R. v. Vasarhelyi, 2011 ONCA 397

CITATION: R. v. Vasarhelyi, 2011 ONCA 397

DATE: 20110520

DOCKET: C50698

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pal Vasarhelyi

Appellant

Pal Vasarhelyi, appearing in person

Heather Pringle, duty counsel

Susan Ficek, for the respondent

Heard: January 17, 2011

On appeal from a decision of Justice John B. McMahon of the Superior Court of Justice on June 8, 2009.

Watt J.A.:

[1] In 1990 Pal and Ilona Vasarhelyi divorced. The divorce proceedings were acrimonious. About two decades later, the virulence lingered.

[2] In late 2008, Pal Vasarhelyi (the appellant) laid an information under oath before a justice of the peace. The appellant alleged that, decades earlier, Ilona Vasarhelyi had committed perjury, arson and fraud. The justice of the peace received the information.

[3] About a month after he laid the information, the appellant testified as the only witness on the pre-enquete held to determine whether process should issue to compel Ilona Vasarhelyi to answer to the charge. The justice of the peace refused to issue process.

[4] The appellant applied to a judge of the Superior Court of Justice for an order in lieu of mandamus to compel the justice to issue process on the information. The judge dismissed the application.

[5] Pal Vasarhelyi appeals the decision of the judge of the Superior Court. He asks that we direct the justice of the peace to issue process. For the reasons that follow, I would dismiss the appeal.

THE BACKGROUND FACTS

[6] Some procedural history and a brief recital of the essential features of the appellant’s evidence are critical to the analysis that follows.

The Information

[7] The appellant appeared before a justice of the peace on December 4, 2008, and laid an information containing allegations of arson, perjury and fraud against his former wife. According to the appellant, his ex-wife was criminally responsible for an arson at his business premises in 1985 and committed perjury on several different occasions between 1990 and 1998. The appellant claimed that his ex-wife also stole his OHIP card in 1984 and provided it to others who fraudulently obtained prescription drugs or health related services.

[8] The justice of the peace, apparently satisfied that the allegations met the requirements of s. 504(a) of the Criminal Code, received the information.

The Pre-enquete

[9] On January 12, 2009, a justice of the peace undertook a pre-enquete to determine whether process should issue to compel Ilona Vasarhelyi to answer to the charges contained in the appellant’s information. The appellant was there with counsel. A student-at-law appeared for the Attorney General. The appellant was the only witness who gave evidence at the hearing.

The Evidence at the Pre-enquete

[10] The allegations of perjury include several discrete incidents over many years.

[11] The appellant claimed that, as a result of his ex-wife’s “perjury”, he was detained at the airport for two or three hours in March, 1990, when he was taking their child to his place in Florida for March break. He says that his ex-wife told the F.B.I. that he was a “spy and an international criminal”.

[12] The appellant gave two other examples of his ex-wife’s perjury. One occurred in a family court proceeding on June 8, 1998, when she falsely claimed that he had harassed her physically and emotionally during the hearing: “officials took a restraining order against me without my knowledge”. On February 10, 1999, during the appellant’s trial on a charge of uttering death threats, his ex-wife claimed that he had hired a hit man to kill her. The appellant was in custody during the investigation and convicted of the offence charged.

[13] The appellant did not produce any transcripts of the allegedly perjured testimony of his ex-wife. Nor was any evidence adduced capable of constituting corroboration of the appellant’s allegations as s. 133 of the Criminal Code requires in prosecutions for perjury.

[14] The arson charge had to do with a fire at the appellant’s woodworking shop in 1985. The appellant’s only key to the shop had disappeared before the fire. His wife had claimed that their child had thrown the key into the toilet. While his wife was not at home, the appellant removed the toilet. He found no key. The appellant claimed that his wife had given the shop key to her (then) boyfriend.

[15] Someone from the Office of the Fire Marshall telephoned the appellant to notify him about a fire at his shop. During this discussion the appellant’s ex-wife smiled and appeared to be happy. The appellant says that this reaction also proves that his ex-wife committed arson.

