2020 QCCA 751, 2020 QCCA 751

Official English version of the judgment of the Court. Gauthier c. R. 2020 QCCA 751 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006524-175 (565-01-001441-104) DATE: JUNE 4, 2020 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. DENIS GAUTHIER APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT * [ 1 ] The appellant appeals against a verdict rendered on September 1, 2017 by the Honourable Paul Chevalier of the Court of Québec (Criminal and Penal Division), District of Labelle, that found him guilty of having sexually assaulted the complainant (s. 271(1) (

c) Cr.C .) and having touched a part of the complainant’s body for a sexual purpose when she was under the age of 14 years ( s. 151 Cr.C .). [ 2 ] For the reasons of Pelletier, J.A., with which Schrager and Mainville, JJ.A. concur; THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the guilty verdict; [ 5 ] ORDERS that a new trial be held. FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. Mtre Martin Binet Noël et Associés For the appellant Mtre Émily K. Moreau Mtre Catherine Sheitoyan Director of Criminal and Penal Prosecutions For the respondent Date of hearing: December 19, 2019

REASONS OF PELLETIER, J.A. [ 6 ] The appellant appeals against a guilty verdict rendered on September 1, 2017 by the Honourable Paul Chevalier of the Court of Québec, District of Labelle, with respect to the charge of having sexually assaulted the complainant (s. 271(1)(

c) Cr.C. ) and that of having touched a part of her body for a sexual purpose when she was under the age of 14 years ( s. 151 Cr.C .). [1] [ 7 ] The judge summarized the disputed facts by referring, in particular, to the complainant’s description thereof: [ translation ] [3] The complainant stated that around Easter of 2007, while she was watching TV with the accused in his room, he began to touch her genitals and buttocks before having 5 to 6 complete sexual relations.

At that time, the complainant did not report this behaviour. [4] On or about May 18, 2007, when she was at a friend’s house, after having broken a door at the accused’s place in order to enter therein, he came to get her and smashed her head on the hood of his car because she refused to follow him. Thereafter, she went to live with her aunt for approximately 3 months before returning to the accused’s for a few days because she missed her mother and sister.

She subsequently went to live at a friend’s place while waiting for her mother to find a dwelling, after which she went back to live with her mother. [5] The complainant’s friend, K... B... (hereinafter Ms. K... B...), witnessed the violent acts of the accused against the complainant, and Ms. K... B...’s sister even called the police because of the accused’s violent conduct. [6] The accused denied the violent acts at Ms. K...

B...’s place, denied having carried out any acts of a sexual nature against the complainant, stated that he cannot read or write, and testified that he kicked out the complainant’s mother and her daughters after having seen her with another man four days after the incident at Ms. K... B....’s. [7] J... D... (hereinafter Mrs. D...), the complainant’s mother, testified for the defence to contradict some of her daughter’s statements. [ 8 ] The proceedings in first instance proceeded in a very particular way and this unusual path gave rise to the principal dispute before this Court.

I therefore feel it is essential to give a brief description thereof. [ 9 ] The trial began in May 2015 and continued in August and October of the same year. During that time, Judge Lapointe of the Court of Québec held a voir dire and heard all of the Crown’s evidence as well as part of the evidence presented by the defence. After that step was completed, he scheduled the rest of the hearing to be held at a later date. However, for reasons beyond his control, he was unable to continue presiding over the proof and hearing. [ 10 ] The trial continued in January 2017, this time before Judge Valmont Beaulieu.

The latter took over only to hear the accused’s testimony. Judge Beaulieu, in turn, found himself unable to complete the case. [ 11 ] Before Judge Chevalier, whom the Chief Justice tasked with taking over the file, the accused’s lawyer in first instance described the sequence of events as follows: [ translation ] Before today, I had been asked if… because we were offered, in the same letter, information to the effect that the judge… the Chief Justice had appointed you… we were offered the possibility of starting the entire trial over again or agreeing to file the transcripts into the record.

I met with both my clients *** [inaudible] question, this morning, including Mr. Gauthier, who is here. And, obviously, starting back from the very beginning is prohibitive, financially. That’s clear.

