R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525

R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525

Pierre Potvin Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada and

the Attorney General for Ontario Interveners

indexed as: r. v. potvin

File No.: 20116.

1988: October 6; 1989: March 23.

Present: Dickson C.J. and Lamer, Wilson, La Forest and Sopinka JJ.

Constitutional law -- Charter of Rights -- Fundamental justice ‑‑ Fair trial -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether s. 643(1) of the Code infringes s. 7 of the Canadian Charter of Rights and Freedoms.

Constitutional law -- Charter of Rights -- Presumption of innocence -- Fair trial -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether s. 643(1) of the Code infringes s. 11(d) of the Canadian Charter of Rights and Freedoms.

Criminal law -- Evidence previously taken -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether s. 643(1) of the Code infringes ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Criminal law -- Evidence previously taken -- Discretion to exclude -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether trial judge has discretion to exclude evidence where conditions of s. 643(1) of the Code met -- Whether trial judge erred in admitting such evidence.

Criminal law -- Charge to jury -- Evidence of witness given at accused's preliminary inquiry admitted at trial following witness' refusal to testify at the accused's trial -- Witness cross-examined by accused's counsel at the preliminary inquiry -- Whether trial judge erred in not warning the jury that caution should be exercised before accepting previously taken evidence in the absence of live cross-examination -- Whether a warning is required when previously taken evidence introduced at trial is from an accomplice -- Criminal Code, R.S.C. 1970, c. C-34, s. 643(1).

Criminal law -- Charge to jury -- Failure to testify -- Whether trial judge's comments on the accused's failure to testify constitute a violation s. 4(5) of the Canada Evidence Act.

The accused and two alleged accomplices, D and T, were charged with second degree murder. The Crown proceeded against the accused first with the intention of using the other two as witnesses. Although he had testified at the preliminary inquiry, D refused to testify at the accused's trial. The trial judge allowed the Crown's application, made pursuant to s. 643(1) of the Criminal Code, to have the transcript of D's testimony at the preliminary inquiry introduced as evidence and rejected the accused's claim that the admission of the previously taken evidence would violate his rights under the Canadian Charter of Rights and Freedoms. The accused was convicted and his appeal to the Court of Appeal dismissed. The Court held that the admission of previously taken evidence under s. 643(1) did not violate ss. 7 or 11(d) of the Charter and that the trial judge made no error in admitting the evidence. The Court found that, once the conditions of s. 643(1) were met, the judge had no discretion to exclude the evidence, except perhaps pursuant to the residual common law discretion defined in Wray. The Court also held, after examining the charge to the jury, that the trial judge had not directed the jury's attention to the fact that the accused did not testify at his trial contrary to s. 4(5) of the Canada Evidence Act. Nor was the trial judge's warning to the jury as to the dangers of accepting D's testimony inadequate.

Held: The appeal should be allowed and a new trial ordered.

Per Lamer, Wilson and Sopinka JJ.: Section 643(1) of the Code, in so far as it allows evidence given at a preliminary inquiry to be admitted at a criminal trial when a witness is unavailable or unwilling to testify, does not infringe s. 7 of the Charter because it provides that the evidence will only be admitted if the accused has had a full opportunity to cross-examine the witness at the time the evidence was given. It is basic to our system of justice that an accused have a full opportunity to cross-examine the adverse witness. But the right to confront unavailable witnesses at trial is neither an established nor a basic principle of fundamental justice. To the extent that s. 7 guarantees the accused a fair trial, it cannot be said, in the absence of circumstances which negated or minimized the accused's opportunity to cross‑examine the witness when the previous testimony was given, that the admission of the previously obtained testimony under s. 643(1) was unfair to the accused. It is the opportunity to cross-examine and not the fact of cross‑examination which is crucial if the accused is to be treated fairly. The same is true of the accused's right to a fair trial guaranteed by s. 11(d) of the Charter.

Section 643(1) of the Code does not violate the presumption of innocence guaranteed by s. 11(d) of the Charter by the fact that, under s. 643(1), the accused, and not the Crown, bears the burden of proving that he did not have a full opportunity to cross-examine the witness at the time the evidence was given. Absent exceptional circumstances not present here, it is perfectly reasonable to expect an accused to be able to prove whether or not he was deprived of a full opportunity to cross-examine the witness. Only the accused, after all, knows what was comprised in that "full opportunity" and the extent to which, if at all, it was denied or restricted. A denial or restriction can only have taken place if the intention or desire to pursue certain questions was present and was frustrated.

