COURT FILE NO.: 09-SA5031

DATE: 2012/06/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

A.A.

Appellant

Julien Lalande, for the Crown

Robert B. Carew, for the Appellant

HEARD: March 14, 2012

REASONS FOR JUDGMENT

Kane J.

[1] Mr. A.A. appeals his January 5, 2011 conviction and sentence in the Ontario Court of Justice by Fournier J. of touching for a sexual purpose a girl younger than 16 years of age contrary to s. 151 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The second charge under s. 271(1) was stayed pursuant to the Kienapple principle. The Crown prosecuted these charges summarily.

GROUNDS OF APPEAL

[2] The grounds in the Notice of Appeal and the Supplementary Notice of Appeal are:

(1) The verdict is unreasonable and not supported by the evidence;

(2) The decision appealed is incorrect and is based on a question of law and should therefore be set aside;

(3) The learned trial judge erred in proceeding with the trial in a manner contrary to s. 669.2(3) of the Criminal Code;

(4) The accused’s right to a fair trial was violated rendering the verdict unreasonable;

(5) The learned trial judge erred in failing to credit the accused with his pre-trial custody; and

(6) The sentence imposed was harsh and excessive having regard to all the circumstances.

[3] The appellant on appeal argued that the conviction be overturned or the sentence reduced for the following reasons:

(1) The agreement of counsel and Fournier J. to limit the evidence to the transcripts and exhibits in the original uncompleted trial before another judge, without testimony of witnesses, was an error and contrary to s. 669.2 of the Criminal Code. In proceeding in this manner, the trial of the appellant was unfair;

(2) Section 669.2(3) of the Code requires a subsequent judge to commence the trial again including the presentation of evidence and does not permit the court to limit evidence to the transcripts of testimony and exhibits from a prior uncompleted trial;

(3) Defence counsel erred in his representation of the appellant by agreeing to proceed before Fournier J. without the testimony of witnesses;

(4) Fournier J. erred in his decision by considering the absence of evidence corroborating the appellant’s testimony denying the allegations;

(5) Fournier J. erred in refusing to grant a short adjournment to permit defence counsel to view the DVD video of the complainant’s statement to police before argument, thereby creating an air of unfairness to the proceeding;

(6) As to sentence, the appellant argued that the 30-day sentence imposed was excessive and should not have exceeded the minimum 14 days sentence under s. 151 of the Code; and

(7) The sentence imposed failed to credit the appellant with three days pre-trial custody contrary to the court’s assurance that a credit would be granted.

[4] The appellant seeks a new trial or alternatively, that the sentence be reduced.

[5] On this appeal, the Crown argued:

(1) The proceeding before Fournier J. was, for all intents and purposes, a new trial as required by s. 669(2)(3) of the Code;

(2) The consent of the parties to proceed in an expedited manner by relying on transcripts at a new trial defeats the argument that that proceeding was unfair;

(3) The appellant may not criticize trial counsel’s agreement to use an expedited procedure in the use of the transcripts from a prior trial because the appellant’s factum contains no argument that trial counsel was incompetent or did not assist the accused. This appellate court must therefore proceed on the basis that trial defence counsel was competent and made an informed practical decision in the use of the transcripts;

(4) As the consent of defence counsel to the use of prior transcripts rather than witnesses testifying again is central to this appeal, no appeal may be granted unless the appellant shows that trial counsel was not effectively assisting his client; and

(5) Defence counsel’s consent to use of transcripts prevents relying upon that decision as an error on appeal.

[6] The first issue on this appeal originates under s. 669.2 of the Code and involves the illness and inability of the trial judge to complete the trial after the completion of evidence. The question is whether the evidence in the new trial under s. 669.2(3) may be limited to the transcripts and exhibits filed in the original uncompleted trial or whether the witnesses must testify in the new trial.

BACKGROUND FACTS

[7] The complainant alleged that the accused touched her for a sexual purpose as she rode in a small school bus driven by the appellant. The complainant at the time was 14 years old.

[8] The accused denied the allegations of the complainant.

[9] The parties acknowledge on this appeal that credibility of the complainant and the accused, given their contradictory versions of events, was a central issue at trial.

[10] The complainant, using a screen, testified at the first trial that she entered the school bus at the invitation and direction of the driver. She sat directly behind the driver who placed his hand on her knee. At trial when asked if she could identify the accused as the driver of the school bus, she testified she was not sure.

[11] The accused testified at the first trial that the complainant never entered and rode in his school bus and he never touched her.

[12] After completion of the evidence in the first trial, the judge became ill and could not resume his duties. No decision therefore was rendered in that proceeding.

[13] The first trial was in English without an interpreter until close to the close of the cross-examination of the accused. An interpreter was then provided to allow the accused to complete such cross-examination in French. The remaining testimony of the accused was in French. The interpreter’s English translation of the accused’s French testimony is what appears in the transcript.

[14] A subsequent trial date was set before Alder J. because Dempsey J. could not for health reasons complete the trial. Alder J. was unable to begin the trial then designated as a French trial because an interpreter was not available and the accused had not understood there would be a trial that day. A new trial date was set.

