Preliminary Inquiry Evidence
- 1 General Principles
- 2 Circumstantial Evidence, Inferences and Weighing Evidence
- 3 Admissions or Confessions
- 4 Defence Evidence
- 5 Hearsay Evidence
- 6 Recording of Evidence and Transcription
- 7 See Also
During a preliminary inquiry, the justice presiding the inquiry will accept evidence from witnesses and will permit cross-examination.
The taking of evidence will include 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 parties 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. 
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.
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. 
The judge however may exclude a statement of the accused as involuntary.
- 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.
- 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.
R v Arcuri,  2 SCR 828, 2001 SCC 54 (CanLII), per McLachlin CJ
United States of America v Shephard,  2 SCR 1067, 1976 CanLII 8 (SCC), per Ritchie J
Mezzo v R,  1 SCR 802, 1986 CanLII 16 (SCC)
Dubois v The Queen,  1 SCR 366, 1986 CanLII 60 (SCC), per Estey J
R v Charemski,  1 SCR 679, 1998 CanLII 819 (SCC), per Bastarache J
R v Monteleone,  2 SCR 154, 1987 CanLII 16 (SCC), per McIntyre J
See, R v R(L), 1995 CanLII 8928 (ON CA), (1995), 28 C.R.R. (2d) 173, per Arbour JA, at p. 183
also R v Mills, 1986 CanLII 17 (SCC), (1986), 26 CCC (3d) 481 (SCC), per McIntyre J
R v Seaboyer, 1991 CanLII 76 (SCC), (1991), 66 CCC (3d) 321 (SCC), per McLachlin J
R v Hynes, 2001 SCC 82 (CanLII),  3 SCR 623, (2001), 159 CCC (3d) 359 (SCC), per McLachlin CJ, at paras 28, 32
Hynes, supra, at paras 33 and 38
R v Chew, 1967 CanLII 214 (ON CA),  2 CCC 127 ,  1 O.R. 97, 1967 CLB 46 (Ont. C.A.), per Aylesworth JA
- Hynes, supra, at paras 32 and 47
- R v King, 2011 ABQB 162 (CanLII), per Strekaf J
- R v Brass, 1981 CanLII 2366 (SK QB), (1981), 64 CCC (2d) 206 (Sask. Q.B.), per Kindred J
Given the discovery function of the preliminary inquiry, the defence should be entitled to cross-examine on issues unrelated to committal but related to ultimate issues at trial.
Defence Concessions at Preliminary Inquiry
Any concessions or waiver of voir dires made at preliminary inquiry stage are irrelevant and have no binding effect upon counsel at trial.
R v Al-Amoud, 1992 CanLII 7600 (ON SC), per Then J
R v Cover (1988), 40 C.R.R. 381, 44 CCC (3d) 34 (Ont. H.C.J.), 1988 CanLII 7118 (ON SC), per Campbell J, at pp. 383-84 ("It is irrelevant that a voir dire was waived at the preliminary. Notwithstanding any waiver of a voir dire, the accused still retains the right to test the Crown's case and pin down witnesses on areas that might be relevant at trial")
Circumstantial Evidence, Inferences and Weighing Evidence
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.
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." 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."
Admissions or Confessions
Confessions, admissions or statements of the accused are admissible under the same test to be applied at trial. Thus the crown must advance some evidence that the statement was made and to establish beyond a reasonable doubt that it was voluntary.
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.
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.
- No Right to Prevent Defence from Calling Witnesses
The inquiry judge has no ability to stop defence from calling relevant evidence even where they are satisfied that there is sufficient evidence for committal.
Defence Evidence Useable at Trial
Any statement by an accused made under s. 541(3) can be admitted at trial:
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), per Dobney J
R v Trac et al., 2004 ONCJ 370 (CanLII), per Shaw J
cf. R v Rao, 2012 BCCA 275 (CanLII), 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), per Rolston J, at para 17
R v JMC, 2015 MBPC 38 (CanLII), 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), per Shaw J
- McCormick, supra
R v Rao, 2012 BCCA 275 (CanLII), per Prowse JA (2:1), at para 72
R v Uttak, 2006 NUCJ 10 (CanLII), 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 dCatellier, 2016 MBQB 190 (CanLII), per McKelvey J, at paras 86 to 92
R v Sweet, 2012 YKSC 37 (CanLII), 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), 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.