Circumstantial Evidence

Patrick Ducharme
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.
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Right of Accused to Call Witnesses

Patrick Ducharme
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.
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Credible or Trustworthy Has History

Patrick J Ducharme
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.
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What is ‘Credible or Trustworthy’ Evidence?

Patrick Ducharme
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.
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What is the Proper Method of Challenge?

Patrick Ducharme
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.
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Summary of Appellate Decisions

Patrick J Ducharme
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.
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