[15] Fournier J., upon the joint submission by counsel, subsequently agreed to continue the trial and limit the evidence to the transcripts and exhibits from the first trial. No witness testified. Fournier J. after argument convicted the appellant. This was a French trial. The evidence was restricted to the English transcripts and exhibits from the first trial.

[16] The Crown was represented by three different counsel before the three judges of the Ontario Court of Justice. The appellant was represented by the same counsel in the first trial and before Adler J. and by new counsel before Fournier J. Each party had new counsel on this appeal.

FIRST TRIAL

[17] The following witnesses testified in the first trial on November 17 and 18, 2009 and January 12, 2010, namely:

(1) The complainant;

(2) The complainant’s mother to whom the complainant communicated her allegations shortly after the alleged event;

(3) The assistant manager of the transportation company which employed the accused. She interviewed the accused after being advised of these allegations. The accused denied any wrongdoing to her;

(4) A police officer who video recorded the complainant’s interview as to the allegations; and

(5) The accused.

[18] Four exhibits were entered in the first trial. They include the video recording and transcription of the complainant’s interview statement to police.

[19] This first trial proceeded in English. All of the testimony and exchanges between counsel and the judge were in English, without an interpreter for the accused until the Crown’s cross-examination of the accused was nearing completion.

[20] The accused’s examination in-chief in English demonstrated his difficulty understanding and responding to some questions in English.

[21] Shortly after the cross-examination of the accused began, his difficulty understanding the questions and answering in English became apparent. Crown counsel on several occasions repeated questions put to the accused and on some occasions, translated portions of the questions into French to clarify what was being asked. The appellant on several occasions answered the English questions in French.

[22] Crown counsel stopped and asked the accused whether he understood the questions and did he understand the previous day and one-half of the trial. The accused said he did.

[23] Cross-examination continued. The accused continued to demonstrate difficulty understanding and answering in English.

[24] Crown counsel thereupon stopped and stated that it was becoming more apparent that the accused did not understand some of the questions.

[25] Counsel expressed concern that the accused might simply be saying yes or no without understanding.

[26] The accused said he had difficulty understanding when the Crown spoke quickly. The accused stated there were certain things asked which he did not understand. The accused cited two areas of questioning he did not understand.

[27] The accused was then asked by Crown counsel and the court whether he wished to have an interpreter. The accused said no. The judge asked the accused if he had difficulty understanding the testimony of other witnesses. The accused said yes and then said he did not understand one area of questioning by Crown counsel whereas he previously had identified two areas.

[28] All of the above questions and answers by the accused were in English without the use of an interpreter.

[29] At this point defence counsel stated that the accused did not understand a considerable portion of what was being said in English.

[30] The court then asked defence counsel whether the lack of understanding in English necessitated that the evidence and the examination of the accused be conducted in French. Defence counsel said yes but then qualified that by stating that a new trial was not needed but the cross-examination should be in French. The judge probed again and asked defence counsel whether the accused’s difficulty extended to all the testimony or just the accused’s cross-examination. Defence counsel responded that the lack of understanding related only to the cross-examination of the accused. The trial then adjourned to a subsequent date allowing counsel in the interim to review the transcripts of evidence to that point.

[31] Upon resuming the trial on January 12, 2010, defence counsel stated that the transcripts disclosed that the accused may not have understood anything at all during his testimony.

[32] The judge then twice asked defence counsel whether the accused understood any of the proceedings and should there be a mistrial. Defence counsel responded that the accused lacked the ability to understand the English questions put to him and respond in English to those questions. Defence counsel stated that the accused may not have fully understood the judge’s question whether the accused understood the testimony of the other witnesses.

[33] Defence counsel then stated that the accused’s understanding of English testimony by other witnesses was not in issue. No explanation was offered as to how the accused’s lack of understanding of the English language prohibiting his understanding of questions put to him, permitted his understanding of testimony of other witnesses, including the complainant. This concern was squarely put to defence counsel by the judge. In response, defence counsel backed away from his broadly expressed concern about the accused’s lack of understanding in English. Defence counsel then limited his concern to the cross-examination by Crown counsel.

[34] Crown counsel strongly argued against a mistrial or having the witnesses testify again with the use of an interpreter for the accused. He referred the court to statements by the accused in English as evidence that he understood and the instances where the accused had answered without hesitation.

[35] Crown counsel indicated his cross-examination was completed but conceded to cover again the principal areas using an interpreter. Defence counsel accepted that suggestion but then asked the judge to ignore the accused’s cross-examination in English or place greater weight on the cross-examination with the use of an interpreter in making his decision.

[36] Interpretation services were then obtained. The Crown then conducted a limited cross-examination.

[37] Proceeding in this manner remained problematic because:

(1) There are 60 pages of transcript of the prior cross-examination of the appellant in English. There are 34 pages of transcript of the continued cross-examination using an interpreter;

(2) On numerous occasions during the continuation of the cross-examination using an interpreter, Crown counsel, without objection, used the transcript of the appellant’s prior cross-examination in English to contradict the appellant’s testimony in French; and

(3) The full transcript of all witnesses including the accused, constitutes the evidentiary base upon which Fournier J. made the decision under appeal.

