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| 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”.
Arguably, these subsections have the potential to eviscerate the rules of evidence normally followed at a preliminary inquiry.
Our courts have been reluctant to rely too heavily on these subsections because they can be used to effectively turn the preliminary inquiry into a “paper hearing”.1 These subsections are obviously an attempt to streamline the preliminary inquiry process. But our courts, accepting that the preliminary inquiry is also useful as a discovery vehicle, have been reluctant to accept documentary evidence pursuant to subsection 540(7) unless it is, in some way, accompanied by the viva voce evidence of witnesses who can be cross examined on their evidence in a meaningful way.
Subsection (9) provides that the Justice shall, on application of a party, require any person whom the Justice considers appropriate to appear for examination or cross-examination with respect to the information intended to be tendered as evidence under subsection (7).
A preliminary hearing Justice can allow the accused to be absent for all or part of a hearing and set conditions for such an absence.3
An agreement shall be filed with the court or recorded under subsection 536.4(2)4 Under this regime the preliminary inquiry is more controlled than the freewheeling open-ended preliminary inquiries of the past. A Justice presiding at a preliminary inquiry may order that a witness is not necessary or that a line of questioning does not fit within the parameters of a properly conducted hearing.
The Justice presiding is not given specific powers to order Crown disclosure, and ordering disclosure is not incidental to a Justice’s power to regulate the course of the preliminary inquiry. Where the Crown has not provided sufficient disclosure to allow the accused to make a reasonably informed election and the Crown requests further time to make that disclosure, a Justice should adjourn the taking of the election and allow the Crown a reasonable time to fulfill its disclosure obligations.
Any delay in the proceedings will count against the Crown on any subsequent delay application under section 11(b) of the Charter. Where there is a disagreement as to the adequacy of the disclosure, a Justice may adjourn the taking of the election of the accused to allow the accused an opportunity to obtain an appropriate remedy in the Superior Court. If the Crown improperly withholds disclosure, any delay caused by having to bring an application in the Superior Court will count against the Crown under 11(b) also.5 Mandamus with certiorari in aid is not available to challenge a Justice’s method of conducting a preliminary inquiry as when the accused seeks to challenge a Justice’s refusal to allow certain cross-examination.
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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