Statement of Issues and Witnesses Under Section 536.3

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General Principles

Under s. 536.3, where an accused elects to have a preliminary inquiry, counsel must provide the court and the other party with a statement that identifies the issues that the evidence should cover and a list of the witnesses expected to provide the evidence:

Statement of issues and witnesses
536.3 If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, within the period fixed by rules of court made under section 482 or 482.1 [general court rule making powers] or, if there are no such rules, by the justice, provide the court and the other party with a statement that identifies

(a) the issues on which the requesting party wants evidence to be given at the inquiry; and
(b) the witnesses that the requesting party wants to hear at the inquiry.

2002, c. 13, s. 27; 2011, c. 16, s. 3(F).
[annotations added]


CCC

Mandatory Rule
The provisions are said to be "mandatory".[1] However, these provision does not create a mandatory obligation upon the Crown to address all issues and call all witnesses on a list provided by the defence. [2]

Purpose and History
Section 536.3 came into force on June 1, 2004. Its objective was to address "concerns about the efficiency of the preliminary inquiry".[3]It was considered a compromise between those seeking to abolish the hearing and those wishing to keep it.[4]

The purpose of this section is to "streamline the preliminary inquiry process, reduce the number of witnesses who need to be called and shortened the length of the inquiry as a whole."[5]

Appropriate Issues
There is no fixed limitation on how many issues are permitted to be raised in a preliminary inquiry.[6]

The party requesting the inquiry must identify only those "issues" that "are in question in the proceeding and why they are important subjects of litigation".[7] The issues cannot be listed in a "perfunctory manner" or in "overbroad or obscure" terms.[8]

The provision assumes that the party filing notice "will do so in good faith and with a concern for the proper use of court resources".[9]

A Court may refuse to hold a preliminary inquiry where they are not satisfied that a viable issue has been raised.[10]

Improper issues include statements such as "all issues", "credibility", "mens rea and actus reus", "whether the accused was involved in or committed any criminal offence".[11]

The Criminal Rules of the Ontario Court of Justice, SI/2012-30 s. 4.3(3) sets out specific requirements for the list of issues.[12]

Crown Compliance with the List
The Crown has no obligation to call any witnesses listed on the defence's notice, especially if they are not required to address proper issues raised.[13] The only obligation of the Crown in calling evidence at the hearing is to establish a prima facie case.[14]

Defence Failure to List Issues or Witnesses
A failure to comply with s. 536.3 can result in the preliminary inquiry judge applying s. 537 to "deem" the request for a preliminary inquiry to be abandoned.[15]

  1. LeBlanc and Steeves v R., 2009 NBCA 84 (CanLII)
  2. R v Brufatto, 2011 ABPC 347 (CanLII) at para 10
    R v TP, [2006] N.J. No. 278 (P.C.), 1976 CanLII 1335 (ON SC), per Cory J
  3. R v Stinert, 2015 ABPC 4 (CanLII) at para 6
  4. Stinert at paras 6 to 17
  5. Stinert at para 24
    TP, supra at para 26 to 28 (The sections are "designed to expedite and to shorten the length of preliminary inquiries by requiring counsel to focus on issues which are being contested and the witnesses that are relevant to those issues") and ("Section 536.3 of the Criminal Code is designed to limit the scope of the preliminary inquiry").
  6. Stinert, supra at para 26
    R v Gallant, 2009 NBCA 409 (CanLII)
  7. Stinert, supra at para 25
  8. Stinert, supra at para 26
  9. TP, supra at para 28
  10. R v Morgan, 2006 YKTC 79 (CanLII), at paras 20 and 21
  11. See Stinert, supra at para 29 - lists other examples as well TP, supra at para 28 ("It assumes that counsel will not file such statements in a perfunctory manner and simply list every witness found in the disclosure provided by the Crown. Such an approach to section 536.3 by counsel would not be consistent with their responsibility as officers of the court to promote the appropriate functioning of the trial process.")
  12. see Stinert, supra at para 37
  13. TP, supra at para 28 ("It does not have the effect of requiring the Crown to call every witness listed by the accused in his or her notice.")
    Stinert, supra at para 24 to 25
    R v Ward (1976), 31 CCC (2d) 466, 35 C.R.N.S. 117, 1976 CanLII 1335 (ON SC), per Cory J
  14. Ward, ibid.
  15. Stinert, supra at paras 40 to 45
    R v Callender, 2007 ONCJ 86 (CanLII) at paras 9 to 10

Rules by Province

See also: Rules of Court

Certain provinces have enacted rules under s. 482 or 482.1 relating to the requirements under s. 536.3.

Ontario

The Criminal Rules of the Ontario Court of Justice, SI/2012-30 state:

Focus hearing, preliminary inquiry
4.3 (1) A proceeding that is to have a preliminary inquiry shall have a hearing under section 536.4 of the Code if the preliminary inquiry judge so directs.
(2) The hearing shall be attended by

(a) counsel who will be conducting the preliminary inquiry, or another counsel designated by him or her with authority to make binding decisions; and
(b) the accused, if he or she is self-represented.

Materials
(3) The party who requested the preliminary inquiry shall serve the following materials on the opposing parties, together with the statement of issues and witnesses required by section 536.3 of the Code, and file them with proof of service, at least three days before the hearing:

(a) a list of witnesses whom the parties seek to have testify in person at the preliminary inquiry and, for each witness named in the list,
(i) a brief synopsis of the expected evidence,
(ii) an explanation of why in-person testimony is necessary, and
(iii) an estimate of the time required to examine or cross-examine the witness;
(b) a list of witnesses whom the parties propose to examine through a discovery process;
(c) a brief statement as to whether committal for trial is in issue, and on what basis; and
(d) a statement of admissions agreed upon between the parties.

Absence of agreement
(4) At the conclusion of the hearing, if the parties do not agree as to the witnesses to be called at the preliminary inquiry, either party may schedule a hearing in accordance with subsections 540(7), (8) and (9) of the Code.
Discovery, preliminary inquiry
4.4 (1) At any time before committal for trial, the evidence of a witness may be taken by means of a discovery process if the parties and the preliminary inquiry judge agree.
Official record
(2) Evidence taken under subrule (1) forms part of the official record of the preliminary inquiry.
Exception, vulnerable witness
(3) Subrule (1) does not apply to a witness who is

(a) less than 18 years old; or
(b) the complainant in a proceeding involving sexual or physical violence.

...


Rules

Alberta