstances require, to proceedings under this Part.







Les 
            dispositions de la partie XVI, les dispositions de la partie XVIII 
            relatives à la transmission du dossier par un juge de la cour provinciale, 
            lorsquil tient une enquête préliminaire, et les dispositions des 
            parties XX et XXIII, dans la mesure où elles ne sont pas incompatibles 
            avec la présente partie, sappliquent, compte tenu des adaptations 
            de circonstance, aux procédures prévues à la présente partie.






[19]

The Court may keep a record of the proceedings by deposition or by 
    the use of a sound recording apparatus as set out in s. 540(1)(b) (which is 
    applicable to absolute jurisdiction offences by virtue of s. 557); s. 540(1)(b) 
    states:





(1)     
            Where an accused is before a justice holding a preliminary inquiry, 
            the justice shall

[]

(b)     
            cause a record of the evidence of each witness to be taken

(i)  in legible writing in the form of a deposition, in Form 31, or 
            by a stenographer appointed by him or pursuant to law, or

(ii)  in a province where a sound recording apparatus is authorized 
            by or under provincial legislation for use in civil cases, by the 
            type of apparatus so authorized and in accordance with the requirements 
            of the provincial legislation.





(1)    
            Lorsque le prévenu est devant un juge de paix qui tient une enquête 
            préliminaire, ce juge doit:

[]

b)   dautre part, faire consigner la déposition de 
            chaque témoin:

(i)  soit par un sténographe nommé conformément à la 
            loi ou quil nomme ou dans une écriture lisible sous forme de déposition 
            daprès la formule 31,

(ii) soit, dans une province où lutilisation dun 
            appareil denregistrement du son est autorisée par ou selon la loi 
            provinciale dans les causes civiles, au moyen du type dappareil ainsi 
            autorisé et conformément aux prescriptions de la loi provinciale.




[20]

In British Columbia the use of a sound recording apparatus is authorized 
    by the
Sound Recording Regulations
,

B.C. Reg.
249/78

made under 
    the authority of s. 19 of the
Evidence Act
, R.S.B.C. 1996, c. 
    124.

[21]

When the proceeding is recorded by a sound recording apparatus, this 
    original recording is the record of the proceeding a Provincial Court Judge 
    is required to keep by s. 624(2) of the
Criminal Code
.  This 
    sound recording is the record of the evidence an accused is entitled to inspect 
    under s. 603(a) of the
Criminal Code
and to which he entitled 
    to a copy under s. 603(b) upon payment of such reasonable fee as the Attorney 
    General may fix or approve.  The result of this interpretation is that M. 
    LEspinay may listen to the audio recording, obtain a copy of the audio recording 
    in accordance with the practice of the Provincial Court, or request that an 
    authorized reporter transcribe some or all of the recording into writing in 
    accordance with s. 2.2(3) of the
Official Reporters Regulation
, 
    B.C. Reg. 245/2001.  But M. LEspinay is not entitled to a written transcript 
    of the proceedings under s. 603.

(c)
Section 530.1

[22]

The more difficult question is whether s. 530.1 of the
Criminal 
    Code
gives an accused who obtains an order for a bilingual trial under 
    s. 530, as M. LEspinay did in this case, an additional right not otherwise 
    available to all accused persons under the
Criminal Code
.  Section 
    530.1(g) provides:





Where 
            an order is granted under section 530 directing that an accused be 
            tried before a justice of the peace, provincial court judge, judge 
            or judge and jury who speak the official language that is the language 
            of the accused or in which the accused can best give testimony,

[]

(g)

the record of proceedings during the preliminary inquiry or 
            trial shall include

(i)       a transcript of everything that was said during those proceedings 
            in the official language in which it was said,

(ii)       a transcript of any interpretation into the other official 
            language of what was said, and

(iii)      any documentary evidence that was tendered during those 
            proceedings in the official language in which it was tendered;





Lorsquil  
            est ordonné, sous le régime de larticle 530, quun accusé subisse 
            son procès devant un juge de paix, un juge de la cour provinciale, 
            un juge seul ou un juge et un jury qui parlent la langue officielle 
            qui est celle de laccusé ou la langue officielle qui permettra à 
            laccusé de témoigner le plus facilement:

