Patrick J Ducharme

The air of reliability test sounds very much like another test that has been used for years to determine whether there is an evidential foundation warranting that a defence be put to a jury. According to the Supreme Court of Canada in R. v. Cinous1 the air of reality test is as follows:
Continue reading “Air of Reliability vs. Air of Reality”

Credible or trustworthy evidence is referred to in subsection 518(e) of the Criminal Code in relation to evidence admissible at bail hearings. For at least forty years the same words have been interpreted in a specific way dealing with the important issue of one’s liberty. There is no reason to think Parliament, in enacting subsections 540 (7)-(9), believed that this terminology would be given any different meaning now.
Continue reading “Credible or Trustworthy Has History”

Patrick Ducharme

How does a preliminary inquiry Judge determine credible or trustworthy evidence when the evidence is only written statements? Who bears the onus of establishing the evidence submitted by way of statements is credible or trustworthy? Credible or trustworthy is a necessary condition for the admissibility of evidence under subsection 540 (7). It requires that the presiding Justice “considers” the proposed evidence credible or trustworthy “in the circumstances of the case.” The last phrase suggests that 540 (7) applications must be considered on a case-by-case basis.
Continue reading “What is ‘Credible or Trustworthy’ Evidence?”

Patrick Ducharme

Decisions on the reasonableness of subsection 740 (8) notice or subsection 740 (7) decisions on credible or trustworthy evidence are not appealable. They are also not easily reviewable by way of extraordinary remedy. Challenges to an order of committal, or, alleged jurisdictional errors related to the evidence taken at a preliminary hearing are limited to relief sought by way of certiorari, mandamus or prohibition. The scope of these extraordinary remedies is very limited. They require proof of jurisdictional error.
Continue reading “What is the Proper Method of Challenge?”

Patrick J Ducharme

R. v. Vasarhelyi was not about these subsections. Its focus was section 507. R. v. Rao1 directly considered the goals and meaning of these provisions. The court would have granted a remedy if it was possible to do so. In the course of supporting a beleaguered accused, the court suggested that a Judge at a preliminary inquiry may, in rare circumstances, breach the rules of natural Justice.
Continue reading “Summary of Appellate Decisions”

Patrick Ducharme

In LeBlanc and Steeves v. R.1 the Court of Appeal for New Brunswick was asked to resolve a conflict between the provisions of subsection 189 (5) and subsection 540 (7). Subsection 189 (5) provides that the contents of a private communication lawfully intercepted shall not be received in evidence unless the party intending to adduce it has complied with certain notice requirements. Subsection 540 (7) provides that a Justice may receive as evidence any information that would not otherwise be admissible provided the Justice considers the evidence credible or trustworthy in the circumstances of the case.
Continue reading “The Appellate Decisions – New Brunswick”

Patrick Ducharme

The issues before the Saskatchewan Court of Appeal in R. v. Beaven1 were as follows:

a. In a preliminary inquiry where the Crown’s case was largely based on wiretap information led through the affidavit of the lead investigating officer; was the admission of hearsay identification of the accused’s voice recorded by the wiretap a jurisdictional error? and,
b. Did the denial of defence counsel’s ability to cross-examine the witness at the preliminary inquiry engage principles of natural Justice?
The case came before the appellate court after the accused’s application to quash his committal was rejected in the Superior Court. The accused was charged with trafficking in a controlled substance for the benefit of a criminal organization contrary to section 467.12 of the Code. Counsel for the accused always maintained that identification of his client was an issue. The Crown relied upon Cpl. Beaton’s affidavit that provided this information:
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Patrick J Ducharme

The Court of Appeal for Québec in 2007 considered an appeal by the Crown from a decision dismissing its application for certiorari challenging a preliminary inquiry Judge’s decision to allow the accused’s counsel to cross-examine young complainants, aged fourteen and ten.1 The accused was charged with sexual assault and sexual touching. The Crown had resisted calling the complainants at the preliminary inquiry, suggesting that having them testify would be harmful to each because they were “disturbed” as a result of the events that led to the charges.
Continue reading “The Appellate Decisions – Québec”

Patrick Ducharme

The Court of Appeal for British Columbia rendered a decision in R. v. Rao1 that directly considered the goals and meaning of these provisions. At a focus hearing conducted by the preliminary inquiry Judge the time estimated for the preliminary inquiry was significantly reduced upon the Crown’s application to file two binders of unsworn materials as its entire evidence at the inquiry. The preliminary inquiry Judge had suggested this procedure in her discussions with counsel. Defence counsel was permitted to make submissions challenging the procedure. The challenge by the defence was:
Continue reading “The Appellate Descisions – British Columbia”