Criminal Law Notebook

Preliminary Inquiry Evidence

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General Principles

During a preliminary inquiry, the justice presiding the inquiry will accept evidence from witnesses and will permit cross-examination.

Taking evidence

540 (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall

(a) take the evidence under oath of the witnesses called on the part of the prosecution, subject to subsection 537(1.01), and allow the accused or counsel for the accused to cross-examine them; and
(b) cause a record of the evidence of each witness to be taken
(i) in legible writing in the form of a deposition, in Form 31, or by a stenographer appointed by him or pursuant to law, or
(ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation.


...
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; 2019, c. 25, s. 243.

– CCC


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. [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), per McLachlin CJ
    United States of America v Shephard, [1977] 2 SCR 1067, 1976 CanLII 8 (SCC), per Ritchie J
    Mezzo v R, [1986] 1 SCR 802, 1986 CanLII 16 (SCC)
    Dubois v The Queen, [1986] 1 SCR 366, 1986 CanLII 60 (SCC), per Estey J
    R v Charemski, [1998] 1 SCR 679, 1998 CanLII 819 (SCC), per Bastarache J
    R v Monteleone, [1987] 2 SCR 154, 1987 CanLII 16 (SCC), per McIntyre J
  2. ↑ 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), [2001] 3 SCR 623, (2001), 159 CCC (3d) 359 (SCC), per McLachlin CJ, at paras 28, 32
  3. ↑ Hynes, supra, 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.), per Aylesworth JA
  4. ↑ Hynes, supra, at paras 32 and 47
  5. ↑ R v King, 2011 ABQB 162 (CanLII), per Strekaf J
  6. ↑ R v Brass, 1981 CanLII 2366 (SK QB), (1981), 64 CCC (2d) 206 (Sask. Q.B.), per Kindred J

Relevancy

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.[1]

  1. ↑ R v Al-Amoud, 1992 CanLII 7600 (ON SC), per Then J
    R v Kasook, 2000 NWTSC 33 (CanLII), per Vertes J - defence permitted to re-open case for inquiry judge refusing to allow defence to test relevant evidence

Depositions

540
...

Reading and signing depositions

(2) Where a deposition is taken down in writing, the justice shall, in the presence of the accused, before asking the accused if he wishes to call witnesses,

(a) cause the deposition to be read to the witness;
(b) cause the deposition to be signed by the witness; and
(c) sign the deposition himself.
Authentication by justice

(3) Where depositions are taken down in writing, the justice may sign

(a) at the end of each deposition; or
(b) at the end of several or of all the depositions in a manner that will indicate that his signature is intended to authenticate each deposition.

...
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; 2019, c. 25, s. 243.

– CCC

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.[1]

  1. ↑ 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

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 CanLII 2664 (SK CA), [1984] S.J. No. 206, (1984), 30 Sask.R. 148, (1984), 11 CCC (3d) 102, per Campbell JA
    cf. R v Coke, [1996] OJ No 808(*no CanLII links) , per Hill J, at para 9
  2. ↑ Coke, ibid., at para 9
  3. ↑ R v Corazza, 2013 ONCJ 433 (CanLII), per Reinhardt J , 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.), 1975 CanLII 1428 (ON CA), per Jessup JA, at p. 303
  2. ↑ For example, R v Mulligan (1955), 111 CCC 173 (Ont. C.A.), 1955 CanLII 124 (ON CA), per MacKay JA, at pp. 176-7
    Pickett, supra, 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.

Hearing of witnesses

541 (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, if required by this Part, has been read, the justice shall, subject to this section and subsection 537(1.01), hear the witnesses called by the accused.

Contents of address to accused

(2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall address the accused as follows or to the like effect:

“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.”
Statement of accused

(3) Where the accused who is not represented by counsel says anything in answer to the address made by the justice pursuant to subsection (2), the answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part.

Witnesses for accused

(4) Where an accused is not represented by counsel, the justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) and (3) have been complied with.

Depositions of witnesses

(5) Subject to subsection 537(1.01), the justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with any modifications that the circumstances require.

R.S., 1985, c. C-46, s. 541; R.S., 1985, c. 27 (1st Supp.), s. 99; 1994, c. 44, s. 54; 2019, c. 25, s. 244.

– CCC

Confession or admission of accused

542 (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.

Restriction of publication of reports of preliminary inquiry

(2) Every one who publishes in any document, or broadcasts or transmits in any way, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless

(a) the accused has been discharged, or
(b) if the accused has been ordered to stand trial, the trial has ended,

is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 19]
R.S., 1985, c. C-46, s. 542; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 19.

