Patrick J Ducharme

Patrick Ducharme

Before hearing any witness called by an accused who is not represented by counsel, the Justice shall address the accused as follows:
Do you wish to say anything in answer to these charges or to any other charges, which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.
Continue reading “Warning and Statement of Accused”

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.
Continue reading “Evidence: to Include Credible or Trustworthy Evidence”

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and shall, if application is made by the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is either discharged, or if ordered to stand trial, the trial is ended.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