[38] Attached as a schedule are portions of the appellant’s testimony in chief and cross-examinations prior to the use of an interpreter. They demonstrate that this should have been a French trial or the accused should have had the services of an interpreter throughout the trial. The transcript demonstrates the possibility or likelihood that some of the English testimony by Crown witnesses and the English questioning of the accused were not fully understood by the appellant.

SECOND TRIAL

[39] On October 21, 2010, Alder J. began the trial of these charges in French.

[40] The Crown advised it was ready to proceed with the trial and would be calling the complainant and her mother as its first two witnesses that day, with the assistant manager of the transportation company to be called as a witness the following day.

[41] Defence counsel advised the court that the above Crown witnesses would be testifying in English and accordingly the accused would need an interpreter.

[42] Both counsel clearly understood the trial was starting over with witnesses from the first trial to testify again. The accused however advised that that was not his understanding.

[43] The appellant addressed the judge and stated that he had understood he was attending court that day to receive the court’s decision based on the judge having read the transcripts from the first trial. The court was advised by counsel that another judge at a pre-trial after the uncompleted first trial, had read the transcripts of testimony and was, within the context of the pre-trial, to express an opinion as to the strength of the Crown’s case. Counsel accordingly advised Alder J. that the accused did not appear to understand that the trial was to start again on October 21, 2010, with the testimony of witnesses.

[44] Alder J. rejected the ability to proceed with the trial using only transcripts and stated:

LE TRIBUNAL: Alors, monsieur, il y a un juge qui a lu les transcriptions. C’est pas possible qu’un nouveau juge lise les transcriptions et donne une décision qui va être une décision sur un procès, parce que pour être un procès, il faut que j’entende la preuve. Je peux pas entendre la preuve. Lire la preuve me donnerait une idée. C’est ça qu’un autre juge a déjà fait. … C’est important, surtout quand c’est une cause à clair crédibilité, de voir les témoins. C’est pour ça qu’on fait des procès; c’est pour voir la personne, la façon qu’elle répond aux questions. Il y a toute sorte de choses qui vient en jeu quand on fait une décision de crédibilité.

[45] Given the accused’s plea of not guilty and his position that he was not prepared to proceed with a trial on that date, the Crown submitted that a new trial date must be set for a French trial including the calling of witnesses and the use of an interpreter for English testimony.

[46] The accused’s lack of ability to understand English arose during this hearing before Alder J. Mr. A.A. advised the court on two occasions that he had difficulty understanding English. On the second of these statements, the following exchange took place:

Me PARADIS: M. Ibrahim a indiqué très clairement, Votre Honneur, qu’il comprend anglais.

L’ACCUSÉ : Non, je comprends pas très bien.

Me PARADIS : Pas très bien?

L’ACCUSÉ : Non.

LE TRIBUNAL : Non. Alors, on le fait en français, okay?

Me PARADIS : Okay.

LE TRIBUNAL : Je sais pas qu’est-ce qui est arrivé la dernière fois avec le Juge Dempsey – ça a dû être une difficulté – mais on le fait en français. Ça va tout paraître au français. Ça va être au dossier en français. Plus de question.

[47] The matter was then adjourned to set a new trial date.

THIRD TRIAL

[48] The trial proceeded before Fournier J. on January 4 and 5, 2011, in French.

[49] On January 4, 2011, the court asked if counsel for each party agreed that the trial was to proceed not with testimony by witnesses, but by introducing the exhibits and transcripts of testimony from the first uncompleted trial which the judge would read and then proceed to argument. Both counsel agreed. Crown counsel stated that using the transcripts was a preferable procedure and would avoid the young complainant having to testify again.

[50] On consent, Crown counsel entered as exhibits, the transcripts of the testimony and exhibits from the first trial.

[51] The trial adjourned to permit the judge to read the transcripts and exhibits after which argument would proceed.

[52] The court reconvened the trial on January 4, 2011, as the judge had several questions for counsel. The judge began by stating he had scanned the transcripts and did not understand why the parties were now proceeding with a trial in French when the first trial had been in English.

[53] The judge then asked whether the accused would acknowledge that he had understood the English testimony in the first trial prior to the use of an interpreter, “perhaps not to the extent of 100 percent”, but sufficiently that there was no objection to the court accepting the transcript testimony and considering it in making a decision.

[54] Defence counsel responded that the accused had no language difficulty after an interpreter was provided.

[55] The judge again asked about the English testimony prior to an interpreter being provided such that the accused did not understand what was being said in English. Defence counsel advised that the accused was not objecting to the use of the transcript.

[56] Counsel did not advise the court as to the accused’s statement to Alder J. that he did not fully understand or speak English and the determination of that point by that judge.

