Her Majesty The Queen v. J.D.
(Quebec) (Criminal) (By Leave)
(Publication ban in case) (Publication ban on party)
Criminal law - Trial, Evidence - Criminal law - Trial - Continuation of proceedings - Evidence - Parties agreeing to have transcript of testimony given at first trial filed before new judge - Whether Court of Appeal erred in interpreting and applying s. 669.2 of Criminal Code by imposing test unknown to law in order to assess value of consent of accused to filing in second trial of transcript of testimony given previously - Criminal Code, R.S.C. 1985, c. C 46, s. 669.2.
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(PUBLICATION BAN ON PARTY)
The respondent was charged in 2012 with 18 sexual offences committed against minors, including his children C.D. and S.D., between 1979 and 1993. The trial began before a first judge of the Court of Québec. Complainant C.D. testified for two days. The first judge then fell sick, and the case was transferred to a new judge under s. 669.2 of the Criminal Code, R.S.C. 1985, c. C 46. The parties agreed that the transcripts of the two days of C.D.’s testimony would be given to the new judge. The new judge convicted the respondent on nine counts, ordered a conditional stay of proceedings on two counts and acquitted the respondent on seven other counts. The respondent was sentenced to a total of 70 months’ imprisonment.
The respondent appealed against the convictions and applied for leave to appeal the sentence. The Court of Appeal allowed the appeal on one of the five issues that had been raised. In its view, the trial judge, who had continued the trial commenced before another judge under s. 669.2(3) Cr.C., should not have accepted that C.D.’s testimony be filed without ensuring that the consent of the respondent was free, informed and unequivocal and that the filing of C.D.’s testimony would not affect the fairness of the trial. The Court of Appeal therefore ordered a new trial on the counts with respect to complainants C.D. and S.D. (seven of the nine counts for which the respondent had been convicted at trial). The Court of Appeal granted the motion for leave to appeal the sentences, set aside the sentences on the counts relating to complainants C.D. and S.D. and affirmed the sentence on the other counts.
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