Titchener raised three grounds for his appeal including the fact that no video recording was made of the two witnesses who testified using sign language and an interpreter. A further issue was raised in respect of the interpretation provided for the victim who had no thumbs and therefore used an improvised form of sign language. Titchener argued that the absence of such a recording rendered the record of the proceeding insufficient thus entitling him to a new trial.
Ryan JA writing for a unanimous British Columbia Court of Appeal treated this ground of appeal as requiring three separate inquiries.
First, was a complete record of the trial made? Second, does that record, complete or not, permit meaningful appellate review? Third, did the failure to make a video record of the evidence of the witnesses who testified via a sign language interpreter result in a miscarriage of justice?
Dealing first with the completeness of the record Ryan JA reviewed the applicable federal and provincial legislative provisions including the salient portions of the Sound Recording Regulations. Ryan JA concluded that:
The focus of the legislation in British Columbia is on the making of a sound recording of the testimony of the witnesses. There is no legislative requirement that a witness who communicates in sign language through a sign language interpreter be videotaped. The recorded words of the interpreter form that part of the court record [para 22].
Ryan JA found that this was not unreasonable as the accuracy of the interpretation is safeguarded by the accreditation process for interpreters and their oath or affirmation to provide an accurate interpretation.
The Court then turned to the question of whether a meaningful appellate review could be undertaken on the basis of the transcripts produced.
Ryan JA tersely found that such a meaningful review was certainly possible on the record before the court. The Court held that:
(…) it is not an impediment to this appeal that a video recording was not made of the witnesses who testified in sign language. It is a counsel of perfection to claim that an appellant suffers an injustice if he or she cannot, after a trial, review a video recording to find shortcomings in interpretation that with care could have been detected at trial [para 33].
Lastly the Court addressed whether a miscarriage of justice had been occasioned by the absence of a video recording. The fact that the complainant had no thumbs resulted in some difficulties for the accredited interpreter. Some of these difficulties were apparent on the record during the examinations by counsel. The interpreter also spoke with Crown counsel outside of court and indicated her concerns about accurately interpretation because of the complainant’s lack of thumbs. This conversation was raised on the record by Crown counsel and all parties agreed that a second interpreter, one familiar with the complainant and her improvised signs, would be brought in to observe and offer assistance if required.
Ryan JA concluded that no miscarriage had occurred:
In my view the trial judge, with the assistance of counsel, properly addressed the issues which had risen in the trial and resolved them sensibly. I am not satisfied that the appellant has established that the difficulties in interpretation in this case resulted in a miscarriage of justice. I would dismiss this ground of appeal [para 49].
Despite dismissing the appeals, the court sent a clear message to the Attorney General:
…with the experience of this case to draw from, and with the capability of modern video technology, the Ministry of the Attorney General may wish to consider formulating a policy that would open the possibility of video recording in the case of witnesses who testify in sign language [para 5].