[]

(g)   le dossier de lenquête préliminaire et celui 
            du procès doivent comporter la totalité des débats dans la langue 
            officielle originale et la transcription de linterprétation, ainsi 
            que toute la preuve documentaire dans la langue officielle de sa présentation 
            à laudience;




[23]

The difficulty derives from an apparent difference between the French 
    and English versions of s. 530.1(g).  The English version provides that the 
    record of proceedings  shall include (i) a transcript of everything that 
    was said  in the official language in which it was said, and (ii) a transcript 
    of any interpretation into the other official language of what was said in 
    addition to the documentary evidence  in the official language in which 
    it was tendered.  The more succinct French version provides that the record 
    of proceedings doivent comporter la totalité des débats dans la langue officielle 
    originale et la transcription de linterprétation as well as the documentary 
    evidence.

[24]

M. LEspinay submits that s. 530.1(g)(i) requires the Court to have 
    a written transcript of everything said at the trial in order to complete 
    the record of proceedings.  He says this requirement makes sense because a 
    written transcript is particularly important in a bilingual trial where an 
    accused will want to ensure any interpretation was accurate, something more 
    easily accomplished by comparing written versions than by listening to an 
    audio recording.

[25]

The respondents position is that s. 530.1 simply adapts the requirements 
    generally applicable to trials and preliminary inquiries to the circumstances 
    where a s. 530 order has been granted, placing all accused on the same footing. 
     The respondent does not agree that the provision constitutes an independent 
    basis for the production of a transcript at the close of the Crowns case 
    or at the end of the trial for appeal purposes.  Rather, the respondent submits, 
    the provision simply broadens the record of proceedings to include what 
    is spoken in the official language in which it was said and any interpretation 
    made into the other official language.  I agree.

[26]

The fundamental rule of interpretation under the common law and both 
    provincial and federal statutes is that statutory provisions should be read 
    to give the words their most obvious ordinary meaning which accords with the 
    context and purpose of the enactment in which they occur:
CanadianOxy 
    Chemicals Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743 at 
    para. 14.  The  proper approach to the interpretation of bilingual statutes 
    was settled in
R. v. Daoust
, [2004] 1 S.C.R. 217, as the Chief 
    Justice explained in
Medovarski v. Canada (Minister of Citizenship and 
    Immigration)
, [2005] 2 S.C.R. 539:

24        In interpreting bilingual statutes, the statutory interpretation 
    should begin with a search for the shared meaning between the two versions: 
     P.-A. Côté,
The Interpretation of Legislation in Canada
(3rd ed. 2000), 
    at p. 327.  In
Daoust
, Bastarache J. held for the Court that the interpretation 
    of bilingual statutes is subject to a two-part procedure.

25        First, one must apply the rules of statutory interpretation 
    to determine whether or not there is an apparent discordance, and if so, whether 
    there is a common meaning between the French and English versions.  "[W]here 
    one of the two versions is broader than the other, the common meaning would 
    favour the more restricted or limited meaning":
Schreiber
, at 
    para. 56,
per
LeBel J.
Schreiber
concerned a discrepancy between 
    the French version of s. 6(
a
) of the
State Immunity Act
, R.S.C. 
    1985, c. S-18, which stated that the exception to state immunity is narrowly 
    "
décès
" or "
dommages corporels
", compared 
    to the broader English "death" or "personal injury".  Given 
    the conflict between the two provisions the Court adopted the clearer and 
    more restrictive French version.  The common meaning is the version that is 
    plain and not ambiguous.  If neither version is ambiguous, or if they both 
    are, the common meaning is normally the narrower version:
Daoust
, 
    at paras. 28-29.

26        Second, one must determine if the common meaning is consistent 
    with Parliament's intent:
Daoust
, at para. 30.

