|This page was last substantively updated or reviewed January 2020. (Rev. # 83969)|
Hearsay evidence, such as prior statement of a witness, may be admitted for the truth of its contents under s. 540(7). However, notice must be given under s. 540(8) and may still be subject to the justice ordering the calling of the witness under s. 540(9).
A verbal utterance recorded by a police officer in his notebook is not a"statement" that is "in writing" as required by s. 540(7).
- Officer Testifying
There is some division between whether reliance upon s. 540(7) requires that the Crown call the investigating officer to testify to the hearsay statements and be subject to cross-examination on the context and continuity of the statements.
The purposes of s. 540(7) have been stated as including:
- streamlining preliminary inquiry hearings;
- focusing issues on a preliminary inquiry given that preliminary inquiry does not consider findings of credibility;
- to spare witnesses and victims of the trauma of having to testify twice;
- striking balance between protecting witnesses and allowing the case to be met; and
- providing the Crown with additional, alternative methods of presenting its case at preliminary inquiry.
Crown counsel is encouraged to use s. 540(7) particularly in light of the new need to bring a matter to trial with the presumptive ceilings.
The onus is upon the party adducing the records to show that:
- the evidence should be received under s. 540(7) and
- the evidence is "credible and trustworthy".
- Standard of Proof
The standard of proof is one of balance of probabilities.
- "Credible and Trustworthy"
For a statement to be "credible and trustworthy" the evidence must have an air of reliability.
The application of the test will vary on a "case by case" basis.
"Credibility" does not have the same meaning as it would in a trial. It is more akin to the test for admissibility on bail hearings, sentencing hearings or extradition hearings.
Where the ultimate issue of trial concerns credibility, the witness should usually be called.
The standard means only a "prima facie" case.
The determination of "credible and trustworthy" requires "some belief, based upon an objective standard of reason and commonsense." If the evidence "might reasonably be true", then it is credible and admissible.
Observations that "appear to be irrational...or... lack any objective basis in fact" are not sufficient to be credible.
- R v McCormick, 2005 ONCJ 28 (CanLII), 63 WCB (2d) 598, per Dobney J
R v Trac et al., 2004 ONCJ 370 (CanLII),  OJ No 5469, per Shaw J
cf. R v Rao, 2012 BCCA 275 (CanLII), 288 CCC (3d) 507, per Prowse JA
R v Panfilova, 2017 ONCJ 188 (CanLII), per Rose J, at para 9
Panfilova, ibid., at para 12
R v DB, 2016 MBPC 11 (CanLII), MJ No 64, per Rolston J, at para 17
R v JMC, 2015 MBPC 38 (CanLII), MJ No 342, per Champagne J, at para 42
- McCormick, supra
JMC, supra, at para 42
Panfilova, supra, at para 9
R v Trac, 2004 ONCJ 370 (CanLII), OJ No 5469, per Shaw J
- McCormick, supra
R v Rao, 2012 BCCA 275 (CanLII), 288 CCC (3d) 507, per Prowse JA (2:1), at para 72
R v Uttak, 2006 NUCJ 10 (CanLII), NJ No 11, per Kilpatrick J, at paras 12 and 13
Uttak, ibid., at para 12
Uttak, ibid., at para 12
Leave for Cross-examination
The choice to allow counsel to cross-examine a witness under s. 540(9) is a discretionary one permitted for purposes beyond testing "credibility or trustworthiness."
The justice should consider the "accused's legitimate interest in preparing his or her defence and bringing out, at preliminary hearing stage, the insufficiency or the weakness of the Crown’s evidence" and weigh against whether "the cross-examination requested by the accused is relevant to the particular situation of the person whose appearance is requested and to all of the circumstances of the case."
If the applicant cannot show relevance then the request should be denied.
R v Catellier, 2016 MBQB 190 (CanLII), per McKelvey J, at paras 86 to 92
R v Sweet, 2012 YKSC 37 (CanLII), YJ No 76, per Nation J, at para 32 (“Cross-examination under this section is not limited to the purpose of determining whether the evidence is credible and trustworthy enough to be admitted pursuant to s. 540(7).”)
R v M(P), 2007 QCCA 414 (CanLII), 222 CCC (3d) 393, per Rochette JA
- M(P), ibid.
Notice of intention to adduce hearsay evidence must be given to all counsel to the proceedings.
To admit a transcript of a wiretap interception, there is no requirement to comply with s. 189(5) notice.