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| 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.
Québec’s appellate court in R. v. P.M. suggested that the accused’s “right” to cross-examine permitted by these subsections should not be lightly discarded. These subsections, however, make clear that the opportunity to cross-examine is not a right.
R. v. Beaven brought the scope of supervisory remedies into sharp focus and probably most accurately reflects where future appellate decisions will go, if and when, our appellate courts are sufficiently moved to consider these provisions. LeBlanc demonstrates successful challenges by way of extraordinary remedy will be limited.
Evidentiary rulings, even if erroneous, will not amount to jurisdictional error. It will be irrelevant that a reviewing court would have reached a different conclusion. Cross-examination on 540 (7) information is, and will remain, discretionary. The right to make full answer and defence is an issue for trial, not the preliminary inquiry.
Jurisdictional error has been found in circumstances where:
a. Counsel has been refused an opportunity to make submissions;
b. The presiding Justice has failed to consider the whole of the evidence as required by subsection 548 (1) (b);
c. The presiding Justice has discharged an accused despite some evidence upon which a reasonable jury properly instructed could return a verdict of guilty, and,
d. The presiding Justice, after receiving direct evidence, weighed the competing inferences.
The types and manner of jurisdictional error are not finite. Our courts will continue to shape and hone the categories of jurisdictional error.
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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