[27]

When I have regard to the context and purpose of s. 530.1 and the modern 
    meanings and usage of the English word transcript and the French word transcription, 
    I find in the two versions a common meaning, rather than discordance.  Where 
    an order under s. 530 has been made to protect an accuseds linguistic rights, 
    whether for a bilingual or unilingual trial, and the evidence at that trial 
    is recorded, the sound recording that is the official record of the proceeding 
    must include everything that is said in the official language in which it 
    is said.  That includes any translation from one official language to the 
    other.  The legislative objective is to ensure the record of proceedings contains 
    everything said in both languages, not only by the witnesses, but also by 
    the interpreter.  The interpretation of s. 530.1 must assure the attainment 
    of that objective as Parliament has directed in s. 12 of the
Interpretation 
    Act
, R.S.C. 1985, c. I-21.

[28]

The meaning of transcript and transcription in s. 530.1(g) is broad 
    enough to include a copy or reproduction of an audio recording.  The audio 
    recording is the original record of proceeding.  It is the primary source 
    that is consulted in the event of a dispute as to the accuracy of a written 
    transcript.  It is the best evidence of what was said.  When a trial judge 
    made the only notes taken at a trial, those notes were the best evidence. 
     When a stenographer took down in shorthand the words spoken in court, the 
    transcription of those notes into writing was the best evidence of what was 
    said.  That transcript became the original record of proceeding.  But the 
    meaning of the word transcript is not frozen in the days of shorthand reporters. 
     It has evolved in the courts as in life beyond the courts to include a copy 
    or reproduction by any means.

[29]

For example, in Part VI of the
Criminal Code
, the English 
    version of s. 189(5) provides that a private communication cannot be received 
    in evidence unless notice has been given to the accused with a transcript 
    of the private communication, where it will be adduced in the form of a recording.  
    The French version requires notice accompagné  dune transcription de la 
    communication privée, lorsquelle sera produite sous forme denregistrement.  
    In
R. v. Tam
(1992), 16 C.R. (4th) 164 (C.A.Q.), leave to appeal 
    denied [1993] 1 S.C.R. x, the Quebec Court of Appeal held that the service 
    of copies of the original sound recordings of the intercepted communications 
    satisfied that requirement [c]onsidérant que lexpression transcription 
    de larticle 189(5) du
Code criminel
nest pas limitée à une version 
    écrite.  The Ontario Court of Appeal reached the same conclusion in
R. 
    v. Tam
[2000] O.J. No. 2185. Goudge J.A. explained why at para. 25 
    of his reasons:

In my view, service of a copy of the tape itself would also constitute 
    service of the transcript of the communications.  The New Shorter Oxford English 
    Dictionary defines "transcript" to include a thing that has been 
    transcribed, a written or printed copy, and a copy or reproduction.  Indeed, 
    given modern technology, one can imagine communications consisting not of 
    words but solely of images.  Where there are no words to be reduced to writing, 
    provision of a copy would be essential.  Moreover, where the Crown intends 
    to adduce the actual tape recording, service of a copy of that tape best meets 
    the legislative objective of giving the accused full disclosure of the case 
    to be made against him.  Finally, while the case law is divided, the preponderant 
    view is that service of a copy of the tape constitutes service of a transcript 
    of the communication for the purposes of the subsection.

[30]

This common meaning for transcript and transcription as including 
    a copy or reproduction of an audio recording not only permits the two provisions 
    to achieve the same legislative object in the same way, it also accords with 
    the intent of Parliament in adopting Part XVII of the
Criminal Code
. 
     The Supreme Court of Canada has held that the purpose of s. 530 is to provide 
    equal access to the courts to accused persons speaking one of the official 
    languages of Canada in order to assist official language minorities in preserving 
    their cultural identity:
R. v. Beaulac
, [1999] 1 S.C.R. 768 
    at para. 34.  The Court added (at para. 39) that [t]he governing principle 
    is that of the equality of both official languages.

[31]

Whether an accused opts for a unilingual English or French trial, or 
    for a bilingual trial, Part XVII aims at putting that accused on the same 
    footing as any other accused, no matter where in Canada and irrespective of 
    the official language chosen.  Part XVII is not intended to put an accused 
    who invokes it in a better position to obtain a written transcript of an audio 
    recording than an accused who does not.  That would be the practical effect 
    of the appellants submission that any accused who invokes Part XVII is entitled 
    automatically to have a written transcript prepared for inspection.  I say 
    practical because an accused has no need for an order under s. 530 for a 
    unilingual trial in his or her preferred official language if the judge, court 
    officers and prosecutor are speaking that language.