The trial judge did not violate s. 4(5) of the Canada Evidence Act in directing the jury's attention to the fact that the accused did not testify in his own defence. Section 4(5) requires something more than an offhand reference to the fact that an accused did not testify at trial. The trial judge's first comment was part of a general direction to the jury at the beginning of the charge. The second comment was in the nature of an offhand remark. Even if that remark could have prejudiced the accused, it was more than compensated by the trial judge's unambiguous and sustained comments throughout the charge concerning the burden on the Crown to prove the guilt of the accused.

A new trial should be ordered, however, because the trial judge misdirected himself as to the proper interpretation of s. 643(1) of the Code and because of the combined effect of the trial judge's failure to warn the jury concerning the use of s. 643(1) and his erroneous instruction that the transcript of testimony taken at the preliminary inquiry should be treated in the same manner as live testimony given at trial.

The trial judge has, under s. 643(1) of the Code, a discretion whether or not to admit the previous testimony once the conditions set out in the section are met. The word "may" in s. 643(1) is addressed to the trial judge and gives him a statutory discretion to depart from the purely mechanical application of the section. The discretion should be construed broadly enough to deal with situations where the testimony was obtained in a manner which was unfair to the accused or where, even though the manner of obtaining the evidence was fair to the accused, its admission at his trial would not be fair to the accused. Section 643(1), therefore, confers on the trial judge a discretion broader than the traditional evidentiary principle that evidence should be excluded if its prejudicial effect exceeds its probative value. In this case, the trial judge did not instruct himself properly as to the nature and scope of his discretion under s. 643(1). He stressed the high probative value of the evidence but failed to give adequate consideration to possible unfairness to the accused arising from either the manner in which the evidence was obtained or the effect of its admission on the fairness of the trial. The Court of Appeal proceeded on the basis that the trial judge had no discretion other than the restrictive common law formulation in Wray. Neither court applied its mind to the question whether in the circumstances of this case the trial judge should have exercised his statutory discretion in s. 643(1) to exclude the evidence.

Further, it is highly desirable in all cases in which previous testimony is introduced at trial pursuant to s. 643(1) of the Code, and in particular in a case such as this where the unavailability of the witness to testify at trial is the result of a deliberate decision by the witness not to give his evidence under oath before the trier of fact, that the trial judge remind the jury that they have not had the benefit of observing the witness giving the testimony. A failure to do so will not constitute a reversible error in every case. Here, however, the trial judge compounded the failure to warn with an instruction designed to give the jury the impression that the transcript of D's testimony at the preliminary inquiry was evidence like all the other testimony at the trial. This was wrong. D's testimony differed from the other testimony the jury heard at trial because it alone was not subject to live cross-examination at the trial. His evidence was crucial in that it purported to be an eyewitness account which, if believed, was almost conclusive of the accused's guilt.

Where accomplice's evidence is introduced at trial pursuant to s. 643(1) of the Code, it is for the trial judge in every case, on the basis of his appreciation of all circumstances, to decide whether a warning is required.

Per Dickson C.J. and La Forest J.: Section 643(1) of the Criminal Code is not directly addressed to the prosecution or the judge, although it has implications on how they perform their duties. The provision is directed at a certain type of evidence. It makes it admissible. The parties to a trial may, therefore, invoke the provision if they wish. But the provision does not provide that the evidence previously taken shall be accepted; it provides, rather, that it may be read as evidence. This leaves room for the operation of the ordinary principles of the law of evidence, including the rule that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value. That discretion, which is grounded in the judge's duty to ensure a fair trial, is not limited solely to situations where the evidence is highly prejudicial to the accused and only of modest probative value. In this case, the trial judge failed to properly instruct himself either about the existence of the discretion or, more likely, about its nature. He repeatedly stressed the relevance of the evidence without any consideration of its prejudicial character. Therefore, the trial judge failed to exercise the discretion which was incumbent upon him to ensure a fair trial.

In other respects, there was agreement with their colleagues.

Cases Cited

By Wilson J.