So, in these circumstances, I informed the coordinating judge that we would certainly not be asking to commence the trial all over again and that we would consent, since that was the only choice available to us, we would consent to the other option, which was to file the transcripts into the record so that the Court could first get an idea of what was going on and what had happened in the file. [ 12 ] The accused’s lawyer mentioned two clients because another matter, that of R. v.

Jetté , [2] which was then also before Judge Chevalier, experienced similar setbacks and proceeded in a manner similar to that of the case before us. On September 1, 2017, the judge also rendered his judgment in Jetté , which gave rise to another appeal raising the same issue related to the interruption of the trial before the verdict due to the incapacity of the judge who presided over the trial. [ 13 ] These two matters were therefore heard before this Court on the same day due to the similarities between them.

The judgment in Jetté , [3] filed concurrently with the present judgment, is based on the same reasons as set out hereinafter. [ 14 ] Having set out these details, I turn now to the analysis of the case before the Court.

[ 15 ] When rendering the verdict, Chevalier, J. described the context as follows: [ translation ] [17] Before proceeding with the analysis of the evidence, the Court wishes to specify that, having been appointed, in accordance with s. 669.2 of the Criminal Code and with the consent of the parties, to complete the trial that took place before two other judges, it did not have the benefit of seeing the witnesses testify.

The analysis, therefore, is based on the Court’s reading of the transcripts of the testimony and on the recordings of that testimony which the Court listened to. [ 16 ] This was followed by an analysis, after which he found the accused guilty. [ 17 ] The appellant, represented before this Court by new counsel, proposes that we consider the following questions: 1- Did the trial judge err in law by concluding that he could, in commencing the trial again under s. 669.2(3) of the Criminal Code , complete the trial that took place before two other judges on the basis of reading the transcripts of the testimony and listening to the recordings of that testimony without having had the benefit of seeing the witnesses testify and notwithstanding the consent of the parties, if, indeed, there was free and unequivocal consent? 2- Is the verdict unreasonable or is it supported by the evidence? 3- Did the trial judge fail to consider important evidence that favoured the accused? 4- Did the trial judge fail to give reasons for his decision? 5- Did the accused have a fair trial in first instance or was he the victim of a miscarriage of justice and/or a denial of justice? 6- Did the trial judge err in his assessment of the evidence by deducing that the complainant’s version was credible and by concluding that there was proof beyond a reasonable doubt based on that testimony? 7- Did the trial judge misconstrue the evidence to such a degree that there was a miscarriage of justice? 8- Should the trial judge have ordered a stay of proceedings on the count of sexual assault pursuant to the rule against multiple convictions, given the guilty verdict on the count of touching a part of the body of X, a child under the age of 14 years, for a sexual purpose? [ 18 ] In the present case, I am of the view that the analysis of the first question is sufficient, in and of itself, to rule on this appeal as well as on the appeal in Jetté . [4] I will address it first based on the arguments of the appellant’s new counsel, as such arguments are set out in the appeal brief. [ 19 ] According to him, the wording of s. 669.2 Cr.C . requires the judge to commence the trial again purely and simply.

He emphasizes the elements that differentiate a trial held before a judge alone and one held before a court composed of a judge and jury. In his opinion, in the first situation, the matter cannot be decided based on listening to the mechanical recording and reading the transcript thereof. [ 20 ] Since s. 669.2 Cr.C . is at the heart of the dispute between the parties before this Court, I have taken the liberty of reproducing the relevant portions:

669.2.

(1) Subject to this section, where an accused or a defendant is being tried by (

a) a judge or provincial court judge, […] (

c) a court composed of a judge and jury, […]

(3) Subject to subsections (4) and (5), if the trial was commenced but no adjudication was made or verdict rendered, the judge , provincial court judge, justice or other person before whom the proceedings are continued shall , without further election by an accused, commence the trial again as if no evidence on the merits had been taken .

(4) If a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdict rendered, the judge before whom the proceedings are continued may, without further election by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.

(5) Where a trial is continued under paragraph (4)(a), any evidence that was adduced before a judge referred to in paragraph (1)(

c) is deemed to have been adduced before the judge before whom the trial is continued but, where the prosecutor and the accused so agree, any part of that evidence may be adduced again before the judge before whom the trial is continued. 669.2.