[32]

The appellant argues that the English version bears a narrower interpretation 
    that should prevail because penal statutes are to be construed strictly and 
    in favour of the accused, citing
R. v. Abbas
, [1984] 2 S.C.R. 
    526 in support.  I do not agree.  Neither s. 530 nor s. 530.1 are penal in 
    effect.  The latter is a procedural provision that provides certain clarifications 
    for implementing an accuseds significant and substantive right under the 
    former to a trial by a judge or judge and jury who speak the official language 
    of the accused or the official language in which the accused can best give 
    testimony:
R. v. Potvin
(2004), 69 O.R. (3d) 641 at para.37 
    (C.A.).

[33]

For these reasons, I conclude that s. 530.1 does not mandate the preparation 
    of a written transcript at the close of the Crowns case or at any other time.  
    If an accused wishes to inspect the record of proceedings, he may listen to 
    the audio recording or obtain a copy of it in accordance with the provincial 
    legislation and the practice of the court and the Court Services Branch of 
    the Ministry of the Attorney General.  In my view, the trial judge was correct 
    in her interpretation of the
Criminal Code
.  It does not require 
    a written transcript be made available for inspection by every accused person 
    at the close of the Crowns case or during or following the trial.

(d)
Section 11(d)

[34]

This conclusion requires consideration of the appellants submission 
    that the legislative provisions and current administrative practices with 
    regard to the record of proceedings infringe his right to a fair hearing guaranteed 
    by s. 11(d) of the
Charter
and treat him differently from those 
    accused persons charged by indictment who are entitled to a trial by a judge 
    with a jury.  I will restrict this discussion strictly to the transcript issues, 
    because the appeal raises other allegations of unfairness that may require 
    a record of the proceeding beyond the clerks notes and the reasons for judgment.

[35]

The appellants first complaint is that the failure to provide him 
    with a copy of the rules of court pertaining to the making, keeping, inspection 
    and making of copies of transcripts rendered his trial unfair.  There are 
    no such rules of court.  The legislation and regulations governing those matters 
    are publicly available, officially in the
Canada Gazette
and
The British Columbia Gazette
and unofficially in various publications, 
    including the provincial and federal government websites.

[36]

The legislative provisions as I understand them permit an accused person 
    charged with an absolute jurisdiction indictable offence to be present at 
    his trial, to take notes of the evidence, and to cross-examine the Crowns 
    witnesses.  They do not require the transcription of an audio recording into 
    writing.  If the accused person wishes, he can request the opportunity to 
    listen to the audio recording, to have a copy of it made, and to inspect and 
    copy the documentary evidence.  He will also have had the full disclosure 
    of the case against him that
R. v. Stinchcombe
, [1991] 3 S.C.R. 
    326 requires.

[37]

M. LEspinay enjoyed all those rights, the purpose of which is to ensure 
    his right to make full answer and defence.  Because no prejudice to that fundamental 
    element of a fair trial resulting from the failure to provide a written transcript 
    was suggested to the trial court, as none has been suggested to us, there 
    was no room for the trial judge to exercise her discretion to remedy any such 
    prejudice.  In these circumstances, the failure of the trial court or the 
    Attorney General to make a written transcript of the evidence available at 
    the close of the Crowns case or during the trial did not infringe M. LEspinays 
    right to a fair hearing under s. 11(d) of the
Charter
.

[38]

Nor does the failure to make available a written transcript for the 
    purpose of appeal infringe that right.  Section 11(d) guarantees an accused 
    person the right to be presumed innocent until proven guilty according to 
    law in a fair and public hearing by an independent and impartial tribunal.  
    The trial is that hearing.  The right does not reach to an appeal authorized 
    by Part XXI of the
Criminal Code
.