Applied: McConnell and Beer v. The Queen, 1968 22 (SCC), [1968] S.C.R. 802; approved: R. v. Rodgers (1987), 1987 4924 (SK CA), 35 C.C.C. (3d) 50; R. v. Davidson (1988), 1988 7067 (ON CA), 42 C.C.C. (3d) 289; disapproved: R. v. Speid (1988), 1988 7060 (ON CA), 42 C.C.C. (3d) 12; referred to: Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Hamilton (1898), 1898 100 (MB CA), 2 C.C.C. 390; R. v. Hall, [1973] 1 All E.R. 1; Ohio v. Roberts, 448 U.S. 56 (1980); Rose v. The King (1946), 1946 365 (QC CA), 88 C.C.C. 114; Lambert v. The Queen (1974), 28 C.R.N.S. 238; R. v. Devlin (1976), 1976 1348 (NB CA), 32 C.C.C. (2d) 334; United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067; Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3; R. v. Tretter (1974), 1974 713 (ON CA), 18 C.C.C. (2d) 82; R. v. Cole (1980), 1980 2838 (ON CA), 53 C.C.C. (2d) 269; R. v. Oda (1980), 1980 327 (BC CA), 54 C.C.C. (2d) 466; R. v. Kaddoura (1987), 56 Atla. L.R. 126; R. v. Bannerman (1966), 1966 634 (MB CA), 48 C.R. 110 (Man. C.A.), aff'd (1966), 1966 602 (SCC), 50 C.R. 76 (S.C.C.); R. v. Sophonow No. 2 (1987), 1986 104 (MB CA), 25 C.C.C. (3d) 415; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670; R. v. Romanick (1959), 2 Crim. L.Q. 471; R. v. Waucash (1966), 1 C.R.N.S. 262; R. v. Moore (1973), 1973 1497 (ON SC), 17 C.C.C. (2d) 348; Noor Mohamed v. The King, 1949 437 (UK JCPC), [1949] A.C. 182; R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272; Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811; Morris v. The Queen, 1983 28 (SCC), [1983] 2 S.C.R. 190; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265; R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233; Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383; R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618.

By La Forest J.

Referred to: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670; R. v. Tretter (1974), 1974 713 (ON CA), 18 C.C.C. (2d) 82; R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272; Noor Mohamed v. The King, 1949 437 (UK JCPC), [1949] A.C. 182; R. v. Sang, [1980] A.C. 402.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4(5).

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), (f), 12.

Criminal Code, R.S.C. 1927, c. 36, s. 999.

Criminal Code, R.S.C. 1970, c. C-34, s. 643(1).

Criminal Code, S.C. 1953-54, c. 51, s. 619.

Authors Cited

Delisle, R. J. Annotation (1986), 50 C.R. (3d) 195.

Dougherty, Francis M. "Admissibility or Use in Criminal Trials of Testimony Given at Preliminary Proceeding by Witness not Available at Trial" (1985), 38 A.L.R. 4th 378.

Speyer, Christopher. "The discretion vested in the Court to admit or to exclude as evidence at trial depositions of witnesses taken at a preliminary inquiry pursuant to s. 619 of the Criminal Code" (1967), 1 C.R.N.S. 267.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 5. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1974.

APPEAL from a judgment of the Quebec Court of Appeal, 1986 3601 (QC CA), [1986] R.L. 300, 2 Q.A.C. 81, dismissing the accused's appeal from his conviction on a charge of second degree murder. Appeal allowed and new trial ordered.

Alain Dumas and Line Boivin, for the appellant.

Michel Parent, for the respondent.

Jacques Letellier, Q.C., and Karim Benyekhlef, for the intervener the Attorney General of Canada.

S. Casey Hill, for the intervener the Attorney General for Ontario.

//La Forest J.//

The reasons of Dickson C.J. and La Forest J. were delivered by

LA FOREST J. -- I have had the advantage of reading the reasons of my colleague, Justice Wilson. I agree with her conclusion and, apart from what follows, her reasoning as well. However, I take a different view of s. 643(1) of the Criminal Code and, in consequence, of the source of the discretion to exclude the evidence permitted to be adduced under that provision.

As I read s. 643, it is not directly addressed to the prosecution or the judge, although it has, of course, implications for how they perform their duties. The provision is directed at a certain type of evidence. It makes it admissible. The parties to a trial may, therefore, invoke the provision if they wish. But the provision does not provide that the evidence previously taken shall be accepted; it provides, rather, that it may be read as evidence. This leaves room for the operation of the ordinary principles of the law of evidence, including the rule that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value; see R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at pp. 729-36; see also R. v. Tretter (1974), 1974 713 (ON CA), 18 C.C.C. (2d) 82. The case most frequently cited for the discretion to exclude is R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, where it is referred to in a dictum by Martland J. at pp. 292-93, but it is simply one of the fundamental postulates of the law of evidence.