[57] Fournier J. stated that in proceeding with the use of transcripts, it would be necessary to determine credibility of the witnesses’ testimony based on the transcripts without those individuals testifying in person. The court indicated that it normally has the benefit of observing witnesses testify and, although proceeding in that manner is not absolutely necessary, the court’s credibility analysis would be limited by being unable to observe and hear the testimony contained in the transcript. The judge asked counsel to confirm whether they agreed to accept this limitation. Crown and defence counsel agreed the court could determine credibility solely on the basis of the transcripts and exhibits.

[58] The court then asked whether the introduction of the complainant’s statement to police was being introduced as proof of the complainant’s allegations against the accused. The Crown responded in the affirmative relying on s.715.1 of the Code and the complainant’s adoption of that police statement during her testimony. Defence counsel agreed.

[59] A sketch by the complainant of the vehicle driven at the time by the accused was among the exhibits at the first trial and entered again. Fournier J. described his interpretation of the designations on the sketch including what was the front of the vehicle on the sketch, that the writing of “the man”, means the driver, that the writing “me” was the complainant in the bus and the writing of the words “Chinese boy” corresponded to the complainant’s testimony to an Asian person in the vehicle. The court asked counsel to confirm the accuracy of this interpretation. The Crown agreed with the judge’s interpretation. Defence counsel advised that he did not object to that interpretation because it was produced as part of the disclosure documents by the Crown.

[60] Defence counsel requested confirmation that he would be entitled to rely on disclosure documents from the Crown not yet entered as exhibits. Fournier J. refused this request and stated that he would only consider the exhibits, the complainant’s written and video statement to police and the transcripts of testimony from the first trial. This exchange suggests either that defence counsel was inexperienced or that he hoped to expand the documentary evidence before the court.

[61] On January 5, 2011, the court rejected the Crown’s opening submission that the accused be arraigned. The court stated that an arraignment was unnecessary as it and the accused’s plea of not guilty, were contained in the transcript from the first trial. Defence agreed an arraignment was not necessary.

[62] Defence counsel asked for a brief adjournment before starting argument to view the DVD of the complainant’s statement to police as the defence’s DVD copy contained the audio but not the video recording. The judge rejected this request indicating that the defence had a transcript of the written statement. The judge stated that his review of the written transcript and the video statement disclosed nothing of importance as to the comportment of the complainant during her statement, that the transcript of the video statement contained all necessary information and adjourning now to permit the defence to watch an operational DVD would be an inefficient use of time. The judge then stated that defence counsel could watch an operational DVD if it became necessary but then called upon the defence to proceed with argument.

[63] There was no discussion of s. 669 before Fournier J.

[64] Following argument, the court on January 5, 2011, found the accused guilty on the first charge under s. 151 and stayed the second charge under s. 271(1).

[65] On April 14, 2011, the accused was sentenced to 30 days’ jail intermittent on s. 151, and 18 months’ probation. A DNA order was granted. In delivering sentence, the court stated that the defence was entitled to credit for the period of pre-trial custody but failed to refer to such credit in sentencing the accused to 30 days.

REQUIREMENTS OF SECTION 669.2(3)

[66] Both parties agree that Fournier J. was the judge before whom the proceedings were continued and that he commenced the trial again within the meaning of s. 669.2(3) of the Code.

[67] Where the parties differ on s. 669.2(3) is as to the requirement and meaning of the phrase “commence the trial again as if no evidence had been given” in that subsection.

[68] The relevant portions of s. 669.2 of the Code are as follows:

Continuation of proceedings

669.2 (1) Subject to this section, where an accused is being tried by

(a) a judge …

(b) a justice or other person who is, or is a member of, a summary conviction court, or

(c) as the case may be, and the judge, provincial court judge, … is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, …, as the case may be, who has jurisdiction to try the accused….

(2) Where a verdict was rendered by a jury or an adjudication was made by a judge, provincial court judge, … before whom the trial was commenced, the judge, provincial court judge, … before whom the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that is authorized by law in the circumstances.

(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, … 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.

(Emphasis added)

[69] The appellant submits that s. 669.2(3) requires Crown witnesses to testify again. He submits that the words of s. 669.2(3), “as if no evidence had been given” prohibits the evidence in the trial before a judge alone being limited to the transcripts from the first uncompleted trial, particularly when the central issue is credibility involving direct contradictory testimony between the complainant and the accused.

[70] The Crown disagrees that s. 669.2(3) requires that witnesses testify again in the continued trial because these parties agreed to introduce the transcripts and exhibits from the first trial and thereby limit the evidence in the trial before Fournier J. Crown counsel submits that s. 669.2(3) does not prohibit the judge agreeing, on consent of the parties, to limit evidence in a trial continuance to the transcripts of testimony from a prior trial.

[71] In interpreting s. 669.2(3), it is informative to consider the provisions of ss. 669.2(4) and (5).

[72] Unlike a trial without a verdict before a jury under s. 669.2(4), a trial continued by judge alone under s. 669.2(3) does not permit the new judge to elect to “continue the trial” or to “commence the trial again as if no evidence on the merits had been taken”, as is permitted in s. 669.2(4).

