Previously Sworn Testimony Exception to Hearsay

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General Principles

See also: Traditional Exceptions to Hearsay

Under s. 715, evidence from either a previous trial or preliminary inquiry may be admitted into evidence where the witness refuses to testify, is dead, is physically or mentally ill, or is out of the country.[1]

Section 715 states under the header "Evidence Previously Taken":

Evidence at preliminary inquiry may be read at trial in certain cases
715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,
(b) has since become and is insane,
(c) is so ill that he is unable to travel or testify, or
(d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
Admission of evidence
(2) Evidence that has been taken on the preliminary inquiry or other investigation of a charge against an accused may be admitted as evidence in the prosecution of the accused for any other offence on the same proof and in the same manner in all respects, as it might, according to law, be admitted as evidence in the prosecution of the offence with which the accused was charged when the evidence was taken.
Admission of evidence
(2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justice granted under paragraph 537(1)(j.1).
Absconding accused deemed present
(3) For the purposes of this section, where evidence was taken at a previous trial or preliminary hearing or other proceeding in respect of an accused in the absence of the accused, who was absent by reason of having absconded, the accused is deemed to have been present during the taking of the evidence and to have had full opportunity to cross-examine the witness.
Exception
(4) Subsections (1) to (3) do not apply in respect of evidence received under subsection 540(7).
R.S., 1985, c. C-46, s. 715; 1994, c. 44, s. 77; 1997, c. 18, s. 105; 2002, c. 13, s. 72; 2008, c. 18, s. 34.


CCC

It must be proven that the evidence was taken in front of the accused. If so, it is admissible unless the accused didn't have full opportunity to cross examine.[2] There is an exception to this rule under s.715(2.1), where the accused was excused under s. 537(1)(j.1)

The court has a residual discretion to exclude any evidence where it would render the trial unfair.[3]

Section 715 does not violate the right to a fair hearing under s. 7 of the Charter or the presumption of innocence under s. 11(d) of the Charter.[4]

The requirements for "full opportunity" to cross-examine is limited to cases where for example, a witness refuses to answer questions of cross-examination, witness dies or disappears in the midst of cross-examination, or where the presiding judge curtails cross-examination by imposing improper limitations or restrictions."[5]

The requirement of "full opportunity" is not violated simply because the defense does not have full disclosure at the time of the examination. [6]

  1. See also R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525
  2. see s. 715
  3. R v Beah, 2013 ONSC 2490 (CanLII) at para 15
  4. R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525
  5. R v Lewis, 2009 ONCA 874 (CanLII)
  6. Lewis, ibid.