In Defence of Judicial Discretion: The Supreme Court rules on R v JD

In R v JD, 2022 SCC 15 (“JD”), the Supreme Court of Canada interpreted s. 669.2(3) of the Criminal Code (“the provision”) for the first time.

Continuation of Proceedings
669.2 (3) If no adjudication made
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.

Under the provision, in the event that a trial commences before a new judge alone, and no adjudication had been made or verdict rendered, the judge is obligated  to recommence the trial  as though no evidence had been taken on the merits. 

In the process, the Court expounded upon the legal framework surrounding the provision. They also touched upon both judicial rights and responsibilities when it came to the accused in such a trial. 

The Court interpreted  the provision narrowly, holding that Parliamentary intention was clear in the drafting of the law: when a trial is recommenced in front of a new judge, it must be done in a manner as though no evidence had been considered on the merits. However, the Court also held that the provision pertains only to jurisdiction; as such, existing rules with regard to the admission of evidence would remain in force, and would not be subject to an extrinsic test that had no basis in the Criminal Code



The accused, JD, was charged in 2012 with 18 counts of sexual offences involving minors, between 1974 and 1993. Two of the complainants were his children, CD and SD (JD, para 6). 

The trial was initially scheduled at the Court of Quebec in 2016, in front of Judge Valmont Beaulieu. However, after the accused’s daughter, CD, gave her testimony both in chief- and cross-examination, Judge Beaulieu fell ill. He was eventually replaced by Judge Paul Chevalier, and a new trial was commenced in September, 2017 (JD, paras 7-8). 

As a result, a question about the admissibility of  CD’s testimony arose – she was the only witness who had been heard by Judge Beaulieu. Counsel for both parties agreed that her initial testimony was sufficient, and by common agreement, filed the original transcript in the record. JD’s counsel further reiterated this consent at the opening of the second trial. CD’s testimony was admitted on its merits, and the court also heard evidence from three other complainants. The testimony of SD, the accused’s son, was corroborated in part by the initial testimony of CD (JD, paras 9-10).

The accused was found guilty of 9 of the 18 counts he was charged with. He appealed the decision (JD, paras 11-12).

Court of Appeal (QCCA)

The accused raised a number of issues on appeal. On the question of the admissibility of CD’s testimony, the accused argued that the trial judge erred in admitting  the testimony, given before another judge, to be filed on the record by Judge Chevalier (JD, para 12).

The QCCA unanimously upheld this ground of appeal. Relying  on Gauthier and Jetté, two cases in which new trials were ordered in similar contexts, Justice Hamilton noted that previous judicial interpretations require that while the accused “may consent to the filing of evidence that was adduced before the first judge… the new judge must not accept that the testimony be filed in the record unless satisfied that the consent of the accused is voluntary, informed, and unequivocal” (JD, para 14). Additionally, the judge must also conclude that filing the evidence would not undermine the fairness of the trial (JD, paras 13-14). In effect, the QCCA imposed a two-part inquiry on the application of s. 669.2(3) derived from precedent, but that had no statutory basis. 

The QCCA held that Judge Chevalier had failed to meet the requirements of this two-part inquiry, and further that this was especially important given the importance of  CD’s testimony in determining SD’s credibility. It thus ordered a new trial on the counts relating to CD and SD. The QCCA, however, affirmed the convictions and sentences in respect of the other two complainants (JD, paras 15-16).

The Crown appealed to the Supreme Court of Canada (SCC). 

Issues before the SCC

The SCC considered a single issue: “Did the Court of Appeal err in its interpretation and application of s. 669.2 of the Criminal Code by requiring a test that is not provided for by law for assessing the validity of the accused’s consent to the filing, in a second trial, of a transcript of testimony previously given at a first trial?” (JD, para 17). Answering in the affirmative, the SCC restored the convictions on the counts relating to CD and SD (JD, para 50).

Scope of s. 669.2 of the Criminal Code

In determining whether the QCCA had overstepped its bounds, the SCC first conducted a statutory analysis of s. 669.2 of the Criminal Code. Noting that the modern approach to statutory interpretation required “…reading the words of a provision ‘in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (JD, para 21), Justice Coté noted that Parliament’s  intention in this case was clear and the provision is unambiguous. Where a new trial is commenced before a judge alone, it must  be commenced as though no evidence on the merits had been initially admitted  (s. 669.2(3)) (JD, paras 21-23). In this situation, the judge is both the trier of fact and law. Being new to the case, it could not be presumed that she was aware of the evidence already presented. In such situations, Parliament required that the evidence be presented before the judge anew (JD, para 24). However, in the event that a new trial was commenced before judge and jury, then more discretion was permitted. The SCC highlighted  that the objective of the provision  is  to preserve trial fairness. 

However, the SCC went on to observe that this provision specifically relates to jurisdiction, and therefore does not affect the rules regarding the presentation of evidence (JD, para 25). They further highlighted that a great measure of discretion was granted to the Crown and the accused to determine how to present evidence, noting that while examination- and cross-examination of a witness in court is  preferred, the parties were free to elect to simply provide transcripts of prior testimony (JD, para 26). The Court of Appeal sought to add an additional two-part inquiry, as mentioned above. The SCC ultimately disagreed with this inclusion, noting that it had no basis in the statutory language of the provision.