(1) Sous réserve des autres dispositions du présent article, lorsqu’un accusé ou un défendeur subit son procès devant, selon le cas :

a) un juge ou un juge de la cour provinciale; […]

c) un tribunal composé d’un juge et d’un jury, […]

(3) Sous réserve des paragraphes (4) et (5), lorsque le procès a débuté et qu’aucune décision ni aucun verdict n’a été rendu, le juge , le juge de la cour provinciale, le juge de paix ou l’autre personne devant qui les procédures se poursuivent doit , sans nouveau choix de la part de l’accusé, recommencer le procès comme si aucune preuve sur le fond n’avait été présentée .

(4) Lorsque le procès a débuté devant un tribunal composé d’un juge et d’un jury et qu’aucune décision ni aucun verdict n’a été rendu, le juge devant qui les procédures se poursuivent peut, sans nouveau choix de la part de l’accusé, continuer les procédures ou recommencer le procès comme si aucune preuve sur le fond n’avait été présentée.

(5) La preuve présentée devant le juge visé à l’alinéa

(1) c) est réputée avoir été présentée au juge devant qui se poursuivent les procédures, à moins que les parties ne consentent à la présenter de nouveau, en tout ou en partie. [ 21 ] This calls for a preliminary observation. There do not seem to be any Supreme Court or Canadian appellate court precedents dealing with the meaning of the current wording of s. 669.2 Cr.C . On a few occasions, however, courts of first instance [5] have had to consider its application. [6] Here is a very

summary review of some of those judgments. [ 22 ] In R. v. A.A ., the case on the merits involved a charge of sexual assault and a charge of sexual interference. Kane, J., of the Ontario Superior Court of Justice, sitting on appeal of a guilty verdict rendered by the Ontario Court of Justice, suggested that s. 669.2(3) Cr.C . would not prohibit evidence in the “new trial” from being established by introducing transcripts of the testimony: [75] Crown counsel argues that s. 669.2(3) was complied with prior to the consensual introduction of the documentary evidence from the first trial.

Specifically, the trial before Fournier J. was a new trial and upon its commencement, the parties agreed to limit evidence to documents introduced, including transcripts of testimony from a prior trial. [76] The wording of s. 669.2(3) does not deal with what types of evidence will be admissible in the new trial. This

section goes no further than to provide that the trial shall commence again without evidence.

[77] The consensual introduction of transcripts before Fournier J. is not dissimilar to a joint request at the beginning of a criminal trialto admit and limit the trial evidence to the transcripts of testimony from a preliminary inquiry. [78] A trial judge may, depending on the circumstances, proceed with a criminal trial on evidence introduced on consent, includingtranscripts from a previous trial or an agreed statement of evidence.

Section 669.2(3) does not prohibit that. [79] Sections 709 and 715 of the Code, subject to the terms therein, permit the admission into evidence of testimony given in aprevious trial and commission evidence for witness [sic] who have died, become ill or are absent from Canada.[7] [23] Kane, J., however, was of the view that the dispute before him did not lend itself to such an approach. He wrote: [82] In the decision under appeal the judge was faced with contradictory evidence from the complainant and the accused.

The courtagreed to forego any additional evidence otherwise available where witnesses testify before the trier of fact. [83] The trial judge commented that he would not be able to see and hear the testimony in determining the credibility issue. He askedand obtained consent of counsel to this limitation.

That consent, which should not have been given by either counsel on these facts, doesnot resolve the issue whether the court should have conducted this trial without testimony. [84] The risk associated with and the requirement against placing reliance upon a witness’ demeanour while testifying are settled law.The Court of Appeal in R. v. Gostick, (ON CA), [1999] O.J.

No. 2357, para. 16 stated: … Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on therecord … [85] The present case involved an allegation of sexual touching by the complainant and direct denial by the accused with no witnessesto corroborate either version. As T.P. O’Connor J. stated in R. v. L.F. (ON SC), [2006] O.J.

No. 4173, para. 9, (SCJ),where there is no evidence other than the testimony of the complainant and the accused, their credibility will be critical to resolving the‘he says/she says’ conundrum the court faces.[8] [Emphasis added] [24] For these reasons, he set aside the guilty verdict and ordered that a new trial be held. [25] In R. v. Shepherd, Singer, J., of the Provincial Court of Saskatchewan, described the following situation: [27] In the case before me there was really no issue of delay, until it became clear that the trial judge could not continue the case.