As my colleague notes, some have interpreted Martland J.'s dictum as limiting the discretion solely to situations where the evidence is highly prejudicial to the accused and is only of modest probative value. I do not accept this restrictive approach to the discretion. As I noted in Corbett, supra, at pp. 736-40, this narrow view, which can be traced from a statement by Lord du Parcq in Noor Mohamed v. The King, 1949 437 (UK JCPC), [1949] A.C. 182 (P.C.), at p. 192, has now been rejected by the House of Lords: R. v. Sang, [1980] A.C. 402. That case, and others there referred to, make it clear that under English law, a judge in a criminal trial always has a discretion to exclude evidence if, in the judge's opinion, its prejudicial effect substantially outweighs its probative value. Lord Fraser of Tullybelton put it this way at pp. 446-47:

The judge in these circumstances has a discretion to exclude the evidence not only if its probative weight is "trifling" -‑ see Noor Mohamed v. The King 1949 437 (UK JCPC), [1949] A.C. 182, 192 -‑ but whenever its prejudicial effect would be "out of proportion to its true evidential value" -‑ see Harris v. Director of Public Prosecutions [1952] A.C. 694, 707, Viscount Simon quoting Lord Moulton in Rex v. Christie [1914] A.C. 545. I read the latter expression as meaning that the discretion can be exercised where the prejudicial value of the evidence would greatly exceed its probative value.

Lord Diplock, at pp. 433-34, Viscount Dilhorne, at pp. 438-39, and Lord Salmon, at p. 445, express similar opinions. As their Lordships make clear, the discretion is grounded in the judge's duty to ensure a fair trial; see the same judges respectively at pp. 437, 439, 447. I am in accord with their view of the nature of the discretion.

On a reading of the trial judge's comments in relation to the Crown's application to have the evidence admitted, which is cited by my colleague, it is evident that the trial judge failed to properly instruct himself either about the existence of the discretion or, more likely, about its nature. He repeatedly stresses the relevance of the evidence without any consideration of its prejudicial character. This smacks of the restricted view of the discretion I have rejected. In my view, therefore, the trial judge failed to exercise the discretion which was incumbent upon him to ensure a fair trial.

For that reason, as well as the erroneous instruction of the trial judge to the jury that the testimony taken at the preliminary hearing should be treated in the same manner as live testimony given at trial, I would, like my colleague, allow the appeal and order a new trial. I would also answer the constitutional questions in the manner proposed by her.

//Wilson J.//

The judgment of Lamer, Wilson and Sopinka JJ. was delivered by

WILSON J. -- The main issue on this appeal is whether the admission at trial of previously taken evidence under s. 643(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C. 1985, c. C-46, s. 715(1)), as amended, violates an accused's rights under ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms. Other issues raised on the appeal are whether, assuming no such Charter violation, the trial judge nevertheless erred in admitting such evidence, in not providing an adequate warning to the jury concerning the dangers of accepting previously taken evidence of an accomplice in the absence of live cross-examination, and in making reference to the appellant's not having testified at his trial contrary to the Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4(5).

I. The Facts

On April 21, 1983 the appellant, Pierre Potvin, his girl friend Josée Thibault and Benoît Deschênes met in a bar and planned to go to the home of an acquaintance, Paulette Liversain, and steal her jewellery. The three, along with two other friends, arrived at the home of Mrs. Liversain at 2:30 in the morning of April 22, 1983. The two other friends left shortly after their arrival in order to obtain more beer. What happened next is not exactly clear. Mrs. Liversain apparently became aware of the trio's intentions and was severely beaten. She died of her injuries and the appellant, Josée Thibault and Benoît Deschênes were all charged with second degree murder.

The Crown proceeded against the appellant first with the intention of using the other two as witnesses. Although he had testified at the preliminary inquiry, Benoît Deschênes refused to testify at the appellant's trial. The Crown then applied to the judge to have the transcript of Deschênes' testimony at the preliminary inquiry introduced as evidence at the appellant's jury trial under s. 643(1) of the Criminal Code. The trial judge held that the requirements of s. 643(1) of the Criminal Code had been met and that the previously taken testimony should be admitted as evidence at the trial. The appellant's defence was that Josée Thibault and Benoît Deschênes and not himself inflicted the fatal injuries on Mrs. Liversain. The appellant was found guilty of second degree murder.

