Author: Michael Ducharme

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”

Patrick Ducharme

In R. v. Vasarhelyi1 the Court of Appeal for Ontario considered section 507 of the Code and the procedure to be followed for issuing process when an information is laid under 504. In obiter, the court suggested that these subsections were intended to expedite the preliminary inquiry and circumscribe the scope of the hearing. Further, the court commented that these subsections expand the type of evidence that may be received on a preliminary inquiry beyond what the traditional rules of admissibility would permit. The traditional rules are expanded, provided the information tendered for reception is credible and trustworthy and the opposite party has received reasonable notice of the intention to introduce it, together with disclosure.
Continue reading “The Appellate Decisions: Ontario”

Patrick J Ducharme

Subsections 540 (7) and (8) permit the reception of copies of statements as evidence, provided:
a. Reasonable notice of the intention to tender the statements is given, together with a copy of the statements, and,
b. The Justice considers the information in those statements credible or trustworthy in the circumstances of the case.
Continue reading “Basis of Admissibility”

Patrick Ducharme

Expert evidence may be given by means of a report accompanied by the affidavit or solemn declaration of the expert, setting out in particular the qualifications of the person as an expert and with reasonable notice of the intention to produce it in evidence as long as the party intending to produce the report in evidence has also given the other party a copy of the affidavit or solemn declaration, and, the court recognizes that person as an expert. This method of producing expert evidence by means of a report is an exception to the hearsay rule. The notice is to be given thirty days before trial, or, “such other period as fixed by the Judge.”
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Patrick Ducharme

Fixing an arbitrary time limitation on cross-examination of a witness constitutes a refusal to exercise jurisdiction that can be cured by a mandamus order. Subsection 540(1)(a) permits the right of cross-examination of any witness called by the Crown. The right of cross-examination contemplated is that of full, detailed and careful cross-examination.
Continue reading “Right to Cross-Examine at Preliminary Inquiry”

Patrick J Ducharme

A Dawson application refers to a request by defence counsel at a preliminary inquiry to cross-examine police witnesses on affidavits filed in support of a wiretap authorization or in support of an application for a search warrant. A Garofoli application is the same application at trial. In Dawson1 defence lawyers sought to cross-examine police witnesses on affidavits filed in support of a wiretap authorization at a preliminary hearing.
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Patrick Ducharme

Prior to recent amendments of the Code, there would be a preliminary inquiry whenever the accused elected to be tried in a court other than the Provincial Court. Now, a request has to be made in order to have a preliminary inquiry. If a request for a preliminary inquiry is made, the prosecutor, or, if the request is made by the accused, counsel for the accused, shall within the period fixed by rules of court made under section 482 or 482.1, or, if there are no such rules, by the Justice, provide the court and the other party with a statement that identifies the issues on which the requesting party wants evidence to be given at the inquiry; and the witnesses that the requesting party wants to hear at the inquiry.1 It is the party who requests the preliminary inquiry who is required to file a statement of issues and requested witnesses. As a matter of practice, generally, both parties file this statement with the court.
Continue reading “Hearing Must Be Requested 536.3”

Patrick Ducharme

Although a Justice at a preliminary inquiry has no jurisdiction to entertain Charter applications, a Justice at a preliminary may nevertheless consider Charter “values” in exercising their statutory powers. For example, this consideration of Charter values by a Justice at a preliminary was considered in relation to making orders directed at witnesses such as wearing a hijab in court. The Justice was entitled to consider Charter values in permitting the witness to wear the hijab as part of the Justice’s powers to regulate the proceeding.
A Judge or Justice presiding at a preliminary hearing may be considered a “creation of statute” because the Judge is limited to the powers specifically outlined in the Criminal Code provisions; possessing no more than but also no less than the powers specifically provided beginning at section 537 of the Code.2 If the powers are not found within the provisions of Part XVIII then they do not exist. For example, the power to order production of a statement via section 10 of the Canada Evidence Act is limited to the circumstance of a “trial” and therefore a preliminary hearing Judge does not have the power to order production of a statement.
Continue reading “The Role of the Judge in a Preliminary Healing”