[73] There is no deeming of evidence provision as contained in s.669.2(5) applicable to a trial commenced again under s. 669.2(3), such that the evidence originally heard, shall be deemed to have been adduced before the continuing judge.

[74] This leads to the conclusion that the proceeding before Fournier J., independent of the consent of the parties:

(a) Was a continuation of the proceeding against the accused;

(b) Was not a continuation of the first trial;

(c) That the trial of the charges was commencing again without evidence; and

(d) The evidence from the first trial, under s. 669.2(3), was not deemed to have been evidence adduced before Fournier J.

[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 trial to 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, including transcripts 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 a previous trial and commission evidence for witness who have died, become ill or are absent from Canada.

[80] The absence of a prohibition under s. 669.2(3) against using the transcripts from the uncompleted trial and the consent of counsel to do so, are not however determinative of this appeal.

CREDIBILITY DETERMINATION AS CENTRAL ISSUE

[81] There are circumstances where a judge, notwithstanding the consent of the parties, should not proceed with a trial on evidence limited to a transcript of testimony from a previous trial. That is particularly so if it would result in a denial of fundamental rights of the accused, prevent a fair trial or impair the judge’s ability to perform his or her duty to determine the issues.

[82] In the decision under appeal the judge was faced with contradictory evidence from the complainant and the accused. The court agreed 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 asked and obtained consent of counsel to this limitation. That consent, which should not have been given by either counsel on these facts, does not 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 1999 CanLII 3125 (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 the record …

[85] The present case involved an allegation of sexual touching by the complainant and direct denial by the accused with no witnesses to corroborate either version. As T.P. O’Connor J. stated in R. v. L.F. 2006 CanLII 34723 (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.

[86] In the case of R. v. Barron, (Ont. C.A.), [1985] O.J. No. 231 (C.A.) the court reviewed a conviction for manslaughter. The court quashed the conviction.

[87] The evidence at trial in Barron, supra, was limited to the preliminary inquiry transcript and a supplementary statement of facts. There were contradictions as to the amount of force applied between the witnesses testifying at the preliminary inquiry and further contradictions in the statement of facts. The court disagreed with the decision of the trial judge to proceed with the trial with the limited nature of the evidence presented and stated:

To the extent that there were discrepancies between the evidence given by the witnesses at the preliminary inquiry as between themselves and between their evidence and the evidence which the appellant would have given as stated in the supplementary statement of facts filed, the trial judge was placed in an impossible position as he did not have the opportunity of seeing and hearing the witnesses and the appellant give their evidence. Although the procedure adopted at the trial undoubtedly resulted in a saving of some time and expense, I find it most unsatisfactory that the trial judge did not have the opportunity of hearing viva voce evidence from eyewitnesses to the incident.

[88] In R. v. Coburn, 1982 CanLII 3715 (ON CA), [1982] O.J. No. 41, (C.A.) at para.13, the court reviewed a trial decision which proceeded on the basis of the appellant testifying and an agreed statement of facts. Comparing these two sources of evidence revealed contradictions. The court ordered a new trial. The court stated:

13 This case emphasizes that although an Agreed Statements of Facts are often useful, they should only be used where the facts are clearly agreed upon. When it became apparent that this was not the case, and that there was a conflict between the appellant’s evidence on the one hand, and the Agreed Statement of Facts on the other, the trial judge should have required the Crown to call evidence on the points in issue. The trial judge, however, attempted to perform an impossible task, namely to decide between what was set forth in the Agreed Statement of Facts and the viva voce evidence of the appellant. The trial judge in effect set out to determine the question of credibility of the appellant without hearing Inspector Yorkston and weighing in turn his credibility.

LACK OF COMPREHENSION

[89] The record on appeal contains the transcript of the accused’s testimony during the first trial in which he clearly does not understand some of the questions asked of him and has difficulty expressing himself in the English language. During the first trial, Crown counsel expressed increasing concern during the cross-examination. On the second occasion Crown counsel expressed the opinion that Mr. A.A. did not understand the questions being asked.

[90] Defence counsel and the judge expressed concern that the accused did not and may not have understood portions of the testimony of Crown witnesses.

[91] A reading of the transcript of the accused’s testimony clearly demonstrates the accused’s comprehension problem and the resulting implication as to the testimony of the other witnesses.

[92] The completion of the cross-examination with the use of an interpreter then compounded the lack of comprehension with Crown counsel challenging the accused as to discrepancies in his testimony in English versus his testimony in French.

[93] Prior to agreeing to proceed with the trial using the transcripts, Fournier J. asked whether the accused acknowledged that he had had understood the testimony during the trial. Having briefly read the transcripts, the trial judge was conscious of this comprehension issue enough that he sought the accused’s position and consent thereon. The accused replied that he had understood. The transcripts and testimony of the accused and the argument of counsel in the first trial contradicted that statement.

[94] How could this judge reconcile differences in the accused’s testimony in English versus his testimony in French on the transcripts? Transcripts do not communicate the length of pause or the rapidity of response and possible ease with which a witness answers questions.