[16] The allegation of fraud related to what the appellant claimed had been fraudulent use of his OHIP card to obtain antibiotics for his ex-wife’s friend who had come to Canada from Romania to obtain medical care. The appellant told the justice that his OHIP card, along with other items of his identification, had been stolen in 1984. In 2000, a nurse told him that someone had been using his OHIP card. The appellant obtained medical care with a replacement card.

[17] Despite the presence of counsel, the appellant’s responses to questions at the hearing were discursive, often unresponsive to the questions and unfocussed. When asked about the delay of decades in laying the charges, the appellant responded: “it’s a very funny question”. He explained that he wanted to wait until the only child of their marriage had grown up to avoid retaliatory measures towards the child by his ex-wife. By the time the pre-enquete took place, the child was 26 years old.

The Submissions at the Pre-enquete

[18] At the pre-enquete, counsel for the appellant contended that the appellant had adduced evidence that Ilona Vasarhelyi had made untrue statements to a justice of the peace on June 8, 1998. These statements, which included complaints that the appellant beat her, persuaded the justice to issue a restraining order against the appellant. She also lied at the appellant’s trial for uttering death threats of which he was convicted.

[19] Counsel for the appellant urged the justice of the peace to issue process on the allegations of arson and fraud. The fire at the workshop had been set by someone who had access to the building, since there were no signs of forcible entry. The evidence of the appellant pointed to his ex-wife as the only person who had access to the keys. In a similar way, the appellant’s ex-wife had exclusive access to the appellant’s identification, including his OHIP card. Thus, it was his ex-wife who stole the OHIP card and provided it to a mutual friend to obtain medical benefits to which the friend was not entitled.

[20] The articling student who appeared on behalf of the Attorney General opposed the issuance of process. He pointed out that the appellant had offered no evidence of what Ilona Vasarhelyi had actually said in any of the hearings, or that what she said was false. Further, the appellant had adduced no evidence capable of constituting corroboration as required by s. 133 of the Criminal Code.

[21] The agent of the Attorney General contended that the appellant had adduced no evidence on the arson charge that there had been an actual fire that caused damage to his workshop, let alone a fire set at the direction of or with the participation of Ilona Vasarhelyi. Her smile upon learning of the events was no evidence of her participation in them. Likewise, the link between the appellant’s ex-wife and the theft and fraudulent use of his OHIP card, as reported by an unnamed nurse years later, was unsupported by any evidence.

The Decision at the Pre-enquete

[22] At the conclusion of the pre-enquete, the justice decided not to issue process. The nucleus of his reasons for refusal appears in this passage:

Now you have to understand, the nature of a pre-enquete hearing is to decide whether process should be issued, whether these charges can go forward, whether the Crown feels that they can prosecute. The very nature of their job is to prosecute. They want to prosecute. So when I hear from a Crown that, “Listen, I don’t think that,” my Crown’s opinion is that they don’t think there’s evidence here to prosecute, I have to pay very close attention to that. And I do.

And I heard the same evidence today and I did hear a lot of hearsay evidence and I’m not satisfied, Mr. Vasarhelyi, that charges can be issued, or process can be issued on any of these charges. I’m not satisfied there’s enough evidence in the Court today to issue process. So process on all three charges, sir, are not issued.

The Application for Mandamus

[23] The appellant sought an order in lieu of mandamus to compel the justice of the peace to issue process on the information. A judge of the Superior Court of Justice dismissed the application.

[24] At the outset of his reasons for judgment, the application judge began:

I am mindful that under the provisions of s. 507.1 of the Criminal Code the applicant must satisfy the justice of the peace that there is a prima facie case based upon the evidence of a witness or witnesses called on the pre-enquette hearing. The evidence called must be admissible at law.

[25] The application judge then considered the evidence adduced in connection with each charge.

