The Appellate Decisions – Saskatchewan

Patrick Ducharme
Patrick Ducharme

The issues before the Saskatchewan Court of Appeal in R. v. Beaven1 were as follows:

a. In a preliminary inquiry where the Crown’s case was largely based on wiretap information led through the affidavit of the lead investigating officer; was the admission of hearsay identification of the accused’s voice recorded by the wiretap a jurisdictional error? and,
b. Did the denial of defence counsel’s ability to cross-examine the witness at the preliminary inquiry engage principles of natural Justice?
The case came before the appellate court after the accused’s application to quash his committal was rejected in the Superior Court. The accused was charged with trafficking in a controlled substance for the benefit of a criminal organization contrary to section 467.12 of the Code. Counsel for the accused always maintained that identification of his client was an issue. The Crown relied upon Cpl. Beaton’s affidavit that provided this information:

a. Sgt. Allan Hofland, an investigator in this matter, identified Trevor Anderson as one of the voices speaking in Exhibit “B” as indicated in Exhibit “A”.
b. Cpl. Chris Wilson, an investigator, identified Tanner Beaven as one of the voices speaking in Exhibit “B” as indicated in Exhibit “A”.
c. I am able to identify Evan Richards and Tanner Beaven, the persons charged in this matter.2

Counsel for the co-accused did not object to the admission of this evidence. Counsel for Beaven did object. He argued the hearsay evidence of voice identification should not be admitted without the officer providing viva voce evidence on a voir dire, contending recognition evidence was subject to a higher standard of scrutiny. The preliminary hearing Judge admitted the affidavit, and, as a result, the accused claimed he was denied his right to cross-examine the witness who would be important to the identification issue at trial.

The Queen’s Bench Judge dismissed the accused’s application to quash on the basis that the preliminary hearing Judge was alive to the subsection 540 (7) criteria, heard evidence on the issue, and found the evidence was sufficient. The court determined that the decision was made within the jurisdiction of the preliminary inquiry Judge having been founded on the evidence presented and that it did not constitute a reviewable matter.3

The Court of Appeal for Saskatchewan rendered three concurring decisions, each rejecting the accused’s appeal. The most interesting of the three, from this writer’s perspective, was the decision of Caldwell J.A. because he offered these opinions:

a. The scope of supervisory remedies in the context of a preliminary hearing is limited. (citing R. v. Russell ,[ 2001] SCC 53 per McLachlin C.J.C. at paras.19-20.);
b. It is irrelevant whether a reviewing court would have reached the same conclusion as the preliminary hearing Judge. (citing. R. v. Skogman, [1984] 2 SCR 93 per Estey J. at p. 100);
c. An erroneous evidentiary ruling under which the only evidence on an essential ingredient of an offence is admitted is not a jurisdictional error. (citing R. v. LeBlanc et al, [2009] NBCA 84), and,
d. Cross-examining a witness at a preliminary hearing is not a component of the right to make full answer and defence. What is protected under section 7 is the right to make full answer and defence at trial, not the right to cross-examine a witness at a preliminary hearing. (citing. R. v. Bjelland [2009] 2 SCR 651 at para. 32).

Canadian Criminal Procedure by Patrick J Ducharme

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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