Theprocess to be followed in s. 669.2(3) of the Criminal Code was followed. That

section states, in essence that if a Provincial Court judgebecomes unable to continue a trial, where evidence has been called, but no adjudication has been made, the new judge, “shall...commence the trial again as if no evidence had been taken”. The Defence and the Crown were invited to have the new judge proceedfrom the transcript of evidence called on the voir dire and the argument already made, but the Defence chose to have a new trial. Severalreasons were advanced for this.

The most compelling was that issues of credibility were essential to any determination of the voir dire, asthe accused had testified and that credibility is best determined by the judge hearing and seeing the witnesses testify, thus the bestdefence required there be a new hearing on viva voce evidence.[9] [26] Lupien[10] addressed a particular aspect of the problems raised by the

interpretation and application of s. 669.2(3) Cr.C. It dealtwith the following. [27] Lupien faced charges of driving while impaired and while his alcohol level was greater than 80 mg per 100 ml of blood. Twopolice officers testified during a voir dire held as part of a motion to exclude evidence based on ss. 10(

b) and 24(2) of the CanadianCharter of Rights and Freedoms.[11] The judge seized of the matter was unable to rule on the voir dire due to illness. Before the newjudge appointed to decide the voir dire, the Crown asked that the transcripts of the testimony be filed into evidence. Lupien challengedthis request, based on the text of s. 669.2(3) Cr.C. [28] Bisson, J. allowed the Crown’s motion, basing himself on the principled exception to the hearsay rule. His reasoning waslargely supported by the Supreme Court judgment in R. v.

Khelawon.[12] The judge was of the view that the police officers’ testimonyduring the voir dire was reliable and that requiring them to testify again would have many drawbacks, particularly in light of theprinciples enunciated in Jordan[13] and Cody.[14] He stated: [translation] [60] In the case at bar, the Prosecutor argued what the Court considered to be a circumstance liable to justify such an exceptionalprocedure.

It is worthwhile noting that in the instant case, both officers had testified within the scope of the same motion before JudgeLeduc and the proceedings had to be commenced again from the beginning due to her prolonged absence. They had been sworn in andhad been subject to a thorough cross-examination by the defence, represented at the time by Mtre Hamelin.

The latter is still theaccused’s counsel. [61] Given that all players within the justice system must collaborate, the Court is of the view that it must “play its role as guardian ofthe administration of justice by controlling proceedings and eliminating unnecessary delays”. [62] The Court is of the opinion that the examination and cross-examination of officers Fortin and Matton would not have addedanything to their May 23, 2018 testimony. [63] It is with these principles in mind that the Court concluded that the criterion of necessity, which must be “interpreted flexibly”, arequirement that entails “taking into consideration the circumstances of the case”, had been demonstrated on a balance of probabilities.

[Reference omitted] [ 29 ] In R. c. Lebrun , [15] Poudrier, J. of the Court of Québec heard evidence relating to a charge of sexual assault brought under former s. 246.1(1)(

a) Cr.C . After the closing arguments, he postponed the delivery of his judgment. Unfortunately, he was prevented by illness from following up on the postponement. As a result, some two years later, Verdon, J. of the same Court was seized of the matter pursuant to ss. 669.2(1) and

(3) Cr.C . He described the position of the parties with respect to the recommencement of the trial: [ translation ] [13] It should be noted at the outset that the trial already held in this case essentially involved contradictory versions, making the outcome of the dispute dependent on the court’s assessment of the credibility of the witnesses. All agree that a new trial in this case could not be properly held by filing into the record the stenographer’s transcripts or the audio recordings of testimony already given. [ 30 ] In R. v.

Poloni , the Provincial Court of British Columbia established that the substitute judge is not bound by the voir dire rulings of the first judge, which rulings cannot be carried forward into the “new trial”. [16] [ 31 ] At the hearing before this Court, new counsel for the accused nuanced the position set out in his brief.