II. Legislation

Section 643(1) of the Criminal Code provides as follows:

643. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial upon the same charge, or whose evidence was taken in the investigation of the charge against the accused or upon the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved upon oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada.

and where it is proved that his evidence was taken in the presence of the accused, it may be read as evidence in the proceedings without further proof, if the evidence purports to be signed by the judge or justice before whom it purports to have been taken, unless the accused proves that it was not in fact signed by that judge or justice or that he did not have full opportunity to cross-examine the witness.

Section 4(5) of the Canada Evidence Act provides:

4. ...

(5) The failure of the person charged, or the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.

The relevant sections of the Charter provide:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

3. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

III. The Judgments Below

Quebec Superior Court

Upon the application by the Crown to admit as evidence the transcript of Benoît Deschênes' testimony at the preliminary inquiry, the trial judge concluded that the conditions for admission of the evidence under s. 643(1) had been met. He stated:

[TRANSLATION] In the case at bar the conditions laid down by The Queen v. Lambert, a case cited by the Crown and a decision of our Court of Appeal, have been met and the fact that this is a case of murder does not, with great respect for the submission of counsel for the defence, lead me to conclude that a greater injustice would result, but on the contrary suggests that in a case where there is a charge of this importance, the exercise of judicial discretion if the conditions specified in s. 643 have been met -- the exercise must be in a positive manner along the lines suggested by the prosecution.

So, for these reasons and because the conditions set by the Act have been met to my satisfaction by the Crown, inter alia as a consequence of the admission by the defence, and because I also think it is in the higher interests of justice for this testimony to be part of the evidence, since under the criteria of relevance -- counsel forgot to raise this before me -- it is extremely relevant . . .

I considered it in advance, because I did think that this application would be made to me this morning. It is extremely relevant since he is one of the three -- one of the three persons living who was or may have been in the victim's residence when the events occurred.

So we will not consider the relevance of this testimony for a single moment longer -- the accused had an opportunity to cross‑examine on this testimony at the preliminary inquiry. The witness was cross-examined by two or three people.

So, despite his humble -- and in passing I would say noble -- effort, undoubtedly intended to render assistance to someone in this case, his testimony will be read since that is my decision.

His testimony will be read to the jury at once and will be part of the evidence like any other testimony given in the course of this trial, in accordance with the actual wording of the Criminal Code, which is always the best authority. The wording of the Code itself is always the best authority that I can be referred to.

However, he rejected the appellant's claim that the admission of the previously taken evidence would violate his rights under the Charter stating:

[TRANSLATION] First, to deal with the question of the Charter, I accept the argument of your colleague that this provision of the legislator, this provision of the Criminal Code authorized by law --the Criminal Code is public law -- giving discretion to the Court, this legislation not only exists but is authorized in the Canadian Criminal Code, and as Mr. Parent pointed out, has been interpreted and applied by the courts on various occasions -- on certain occasions.

Though such applications or interpretations were prior to the Charter, I do not know that s. 643, which is cited in support of the application at bar, offends against the provisions of the Charter, to which I was referred by learned counsel for the defence.

That the procedure is unusual in the sense that it is rare -- and a moment ago we were given a good interpretation, or a good explanation, of the fact that it is rare, because fortunately in this country people of the stamp, the quality or weakness of the sort of person I convicted this morning are rare as well. There is a direct connection between the rarity of people of this type and of cases which cause the procedure to take an unusual direction, because it is rarely used: I too am glad that it is rare.

However, the fact that it is rare -- that it is unusual -- should not cause the Court to reject it because of the Charter and in general. I do not personally see how this procedure of an unusual nature falls within the language of the Charter, which is "unusual treatment".

Furthermore, it can readily be seen from the proximity in the Charter of the adjective and epithet "cruel", the spirit of the Charter and the meaning that must be given to the word "unusual" can readily be understood.

The appellant was found guilty of second degree murder.

