R. v. J.K.L., 2012 ONCA 245 is a troubling case reflecting the extensive use of videotapes and audiotapes in modern trials. It is common for transcripts of the tapes to be created (and, as this author learned in a recent trial, judges are more and more often demanding such transcripts). But what if the transcripts are wrong? That may lead to the need for a new trial. This last point is applicable in all areas of the law, criminal, civil and family. The Court writes:
[24] The Crown’s edited transcript of A.L.’s videotaped police statement consists of 23 pages. As I have said, it deals with A.L.’s allegations about both underwear modelling and truth or dare. The quotation set out above appears to begin around page 4 of the Crown’s edited transcript and to continue with selected extracts through to page 22. Unfortunately, it is not an accurate quotation of A.L.’s videotaped police statement. Rather, it is a paraphrase of parts of her videotaped police statement. Significantly, critical aspects of the paraphrase are not accurate.
[25] Most importantly, the paraphrase suggests that A.L. specifically identified the appellant as the person who invited her to touch his penis on several occasions. That is simply not accurate.
[26] For example, the first italicized portion of the quotation, which identifies for the first time the appellant as the person who invited A.L. to touch his penis, does not appear in the videotaped police statement at all. And while the second italicized portion of the quotation might reflect an accurate summary of pages 20-22 of the videotaped police statement, the italicized statements are not exact quotes and appear in a different order than similar statements in the videotaped police statement.
[27] Equally significantly, nowhere does the trial judge acknowledge the poor audio quality of the second italicized portion of the videotaped police, nor does he specify exactly what he heard. He also fails to acknowledge the clear reference to J.L. (A.L.’s sister) as the person who invited A.L. to touch the appellant’s penis.
[28] A.L.’s videotaped police statement was a central component of her evidence. A proper understanding of her videotaped police statement was essential to properly assess her evidence. In my view, the trial judge’s findings concerning the charge involving A.L. is tainted by: his misapprehension of the contents of the videotaped police statement; his failure to acknowledge the poor audio quality of portions of the statement and the one clear reference to J.L. as the person who invited A.L. to touch the appellant’s penis; and his failure to specify exactly what he heard when he listened to the videotaped police statement.
[29] On appeal, the Crown argued that rather than being viewed as a quotation of A.L.’s videotaped police statement, the quotation at para. 7 of the trial judge’s reasons should be viewed as a quotation of the trial judge’s notes of the statement.
[30] I fail to see how such an approach would overcome the concerns I have noted. Even if the quotation reflects the trial judge’s notes, it remains an inaccurate reflection of the videotaped police statement. Moreover, the fact remains that the trial judge did not wrestle with the problems inherent in the videotaped police statement.
[31] The Crown also argued that even if it was J.L. who invited A.L. to touch the appellant’s penis, the appellant would still be guilty of the offence of invitation to sexual touching as a party to the offence. In my view, if that was the trial judge’s conclusion, he was required to say so and to make the findings necessary to support that conclusion.
[32] In the result, I would allow the appeal from the conviction for invitation to sexual touching, set aside the conviction and order a new trial.
No comments:
Post a Comment