[26] In connection with the charge of perjury, the application judge noted that the only evidence about the falsity of the ex-wife’s testimony was the appellant’s opinion that she lied. The judge concluded:

The learned justice of the peace I find did not exceed his jurisdiction in electing not to issue process on the perjury charges. In fact, I find the justice of the peace was correct in law in not issuing process since there was no evidence of an essential element of the offence of perjury; i.e., there was no evidence of corroboration.[^1]

[27] The application judge concluded that the justice of the peace had not committed jurisdictional error in failing to issue process on the proposed charge of fraud. The judge reasoned:

In regard to the count of fraud, there was no admissible evidence presented at the pre-enquette to link his former wife directly to the theft of the OHIP card or its subsequent use. Further, the alleged subsequent use was provided by way of a hearsay statement received by the applicant.

He added:

Further, I am satisfied that the learned justice of the peace was again correct in law in concluding that there was insufficient evidence to issue process on the fraud charge.

[28] In his rejection of the appellant’s submissions on the arson charge, the application judge said:

In examining whether on the totality of the circumstantial evidence if the prima facie test has been met, I must note that, first, there was no admissible evidence before the learned justice of the peace that could establish that the fire was deliberately set. Second, what the superintendent is alleged to have said to the applicant twenty-four years ago would be inadmissible hearsay. Third, the applicant’s belief his former wife set the fire would not be admissible evidence at trial but would be speculation.

THE GROUNDS OF APPEAL

[29] The appellant submits that the application judge was wrong in concluding that the justice had acted within his jurisdiction in refusing to issue process. The jurisdictional error left uncorrected by refusal of mandamus, according to the appellant, was that the justice failed to consider all the evidence in deciding whether to issue process.

[30] Duty counsel advanced a different argument on the appellant’s behalf. Ms. Pringle submitted that the justice exceeded his jurisdiction by restricting his consideration to evidence that would be admissible at a criminal trial. The incorporation of the provisions of s. 540(7) of the Criminal Code, by the combined operation of ss. 507.1(8) and 507(3)(b), permits the introduction of evidence at the pre-enquete that would not otherwise be admissible in a criminal trial. Thus, the argument continues, the justice declined jurisdiction when he failed to take into account the hearsay evidence given by the appellant in determining whether to issue process.

[31] For the respondent, Ms. Ficek contends that the appellant has failed to establish any jurisdictional default or error here. The justice was simply not persuaded that the information offered by the appellant met the standard required for the issuance of process. The shortcomings in the appellant’s testimony were not limited to hearsay. What the appellant said under oath was rife with speculation, incapable of supporting any rational inference that linked the putative accused to the offences alleged. Nothing said by the appellant was above the level of unfounded suspicion.

[32] Ms. Ficek says that the referential incorporation of s. 540(7) into the pre-enquete is of no moment in this case. At bottom, evidence inadmissible under traditional rules of admissibility may only be relied upon where the justice considers it credible and trustworthy under s. 540(7) and the notice and disclosure required by s. 540(8) have been provided to the Attorney General. The justice, as he was entitled to do, considered it neither here. The application judge was right to conclude that the justice had committed no jurisdictional error.

ANALYSIS

[33] To determine whether an order in lieu of mandamus should have issued, an appropriate foundation on which to begin combines a brief measure of the purpose of the pre-enquete, a ration of the procedure that governs the hearing and a portion of the principles that govern the extraordinary remedy of mandamus.

The Pre-enquete

[34] Section 504 of the Criminal Code describes who may lay an information before a justice of the peace alleging that a person or persons committed an indictable offence. The section describes the form of the information and defines the circumstances in which the justice is required to receive it.

[35] Receipt of a sworn information by a justice of the peace does not, on its own, require the person alleged to have committed the offence to answer to the charge. The next step is a hearing or an inquiry to determine whether the person alleged to have committed the offences described in the sworn information should be compelled to appear in answer to those charges. This hearing or inquiry determines whether process should issue.

[36] The Criminal Code contains two separate provisions for inquiries about the issuance of process. The distinction resides in the status of the informant. One provision governs where the informant is a law enforcement official and the other, where the informant is a private citizen. Where, as in this case, the informant is a private citizen, s. 507.1 of the Criminal Code governs the inquiry into the issuance of process, commonly described as the pre-enquete.