Quebec Court of Appeal

The Quebec Court of Appeal (Montgomery, L'Heureux-Dubé and McCarthy JJ.A.) dismissed the appellant's appeal, holding that the admission of previously taken evidence once the conditions of s. 643(1) of the Criminal Code had been met did not violate ss. 7, 11(d) or (f) of the Charter: (1986), 1986 3601 (QC CA), 2 Q.A.C. 81. The Court also concluded that the trial judge had made no error in admitting the evidence. Once the conditions prescribed in s. 643(1) had been met the Court concluded that the judge had no discretion to exclude the prior testimony as evidence at the trial, except perhaps pursuant to the residual common law discretion defined by this Court in R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272. McCarthy J.A. stated for the Court at p. 84:

[TRANSLATION] As regards the argument that the trial judge improperly exercised a discretion conferred on him by s. 643, by admitting the testimony given by Deschênes at the preliminary inquiry, I cannot accept this. The word "may" in s. 643 confers a right on the parties, it does not give the judge a discretion: R. v. Tretter (1975), 1974 713 (ON CA), 18 C.C.C. (2d) 82 (Ontario C.A.), at 89; R. v. Oda, R. v. Lawson (1981), 1980 327 (BC CA), 54 C.C.C. (2d) 466 (British Columbia C.A.), at 468. Admitting evidence relevant to the point at issue and of significant evidentiary force may have an unfavourable effect for the accused without being inequitable: R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, at 293 (per Martland J., for the majority).

The Court of Appeal also concluded, after examining the trial judge's charge to the jury, that the trial judge had not, as was alleged, directed the jury's attention to the fact that the appellant did not testify at his trial contrary to s. 4(5) of the Canada Evidence Act. Nor was the trial judge's warning to the jury as to the dangers of accepting the testimony of the alleged accomplice Benoît Deschênes inadequate under this Court's decision in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811.

This Court granted leave to appeal the Court of Appeal's decision to this Court on March 26, 1987, [1987] 1 S.C.R. xii, and the Chief Justice subsequently set the following constitutional questions:

1. Does section 643 of the Criminal Code in so far as it allows the Crown to ask the trial judge to read as evidence before a jury the evidence of an accomplice given at the preliminary inquiry, when the said accomplice refuses to give evidence at the trial, violate ss. 7, 11(d) and 12 of the Canadian Charter of Rights and Freedoms?

2. If the answer to question 1 is in the affirmative, is the resort to that section justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

IV. The Issues

The appellant submits that s. 643(1) of the Criminal Code as applied in this case violates his rights under ss. 7 and 11(d) of the Charter and is not justified under s. 1. In the alternative, he says that the trial judge erred in not exercising his discretion under s. 643(1) to refuse to admit the transcript as evidence in the circumstances of this case. The Crown alleges, on the other hand, that the Court of Appeal was correct in holding that a trial judge has no discretion under s. 643(1) once the requirements of the section have been met and that, even if the trial judge in this case did have such a discretion, he did not err in his refusal to exercise it against the admission of the previous testimony.

The appellant also argues that the trial judge erred in not warning the jury that recourse to s. 643(1) is an unusual procedure and that the evidence of alleged accomplices should only be accepted with caution, especially in the absence of live cross-examination on such evidence before the jury. The appellant further submits that the trial judge erred in directing the jury's attention to the fact that the appellant did not testify at his trial contrary to s. 4(5) of the Canada Evidence Act. These submissions require us to address the following questions:

(a) Does section 643(1) of the Criminal Code, in so far as it permits the trial judge to read as evidence before a jury testimony given at a preliminary inquiry when the person who testified is not available for cross-examination at the trial, violate ss. 7 and 11(d) of the Charter, and if so, is the violation justified under s. 1 of the Charter?

(b) Did the courts below err in holding that s. 643(1) of the Criminal Code does not grant a trial judge a discretion to admit the evidence when the requirements of the section are met and, if so, did the trial judge err in not exercising his discretion in order to preclude the admission of the transcript of Deschênes' testimony at the preliminary inquiry as evidence at the trial?

(c) Did the trial judge err in not warning the jury that the admission of evidence pursuant to s. 643(1) of the Criminal Code is an unusual procedure and that caution should be exercised before the evidence of an accomplice is accepted against another accomplice?

(d) Did the trial judge violate s. 4(5) of the Canada Evidence Act by directing the jury's attention to the fact that the appellant did not testify in his own defence?

