Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. J.D., 2022 SCC 15, April 22, 2022, the accused was charged with a number of sexual offences against children.  At his trial, one of the children (CD) testified.  However, the trial could not be completed because the presiding judge became ill and could not continue.  A new trial judge was assigned to continue the trial pursuant to section 669.2 of the Criminal Code. Both parties agreed that the new judge could consider a transcript of CD’s evidence.

The accused was convicted of a number of counts. On appeal, the Quebec Court of Appeal set aside the convictions entered in relation to the counts in which CD was the complainant (counts 1 and 2) and others in which CD’s evidence was considered (counts 9 to 13).  The Quebec Court of Appeal held that the new trial judge has a duty to determine whether the consent to the filing of the transcript was voluntary and informed, even if the accused is represented by counsel.

The Crown appealed to the Supreme Court of Canada.  The appeal was allowed and the convictions reinstated. The Supreme Court held that “[t]here 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” (at paragraph 4).

The Supreme Court held that “where a trial is by judge alone and must be commenced again before a new judge, that judge may not require the parties, or one of them, to file evidence from the first trial. The trial must absolutely be commenced again” (at paragraph 24). However, “[a]t the outset of the second trial, both the prosecution and the defence are free to proceed as they see fit as regards the presentation of their evidence”. The parties may “proceed by filing transcripts of prior testimony” (at paragraph 26). 

The Supreme Court concluded that section 669.2(3) “does not bar a transcript of testimony given at a first trial from being filed as evidence on the merits in a second trial, nor does it require an inquiry by the judge in this regard. Nevertheless, s. 669.2 does not eliminate the judge’s power not to allow a transcript to be filed if he or she finds that the prejudicial effect of filing it would undermine the fairness of the trial. A judge who finds that trial fairness is undermined must intervene” (at paragraph 35).