Canada Judgment

Court of Appeal for Ontario

R. v. K.F.

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Source document

01

Holding and result

The Court accepted the Crown's concession that non-compliance with s.530(3) created a presumption of violation which the Crown could not rebut; the fresh evidence was admitted and, because the presumption stood, the conviction was quashed and a new trial ordered in French.

Court disposition

Appeal allowed; conviction quashed; new trial ordered in French.

Orders

  • Admit the fresh evidence
  • Quash the conviction
  • Order a new trial to be held in French
  • Publication ban under s.486.4 to remain in effect

02

Material facts

Parties

His Majesty the King

Respondent Counsel: Maria Anghelidis

K.F.

Appellant Counsel: Colleen McKeown, Robert Nanni

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal From Conviction; Court of Appeal Decision on Fresh Evidence and Remedy (new Trial)

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant, a francophone, was not aware or informed of his right under s.530(3) of the Criminal Code to apply for a trial in French; he now seeks to adduce fresh evidence that he would have applied for a French trial had he known of the right and asks that the evidence be admitted and a new trial ordered.
Respondent
The Crown concedes it cannot rebut the presumption arising from non-compliance with s.530(3) and accepts the fresh evidence should be admitted; the Crown accepts the appeal should be allowed, the conviction quashed, and a new trial ordered in French.

05

Court’s reasoning

  1. 01

    R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195

    Non-compliance with s.530(3) of the Criminal Code is an error of law giving rise to a presumption that the accused's right to be tried in the official language of choice was violated.

  2. 02

    Criminal Code, R.S.C. 1985, c. C-46, s.686(1)(b)(iv) and appellate jurisprudence

    The curative proviso in s.686(1)(b)(iv) of the Criminal Code can in some cases rebut errors, but the Crown bears the burden to do so.

  3. 03

    Criminal Code, R.S.C. 1985, c. C-46, s.530(3)

    Accused has statutory right to elect trial in French under s.530(3) of the Criminal Code and failure to inform may vitiate the fairness of the proceeding.

06

Ratio, limits and disposition

Ratio decidendi

The Court accepted the Crown's concession that non-compliance with s.530(3) created a presumption of violation which the Crown could not rebut; the fresh evidence was admitted and, because the presumption stood, the conviction was quashed and a new trial ordered in French.

Obiter and limits

  • This appeal is subject to a publication ban under s.486.4 of the Criminal Code.
  • The Crown's concession on the applicability of the curative proviso was accepted by the Court.

Court disposition

Appeal allowed; conviction quashed; new trial ordered in French.

  • Admit the fresh evidence
  • Quash the conviction
  • Order a new trial to be held in French
  • Publication ban under s.486.4 to remain in effect

Source and reliance status

Court of Appeal for Ontario · 14 May 2026

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Judgment reading view

Judgment text

The complete available source text.

Source document

Court of Appeal for Ontario

Judgment· 14 May 2026

2026 ONCA 357

R. v. K.F. Collection Decisions of the Court of Appeal Date 2026-05-14 Neutral citation 2026 ONCA 357 Docket numbers COA-24-CR-0502 Judges Huscroft, Grant; Roberts, Lois B.; Pomerance, Renee M. Subject Criminal Decision Content

COURT OF APPEAL FOR ONTARIO CITATION: R. v. K.F., 2026 ONCA 357[1] DATE: 20260514 DOCKET: COA-24-CR-0502 Huscroft, Roberts and Pomerance JJ.A.

BETWEEN His Majesty the King Respondent and K.F. Appellant Colleen McKeown and Robert Nanni, for the appellant Maria Anghelidis, for the respondent Heard and rendered orally: May 6, 2026 On appeal from the conviction entered by Justice Jennifer D. Strasberg of the Ontario Court of Justice, on December 11, 2023.

REASONS FOR DECISION [1] The appellant is francophone. He seeks to adduce fresh evidence demonstrating that he was not aware or informed of his right under s. 530(3) of the Criminal Code to apply for a trial in French and that, had he known of his right, he would have applied for a trial in French. [2] As the Supreme Court held in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, non-compliance with s. 530(3) of the Criminal Code is an error of law that gives rise to a presumption that the accused’s right to be tried in the official language of his choice was violated. That is the case here. [3] The Crown fairly concedes that it cannot discharge its burden to rebut this presumption in this case through the curative proviso under s. 686(1)(b)(iv) of the Criminal Code. Accordingly, the Crown accepts that the fresh evidence should be admitted, the appeal should be allowed, the conviction quashed, and a new trial ordered. [4] As a result, we accept the Crown’s concession, admit the fresh evidence, allow the appeal, quash the conviction and order a new trial in French. “Grant Huscroft J.A.” “L.B. Roberts J.A.” “R. Pomerance J.A.” [1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195

Case cited

R. v. K.F., 2026 ONCA 357

Case cited

Criminal Code, R.S.C. 1985, c. C-46, s.530(3)

Legislation

Legislation referenced in the available case record.

Criminal Code, R.S.C. 1985, c. C-46, s.686(1)(b)(iv)

Legislation

Legislation referenced in the available case record.

Criminal Code, R.S.C. 1985, c. C-46, s.486.4

Legislation

Legislation referenced in the available case record.

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