(a) Section 643(1): the Constitutional Issues

(1) Section 7

The appellant argues that an accused's ability to cross-examine all adverse witnesses at trial before the trier of fact is a principle of fundamental justice and a requirement of a fair trial. Basic to this argument is acceptance of the proposition that the trier of fact will be unable to assess the credibility of a witness in the absence of his or her physical presence at the time the evidence is presented to the trier of fact. That credibility is the issue under the section seems clear from the fact that it specifically requires that the previous evidence of the witness that is to be admitted at the trial has been taken in the presence of the accused who had a full opportunity to cross-examine on the evidence at the time.

I think the appellant's submission that s. 643(1) violates s. 7 must fail. This Court held in the Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at p. 503, that the principles of fundamental justice are to be found in the basic tenets of our justice system. Our justice system has, however, traditionally held evidence given under oath at a previous proceeding to be admissible at a criminal trial if the witness was unavailable at the trial for a reason such as death, provided the accused had an opportunity to cross-examine the witness when the evidence was originally given. The common law origins of the predecessor section to the present s. 643(1) were noted by Bain J. in R. v. Hamilton (1898), 1898 100 (MB CA), 2 C.C.C. 390 (Man. Q.B.), at p. 406, where he said:

It is a rule founded on common law principles that, if a witness be proved to be dead, secondary evidence of a statement he made under oath on a former trial between the same parties will be received, provided that the facts in issue are substantially the same, and that the person against whom the evidence is to be given had the right and opportunity of cross-examining the witness: Reg. v. Smith, 2 Stark. 208 and note; Taylor on Evidence, {SS} 464.

Likewise, Wigmore in his treatise on Evidence (Chadbourn rev. 1974), vol. 5, has explained at {SS} 1370 why the practice of admitting testimony which has already been subjected to cross-examination is consistent with the requirements of the hearsay rule:

{SS} 1370. Cross-examined statements not an exception to the hearsay rule. The hearsay rule excludes testimonial statements not subjected to cross-examination ({SS} 1362 supra). When, therefore, a statement has already been subjected to cross-examination and is hence admitted -- as in the case of a deposition or testimony at a former trial -- it comes in because the rule is satisfied, not because an exception to the rule is allowed. The statement may have been made before the present trial, but if it has been already subjected to proper cross-examination, it has satisfied the rule and needs no exception in its favour. This is worth clear appreciation, because it involves the whole theory of the rule: . . .

The practice of admitting previously taken evidence if the accused had an opportunity on the previous occasion to cross-examine the witness has been sanctioned by courts in the United Kingdom (see R. v. Hall, [1973] 1 All E.R. 1 (C.A.), at p. 7) and in the United States (see Ohio v. Roberts, 448 U.S. 56 (1980)). The American authorities on this question, collected in F. Dougherty "Admissibility or Use in Criminal Trials of Testimony Given at Preliminary Proceeding by Witness not Available at Trial" (1985), 38 A.L.R. 4th 378, are of interest in that the Sixth Amendment of the American Bill of Rights specifically guarantees the accused the right "to be confronted with the witnesses against him." This right of confrontation has been held to be satisfied by the accused's having had an opportunity to cross-examine the witness at the time the previous evidence was given. It is clear to me from this survey that the right asserted by the appellant to confront an unavailable witness before the trier of fact at trial cannot be said to be a traditional or basic tenet of our justice system.

To the extent that s. 7 guarantees the accused a fair trial, can the admission of the previously obtained testimony under s. 643(1) be said to be unfair to the accused? In the absence of circumstances which negated or minimized the accused's opportunity to cross-examine the witness when the previous testimony was given, I think not. In this regard I would respectfully adopt the following statement of Vancise J.A. of the Saskatchewan Court of Appeal in R. v. Rodgers (1987), 1987 4924 (SK CA), 35 C.C.C. (3d) 50, at pp. 60-61:

Does this procedure offend the basic tenets and principles on which the principles of fundamental justice are based? Put another way, are these procedural safeguards sufficient to make the taking of the evidence accord with the principles of fundamental justice which are founded upon a belief "in the dignity and worth of a human person and on the rule of law"? In my opinion, they are. The conditions under which the evidence is given, including the solemnity of the occasion, are such as to guarantee its trustworthiness and to protect the rights of an accused. The evidence is given in open court in the presence of the accused, taken on oath or solemn affirmation, and the person against whose interest it is sought to be introduced has reasonable opportunity to cross-examine. The evidence is certified as to correctness by the judge before whom it was given. This is not a mechanism for the introduction of evidence which is not admissible, but rather a system for the use of evidence which would otherwise be lost. Its use, or admissibility, is provided for in a way which accords full safety to the rights of an accused. Those safeguards, together with the limited circumstances in which the procedure can be resorted to, justify its acceptance into evidence. The procedure is one which accords with the principles of fundamental justice, and in my opinion, s. 7 of the Charter has not been offended.