[37] Under s. 507.1, the purpose of the pre-enquete is to determine whether process should issue to compel the appearance of the prospective accused to answer to the charges contained in the information. The designated justice or provincial court judge who presides at the pre-enquete decides whether a case has been made out for the issuance of process on the basis of “the allegations of the informant and the evidence of witnesses”.

[38] The language used in s. 507.1(3), which defines the conditions to be satisfied before process may issue, is discretionary: “the judge or designated justice may issue a summons or warrant”. The standard or test the judge or justice is to apply emerges from s. 507.1(2): “that a case for doing so is made out”. Sections 507.1(5) – (7) describe the effect of a finding that no case has been made out for the issuance of process.

Evidence at the Pre-enquete

[39] Section 507.1(3)(a) distinguishes between “the allegations of the informant”, on the one hand, and “the evidence of witnesses”, on the other. Unlike s. 507(1)(a)(ii), applicable to informations laid by law enforcement officers, where the introduction of the evidence of witnesses is only required where the justice “considers it desirable or necessary to do so”, s. 507.1(3)(a) appears to make the introduction of “evidence of witnesses” essential. Such a requirement serves as an important control over invocation of the criminal process to further the fevered imaginings of a private informant.

[40] Despite this apparent requirement of “the evidence of witnesses” at the pre-enquete under s. 507.1(3), the section does not specify or otherwise describe, in express words, the substance or kind of evidence that must or may be introduced on the inquiry. For example, nothing like s. 518(1), which sets the boundaries of the justice’s inquiry and delineates the nature and scope of evidence that may be received at a judicial interim release hearing, appears in s. 507.1.

[41] The absence of express provisions governing the evidence of witnesses at the pre-enquete is alleviated by the provisions of s. 507.1(8), which incorporate by reference ss. 507(2)-(8). Among the incorporated provisions of ss. 507(2)-(8) is s. 507(3)(b), which requires a justice who hears the evidence of a witness under s. 507(1), a provision like ss. 507.1(2) and (3), to “cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied”.

[42] Section 540 is one of several provisions that appear under the heading, Taking Evidence of Witnesses, under Part XVIII that deals with the procedure on the preliminary inquiry.

[43] Sections 540(1) – (5) have appeared in one form or another, since the Criminal Code of 1892. With the more recent addition of subsection (6), these provisions describe the mechanics of recording evidence received in the proceedings. They do not concern themselves with what may be given in evidence, only with how it is to be recorded once received.

[44] Sections 540(7) – (9) entered service on June 1, 2004, as part of a comprehensive series of amendments intended to expedite the hearing and circumscribe the scope of the preliminary inquiry. The current regime for private prosecutions, including the procedure to be followed at the pre-enquete, came into force on July 23, 2002. The referential incorporation of the provisions of s. 540 by what is now s. 507(3) continues provisions to the same effect that have been in force since prior to the 1955 revision of the Criminal Code.

[45] Sections 540(7)-(9) and sections 540(1)-(6) serve entirely different functions.

[46] The admissibility of evidence at a preliminary inquiry is the focus of ss. 540(7)- (9). In other words, these provisions have to do with what the justice may receive as evidence at the inquiry. Sections 540(7)-(9) expand the scope of what may be received as evidence beyond what the traditional rules of admissibility would permit. Provided the information tendered for reception is credible and trustworthy, and the opposite party has received reasonable notice of the intention to introduce it, together with disclosure, the justice may admit the information as evidence even though the traditional rules of evidence would exclude it.

[47] In contrast, ss. 540(1)-(6) have nothing to do with what may be admitted as evidence at the preliminary inquiry. Their focus is on how what is admitted as evidence is to be recorded, not on the evidentiary composition of the record.

[48] In combination, ss. 507.1(8) and 507(3)(b) appear to incorporate s. 540 in its entirety “in so far as that section is capable of being applied” to the pre-enquete. By contrast, s. 646,[^2] the marginal heading of which is also “taking evidence”, expressly excludes ss. 540(7)-(9) from its incorporation of the evidence taking provisions of Part XVIII.