He acknowledged that certain documentary evidence or technical testimony could, with everyone’s consent, be filed into the record when the trial recommences. [ 32 ] In my opinion, the argument presented at the hearing is somewhat closer to the solution to be adopted when it comes to the practical application of s. 669.2(3) Cr.C . , but it does not take all the relevant elements into account. [ 33 ] At the outset, there is, of course, the text of the

section itself, which states a seemingly simple general rule: the judge before whom the new trial proceeds must commence the trial again as if no evidence on the merits had been taken . Based on an initial

interpretation, this would appear to mean that there is no solution other than to completely disregard the proof and hearing before the judge who became incapable and resume the proof and hearing from the very beginning until the end. This was the approach originally advocated in the appellant’s brief. [ 34 ] A more in-depth consideration, however, points to the need for a less literal analysis.

The few examples commented on above highlight the conceptual nuances that make it difficult to come up with a single, simple solution that can be applied to all cases. [ 35 ] In order to fully understand the rule that applies when a judge alone becomes unable to complete the proceedings and another judge becomes seized of the matter, it is necessary, in my opinion, to first place oneself in the context of any trial that is about to begin and to consider how the parties can adduce the evidence. [ 36 ] As we know, our adversarial justice system favours viva voce evidence at the hearing.

Testimony is therefore given under oath or solemn affirmation. In R. v. Bradshaw , Karakatsanis, J., speaking for the majority of the Supreme Court, explained this general rule as follows: [19] The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately.

This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross - examination [...]. [17] [Reference omitted] [ 37 ] It is important to bear in mind that the rule in question is consistent with the right enshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms : 11 Any person charged with an offence has the right: [...] (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [ 38 ] As authors Vauclair and Desjardins point out, the right to a fair trial carries with it a substantive requirement to provide a reasonable prospect of reaching a reliable verdict based on the manner in which the trial is conducted and concluded. [18] That is why, as a general rule, a party is precluded from presenting hearsay evidence.

In Bradshaw , the Supreme Court went on to specify this notion: [20] Hearsay is an out - of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross - examination […]. Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial’s truth-seeking process.

The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity. […] [19] [ 39 ] But this prohibition itself is subject to exceptions.

Thus, for example, in Lupien , Bisson, J. relied on the principled exception to the hearsay rule to allow prior testimony by the police officers to be filed into evidence, notwithstanding the accused’s objection. [20] In the context of the Crown’s application, which had been challenged by the accused, the judge applied, in what might be described as a very liberal manner, the criteria of necessity and reliability identified by the Supreme Court in R. v. Khan [21] and subsequently elaborated upon in R. v. Khelawon , [22] R. v. Baldree [23] and R. v.

Bradshaw . [24] Noting that Lupien’s lawyer had already thoroughly cross-examined the police officers and was still representing the accused before him, the judge concluded that the Crown’s application

should be allowed and Lupien’s objection dismissed. [ 40 ] If, therefore, this process can sometimes be permitted when one party opposes it, a fortiori it may be resorted to when both parties accept it.

Is it not impossible, for example, for an accused, rightly or wrongly, to consider that it is in his interest to rely on previously adduced evidence because, in his view, it will support an acquittal. [ 41 ] At this stage of the analysis, I believe it is important to note that, when the parties both consent to read the evidence into the record, one cannot import, without some nuances, the rules applicable to cases where one party seeks such production while the other one opposes it.

In the present case, we know that both the Crown and the accused agreed in first instance to treat the previously adduced evidence as evidence to be presented to the judge in charge of commencing the trial again. In this context, it is worth considering certain elements relevant to the choice of each of the parties. [ 42 ] If the Crown had considered it appropriate, it could have requested that the trial be commenced again in whole or in part, which would then have led to exchanges of a different nature and, possibly, to a different outcome. But that is not what happened.

In the circumstances of this case, except for considering whether the Crown fulfilled its quasi-judicial role, [25] Chevalier, J. did not have to question the choice made by the prosecutor. [ 43 ] Before this Court, the Crown maintained its agreement to file the evidence into the record and only the accused withdrew his agreement to do so.

