R. v. J.D., 2020 QCCA 1108, 2022 SCC 15 (39370)

“In 2012, the accused was charged with 18 counts of sexual offences committed between 1974 and 1993 that involved victims who were minors, including his daughter and his son. The hearing of the prosecution’s evidence began in March 2016 before a first judge of the Court of Québec. The daughter of the accused gave her testimony, both in chief and in cross‑examination. Then the accused suffered an attack and the case was postponed for a later date. During the period of the stay of proceedings, the judge fell ill. More than a year later, he was replaced and a new trial was scheduled to be held before another judge.

Under s. 669.2(3) of the Criminal Code, if a trial commences again before a new judge sitting alone and no adjudication was made or verdict rendered, the new judge must commence the trial again as if no evidence on the merits had been taken. In this case, counsel for the parties, by common agreement, filed the transcript of the testimony of the daughter of the accused in the record, and it was admitted by the new judge as evidence on the merits. Three other complainants then testified for the prosecution, and the judge found the accused guilty on 9 of the 18 counts. But the Court of Appeal concluded that the new judge should not have accepted that the testimony of the daughter of the accused be filed without ensuring that the consent of the accused was voluntary, informed and unequivocal and that the filing of the testimony in question would not undermine the fairness of the trial. It therefore ordered a new trial on the counts concerning the daughter of the accused (counts 1 and 2), but also on those relating to his son (counts 9 to 13), because one of the acts alleged against the accused concerned an incident involving both his daughter and his son.”

The SCC (9:0) allowed the appeal; convictions and sentences on counts 1, 2 and 9 to 13 restored.

Justice Côté wrote as follows (at paras. 1-4):

“This appeal affords this Court a first opportunity to interpret s. 669.2(3) of the Criminal Code, R.S.C. 1985, c. C‑46, which lays down the rules that apply if a trial judge dies or is unable to continue when no adjudication has been made or verdict rendered. The key issue concerns the rules of evidence in a trial commenced again before a new judge sitting alone. The parties are asking this Court to rule on the legal framework governing the admissibility in evidence in a trial that is commenced again, as evidence on the merits, of transcripts of testimony from a first trial that have been filed by mutual consent.

Section 669.2(3) provides that the judge before whom the proceedings are continued must, if the trial was before a judge alone and no adjudication was made or verdict rendered, commence the trial again as if no evidence on the merits had been taken. However, s. 669.2 says nothing about whether evidence adduced before the first judge may be adduced as evidence on the merits in the trial that is commenced again.

Although it is common ground that such evidence can be filed at the trial that is commenced again, the parties disagree on the test to be applied when the prosecution and the accused consent to the filing of a transcript of testimony heard by the judge before whom the trial first commenced. The Quebec Court of Appeal, relying on the rule that testimony is conventionally given orally at trial, proposed a two-part inquiry. First, the court must — even if the accused is represented by counsel — determine whether the consent of the accused is voluntary, informed and unequivocal. Second, the court must ensure that the filing of the evidence will not undermine the fairness of the trial. The appellant, Her Majesty the Queen, has appealed to this Court, arguing that the Court of Appeal erred by requiring an inquiry that is not provided for by law. With all due respect, I conclude that the Court of Appeal erred in its interpretation and application of s. 669.2. There is no reason to require an inquiry that is not provided for by law where the parties have consented to the filing, in a trial that was commenced again, of a transcript of testimony given at a first trial. Such an inquiry would completely alter the judge’s role, minimize the judge’s ability to assess the transcript of prior testimony and run counter to the presumption of the competence of counsel.”