(e)
Section 15

[39]

Finally, I am not persuaded the failure to make available a written 
    transcript for inspection before electing whether to call evidence infringes 
    the appellants right to the equal protection and equal benefit of the law 
    without discrimination guaranteed by s. 15 of the
Charter
. 
     The test for determining a discrimination claim is set down in
Law 
    v. Canada (Minister of Employment and Immigration)
, [1999] 1 S.C.R. 
    497 at para. 39.  The appellant satisfied none of them.  Personal characteristics 
    are not the basis of any differential treatment in the
Criminal Code
.

(f)
Transcript on Appeal


[40]

This discussion leaves for resolution the last question, whether there 
    is a statutory foundation for Rule 7 of the
British Columbia Court of 
    Appeal Criminal Appeal Rules, 1986
, S.I./86-137, B.C. Reg. 145/86. 
     That rule requires the filing and delivery of an appeal book and transcript 
    unless otherwise ordered by a justice or the court.  Section 482(1) of the
Criminal Code
gives every Canadian Court of Appeal the power 
    to make rules for the conduct of criminal proceedings not inconsistent with 
    this or any other Act of Parliament.  Section 482(3) indicates that rule-making 
    power is sufficiently broad to authorize the making of Rule 7.

[41]

The appellants point seems to be that Rule 7 is inconsistent with 
    s. 682(2) of the
Criminal Code
, which

provides:





(2) 
            A copy or transcript of

(
a
) 
            the evidence taken at the trial,

[]

shall be furnished to the court of appeal, except in 
            so far as it is dispensed with by order of a judge of that court.





(2) 
            Une copie ou transcription:

a
) de la preuve recueillie au procès;

[]

est 
            fournie à la cour dappel, sauf dans la mesure où dispense en est 
            accordée par ordonnance dun juge de ce tribunal.




The appellant argues that the use of the passive 
    voice means that the obligation to provide this record of the trial rests 
    on the trial judge, like the obligation in s. 682(1) to furnish a report to 
    the appeal court at its request.

[42]

Section 682(2) originated with the enactment of s. 1020(2) in
An

Act to amend the Criminal Code
, S.C. 1923, c. 41, s. 9.  Then, 
    it read [i]n all cases where notes of the evidence or any part thereof have 
    been made at the trial a copy, or in the case of shorthand notes a transcript, 
    of such notes shall be made and furnished to the court of appeal.  Section 
    1020(5) provided that rules of court could be made to secure the accuracy 
    of the notes to be taken and for the verification of any transcript thereof.  
    The passive voice left open the question of who was to provide that record. 
     Despite an eloquent dissent by Guerin J. in
R. v. Mastromonico
(1926), 41 Que. K.B. 288, the majority rejected the appeal because (at 289)  
    lappelant na pas procédé à faire compléter le dossier.  In doing so they 
    adopted their ruling in an earlier case,
R. v. Kin Rifkin
(1926), 
    40 Que. K.B. 537 holding that the rule obliged the appellant to prepare the 
    record for the appeal.

[43]

This court reached a similar conclusion in
R. v. Cuthbert
(1952), 5 W.W.R. (N.S.) 382 (B.C.C.A.), albeit by analogy to civil cases and 
    without reference to the
Criminal Code
provision.
Cuthbert
was followed in
R. v. M.L
.
(1992),
20 
    B.C.A.C. 52
.  As the oral reasons in
R. v. Ivan
, 
    2000 BCCA 625 and
R. v. Kergan
, 2007 BCCA 56 more recently confirm, 
    where a full record is necessary for the effective prosecution of an appeal, 
    failure to produce that record will result in the dismissal of the appeal 
    for want of prosecution.

[44]

On this reasoning, the appellant is not entitled to an order directing 
    the trial court or the Crown to make a transcript of the trial available to 
    him for the purpose of this appeal.  Of course, an appellant may apply to 
    the court for an order limiting the materials required to be filed under Rule 
    7.  I would leave to another day, if and when the issue is raised, whether 
    an application for an order permitting the filing and delivery of copies of 
    an audio recording in fulfillment of an appellants Rule 7 obligation would 
    be successful.

Conclusion

[45]

It follows that I am of the view this appeal cannot succeed on the 
    transcript issues and that the appellant must comply with the rules before 
    setting down for hearing the remaining issues he raises in his notice of appeal.

The Honourable Madam Justice Huddart

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable Mr. Justice Chiasson


