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C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)
BETWEEN:
HIS MAJESTY THE KING
– and –
[ACCUSED NAME]
NOTICE OF INTENTION TO ADDUCE HEARSAY EVIDENCE
(Pursuant to Section 715(1) of Criminal Code)
WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code;
TAKE NOTICE that pursuant to the provisions of s. 715(1) of the Criminal Code at the forthcoming trial scheduled for [date], at [time am/pm] upon these charges, the Crown will introduce records, particulars are as follows:
- ______________________________________
- ______________________________________
- ______________________________________
THE APPLICANT RELIES ON THE FOLLOWING GROUNDS
- Section 715(1) grants courts the discretion to permit the admission of recorded evidence given at a preliminary inquiry or trial on the same charge where the witness is unwilling or unable to give evidence at trail on account of (a) death, (b) insanity, (c) unable to travel due to illness, or (d) absent from Canada.
- The analysis has two steps: (1) consider the "textual pre-conditions" enumerated in s. 715 and (2) consideration of residual discretion: Kuzmich, 2020 ONCA 359 (CanLII), 388 CCC (3d) 243, per Trotter JA at para 80
- The pre-conditions require that: (1) the previous preliminary inquiry or trial was "on the same charge", (2) the witness is unable or unwilling to testify for the enumerated reasons; and (3) the accused was "present during the taking of the evidence".
- Should the Crown prove the pre-conditions of s. 715(1), the evidence may be admitted "without further proof".
- However, the presumption of admission can be rebutted by the accused "prov[ing] that the accused did not have full opportunity to cross-examine the witness"; see Lewis, 2009 ONCA 874 (CanLII), 249 CCC (3d) 265, per Moldaver JA
- The court may also refuse to admit the evidence by exercising its discretion on the basis that the admission would be unfair: R v Beah, 2013 ONSC 2490, OJ No 1977 per Strathy J
- Unfairness can take two forms: Saleh, 2013 ONCA 742 (CanLII), 303 CCC (3d) 431, per Watt JA
- there is unfairness in the way the evidence was initially received
- it would be unfairness to received the evidence at the ultimate trial
- Given the requirement that the accused be present for the entirety of trial, it follows that the proper presentation of the evidence of the witness be by audio playback.
- Any additional grounds as counsel may advise and this Honourable Court may permit.
IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:
- [SET OUT documents and transcripts upon which the applicant relies upon]
- [Set out the exhibits that were filed as part of the testimony]
- ...
- Any additional evidence as counsel may advise and this Honourable Court may permit.
THE APPLICANT SEEKS THE FOLLOWING RELIEF:
- An Order of this Court declaring that:
- [describe the type of order and terms of the order].
- ...
FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:
In accordance with the appropriate Rules of Court,
[party name]
[party title]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: [email protected]
DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.
_________________________________
[Counsel's name]
[Counsel's title]
[Internal File Coding]
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