[95] How could the judge on these facts be satisfied as to what decree the accused understood the evidence of the other witness when his counsel in the first trial originally stated that his client understood little of the testimony and asked for an interpreter and to complete his cross-examination in French?

[96] Fournier J. attempted to solve the unknown lack of comprehension during the trial by obtaining the accused’s consent that he had understood all testimony in the first trial even though the transcripts clearly indicate this logically was not the case. The judge in obtaining that consent acknowledged the transcripts showed the accused had not understood everything, without knowing how much was not understood.

[97] Fournier J. had evidence the accused had refused or asked that his interview with police not be in English, but be in French.

[98] Expediency is commendable and to be encouraged. What the trial judge had to weigh however was the delay and repetition of two days of testimony in a criminal trial in a language the accused did not fully understand.

[99] It is true that the trial testimony was not complex or lengthy. That however is irrelevant if the accused did not understand what was being said. The shortness of testimony is a double edged sword. The Crown’s evidence could have been presented again using an interpreter in a short trial.

RIGHTS OF ACCUSED

[100] Sections 14 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 guarantees the right of the accused to an interpreter if he does not understand the language of the proceeding.

[101] Defence counsel, given the accused’s obvious lack of understanding and fluency in English in the first trial, should have applied under s. 530 and would have been granted a trial before a French or bilingual judge. Alternatively, he could have sought a mistrial when it became apparent to counsel and the court that the accused did not understand the questions posed to him.

[102] The court under s. 530(4), if satisfied that it is in the interest of justice that the accused be tried before another judge in the other official language, may remand the trial to a judge with that capacity.

[103] An order under s. 530 grants to the accused the right of an interpreter for English witnesses, the right to speak French during his trial, a French speaking prosecutor and the right that the prosecutor question witnesses in French as well as a French speaking judge under s. 530.1 of the Code.

[104] None of these protections to ensure this accused understood the evidence against him and received a fair trial were requested by defence counsel in the first trial. Crown counsel in that trial opposed its witness testifying again using an interpreter. Both counsel in the decision under appeal ignored these rights in proposing the transcripts be used rather than witnesses testifying.

[105] The Crown’s proposal before Fournier J. to use the transcripts is in contradiction to the determinations of Alder J. that the witnesses must testify and the trial needs to be in French because the accused is not proficient in English. The resulting implication is that the accused did not fully understand all of the evidence presented in the first trial.

[106] Consent of the accused does not relieve a judge’s obligation to ensure that the accused receives a fair trial and that justice is accomplished and seen to be administered fairly.

[107] An accused pursuant to s. 650, is required to be present in court for the full criminal trial. That requirement, combined with the legal requirement that the accused have direct knowledge of anything that transpires which may affect his or her interest, requires that the accused understand the language and testimony of the proceeding. R. v. Vézina, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. No. 2, 23 C.C.C. (3d) 481 (SCC).

[108] The right of the accused to make full answer and defence is defeated if he cannot understand the evidence against him, the questions he is asked or communicate his testimony because he is French and the proceeding is conducted in English.

[109] These are all relevant and determinative factors in the court’s determination whether to agree to the limiting of the evidence to the transcripts and exhibits from the original trial.

[110] Faced with the contradictions in evidence of the complainant and the accused, knowing that the transcript of the accused’s testimony could not be relied upon and faced with the uncertainty as to how much of the Crown’s testimony the accused understood, the judge should have required the Crown to present its witnesses in a French trial and not limit evidence to the transcripts from the first trial.

[111] Although I have not agreed with the appellant that s. 669.2(3) specifically requires that the original witnesses must testify in the new continued trial, I have come to that same result in order to permit the court to properly evaluate the contradictory evidence and afford the accused a fair trial. The lack of a fair trial is one of the grounds of appeal.

REVERSAL OF DEFENCE POSITION ON APPEAL

[112] The consent of defence counsel to proceeding with the trial before Fournier J. and the law preventing an appellant adopting a trial position for his strategic benefit and then relying on that position as a ground of appeal, is not determinative in this case. That legal prohibition exists but, independent of the facts, is not an ironclad rule. R. v. Fertal, [1993] A.J. No. 767, (C.A.) para. 9.

[113] The Crown before Adler J. advised the court it was ready to start the trial and call its witnesses. Both counsel intended the witnesses from the first uncompleted trial would testify before Alder J. The court expressed the view that witnesses must testify and the court would not limit the evidence to transcripts from the first trial. That is not the decision under appeal.

[114] The reasons expressed in Fertal, supra, against a party adopting a reversal of the position it took at trial includes preventing a party adopting a strategic position to its advantage at trial and then using that subsequently as a ground of appeal. There was no apparent strategic advantage in this case to the defence to limit the evidence to transcripts from the first trial.

[115] This is a case where defence counsel erred before Fournier J. and should not have agreed to a trial limited to these faulty transcripts with his client’s lack of comprehension of the English.

