Evidence at the preliminary inquiry is taken under oath and recorded.53As at trial, prosecution witnesses are heard first and may be cross-examined by the accused or counsel. Subsections 540(2) and (3) refer to the taking of depositions before the presiding justice or judge, but this form of receiving evidence is almost never used. Depositions are statements made and sworn before the justice and they were commonly used long ago when there were few court stenographers and no electronic means for recording the presentation of oral evidence. The modern practice is that evidence taken at the preliminary inquiry is recorded by a stenographer or by electronic means in the same manner as occurs at trial.
As a general proposition, evidence tendered at the preliminary inquiry must comply with principles and rules of admissibility that apply at trial. This means, for example, that any statement made by the accused to a person in authority must be proven to be voluntary beyond a reasonable doubt.54It also means, more generally, that the procedure for receiving evidence at a voir dire applies at the preliminary inquiry. There are, however, important qualifications that must be noted concerning the production and admissibility of evidence at the preliminary inquiry. One is that the presiding judge has no authority to call
witnesses or to force the parties (notably the prosecution) to produce particular witnesses.55Also, as previously noted, the presiding justice or judge has no jurisdiction to hear matters relating to the Charter, and so has no jurisdiction to exclude evidence or to grant any other remedy under section 24.
However, there is an important qualification concerning the admissibility of evidence in the power granted in section 540(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." The section requires prior notice by a party of the intention to tender such evidence.56This provision would potentially allow a party to tender "will-say" statements at the preliminary inquiry, or to introduce a videotaped version of a statement rather than calling a complainant to testify. For the prosecution, this would be highly efficient because it would eliminate the need to produce witnesses to give viva voce evidence.
However, the judge is entitled to order the attendance for examination and cross-examination of any person who would otherwise not be required to appear because of section 540(7).57To date, judges have tended towards protecting the fair trial rights of accused in these circumstances, and in general have treated the ability to lead otherwise inadmissible evidence narrowly and have read broadly the ability to call a witness for cross-examination. While the onus will be on the accused to show that cross-examination ought to be allowed, the burden is relatively easily satisfied when the witness in question is the complainant.58
Some cases have suggested that there should still be an expectation that witnesses will testify personally, with exceptions permitted. If, for example, the investigating officer who personally took a statement was the one who presented the evidence at the preliminary inquiry, and was in a position to say that the witness had recently confirmed the statement and was willing and available to come to trial, then section 540(7) might apply. However, it should not apply to allow the chief investigating officer to introduce a will-say statement with no personal knowledge.59Other cases have held that there are matters about which
it is reasonable for the accused to want to cross-examine the complainant at the preliminary inquiry in order to assess the case to meet at trial, and that section 540(7) was not meant to give the Crown a virtually unrestricted right to avoid offering viva voce testimony.60Section 540(7) also raises other issues. Under the section, the evidence admitted must be "considered credible and trustworthy in the circumstances of the case." That is a prerequisite for the admission of the evidence, which therefore requires that a voir dire be held during the preliminary inquiry. It also requires an understanding of what standard is set by the words "credible and trustworthy." Lower courts have attempted to articulate relevant factors: whether non-leading questions were used; whether the entire interview is to be introduced; whether the transcript is reliable; and, in the case of a child, her ability to understand the importance of telling the truth, for example.61There is also the question of exactly how reliable the evidence must be: is the standard the same as that for the principled exception to the hearsay rule, for example, or merely that there is an air of reality62These points have not yet been authoritatively determined.
In addition, of course, the section 540(7) provision creates an exception to the ordinary rules of admissibility. The most glaring question is: how far does this exception extend63For example, does it permit the justice to admit an involuntary statement by the accused to a person in authority if it is otherwise credible or trustworthy? Does it extend to any type of evidence that is specifically inadmissible by
virtue of an exclusionary rule? Whatever its limits, this provision is unusual, especially in view of the reform in favour of a limited preliminary inquiry. It allows the decision to commit at the preliminary inquiry to be based, at least in part, upon evidence that cannot be tendered at trial. Further, one would expect that evidence admitted at the preliminary inquiry under the exception in section 540(7) ought not to be heard at trial, but it is easy to imagine circumstances where precisely this might occur. For example, if an otherwise inadmissible statement is admitted under that section, and the declarant subsequently testifies at trial, can the credibility of the witness be impeached on the basis of the statement admitted at the preliminary hearing? If that statement was unsworn and admitted for the prosecution, the result may well cause prejudice to the defence. In short, it would appear that, as it is now drafted, section 540(7) is too broad.
There is another troubling difficulty with this provision. The Supreme Court has said repeatedly that it is no part of the justice’s function or jurisdiction to assess the credibility of evidence...