Sworn Testimony Exception to Hearsay

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This page was last substantively updated or reviewed January 2021. (Rev. # 79018)

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.
[omitted (2), (2.1) and (3)]

Exception

(4) Subsections (1) to (3) [evidence at preliminary inquiry may be read at trial in certain cases] do not apply in respect of evidence received under subsection 540(7) [accepting hearsay and other credible and trustworthy evidence].

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.
[annotation(s) added]

CCC


Note up: 715(1), (2), (2.1), (3), and (4)


Defined terms: "Canada" (s. 35 IA)

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)

Purpose of Provision

The purpose of this provision is to ensue that "evidence, even important and highly probative evidence, is not lost because of the unavailability of a witness at trial".[3]

Process of Analysis

A court's consideration should involve two steps:[4]

  1. Consideration of "textual pre-conditions" enumerated in s. 715(1)
  2. consideration of residual discretion.
Full Opportunity to Cross-Examine

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 defence does not have full disclosure at the time of the examination. [6]

The accused's ignorance to potentially useful information at the time of the cross-examination is a factor best consideration on the factor of trial fairness.[7]

Discretionary Consideration

The granting of an order under s. 715 is discretionary.[8] It should only be admitted where the admission would "operate unfairly to the accused".[9]

Decline to Order if Unfair

The court has a residual discretion to exclude any evidence where it would render the trial unfair.[10] This unfairness can take two forms:[11]

  1. unfairness in the manner in which the preliminary inquiry evidence was obtained, and
  2. unfairness in the trial itself caused by the admission of the preliminary inquiry evidence.

The focus of analysis should be upon the fairness to the accused and not place too much emphasis on the fairness of the adjudicative process.[12]

Charter Compliance

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.[13]

Consideration

The consideration should include the "crucial nature of the evidence".[14] As well, the "crucial nature of the credibility" of the witness whose evidence is being tendered.[15]

Exclusion is "Rare"

Circumstances where evidence under s. 715 is excluded is "rare".[16]

Principled Approach

Factors relevant to the principled approach may be considered, with particular importance of the factor of necessity.[17]

Thus, where conditions of s. 715(1) are not met, prior testimony may still be considered admissible under the principled apporach.[18]

  1. See also R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525, per Wilson J
  2. see s. 715
  3. R v Kuzmich, 2020 ONCA 359 (CanLII), 388 CCC (3d) 243, per Trotter JA, at para 80
    Potvin, supra at 553 (SCR)
  4. Kuzmich, supra, at para 81
  5. R v Lewis, 2009 ONCA 874 (CanLII), 249 CCC (3d) 265, per Moldaver JA
  6. Lewis, ibid.
  7. Lewis, ibid., at para 68
  8. R v Chandroo, 2020 QCCQ 2229 (CanLII), per Mascia J, at para 166 (" It should be noted that the language at s. 715(1) of the Criminal Code is discretionary: ... This discretionary language furnishes the trial judge with discretion not to admit the previous testimony in circumstances where its admission would operate unfairly to the accused.")
    R v Saleh, 2013 ONCA 742 (CanLII), 303 CCC (3d) 431, per Watt JA, at para 73
  9. Saleh, ibid., at para 73 (The discretion permits a trial judge to prevent any unfairness that could otherwise result from a purely mechanical application of the subsection: ")
  10. R v Beah, 2013 ONSC 2490 (CanLII), OJ No 1977, per Strathy J, at para 15
  11. Saleh, supra, at para 74
  12. Saleh, supra, at para 75
  13. Potvin, supra
  14. R v Michaud, 2000 CanLII 14347 (NB CA), 144 CCC (3d) 62, per Drapeau JA, at para 26
    Saleh, supra, at para 77
  15. Saleh, supra, at para 77
    R v Tourangeau, 1994 CanLII 4684 (SK CA), 128 Sask R 101 (CA), per Gerwing JA, at para 18
    R v Castanheira, [1996] OJ No 3006 (CA), at para. 2(complete citation pending)
  16. Saleh, supra, at para 78
  17. Saleh, supra, at para 76
    R v Li, 2012 ONCA 291 (CanLII), 110 OR (3d) 321, per Feldman JA, at paras 56 and 60(complete citation pending)
  18. R. c. Ste-Marie, 2021 QCCS 2342 (CanLII), per J, at para 95

Other Offences

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.

Absence of the Accused

Admission of evidence

(2.1) Despite subsections (1) [evidence from preliminary inquiry may be read at trial in certain cases] and (2) [evidence at preliminary inquiry used at trial – admission of evidence], 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) [power to permit accused to be absent during inquiry].

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.

Transcripts of Police Officer Evidence

The transcript of previous testimony from a police officer given at a preliminary inquiry or at a voir dire may be admitted into evidence on application of the Crown.

It does not appear to apply to testimony of a police officer given in the trial proper in the case of a retrial.

Transcript of evidence

715.01 (1) Despite section 715 [evidence at preliminary inquiry may be read at trial in certain cases], the transcript of testimony given by a police officer, as defined in section 183 [Part VI - Invasion of Privacy - definitions], in the presence of an accused during a voir dire or preliminary inquiry held in relation to the accused’s trial may be received in evidence at that trial.

Notice of intention to produce evidence

(2) No transcript is to be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the transcript.

Attendance of police officer

(3) The court may require the attendance of the police officer for the purposes of examination or cross-examination, as the case may be.

Admission of evidence

(4) Despite subsection (1) [transcript of evidence of peace officer admissible at trial], evidence that has been taken at a preliminary inquiry in the absence of an accused may be received in evidence for the purposes referred to in that subsection if the accused’s absence was authorized by a justice under paragraph 537(1)(j.1) [power to permit accused to be absent during inquiry].

Absconding accused deemed present

(5) For the purposes of this section, if evidence was taken during a voir dire or preliminary inquiry in the absence of an 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

(6) This section does not apply to any evidence received under subsection 540(7) [accepting hearsay and other credible and trustworthy evidence].

2019, c. 25, s. 291.
[annotation(s) added]

CCC


Note up: 715.01(1), (2), (3), (4), (5), and (6)

See Also