In short, just as it was not up to the judge in first instance to question the agreement given by the Crown and substitute himself for the Crown in deciding whether it was appropriate to opt for filing the previously adduced evidence into the record rather than commencing the trial again, it is not up to this Court to do so. The strategic choice of how to make its case is a prerogative of the Crown and, in principle, the courts refrain from interfering in this process. [26] In R. v. Cook , the Supreme Court stated: [55] In

summary, I conclude that there is no duty upon the Crown to call witnesses nor a more specific duty to call the complainant or victim. Decisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused. [27] [ 44 ] Later, delivering the unanimous reasons of the Supreme Court in R. v. Anderson , Moldaver, J. wrote, on this topic: [59] While deference is not owed to counsel who are behaving inappropriately in the courtroom, our adversarial system does accord a high degree of deference to the tactical decisions of counsel.

In other words, while courts may sanction the conduct of the litigants , they should generally refrain from interfering with the conduct of the litigation itself. In R. v.

S.G.T. , 2010 SCC 20 , [2010] 1 S.C.R. 688 , at paras. 36-37 , this Court explained why judges should be very cautious before interfering with tactical decisions: In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel [...] [C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge.

By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party ... The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel.

Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice”: Lavallee, Rackel & Heintz v. Canada (Attorney General) , 2002 SCC 61 , [2002] 3 S.C.R. 209 , at para. 68 . [60] Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused: Jolivet , at para. 21. Likewise, as this Court recently held in R. v.

Auclair , 2014 SCC 6 , [2014] 1 S.C.R. 83 , a judge may exceptionally override a Crown tactical decision in order to prevent a Charter violation. [61] Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion. [28] [ 45 ] In the circumstances, as long as the accused makes an informed decision, he can also make a choice dictated by strategic considerations. [ 46 ] That having been said, the reserve with which trial judges must approach the parties’ strategic choices does not, however, in and of itself, entail an endorsement of the procedure agreed upon by the parties.

Some clarification is in order. [ 47 ] The appellant, it must be remembered, could not be found guilty other than after a fair trial. Filing the prior testimony into the record, however, is not entirely equivalent to commencing the trial again the traditional way. Indeed, as the Supreme Court explained in Bradshaw , it does not allow the trier of fact to observe the behaviour of the witness or witnesses while they testify. That is why I think it is important for the judge to ensure that the accused’s consent is free, informed and unequivocal.

Of course, an accused can waive the right to a trial, which happens when he pleads guilty. However, as soon as the accused opts for the adversarial process, he cannot renounce to the fairness of the process. [ 48 ] In taking a position on the importance of the judge’s observation of the behaviour of witnesses, I am not minimizing the possibility that the exercise may on occasion prove to be flawed or even misleading. Indeed, in L.L. c.

R ., in a judgment written by Doyon, J., this Court noted that fact: [ translation ] [88] Certainly, one can question the assessment based on the appellant’s behaviour or attitude in testifying and the appropriateness of

the words “the accused was searching for words, hesitating, stammering and constantly playing with his hands”. A judge may, of course,take into account the behaviour of a witness, the way in which he or she testifies: R. v. N.S., 2012 SCC 72 , [2012] 3 S.C.R. 726.However, the judge should not be unduly influenced by such an examination and, among other things, should not rely solely on thisobservation: R. v. Rhayel, 2015 ONCA 377; R. c. Z.Z., 2013 QCCA 1498, paras. 79-71; R. c. R.P., 2010 QCCA 2237; R. c. R. (J.), 2006 QCCA 719; R. c. Chantal, [1998] J.Q. no 3376 (C.A.); R. c.

Norman, (1993) (ON CA), 26 C.R. (4th) 256 (C.A.

Ont.),especially since it is increasingly recognized that such an exercise can be deficient, as authors Roach, Brown, Shaffer and Renaud pointout: [...] There is also considerable research which shows that the cues which are most widely believed to be correlated with deception suchas gaze aversion, smiling and fidgeting are in fact not associated at all. [...][29] [49] In other words, to paraphrase authors Vauclair and Desjardins, it may happen that a calm and eloquent witness is in fact anincorrigible liar who has mastered the art of effective deceit, and that the hesitant and flushed witness is simply intimidated by theenvironment of the judicial debate.[30] [50] Nonetheless, the importance of observing the various behaviours of a witness is widely recognized in the case law.

Its impacton the fairness of a trial was considered by the Supreme Court in R. v. N.S.[31] [51] While that case certainly differs from ours on the merits, it is relevant to the issue at hand in that it provided the Supreme Courtwith an opportunity to express its views on the role of assessing the credibility and reliability of testimony in determining the fairness ofa trial.[32] [52] In that case, the complainant wished to wear the niqab while testifying, a requirement that had the consequence of completelyveiling her face except for her eyes.

