Patrick J 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and shall, if application is made by the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is either discharged, or if ordered to stand trial, the trial is ended.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”

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.1 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 the Public”

Patrick J Ducharme

The broad powers of the court to regulate are contained in section 537. 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.”1
Also, subsection 537(1)(g) provides that the Justice may receive evidence on the part of the prosecutor or the accused after hearing any evidence that has been given on behalf of either of them. Although awkwardly worded, this section seems to provide the Justice with the power to allow reply evidence or rebuttal evidence.
Continue reading “Regulating Hearing”

Patrick Ducharme

Expert testimony, by either the defence or the prosecution, unless otherwise ordered by the court, may only be presented on thirty days’ notice and service of a copy of the expert’s report or summary of anticipated evidence.

It is important to note that the provisions related to expert testimony apply equally at trial or at a preliminary inquiry. Section 657.3 of the Code provides that in any proceedings the evidence of an expert may be given by means of a report accompanied by an affidavit or solemn declaration of the person setting out the qualifications of the person as an expert, and, if the court recognizes that person as an expert, the report may be used as evidence, subject to the power of the court to require the person to appear in person to be cross-examined.
Continue reading “Expert Evidence”

Patrick Ducharme

Similarly, use of business records requires that the record shall not be admitted into evidence unless the party producing the record or affidavit has at least seven days before its production, given notice of the intention to produce it to each other party, and has, within five days after receiving a notice produced it for inspection by that party unless the court orders otherwise.1 It is safe to say therefore that reasonable notice is usually somewhere between seven days and thirty days prior to the event to which the notice applies. And notice requirements may always be abridged in the discretion of the trial Judge or presiding Justice based upon reasonable grounds presented to the court. Continue reading “Business Records”

Patrick J Ducharme

What amounts to reasonable notice has never been the subject of any authoritative decision. There are, however, several yardsticks that offer some assistance. The rules of most courts require applications for adjournments to be filed with the court at least thirty days before the date fixed for the hearing of the application and not less than sixty days prior to the date fixed for trial. Applications by counsel seeking to be removed as counsel of record usually require fifteen days’ notice before the date fixed for the hearing of the application, and that date cannot be less than ten days prior to the date set for trial. Section 657.3 requires a party who intends to call an expert witness “shall at least thirty days before the commencement of the trial, or within any other period fixed by the Judge, give notice to the other party of his intention to do so”.
Continue reading “Reasonable Notice”

Patrick Ducharme

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

Patrick Ducharme

A preliminary hearing Justice can act on credible and trustworthy evidence, and/or witness statements, if reasonable notice of the intention to use statement evidence is given and subject to the right of cross- examination. Subsections 540(7) to (9) allow for the admission of evidence that would not otherwise be admissible provided the Justice considers it “credible and trustworthy in the circumstances of the case”.
Continue reading “Powers of the Justice”

Patrick J Ducharme

With or without a focus hearing, the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. Any agreement between the prosecutor and the defence shall be filed with the court or recorded under subsection 536.41
Whether there is a focus hearing is a matter of discretion for the Justice presiding at the preliminary hearing.
Continue reading “Agreement to Limit Scope”

Patrick Ducharme

The Justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the Justice’s own motion, that a hearing be held, 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, to assist the parties to identify the issues and witnesses on which evidence will be given at the inquiry and to encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
Continue reading “Focus Hearings: Section 536.4 of the Code”