[49] Unlike a preliminary inquiry to which s. 540 applies directly, a pre-enquete is not an adversarial proceeding. The person against whom the informant seeks to have process issued is not present and is not represented by counsel. The Attorney General is entitled to notice of the hearing, an opportunity to attend, to cross-examine and call witnesses and to present any relevant evidence at the pre-enquete without being deemed to intervene in the proceeding. The Attorney General may also enter a stay of proceedings on a private information as soon as the information has been laid or withdraw the information once a justice has determined that process should issue: Criminal Code, s. 579(1); R. v. Dowson, [1983] 2 S.C.R. 144; and R. v. McHale (2010), 2010 ONCA 361, 256 C.C.C. (3d) 26 (Ont. C.A.), at para. 89, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 290.

Evidentiary Decisions and Extraordinary Remedies

[50] The appellant seeks “mandamus/certiorari compelling the issuance of process”. Both mandamus and certiorari are extraordinary remedies that issue out of a superior court for jurisdictional default or excess. Each is discretionary. Neither issues as of right.

[51] An order in lieu of mandamus may be granted to compel a court of limited jurisdiction to exercise a jurisdiction or discharge a duty, but not to compel the court, tribunal or official to exercise the jurisdiction or discharge the duty in a particular way.

[52] Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made: Belgo Canadian Pulp & Paper Co. v. Court of Sessions of Peace of Three Rivers (1919), 33 C.C.C. 310 (Que. S.C. In Review), at pp. 317-318. On subjects within its jurisdiction, if a court of limited jurisdiction misconstrues a statute or otherwise misdecides the law, the remedy to correct the legal error is an appeal from the final disposition, not an application for an order in lieu of the extraordinary remedies of mandamus or certiorari: Re Longpoint Co. v. Anderson (1891), 18 O.A.R. 401 (C.A.), at pp. 406; 407-408; 411.

[53] As a general rule, errors in the admission or exclusion of evidence are not jurisdictional errors: Attorney General for Quebec v. Cohen, [1979] 2 S.C.R. 305, at pp. 307-308. Further, errors in the application of the rules of evidence are not jurisdictional errors: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17. The same may be said about errors in interpreting statutory provisions that are not jurisdictional in nature.

The Principles Applied

[54] The application of the governing principles to the circumstances of this case compel the conclusion that the application judge did not err when he refused the relief sought. I reach this conclusion, however, on a different basis than did the application judge.

[55] The task set for the justice of the peace by s. 507.1 was to determine whether he considered that the appellant had made out a case for the issuance of process to compel the appearance of the prospective accused to answer allegations of three historical indictable offences. The justice’s decision, according to s. 507.1(3)(a), was to be based upon a hearing and consideration of the allegations of the informant and the evidence of witnesses. Unlike the provisions of s. 507(1)(a)(ii), applicable to informants associated with law enforcement, s. 507.1(3)(a) appears to require the evidence of witnesses. The only “witness” here was the appellant.

[56] Section 507.1 contains no express provisions about what is admissible as evidence at the pre-enquete. Such a lacuna is scarcely remarkable. As a matter of general principle, however, it would seem logical to conclude that, at the very least, evidence that showed or tended to show the commission of the listed offences by the prospective accused would be relevant and material at the pre-enquete: R. v. Grinshpun (2004), 2004 BCCA 579, 190 C.C.C. (3d) 483 (B.C.C.A.), at para. 33, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 579.

[57] No principled reason would exclude from the evidentiary mélange at the pre-enquete, evidence that would be relevant, material and admissible (under the traditional rules of evidence) in support of committal at the preliminary inquiry or in proof of guilt at trial.

[58] We need not decide in this case whether the absence of exclusionary or more restrictive language from s. 507(3)(b) renders the expansive provisions of ss. 540(7)-(9) applicable at the pre-enquete for private informations. Nor need we decide whether competing policy considerations overwhelm the expansive language of incorporation and exclude the operation of ss. 540(7)-(9) in the non-adversarial proceedings of the pre-enquete. In the end, the conclusions at first instance and on review that process should not issue in this case are firmly grounded and unassailable. I say so for several reasons.

[59] First, when the reasons of the justice of the peace and application judge are read as a whole, neither conclusion rests exclusively on the basis that process should not issue because the evidence on which the application was grounded would not be admissible at trial.