Distinguishing the matter at hand – the filing of prior testimony – from more serious cases such as the admission of a guilty plea, Justice Coté reasoned that the facts at hand dealt with a mere tactical evidentiary decision by counsel (JD, paras 27-29).  She further noted that, as a matter of general practice, judges should defer to these tactical decisions by counsel and refrain from questioning them absent exceptional circumstances (JD, para 30-31). Judges, however, retain a residual discretion to inquire on their own initiative; but, there is no statutory requirement to inquire except  where they doubt that the consent of the accused to admit the evidence at the new trial is, in fact, free and informed (JD, para 32). 

Ordinary Accused vs a Self-Represented Accused

Justice Coté explored one example of  extraordinary circumstances that would justify judicial questioning of counsel’s tactical choices: self-represented accused. In such cases, the judge owes a special responsibility to the accused. Specifically, “…the court has a duty to ensure that the accused can have a fair trial that is respectful of [her] fundamental rights… Although the court is not required to give advice to the accused, it must be reasonably certain that the accused is aware of her procedural rights. It could be necessary in such circumstances to inquire further into the consent of the accused.” (JD, para 34). Note that even in the case of a self-represented accused, the SCC does not oblige judges to routinely inquire into the consent of the accused in the way the QCCA had envisaged – simply that if the judge thought it appropriate and necessary, then this was one avenue through which they could investigate. However, as these issues were not in consideration in this case, these remarks remain obiter

As a result, the SCC found that:

“… s. 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.” (JD, para 35). 

Application to the Facts

Firstly, the SCC noted that the accused had fully consented to the inclusion of CD’s testimony in this matter. He was not obligated to allow it; if he had refused, the prosecution would have been forced either to have CD testify again, or to discard  her as a witness. The accused, with the advice of his counsel, chose to allow the admission of this testimony as a tactical decision (JD, paras 37-40). 

At no point did the accused claim that his consent was not free and voluntary, or that he was misled by counsel; in fact, his sole objection was that the judge ought to have inquired more. As the SCC noted, the general principles associated with criminal procedure require that Judge Chevalier presume that the consent of the accused was valid. Thus, without any evidence to the contrary, failing to inquire into the validity of the accused’s consent did not amount to procedural unfairness (JD, paras 41-42).

Furthermore, Justice Coté noted that the fact that the evidence was relevant to credibility was immaterial to the outcome of the appeal at hand. In the absence of other evidence indicating that the consent of the accused was not freely and knowingly given, there was no statutory obligation on Judge Chevalier to conduct the QCCA’s two-part inquiry. As the parties agreed to proceed with filing evidence in this matter, Judge Chevalier’s only role was to weigh the evidence (JD, para 48).

The SCC thus overturned the judgement of the QCCA, and reinstated the convictions and sentences entered at trial by Judge Chevalier (JD, para 50).

Analysis of the SCC’s decision

The SCC’s judgement reads as a resounding defence of Parliamentary intention, and a rejection of judicial  imposition of additional requirements on a statutory standard. Interestingly, however, the grounds on which the Court approves of judicial intervention under s. 669.2 of the Criminal Code – namely, where the fairness of the trial itself would be impeded – are remarkably similar to the grounds originally envisaged by the QCCA (“…the court must, even if the accused is represented by counsel, determine whether [his] consent is voluntary, informed, and unequivocal. Second, the court must ensure that the filing of the evidence will not undermine the fairness of the trial” (JD, para 3)).  

The difference between the SCC’s approach and the QCCA’s ruling is their deference to judicial discretion. The SCC granted trial judges a wide latitude of discretion in assessing whether the accused in a case in fact consented to the provision of evidence, or if such consent was obtained involuntarily, or without full awareness of the implications. This discretion may be circumscribed under extraordinary circumstances, such as where self-represented accused are involved. In general, however, the SCC’s judgement bolsters the ability of the judge to discern situations where judicial intervention might be warranted. 

The SCC also presumes that the accused and his counsel, absent any evidence to the contrary, choose to exercise their discretion through the lens of reason and trial strategy. The accused has great freedom to make the case they wish before a court. They also  added  that courts do  not presumptively assume that accused have been coerced into a concession such as admitting such prior testimony. 

In sum, the SCC recognized that while judges do have special rights and responsibilities, they are generally competent to exercise their discretion in determining when their extraordinary powers must be exercised. In the absence of any statutory change to the contrary, judges continue to enjoy this wide ambit of discretion and courts should not read limits into their powers in circumstances where they are not necessary. 

Kai Tanveer

Kai Tanveer is a third year law student at Osgoode Hall Law School and a new contributor to Having originally studied law in India, she is fascinated by the ability of the law to both transcend boundaries and structures while remaining unique to its own culture. Kai is involved both on and off campus through initiatives such as PBSC, the Innocence Project, and CARL Osgoode She plans on specializing in family law, but also remains deeply interested in criminal law.

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