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RELEVANT LEGISLATION:
ss. 540 and 541 of the Criminal Code
LEAD CASE IN B.C.:
R. v. Rao, [2012] B.C.J. No. 1247 (B.C.C.A.)
The Rao case arose from a decision Judge Bagnall made in conducting a “Paper” Preliminary Inquiry. Although the Criminal Code was amended in 2004 to allow the Crown to tender documents (statements, etc.) without the necessity of calling any witnesses in order to meet their burden on committal, this really had not been done often, at least in the lower mainland. Some Crown, especially on sexual assault cases, had started to tender the complainant’s statement and then called the officer who took the statement, as permitted under s. 540 of the Code. This still allowed Defence Counsel to cross-examine the officer. However, in the Rao case, the Crown gave reasonable notice as required under s. 540(8) that they intended on calling no witnesses at the hearing. The Defence then applied to have witnesses called and Judge Bagnall did not allow that application, and found the discovery nature of the Preliminary Inquiry had been extinguished with the disclosure requirements under Stinchcombe and the 2004 amendments to the Code, allowing the Crown to tender statements without the necessity of calling the witness who made the statement. This case made its way through the Supreme Court and then to our Court of Appeal. The Court of Appeal found that although pursuant to s. 540(7) the Crown could tender their case in a paper format, Judge Bagnall erred in not allowing Defence counsel to cross-examine the witnesses under s. 540(9). They also found she exceeded her jurisdiction in not allowing the Defence to call evidence under s. 541(5), by too narrowly defining “relevant to the committal”. The Court of Appeal found the discovery role of the Preliminary Inquiry had not been extinguished or rendered obsolete.
This is good news for Defence Counsel who may still want to explore evidence of witnesses at a Preliminary Inquiry, however there are some limitations. Pursuant to s. 540(7) the Court agreed the Crown can file “information” that otherwise would not be admissible, as long as the Judge is satisfied the material is credible and trustworthy. However, when the Crown elects to proceed in this fashion, Defence Counsel can apply under s. 540(9) to examine or cross-examine “any person whom the Justice considers appropriate”, regarding evidence tendered under s. 540(7). The Court of Appeal says that section anticipates witnesses who provide information under s. 540(7) may be subject to cross–examination. There was some discussion that at the Preliminary Inquiry Defence counsel did not apply under that section, and instead referred to s. 541(5) which allows the Defence to call their own witnesses. This is an important issue to be aware of, such that the initial application to have a witness testify should be under s. 540(9). The Court referred to a Quebec case (R. v. P.M.P, 2007 QCCA 414) regarding considerations the Preliminary Inquiry Judge needs to make in assessing a Defence application under this section, which include at para. 86:
the accused’s legitimate interest in preparing his or her defence and bringing out, at the preliminary inquiry stage, the insufficiency or the weaknesses of the Crown’s evidence…the cross-examination requested by the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all the circumstances of the case. If the relevance is not demonstrated, the request will be denied.
Counsel that applies to cross-examine a witness under s. 540(9) need to frame their argument with the above comments in mind.
The Defence may also apply pursuant to s. 541(5) to call evidence of their own. This section is does not apply until the Crown has closed its case, unlike ss. 540(7) and 540(9). The Court found the 2004 amendments streamlined Preliminary Inquiries, but did not extinguish the discovery role. The Courts have said the primary function of a Preliminary Inquiry is committal, but have recognized the secondary discovery purpose. The Court found Judge Bagnall had committed jurisdictional error by not allowing Mr. Rao to call witnesses pursuant to this section. What this means is that even if a Preliminary Inquiry Judge refuses a Defence application to have witnesses presented under s. 540(9), the Defence can make further application upon close of the Crown’s case under s. 541(5) to call witnesses of their own, even if those witnesses would generally be ones called by the Crown at trial.
There was a dissent in this case by Madam Justice Garson. She found the Preliminary Inquiry ought to deal with committal issues, and that the 2004 amendments reinforced this conclusion. She found that although Judge Bagnall did not err, Parliament left discretion with the Preliminary Inquiry Judge to allow Defence to cross-examine for the purpose of discovery, even if an accused has not shown that said cross-examination is likely relevant the decision of committal. This is important in that even though she did not find in favor of Mr. Rao, she acknowledged the ancillary or secondary discovery purpose of hearing from witnesses at a Preliminary Inquiry.
It should also be noted that the Crown has not appealed this decision. In dealing with these issues in future cases, it will be interesting to see what if any limitations the Courts will put on Defence applications to call witnesses, especially Crown witnesses pursuant to s. 541(5). I expect Crown will argue the language from this decision regarding limitations to call “appropriate” evidence under s. 540(9), should also apply to an application under s. 541(5) to call evidence “relevant to the inquiry.” Because the language in these two sections is different, it will be interesting to see how the Courts deal with these applications. It may be that Defence counsel are given a wider latitude to hear from witnesses pursuant to s. 541(5). The Preliminary Inquiry Judge retains discretion to allow evidence to be presented for the discovery function. How far the Courts will go with that discretion is unclear. I expect Defence Counsel may have to articulate why they require the witness, and tie the purpose of examining or cross-examining that witness to the committal issue or to a triable or contentious issue for trial. Like everything else, it will probably depend on whom the Judge is that is making that determination, but I think this case allows Defence Counsel to ask the witness be presented even in the context of a drug case in order to allow discovery about a Charter Breach. In the Charter context, although the evidence would not relate to a committal issue, it could certainly relate to a very legitimate defence to be presented at trial. The good news is that the Rao decision clarified that Preliminary Inquiries still have a purpose, in particular, the discovery aspect, and that although they have been streamlined, an accused person can still have the opportunity to hear from some witnesses.
– Kasandra Cronin, Q.C.