[60] The justice of the peace referred to the hearsay nature of the appellant’s evidence, but concluded that the evidence, as a whole, was simply not sufficient to warrant the issuance of process. He did not say, expressly or by necessary implication, that process would not issue because the informant’s evidence would not be admissible at trial.

[61] Some passages in the reasons of the application judge support the contention that he considered that only “admissible evidence” could be taken into account in the decision about the issuance of process. But elsewhere the application judge refers to “no evidence” and “insufficient evidence” to justify the issuance of process. Reading his reasons as a whole, I am not satisfied that the application judge grounded his conclusion on the failure of the appellant’s evidence to satisfy the traditional rules of admissibility.

[62] Second, I have grave doubts whether an error about the nature of the evidence that may be considered in determining the issue framed for consideration of the justice at the pre-enquete amounts to jurisdictional error remediable by recourse to orders in lieu of mandamus or certiorari.

[63] Finally, the hearsay rule was well down the list of reasons for declining to issue process. The appellant’s testimony lacked many of the indicia of evidence. The appellant’s “evidence” consisted of an amalgam of unshakeable beliefs, unbridled speculation and patent animus. It left untouched many, if not most essential elements of the offences alleged in the information. On no standard of measure could it justify the issuance of process.

CONCLUSION

[64] For these reasons, I would dismiss the appeal.

“David Watt J.A.”

“I agree K. Feldman J.A.”

“I agree Paul Rouleau J.A.”

RELEASED: May 20, 2011 “KF”

APPENDIX “A”

Applicable Criminal Code provisions

Section 504

504. In what cases justice may receive information – Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

Within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

Section 507

507. (1) Justice to hear informant and witnesses – public prosecution – Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.

(2) Process compulsory – No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person may be arrested without warrant.

(3) Procedure when witnesses attend – A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and

(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.

(4) Summons to be issued except in certain cases – Where the justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) disclose reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.

(5) No process in blank – A justice shall not sign a summons or warrant in blank.

(6) Endorsement of warrant by justice – A justice who issues a warrant under this section or section 508 or 512 may, unless the offence is one mentioned in section 522, authorize the release of the accused pursuant to section 499 by making an endorsement on the warrant in Form 29.

(7) Promise to appear or recognizance deemed to have been confirmed – Where, pursuant to subsection (6), a justice authorizes the release of an accused pursuant to section 499, a promise to appear given by the accused or a recognizance entered into by the accused pursuant to that section shall be deemed, for the purposes of subsection 145(5), to have been confirmed by a justice under section 508.

(8) Issue of summons or warrant – Where on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing.

Section 507.1

507.1 (1) Referral when private prosecution – A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.

(2) Summons or warrant – A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

(3) Conditions for issuance – The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.

(4) Appearance of Attorney General – The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.

(5) Information deemed not to have been laid – If the judge or designated justice does not issue a summons or warrant under subsection 92, he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

(6) Information deemed not to have been laid – proceedings commenced – If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

(7) New evidence required for new hearing – If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

(8) Subsection 507(2) to (8) to apply – Subsections 507(2) to (8) apply to proceedings under this section.

(9) Non-application – Information laid under section 810 and 810.1 – Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.

(10) Definition of “designated justice” – In this section, “designated justice” means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.

(11) Meaning of “Attorney General” – In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.

Section 540

540. (1) Taking evidence – 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 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.

(2) Reading and signing depositions – 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.

(3) Authentication by justice – 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 all of the depositions in a manner that will indicate that his signature is intended to authenticate each deposition.

(4) Stenographer to be sworn – 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.

(5) Authentication of transcript – 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.

(6) Transcription of record taken by sound recording apparatus – 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).

(7) Evidence – 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.

(8) Notice of Intention to tender – 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.

(9) Appearance for examination – 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).

[^1]: Corroboration is not an essential element of the offence of perjury, but is an evidentiary requirement for conviction under s. 133.

[^2]: Section 646 applies to jury trials. A similar provision excluding ss. 540(7)-(9) appears in s. 557 that applies to trials without a jury.