– CCC

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.[2]

  1. ↑ R v LeBlanc, 2009 NBCA 84 (CanLII), 250 CCC (3d) 29, per Richard JA (3:0)
  2. ↑ R v Ward (1976), 31 CCC (2d) 466, 1976 CanLII 1335 (ON SC), per Cory J

Defence Evidence Useable at Trial

Any statement by an accused made under s. 541(3) can be admitted at trial:

Evidence on Trial
Use in evidence of statement by accused

657 A statement made by an accused under subsection 541(3) and purporting to be signed by the justice before whom it was made may be given in evidence against the accused at his or her trial without proof of the signature of the justice, unless it is proved that the justice by whom the statement purports to be signed did not sign it.
R.S., 1985, c. C-46, s. 657; 1994, c. 44, s. 62.

– CCC

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.
...
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]

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.[2]

Purpose

The purposes of s. 540(7) have been stated as including:[3]

  • 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.[4]

Burden

The onus is upon the party adducing the records to show that:[5]

  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.[6]

"Credible and Trustworthy"

For a statement to be "credible and trustworthy" the evidence must have an air of reliability.[7]

The application of the test will vary on a "case by case" basis.[8]

"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.[9]

Where the ultimate issue of trial concerns credibility, the witness should usually be called.[10]

The standard means only a "prima facie" case.[11]

The determination of "credible and trustworthy" requires "some belief, based upon an objective standard of reason and commonsense".[12] If the evidence "might reasonably be true", then it is credible and admissible.[13]

Observations that "appear to be irrational...or... lack any objective basis in fact" are not sufficient to be credible.[14]

  1. ↑ R v McCormick, 2005 ONCJ 28 (CanLII), per Dobney J
  2. ↑ R v Trac et al., 2004 ONCJ 370 (CanLII), per Shaw J
    cf. R v Rao, 2012 BCCA 275 (CanLII), per Prowse JA
  3. ↑ R v Panfilova, 2017 ONCJ 188 (CanLII), per Rose J, at para 9
  4. ↑ Panfilova, ibid., at para 12
  5. ↑ R v DB, 2016 MBPC 11 (CanLII), per Rolston J, at para 17
  6. ↑ R v JMC, 2015 MBPC 38 (CanLII), per Champagne J, at para 42
  7. ↑ McCormick, supra
  8. ↑ JMC, supra, at para 42
  9. ↑ Panfilova, supra, at para 9
    R v Trac, 2004 ONCJ 370 (CanLII), per Shaw J
  10. ↑ McCormick, supra
  11. ↑ R v Rao, 2012 BCCA 275 (CanLII), per Prowse JA (2:1), at para 72
  12. ↑ R v Uttak, 2006 NUCJ 10 (CanLII), per Kilpatrick J, at paras 12 and 13
  13. ↑ Uttak, ibid., at para 12
  14. ↑ Uttak, ibid., at para 12

Leave for Cross-examination

540
...

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

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".[1]

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".[2]

If the applicant cannot show relevance then the request should be denied.[3]

  1. ↑ 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).”)
  2. ↑ R v M(P), 2007 QCCA 414 (CanLII), per Rochette JA
  3. ↑ M(P), ibid.

Notice

Notice of intention to adduce hearsay evidence must be given to all counsel to the proceedings.

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), per Richard JA

Recording of Evidence and Transcription

Taking evidence

540 (1) ...

Stenographer to be sworn

(4) Where the stenographer appointed to take down the evidence is not a duly sworn court stenographer, he shall make oath that he will truly and faithfully report the evidence.

Authentication of transcript

(5) Where the evidence is taken down by a stenographer appointed by the justice or pursuant to law, it need not be read to or signed by the witnesses, but, on request of the justice or of one of the parties, shall be transcribed, in whole or in part, by the stenographer and the transcript shall be accompanied by

(a) an affidavit of the stenographer that it is a true report of the evidence; or
(b) a certificate that it is a true report of the evidence if the stenographer is a duly sworn court stenographer.
Transcription of record taken by sound recording apparatus

(6) Where, in accordance with this Act, a record is taken in any proceedings under this Act by a sound recording apparatus, the record so taken shall, on request of the justice or of one of the parties, be dealt with and transcribed, in whole or in part, and the transcription certified and used in accordance with the provincial legislation, with such modifications as the circumstances require mentioned in subsection (1).
...
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

See Also

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