Simon's Megalomaniacal Legal Resources

Evidence - Transcripts and Recordings

. R. v. Khodayar

In R. v. Khodayar (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal brought against a conviction for "attempting to obstruct justice", here where the appellant was a subpoened witness and "refused to answer any substantive questions relating to the offence".

Here the court considered the Crown-sought admissibility of preliminary hearing transcripts, here where the defendant argued Charter s.13 ['self-incrimination']:

Issue 2 - No error in admitting the Transcripts

[33] The appellant submits the application judge erred in admitting the Transcripts contrary to s. 13. He argues as follows. Section 13 provides that compelled evidence cannot be used to incriminate a witness except in a prosecution for perjury or for giving contradictory evidence. The Transcripts are compelled evidence because the appellant was compelled to testify at the preliminary inquiry. The Crown sought to use evidence of the appellant’s refusals to testify (as captured in the Transcripts) to prove the actus reus of the obstruct justice offence. Therefore, the Transcripts are incriminating evidence within the scope of s. 13. Because the appellant was not prosecuted for perjury or for the giving of contradictory evidence, the Transcripts fell outside the s. 13 Exceptions and were entitled to s. 13 Charter protection. Thus, the application judge erred in admitting them into evidence at the obstruct justice trial.

Analysis

[34] I do not accept this submission because it rests on three erroneous legal propositions.

[35] First, the Transcripts are not “incriminating evidence” as that term is used in s. 13. Rather, the appellant’s refusals to answer questions put to him at the preliminary inquiry were the actus reus of a new offence (obstruct justice), committed by the appellant while on the witness stand. As Cameron J.A. explained in R. v. Staranchuk (1983), 1983 CanLII 2402 (SK CA), 28 Sask. R. 45 (Sask. C.A), 3 D.L.R. (4th) 574, at para. 4, aff’d 1985 CanLII 73 (SCC), [1985] 1 S.C.R. 439, a distinction must be drawn between testimony that requires a witness to discuss “the commission by him, previously, of an offence” and is therefore protected by s. 13, and testimony which is “the very essence of the offence”, or the actus reus of a new offence. The latter falls beyond the scope of s. 13’s protection.

[36] Second, because the appellant gave no substantive evidence, the quid pro quo rationale that underlies s. 13 did not operate. The appellant gave no “quid” because he gave no incriminating evidence within the meaning of s. 13. Consequently, he had no entitlement to the “quo” – that is, the protection offered by s. 13.

[37] Third, Schertzer is not limited to situations where the witness has provided false evidence, as the appellant contends. Rather, Schertzer stands for the proposition that s. 13 does not apply where the testimony in question amounts to the actus reus of the new offence.

[38] Accordingly, in my view, the application judge was correct to apply the legal principles in Schertzer and made no error in admitting the Transcripts on the obstruct justice trial.

. R(H.C.) v. Children’s Aid Society of Toronto

In R(H.C.) v. Children’s Aid Society of Toronto (Ont Divisional Ct, 2025) the Divisional Court conducted a case conference, here in respect of a JR of a decision of the Child and Family Services Review Board.

Here the court considers any duties of a tribunal to record and prepare a "transcript of the prehearing and hearing be produced by the Board":

[17] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”):

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

[18] The phrase “record of proceedings” is not defined under the JRPA. At common law, the record consists of “… all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings”: R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw, [1952] 1 All E.R. 122, at p. 130, per Lord Denning. The record should contain “... the pleadings or analogous documents, the evidence that was before the decision-maker, and transcripts (if oral evidence was taken and recorded for purposes of transcription).”: LifeLabs LP v. Information and Privacy Commr. (Ontario), 2022 ONSC 5751, at para. 14, per D.L. Corbett J.

[19] The Board is one of thirteen tribunals of Tribunals Ontario. At the time that the hearing was held on November 14, 2024, Tribunals Ontario had previously issued the following policy, dated June 28, 2024, which states that the Board would audio record its hearings, but not its pre-hearing events, for internal quality assurance purposes:

Starting July 2024, tribunals under Tribunals Ontario will audio record hearings. The audio recordings will be used for internal quality assurance purposes.

The Landlord and Tenant Board, Social Benefits Tribunal and Ontario Parole Board have been recording their hearings for many years. Effective July 1, 2024, the Animal Care Review Board, Assessment Review Board, Child and Family Services Review Board, Custody Review Board, Fire Safety Commission, Human Rights Tribunal of Ontario, Licence Appeal Tribunal and Ontario Special Education Tribunals will also record their hearings.

Tribunals will not audio record any “pre-hearing events” such as case management conferences, mediations, and settlement conferences unless the tribunal orders otherwise. Individuals who wish to make their own audio recording of a hearing must seek the approval of the tribunal.

[20] In light of the above policy, the Board has confirmed that an informal audio recording of the hearing held pursuant to s. 120 of the Act on November 14, 2024 exists. There is no indication of how the recording was made nor of its quality or completeness. Typically a court reporter is required to record the audio of the hearing and to take notes during the hearing, when needed, to ensure that the audio can be accurately transcribed. This formal process is consistent with the requirements for the admissibility of a transcript imposed by s. 5(2) of the Evidence Act, R.S.O. 1990, c. E.23.

[21] There is no obligation on a tribunal to prepare and keep an audio recording of a hearing for purposes of transcription, nor is there any obligation on a tribunal to have prepared a transcript: See Endicott v. Ontario (Independent Police Review Office), 2014 ONCA, at paras. 41, 46.

[22] The Board refuses to prepare a transcript of the hearing from the informal audio recording. However, it does not object if the applicant wishes to do so. The Society takes no position. I have concerns whether a transcript based on the recording will be admissible given s. 5(2) of the Evidence Act as well as the likelihood that it will be difficult to prepare a reliable transcript based on this audio. Nevertheless, the applicant is adamant that he requires a transcript of the hearing in order to advance the merits of his application for judicial review.

[23] Accordingly, I order that the Board release a copy of the informal audio recording of the hearing held on November 14, 2024 to the applicant. Any transcript prepared from this recording shall be at the applicant’s own cost. The applicant shall comply with the following terms sought by the Board:

The recording, and any transcript created from the recording, must not be used for any purpose outside of this application for judicial review and must not be shared with or disseminated to anyone. If a transcript created from the recording is filed in court on this judicial review, it must be redacted or initialized to remove any information that may have the effect of identifying the child or the child’s parents.

[24] This order should not be interpreted as determining that whatever transcript is prepared from the informal audio recording prepared for the hearing will be admitted as evidence at the hearing of the application for judicial review. The Society and the Board also reserve their right to challenge the admissibility of whatever transcript, if any, is prepared.