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| 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:
a. The defence should be given an opportunity to hear and cross-examine the witnesses;
b. Be provided an opportunity to have “some form” of discovery of the Crown’s case on the key issues; and
c. An opportunity to cross-examine witnesses related to the collection and treatment of DNA evidence which was critical to the identification of the accused as a person participating in the alleged offences.
The issues raised on this appeal were:
a. Whether the preliminary inquiry Judge exceeded her jurisdiction or breached the principles of natural Justice by committing the accused to stand trial based solely on her review of the “paper record” filed by the Crown; and
b. Whether the preliminary inquiry Judge exceeded her jurisdiction or breached the principles of natural Justice by rejecting the accused’s request to cross-examine witnesses.
Counsel for the accused had asked the presiding Judge, in moderately awkward fashion this series of questions:
“I take it, then, the procedure would be at the preliminary, Your Honour, I haven’t been through this before, but it would be that if the Crown just files these as Exhibit 1 and 2 and that would be it. Is that what could be happening here, could that be it?
The court answered in succinct fashion: “Yes.”
Counsel responded perceptively, “So, that could take five minutes.”
The court responded, “That’s right.”
The Crown filed its entire case in paper form. Counsel for the accused was not permitted to cross-examine anyone. Later, the Crown stayed proceedings on the information leading to the committal and proceeded against the accused by way of direct indictment. An application by the accused for certiorari to the Superior Court was refused. On further appeal to the Court of Appeal, the Crown argued that the issues were moot because the proceedings were stayed.
The appellate court, however, determined that the issues should be argued. The decision of the court began with, “I would allow the appeal. Since the appeal is moot, no useful purpose is served by granting any other remedy.” The appellate court pointed out that defence counsel did not expressly refer to subsection 540 (9) in his submissions. The court concluded, however, it was satisfied that counsel was, in fact, seeking to cross-examine the witnesses who generated the documents and the preliminary inquiry Judge should have turned her attention to subsection 540 (9).2 The court placed the onus on the preliminary inquiry Judge to recognize that counsel was requesting the right to cross-examine the witnesses who generated the documents even in the absence of any reference to subsection (9).
The court found that the Superior Court erred in finding that the preliminary inquiry Judge did not act in excess of her jurisdiction, or, in breach of the principles of natural Justice. The court also found that the preliminary inquiry Judge erred in concluding that the words, “relevant to the inquiry” in subsection 541 (5) meant only, “relevant to committal” and further erred in suggesting that the accused had no right to call witnesses pursuant to subsection 541 (5) if his sole purpose in doing so was to test or discover the Crown’s case. The court concluded the discovery role of preliminary inquiries had not been extinguished or rendered obsolete by these provisions.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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