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| John L. Hill |
Kaz Cox was charged with two counts of intimidating a justice system participant. His trial began before Judge Rickcola Brinton, but when she went on indefinite leave before rendering a verdict, the trial was continued before Judge Bronwyn Duffy under s. 669.2(3) of the Criminal Code. On Feb. 25, 2025, Judge Duffy convicted Cox on one count and acquitted him on the other.
Cox appealed his conviction and, acting self-represented, filed a motion asking that the Appeal Book include transcripts from the 22 days of proceedings before Judge Brinton, arguing that they were relevant to his appeal.
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A motion to admit the transcript of the portion of the trial heard by Judge Brinton was decided by Justice David P.S. Farrar of the Nova Scotia Court of Appeal. The decision was issued on Oct. 10, 2025 (R. v. Cox, 2025 NSCA 70). The judgment is brief, comprising just 18 paragraphs. None of the evidence Cox considered relevant to support his appeal, which was allegedly contained in the transcript he sought to admit, was included in the judgment written by Justice Farrar. However, Justice Farrar was cognizant that Cox maintained that when he filed his motion on Sept. 18, 2025, he believed the testimony and appearances in the proceedings before Justice Brinton were relevant to the appeal.
The court reviewed s. 669.2 of the Criminal Code and the Supreme Court of Canada’s decision in R. v. J.D., 2022 SCC 15. That judgment clarified that when a trial restarts under that Criminal Code section, the new judge must begin as if no evidence had been heard, unless both parties consent to introducing prior testimony as evidence. Since neither Cox nor the Crown introduced any transcripts or evidence from the Brinton proceedings at the second trial, that material was not before Judge Duffy.
Justice Farrar correctly noted that during the second trial, both the prosecution and the defence are free to proceed as they see fit in presenting their evidence. The standard view is that witnesses may be recalled to testify, giving the new judge a chance to observe their demeanour. However, the parties may agree to admit evidence already presented before the first judge. When the new trial begins, the parties can decide how evidence is to be presented, either by recalling viva voce evidence or through the filing of transcripts.
Accordingly, the Appeal Court held that the earlier transcripts were not part of the record and could not be included in the Appeal Book and dismissed Cox’s motion.
One can easily view the Cox decision as entirely procedural. If Cox wanted evidence taken at the aborted trial included, he should have moved for its inclusion at the outset of his trial before Judge Duffy. He failed to do so and must live with the consequences.
On the other hand, many readers will feel that the purpose of a trial is to discern truth. If, for technical reasons, Cox failed to move for the inclusion of the Brinton proceedings to be considered by Duffy, the motions judge should have carefully evaluated what Cox wanted included in his appeal to ensure that truth would not be lost in procedural confusion. If Cox acted as a self-represented litigant at his trial (a matter not discussed in the judgment), was the trial judge in error in not providing Cox with instructions needed to ensure trial fairness? If he was represented and counsel at trial failed to include relevant information that could have prevented Cox’s conviction, was there ineffective assistance by his trial lawyer?
The motions judge here missed an opportunity by not expanding the J.D. ruling to emphasize that the court seeks the whole truth to ensure justice is done, and a wrongful conviction is avoided.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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