[116] Crown counsel in the first trial opposed having its witness testify again with an interpreter present for the accused. The Crown reversed this position before Alder J. and intended to call its witnesses again in a French trial using an interpreter. The Crown reversed that position again before Fournier J. agreeing to no witness testimony and the use of the transcripts of testimony given in English. Crown’s argument that the defence is prohibited from reversing its position on appeal is weakened by the Crown’s reversal on the same issue.

[117] Both counsel before Fournier J. agreed to limit the evidence to transcripts which Alder J. stated was not possible. An appellate court should not continence an inappropriate agreement which denied fundamental rights to the accused, by refusing to allow the defence to argue that position on appeal.

UNAVAILABILITY OF EVIDENCE TO DEFENCE

[118] In the reasons of the decision appealed, the trial judge rejected the evidence of the accused and found the complainant very credible. In analyzing her evidence, the judge comments upon her appearance, or composure as shown on the DVD recording of her interview with police. The judge stated:

Je dois faire une analyse semblable en ce qui a trait au témoignage de Mlle A. Alors, Mlle A., elle aussi nous présente, lorsqu’elle dépose son témoignage, certains motifs qui mettent en doute sa crédibilité et surtout sa fiabilité. Je ne suis pas particulièrement inquiet en ce qui a trait à sa crédibilité parce que mademoiselle veut nous dire la vérité. C’est évident lorsque je constate son comportement dans le vidéo, lorsque je fais la lecture de sa déclaration aux policiers, lorsque je fais la lecture de son témoignage, de ce qu’elle a déposé lors du procès, lorsque je relis le transcrit en question, je constate que c’est une personne environ de 14 ans, évidemment, une personne relativement mature, suffisamment mature pour son âge. C’est une personne qui me semble relativement intelligente. Ce n’est pas une faible d’esprit. C’est une personne, je suis d’accord avec ce que me disait le procureur ce matin, c’est une personne qui semble être plus ou moins timide. Sa voix n’est pas particulièrement élevée. Ce n’est pas une personne agressive. Oui, elle penche la tête de temps à autre. Je perçois que lorsqu’elle a comparu au bureau des policiers, mademoiselle n’a pas trouvé que c’était exactement un pique-nique. Mademoiselle n’avait pas de plaisir à se présenter et à faire une déclaration aux policiers. Ce n’était pas du tout plaisant pour elle. Et mademoiselle voulait s’exprimer de façon franche et aussi correcte que possible, et dans sa déclaration et lorsqu’elle a déposé son témoignage en cour.

[119] The following passage appears later in the reasons:

Alors, lorsqu’on regarde le tout, Mlle A. est un témoin formidable, crédible, fiable, et lorsque je compare ce que je fais, ce que la Cour d’appel a fait en Ontario, je fais le stacking de ces preuves-là. Il m’est impossible que de faire autrement que d’écarter le témoignage de M. A.A.. Je ne le crois pas du tout; je 1’écarte.

[120] In deciding in his reasons that the complainant’s testimony was truthful, Fournier J. referred to and considered the appearance and composure of the complainant during her police interview as recorded on the DVD video. That is evidence the judge refused defence counsel the opportunity to see prior to argument. That video information was available to the Crown and relied upon by the judge in the reasons for judgment. The failure to make this evidence available to the defence before argument constitutes an error of law.

[121] For the above reasons the appellant was denied the rights stated and did not as a result receive a fair trial. Given this conclusion, I will not address the other grounds of appeal.

[122] The appeal accordingly is granted, the conviction is quashed and a new trial is directed.

Kane J.

Released: June 4, 2012

SCHEDULE

TRANSCRIPT PORTIONS OF APPELLANT’S EXAMINATION IN-CHIEF [p. 154]

Q. All right. And did you and your wife – or spouse have any children?

A. My wife, yeah, we have altogether six children.

Q. Six children?

A. Yeah.

Q. Okay. And between what age and what age?

A. The – the bigger one is, ah, 19 years old.

Q. Nineteen is the oldest?

A. Oldest, yeah.

Q. Okay?

A. And 18 years old. And…

Q. Well all the way down to what?

A. Yeah, ah, 19 and 2, 4 years old.

Q. Four?

A. Four years old, yeah.

Q. Okay. And so you’re separated. At this time what – are you occupied doing anything?

A. Now I’m working, ah, like a (unintelligible) community, ah…

Q. Volunteer?

A. Yeah, community volunteer.

Q. Okay.

A. With my community.

Q. Within your community?

A. Yeah, and I’m teaching like, ah, French.

Q. You teach French?

A. Yeah.

Q. All right. To what group?

A. In adults. Adults.

TRANSCRIPT PORTIONS OF APPELLANT’S CROSS-EXAMINATION [p. 168]

Q. And who do you live there with?

A. With my wife.

Q. You told Mr. Paradis today that you were separated?

A. Yeah, we are separate but, ah, when first time when I’m coming here, the – the first day when I pass the courts, my wife she took the charge with – I want to live with her.

Q. I’m sorry, can you explain that again?

A. The day I pass the course (ph), when I’m coming to the course (ph), my wife, she’s there, and my – my wife she took the charge, I will live with her until the…

Q. Do you know what a surety is? You were released; Mr. Paradis took you through that. You came to court and eventually you were released on bail?

