Author: Patrick Ducharme

Patrick Ducharme

Prior to the commencement of the taking of evidence at a preliminary inquiry, the Justice holding the inquiry may, if application is made by the prosecutor, and shall, if application is made by the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is either discharged, or if ordered to stand trial, the trial is ended.
Continue reading “Publication Bans at Preliminary Hearings”

Patrick Ducharme

There is a general power to exclude everyone other than the prosecutor, the accused and counsel during the preliminary inquiry where the ends of Justice so require. There is also a general power to exclude witnesses from the courtroom until they are required to testify. The accused is entitled to be present.
Continue reading “Exclusion of Public from Preliminary Hearing”

Patrick J Ducharme

Section 537 of the Code provides the presiding Justice with broad powers to regulate the preliminary inquiry. These powers are made even wider because the presiding Justice may “regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act.”
Continue reading “Regulating Preliminary Inquiries”

Patrick Ducharme

If the Crown adduces direct evidence on all the essential elements of the offence(s), the case must proceed to trial, regardless of the existence of defence evidence capable of amounting to a legitimate defence. However, when the Crown’s evidence consists of, or includes, circumstantial evidence, the Judge must engage in a limited weighing of the evidence to determine whether a reasonable jury properly instructed could return a verdict of guilty based on that evidence.
Continue reading “Circumstantial Evidence”

Patrick Ducharme

The accused has the right to call witnesses. This right is mandatory and therefore the Justice does not have discretion to prevent the accused from calling witnesses or to order him to stand trial without giving the accused an opportunity to call witnesses even if the Justice is satisfied there is sufficient evidence to order that the accused to stand trial without hearing further evidence.
Continue reading “Right of Accused to Call Witnesses”

Patrick J Ducharme

Generally, the Crown will be required to call a witness to, at minimum, explain written statements and documentary evidence and provide some basis for a finding that the evidence is credible or trustworthy. It is a threshold consideration for admissibility.
Continue reading “Conclusions on Preliminary Hearings”

Patrick 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”

Patrick J Ducharme

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?”