The judge presiding over the preliminary inquiry refused to allow it.[33] [53] In this regard, the Supreme Court recalled the common law presumption that “the ability to see a witness’s face is an importantfeature of a fair trial”,[34] whether for the cross-examination of the witness or for the assessment of his or her credibility.

On the latterpoint, it indicated that changes in a witness’s demeanour can be highly instructive.[35] It added, however, that being unable to see theface of the witness does not, in all cases, inevitably impinge on the fairness of the trial: [28] However, whether the ability to observe a witness’s face impacts trial fairness in any particular case will depend on the evidencethat the witness is to provide.

Where evidence is uncontested, credibility assessment and cross-examination are not in issue; therefore,being unable to see the witness’s face will not impinge on the accused’s fair trial rights; as Dagenais notes, the risk to trial fairness mustbe “real and substantial” (p. 878), or in other words, the risk must be a serious one (Mentuck, at para. 34).[36] [Emphasis added] [54] The Supreme Court went on to discuss the elements to be taken into account with respect to the fairness of the trial: [38] Having considered the deleterious effects of requiring the witness to remove the niqab, the judge must also consider the salutaryeffects of doing so.

These include preventing harm to the fair trial interest of the accused and safeguarding the repute of theadministration of justice. An important consideration will be the extent to which effective cross-examination and credibility assessmenton this witness’s testimony is central to the case. On an individual level, the cost of an unfair trial is severe. The right to a fair trial is afundamental pillar without which the edifice of the rule of law would crumble.

No less is at stake than an individual’s liberty — his rightto live in freedom unless the state proves beyond a reasonable doubt that he committed a crime meriting imprisonment. This is of criticalimportance not only to the individual on trial, but to public confidence in the justice system. [39] The nature of the proceeding may also be a relevant factor in assessing the harm to the fair trial interest of the accused if the witnessis permitted to testify wearing the niqab: see M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157, at para. 36.

For example,determining whether evidence is admissible on a voir dire might not raise the same concerns for getting at the truth through cross-examination and credibility assessment as would determining a central factual element of the Crown’s case. […] [43] Another factor to consider is the nature of the evidence to be given by the witness. The Court of Appeal observed that if thewitness’s “evidence is relatively peripheral, or if it is clear that the witness’s credibility will not be an issue, arguments that the removalof the niqab is essential to permit cross-examination become weak” (para. 77).

As already discussed above, if the witness’s evidence isuncontested, the accused’s trial fairness interests are not put at risk by the witness wearing a niqab.

However, even when trial fairness isengaged, the importance of the evidence may bear on the judge’s assessment of the risk posed by the witness’s face being concealed.[…][37] [55] In my opinion, with respect to the meaning of the rules set out in s. 669.2 Cr.C., it is the assessment of the credibility andreliability of testimony that prompted Parliament to distinguish between the situation where incapacity affects a judge hearing a casealone and the situation where it affects a judge presiding over a jury. In the first situation, the judge combines the roles of judge of thelaw and trier of fact.

The rule that the new judge shall, without further election by an accused, commence the trial again as if noevidence on the merits had been taken,[38] is, in my view, a consequence of the fact that the new judge cannot assess the evidence withthe tools available to the person who saw the witnesses testify.

Conversely, when incapacity strikes the judge presiding over a jury, thereis no mandatory rule, because the trier of fact, in this case the jury, can theoretically continue its work under the direction of anotherjudge of the law, because the jury was able to hear the testimony of the witnesses before the first judge of the law became incapacitated.The applicable rule is therefore much more flexible: […] the judge before whom the proceedings are continued may, without furtherelection by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.[39] [56] It is interesting to note that, prior to an amendment adopted in 1994,[40] the obligation to commence the trial again as if noevidence on the merits had been taken applied even in the case of trials before a judge and jury.

The distinction introduced by Parliament

further underscores the importance it attaches to the trier of fact’s observation of the behaviour of witnesses. [ 57 ] In conclusion, the rule set out in s. 669.2(3) Cr.C . requires the new judge hearing the case to commence the entire trial all over again.