A. Yeah.

Q. Yes? Who is your surety?

A. My brother.

Q. Your brother. Ah, Yusuf?

A. Yusuf.

Q. All right. And does he live with you?

A. No, I’m living with – Yusuf? No my, my, ah, I’m living with my wife.

Q. You live with your wife?

A. Yeah.

Q. So your explanation that you gave me a moment ago, that your wife came to take charge of you from the court, that doesn’t make sense does it?

A. No, when I’m coming here, and my brother’s there, my wife she’s there, and, ah, the – the – the Honour ask “where are he’s gonna live” and we say we lived, ah, with my wife, and he tell the people, “Ali’s gonna live at 697 Allister” the day released.

Q. Do you, sir – you have children you told us?

A. Yes

Q. Yes?

A. …I have a children, sir.

Q. Nineteen, eighteen, and what are the other ages?

A. No, my – when – my wife she have a kids before, and me I have, ah, like a two illegible (ph) that I have a two, one boy and one girl.

Q. Yes, how old?

A. The – the bigger one he born like, ah, 2002.

Q. How old are your children?

A. And, ah, seven years old.

Q. One is seven and the other one is?

A. The – the other one is, ah, five years old.

Q. So we have nineteen years old, eighteen years old, seven…

A. Yeah...

Q. …five…

A. …1989, 1991, 1994, 1993. The – the four bigger one, ah, my wife she have a before kids.

Q. Okay.

A. And, ah, after me I get two, one boy and one girl.

Q. Okay, just – just so I understand, sir. One is nineteen years old?

A. In ’89.

Q. Okay.

A. One is, ah, twenty years old.

Q. Just hear me out, okay?

A. Yeah.

Q. You told Mr. Paradis “I have...

A. No, the...

Q. …six” – listen?

A. Six yeah, six there now.

Q. Sir?

A. Altogether, yeah.

Q. I’m sorry, Your Honour, if we can just direct the witness to …

Q. You told Mr. Paradis you have six children, and you said “they are nineteen, eighteen, all the way down to four”. Do you remember saying that this morning?

A. Yeah.

Q. Okay.

A. Yeah.

Q. So do you have a nineteen year old child?

A. No, me I don’t have a nineteen years old.

Q. That’s your wife’s?

A. Yeah.

Q. And does she or you have an eighteen year old child?

A. This you can say again?

Q. I see. All right. You told Mr. Paradis you are volunteering in the community?

A. Yeah.

Q. Yes. Where do you volunteer?

A. In, ah, (unintelligible) answer?

Q. Yes?

A. My comments (ph) , ah, I’m just, ah, help the – the people – the old (ph) people to speak French.

Q. Yes, where sir?

A. Where?

Q. Yes?

A. Yeah, in – is in Belfast.

Q. Is it a community center?

A. Yeah, is a just, ah, for my community.

Q. Is it a community center?

A. No, it’s not community center.

Q. What is it?

A. Is a place we – we – me and other people, we open, and we teaching the…

Q. Is it a house?

A. No, no, is a…

MR. PARADIS: Sorry, Your Honour, I didn’t know how relevant – this certificate’s, ah, showing that he’s been volunteering.

MR. ELHADAD: Q. So you are at the Somaliland Community Association?

A. Yeah.

Q. So it is a center?

A. Yeah.

Q. Okay. So now we know where you’ve been volunteering. And what kind of work do you do with children, sir?

A. What kind of job I do?

Q. Yeah, with the children?

A. With the children?

Q. Yes?

A. What children?

Q. What kind of work do you do with children?

A. The children I – I bring the school, or you talking about all my children?

Q. Not your – do you work with children, sir?

A. No, no, what – what – what children you talking about?

Q. Okay. Do you work with children now?

A. No.

Q. Okay. Other than your children, do you take care of other children?

A. Yeah.

Q. All right. What other children do you take care of now?

A. What other children I take care?

Q. Yes. You just answered “yes”?

A. No, I don’t – I don’t, ah, take care other children because always I stay at home, after when I come with my wife. But I don’t work with the other children.

Q. Okay. Do you volunteer with other children?

A. No.

Q. Yeah. And when did you become aware of these allegations, the specifics?

A. Mm?

Q. You’re not understandinq me are you?

A. Can you repeat again?

Q. When do you become aware of the specifics, le précision, the specifics?

A. Du cette allégation?

Q. Yes, of…

A. This allegation?

Q. …these allegations. Yes.

A. Yeah, is at the one I – I go to the Elgin.

Q. When you go to the jail?

A. No, Elgin – Elgin, ah…

Q. Elgin station?

A. Yeah, before because she – I go – I go there. I took appointment. We see (ph) together. We speak the – the problem. After that and she say, “okay, go”. After that she call me back and she say – and, ah, “You can, Ah, come in”, ah, because when she told me I say, “I never see that person. I don’t know what you’re talking about”, and I go.

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

A.A.

Appellant

REASONS FOR JUDGMENT

Kane J.

Released: June 4, 2012