Preliminary Inquiry Evidence

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General Principles

The justice presiding the inquiry will received evidence including that evidence "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." (s.540 (7)) Anytime evidence is put forward under s.540(7) there must be reasonable notice to the other parites of "the intention to tender it, together with a copy of the statement". (s. 540(8))

The crown may adduce evidence of an admission or confession by the accused “that by law is admissible” against him. (s. 542(1))

Under s. 548(1), the Court must decide whether any admissible evidence upon which a reasonable jury, properly instructed, could return a guilty verdict. [1]

Where direct evidence on each element of an offence is presented, the court must order the accused to stand trial on the charge. Exculpatory evidence will not result in a discharge of the charges.

The judge may not exclude evidence at the inquiry due to any constitutional violations.[2]

The judge does not have the authority to compel the Crown to provide particulars or disclosure to the defence or compel the production of Third Party Records. Further, the judge cannot order a stay proceedings for abuse of process. [3]

The judge however may exclude a statement of the accused as involuntary.[4]

Expert Evidence
It is an error of jurisdiction by the preliminary inquiry judge to refuse to consider the "sufficiency of the foundation" of the expert evidence.[5]

Crown Evidence
The Crown has unfettered discretion on whom they wish to call as witnesses. A judge has no authority to direct the Crown to call witnesses.[6]

  1. See R v Arcuri, [2001] 2 SCR 828, 2001 SCC 54 (CanLII)
    United States of America v Shephard, [1977] 2 SCR 1067, 1976 CanLII 8
    Mezzo v R., [1986] 1 SCR 802, 1986 CanLII 16
    Dubois v The Queen, [1986] 1 SCR 366, 1986 CanLII 60
    R v Charemski, [1998] 1 SCR 679, 1998 CanLII 819
    R v Monteleone, [1987] 2 SCR 154, 1987 CanLII 16
  2. See, R v R. (L.), 1995 CanLII 8928 (ON CA), (1995), 28 C.R.R. (2d) 173 at p. 183, per Arbour J.A.
    also R v Mills, 1986 CanLII 17 (SCC), (1986), 26 CCC (3d) 481 (S.C.C.)
    R v Seaboyer, 1991 CanLII 76 (SCC), (1991), 66 CCC (3d) 321 (S.C.C.)
    R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623, (2001), 159 CCC (3d) 359 (S.C.C.), at paras 28, 32
  3. Hynes at paras 33 and 38
    R v Chew, 1967 CanLII 214 (ON CA), [1968] 2 CCC 127 , [1968] 1 O.R. 97, 1967 CLB 46 (Ont. C.A.)
  4. Hynes, supra at paras 32 and 47
  5. R v King, 2011 ABQB 162 (CanLII)
  6. R v Brass, 1981 CanLII 2366 (SK QB), (1981), 64 CCC (2d) 206 (Sask. Q.B.)

Circumstantial Evidence, Inferences and Weighing Evidence

See also: Circumstantial Evidence and Inferences

Where circumstantial evidence is presented, the court engages in "limited weighing" of all the evidence, to determine whether a reasonable jury, properly instructed, could return a guilty verdict. This involves considering the reasonableness of the inferences drawn from the evidence.

A preliminary inquiry judge may not rely entirely on a circumstantial case by making inferences.[1]

A "reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution."[2] If the justice "does not consider the competing inferences in a manner that gives the maximum reasonable benefit to the Crown, the case law characterizes this as the justice exceeding his or her jurisdiction."[3]

  1. R v Herman, [1984] S.J. No. 206, (1984), 30 Sask.R. 148, (1984), 11 CCC (3d) 102
    c.f. R v Coke, [1996] O.J. No. 808, per Hill J. at para 9
  2. R v Coke, at para 9
  3. R v Corazza, 2013 ONCJ 433 (CanLII) at para 93

Admissions or Confessions

Confessions, admissions or statements of the accused are admissible under the same test to be applied at trial.[1] Thus the crown must advance some evidence that the statement was made and to establish beyond a reasonable doubt that it was voluntary.[2]

  1. See, R v Pickett (1975), 28 CCC (2d) 297 (Ont. C.A.) at p. 303, per Jessup J.A.
  2. For example, R v Mulligan (1955), 111 CCC 173 (Ont. C.A.) at pp. 176-7, per MacKay J.A.
    R v Pickett at p. 302

Defence Evidence

Under s. 541(2), once the Crown has closed its case at the preliminary inquiry, the presiding judge must ask the accused whether he wishes to testify on his own behalf. The address to the accused is 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.

Anything the accused says can be taken down and used as evidence.(s. 541(2))

The accused is entitled to call any witnesses he wishes (s. 541(4)). The judge should be sure to inquire whether the accused is calling any other witnesses.(s.541(3))

The judge must inquire into whether a self-represented accused has any witnesses to call as evidence.[1]

Section 657 permits any statement made under s. 541(3) to be admitted into evidence against the accused without proof of a judge's signature upon the statement.

  1. R v LeBlanc, 2009 NBCA 84 (CanLII), 250 CCC (3d) 29

Hearsay Evidence

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).

540
...
Evidence
(7) A justice acting under this Part 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.
...
Appearance for examination
(9) 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 information intended to be tendered as evidence under subsection (7).
R.S., 1985, c. C-46, s. 540; R.S., 1985, c. 27 (1st Supp.), s. 98; 1997, c. 18, s. 65; 2002, c. 13, s. 29.


CCC

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).[1]

Burden
The onus is upon the party adducing the records to show that:[2]

  1. the evidence should be received under s. 540(7) and
  2. the evidence is "credible and trustworthy".

Standard of Proof
The standard of proof is one of balance of probabilities.[3]

Credible and Trustworthy
For a statement to be"credible and trustworthy" the evidence must have an air of reliability.[4]

The application of the test will vary on a "case by case" basis.[5]

However, with the ultimate issue concerns credibility, the witness should usually be called.[6]

The determination of "credible and trustworthy" requires "some belief, based upon an objective standard of reason and commonsense".[7] If the evidence "might reasonably be true", then it is credible and admissible.[8]

Observations that "appear to be irrational...or... lack any objective basis in fact" are not sufficient tp be credible.[9]

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".[10]

  1. R v McCormick, 2005 ONCJ 28 (CanLII)
  2. R v DB, 2016 MBPC 11 (CanLII) at para 17
  3. R v JMC, 2015 MBPC 38 (CanLII) at para 42
  4. McCormick, supra
  5. JMC, supra at para 42
  6. McCormick, supra
  7. R v Uttak, 2006 NUCJ 10 (CanLII) at paras 12 and 13
  8. Uttak, ibid. at para 12
  9. Uttak, ibid. at para 12
  10. R v dCatellier, 2016 MBQB 190 (CanLII) at para 86 to 92
    R v Sweet, 2012 YKSC 37 (CanLII) 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).”)

Notice

540
...
Notice of intention to tender
(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.
...
R.S., 1985, c. C-46, s. 540; R.S., 1985, c. 27 (1st Supp.), s. 98; 1997, c. 18, s. 65; 2002, c. 13, s. 29.


CCC

To admit a transcript of a wiretap interception, there is no requirement to comply with s. 189(5) notice.[1]

  1. LeBlanc and Steeves v R., 2009 NBCA 84 (CanLII)

See Also