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| Patrick J Ducharme |
a. The evidence must be taken under oath and in the presence of the accused, allowing counsel for the accused to cross-examine the witnesses.
b. The scope of evidence at preliminary hearings is extended by subsection 540(7). A Justice may receive as evidence, “any information that would not otherwise be admissible but that the Justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.” Decisions on the admissibility of the evidence are not, however, reviewable by the Superior Courts, unless there has been a jurisdictional error.
c. Counsel has the right to cross-examine even on Charter matters for use later at trial.
d. Depositions are permitted (although rare) in accordance with subsection 540(2)
e. Either party may apply for commission evidence via section 709
f. Even if commission evidence is taken for the preliminary inquiry, it may also be used at trial
g. Nothing prevents the prosecutor giving in evidence any admission, confession or statement made at anytime by the accused that by law is admissible against him, via subsection 542(1). The prosecutor is required to prove the voluntariness of a confession or statement by the accused beyond a reasonable doubt.
h. Section 13 of the Charter provides “a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings”.The purpose of section 13 is to protect individuals from being compelled to incriminate themselves. Re-trials ordered by an appellate court and preliminary inquiries are considered to be “another proceeding”.
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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