More than 10,000 Canadians received a medically-assisted death in 2021: report
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence
FBI took 11 sets of classified material from Trump’s Mar-a-Lago home while investigating possible Espionage Act violations (US)
Ontario class action settlement reclassifies volunteers as employees, setting new precedent
Availability of Judicial Review in SABS Disputes
Are masking policies still valid?
Justice Canada releases commission report on impact of lack of legal aid in family law disputes
Harmonized sales tax part of maximum amount of attendant care benefits owed by insurer: court
New rules coming next month to help Canadians with cancelled and delayed flights
Stephen King set to testify for govt in books merger trial (US)
New law program in Quebec to begin next fall, a first in 50 years
The Impact of the Lack of Legal Aid in Family Law Cases
SCC rules that when someone is required by their partner to wear a condom but do not, they could be guilty of sexual assault.
Big Plastic suing feds over single-use ban — again
Tim Hortons offers coffee and doughnut as proposed settlement in class action lawsuit
The SCC has refused to hear the appeal to declare the renewal of the state of health emergency by the Quebec government invalid
Federal privacy commissioner investigating controversial ArriveCAN app
Kraken, a U.S. Crypto Exchange, Is Suspected of Violating Sanctions (US)
Ontario court certifies class action on former patients’ anxiety from notice of risk of infection
The stakes couldn’t be higher as Canada’s top court decides whether to hear climate class action lawsuit
Professor Barnali Choudhury selected by EU as trade and sustainable development expert
The Supreme Court decision on the ‘Ghomeshi’ amendments will help sexual assault victims access justice
AFN Reaches $20 B Final Settlement Agreement to Compensate First Nations Children and Families

Initial testimony can still be used despite change in judge: SCC

First time SCC interprets rules applying when judge cannot continue but has yet to render verdict

 
PHOTO: Stock
 
 
The Supreme Court of Canada has interpreted for the first time the rules that apply when a trial judge dies or is unable to continue and the parties agree to file a transcript of testimonial evidence from the initial proceeding before the replacement judge.

The Supreme Court of Canada has interpreted for the first time the rules that apply when a trial judge dies or is unable to continue and the parties agree to file a transcript of testimonial evidence from the initial proceeding before the replacement judge.

In R. v. J.D., the court examined s. 669.2(3) of the Criminal Code, which states that in situations in which a case must be transferred to a new judge in a judge-alone trial, the new judge must recommence the trial as if no evidence had been taken. The Crown and accused had agreed to include in the second trial the transcript of a victim’s testimony from the first. The Quebec Court of Appeal ordered a new trial on several of the counts because the second trial judge had not performed a two-part inquiry to determine the fairness of allowing the evidence.

The SCC unanimously ruled that the Court of Appeal erred by requiring the inquiry because it was not necessary under s. 669.2(3).

The ruling will spare the complainant in the case, who had been the victim of sexual offences at the hands of her father, the psychological and emotional ordeal of testifying in front of him once again, says Crown counsel Isabelle Bouchard. The ability to file the transcript also provides a “shorter delay in the administration of justice,” she says. Bouchard is a prosecutor at the Director of Criminal and Penal Prosecutions, in Gatineau, Quebec.

The accused, J.D., had stood trial on 18 sexual offences. One of the complainants, C.D., had testified for two days before the judge fell sick and the trial was postponed.

Under s. 669.2(3), where a trial is recommenced before a new judge, who is sitting alone and where no adjudication was made or verdict rendered, the trial must move forward as if no evidence on the merits has been taken. But counsel for both Crown and defendant agreed to file a transcript of C.D.’s testimony. The court then found J.D. guilty on 9 of the 18 counts.

The Court of Appeal found that the new judge should not have accepted the testimony from the initial hearing. To file the testimony, the judge should have ensured the accused’s consent to its inclusion was “voluntary, informed and unequivocal,” and that it would not undermine the fairness of the trial, found the Court of Appeal. It ordered a new trial on the counts involving C.D. as well as another complainant, because one of the counts concerned an incident involving them both.

The Crown appealed and argued that the Court of Appeal had required a test that was not provided for by law, under s. 669.2(3).

The SCC agreed. Writing for the court, Justice Suzanne Côté said that where a judge is presiding over a jury trial, they have the option of continuing the trial or starting from scratch because the trier of facts, the jury, has not been replaced. For a judge-alone trial, on the other hand, the judge is required to start over. As both trier of facts and judge of the law, for the judge to require the parties to continue where they left off would be a breach of procedural fairness.

Section 669.2(3)’s “only function,” said Justice Côté, is to require a judge sitting alone to commence the trial again. Once it is restarted, the parties have control over how to present their evidence. And unless there is a legislative or common-law requirement of an inquiry, the judge must “presume that the professional experience and judgment of counsel have guided him or her in conducting the case in such a way as to protect the client’s fundamental interests.”

But the court also found that a judge still has the power to disallow the evidence, if they find that it will have a prejudicial impact and would undermine the trial’s fairness.


 
GOOGLE ADVERTISEMENT

Want direct access to the latest LITN content?

Stay in the loop ➞ Subscribe to LITN instant notifications.
Receive the latest content delivered directly to your device.
Unsubscribe at anytime.

Latest News

Subscribe

Join the LITN Newsletter ➞ the latest news delivered to your inbox. Unsubscribe at any time.


GOOGLE ADVERTISEMENT

Instagram Feed