In principle, as explained in Bradshaw in particular, this means that litigants make their case by presenting real evidence and viva voce testimony to the trier of fact . [41] While it may sometimes be appropriate to commence the trial again by relying in whole or in part on the evidence previously adduced, this can only be an exception to the logic underlying the enactment adopted by Parliament. In my view, Parliament’s main purpose was to protect the fairness of the trial.

As I have already stated, this fairness can sometimes be affected by the fact that the behaviour of witnesses cannot be observed during their testimony. [ 58 ] It is in this light, therefore, that the circumstances surrounding the decision to introduce evidence previously collected in lieu of the evidence to be adduced at the new trial are problematic.

In the present case, the one and only reason put forward in support of this approach relates to the financial consequences associated with commencing the trial again in the traditional manner. [ 59 ] Here, the credibility and reliability of the witnesses is at the heart of the dispute, since the evidence consists largely of testimony given before judges other than the judge who is to render the verdict. [42] In fact, Chevalier, J. stated at the outset that the complainant and the appellant contradicted each other on whether or not there had been touching and sexual assault: [43] [ translation ] [2] It [the issue in dispute] is one of credibility and reliability, with the complainant alleging that the accused touched her in the vaginal area and on the buttocks and then had full sexual intercourse with her when she was 11-12 years old, a claim denied by the accused who, at the time alleged, was the spouse of the complainant’s mother. [ 60 ] Before this agreement was entered into, the situation called for caution on the part of counsel for the accused, of course, but also on the part of the Crown, given its role as an officer of the court.

The lawyers should not have agreed to file the evidence into the record on the basis of the financial constraints to be borne by the accused in the event the trial was recommenced.

That having been said, the context required just as much caution on the part of the judge before giving effect to this mutual consent. [ 61 ] When the decision was made to consent to the filing of the evidence given before Lapointe, J., first, and then before Beaulieu, J., did the appellant knowingly agree to have the trier of fact decide his fate while he was deprived of certain clues likely to influence his assessment of the credibility and reliability of the testimony? These include some of the behaviours already discussed in R. v.

N.S . , [44] such as shifting eyes, uneasiness, embarrassment, or interactions between a witness and a lawyer. It is not impossible that the appellant had all the required information before agreeing, but nothing here points to that unreservedly. [ 62 ] In my view, in the present case there was no reason to depart from the traditional manner of adducing evidence to which s. 669.2(3) Cr.C . refers in principle, at least without the judge having been satisfied that the fairness of the trial had been fully maintained.

In other words, the judge, who is the guardian of this fairness, should not have accepted the evidence, in whole or in part, on the sole basis of the reasons put forward by counsel for the accused, even with the Crown’s consent. [ 63 ] Based on the text of the judgment, one may even surmise that the filing of the previously adduced evidence was seen more or less as fully interchangeable with restarting the trial in the traditional way.

The judge wrote: [ translation ] [17] Before proceeding with the analysis of the evidence, the Court wishes to specify that, having been appointed , in accordance with s. 669.2 of the Criminal Code […] to complete the trial that took place before two other judges […]. [Emphasis added] [ 64 ] Perhaps this is merely an unfortunate use of language, but certainly a judge alone acting under s. 669.2(3) Cr.C . does not have the power to “complete the trial”.

This option belongs only to a court composed of a judge and jury. [45] A judge alone is required to commence the trial again. [ 65 ] Moreover, in the present case, the unusual way in which the proceedings unfolded appears to confirm that the parties considered that the new judge could simply continue the process which had been interrupted before the previous judge.

In fact, Beaulieu, J. picked up precisely where the proof and hearing begun before Lapointe, J. had ended, without, it seems, anyone questioning the appropriateness of this approach. [ 66 ] In my opinion, the record does not support the conclusion that the accused, with full knowledge of the situation, understood and accepted that the method chosen to present the evidence before Chevalier, J. was equivalent to that contemplated at law.

In my view, on the basis of the explanations provided, the judge could not have concluded that the agreed upon process could not, in any way, undermine the fairness of the trial. [ 67 ] For these reasons, I would allow the appeal, set aside the guilty verdict and order a new trial. FRANÇOIS PELLETIER, J.A.