It follows that I would respectfully reject the finding of the Ontario Court of Appeal in R. v. Speid (1988), 1988 7060 (ON CA), 42 C.C.C. (3d) 12, at p. 26, that s. 643(1) of the Criminal Code violates ss. 7 and 11(d) of the Charter because "the right of an accused to confront the witnesses testifying against him at his trial is an established principle of fundamental justice". In my view, the authorities to which I have referred indicate that the right to confront unavailable witnesses at trial is neither an established nor a basic principle of fundamental justice. I note, however, in passing that s. 643(1) was found in Speid, supra, at p. 26, to be justified under s. 1 of the Charter in part because its operation was not unfair to the accused:

The provision that the evidence of the witness must have been taken in the presence of the accused and that there has been a full opportunity to cross-examine that witness goes far to establish the reliability of the testimony and provides adequate safeguards for the accused. Further, the Crown must establish that the witness is dead, has since become and remains insane, is so ill that he is unable to travel or testify, or, lastly, that he is absent from Canada. Those safeguards are, I think, sufficient to warrant the admission of the transcript of the evidence. It is true that the trier of fact is thus deprived of observing the demeanour of the witness and the manner in which he gives his testimony. None the less, the accused's ability to confront and cross-examine the witness on earlier occasions establishes the requisite strong indicia of reliability which makes the transcript properly admissible.

See also in this regard R. v. Davidson (1988), 1988 7067 (ON CA), 42 C.C.C. (3d) 289 (Ont. C.A.), at pp. 296-98, for the finding by a differently constituted panel of the Ontario Court of Appeal that "it is clear that s. 643 is not unconstitutional because of s. 7 of the Charter".

What rights then does an accused have under s. 7 of the Charter with respect to the admission of previous testimony? It is, in my view, basic to our system of justice that the accused have had a full opportunity to cross-examine the witness when the previous testimony was taken if a transcript of such testimony is to be introduced as evidence in a criminal trial for the purpose of convicting the accused. This is in accord with the traditional view that it is the opportunity to cross-examine and not the fact of cross-examination which is crucial if the accused is to be treated fairly. As Professor Delisle has noted: Annotation (1986), 50 C.R. (3d) 195, at p. 196:

If the opposing party has had an opportunity to fully cross-examine he ought not to be justified in any later complaint if he did not fully exercise that right.

I would respectfully adopt the following observations of Martin J.A. of the Ontario Court of Appeal in Davidson, supra, at pp. 298-99:

An accused is not necessarily deprived of his or her constitutional right to a fair trial, where the evidence taken at a preliminary hearing from a crucial witness who has since died is read as evidence at the trial. However, if in a particular case, an accused proves that he or she did not have "full opportunity" to cross-examine the witness at the preliminary hearing because, for example, he or she was deprived of the right to counsel or because of improper restrictions by the court on the cross-examination by counsel, then the conditions of s. 643 have not been met, and the evidence taken at the preliminary hearing is not admissible under the section. Furthermore, the accused's constitutional right to a fair trial guaranteed by s. 11(d) of the Charter would also require the exclusion of evidence where the accused did not have full opportunity to cross-examine the witness at the preliminary hearing.

I would respectfully agree with Martin J.A. that the accused would have a constitutional right to have the evidence of prior testimony obtained in the absence of a full opportunity to cross-examine the witness excluded. When the evidence is sought to be introduced in order to obtain a criminal conviction which could result in imprisonment, the accused is threatened with a deprivation of his or her liberty and security of the person and this can only be done in accordance with the principles of fundamental justice. It is, as I have said, a principle of fundamental justice that the accused have had a full opportunity to cross-examine the adverse witness.

I would add that the new constitutional dimension of this matter under the Charter casts doubt on the continued validity of pre-Charter decisions which did not construe the right to full opportunity to cross-examine in the broad and generous manner befitting its constitutional status. For examples of a restrictive approach to the content of this right see Rose v. The King (1946), 1946 365 (QC CA), 88 C.C.C. 114 (Que. K.B.), at pp. 124-25, 153-54, and 178-79; Lambert v. The Queen (1974), 28 C.R.N.S. 238 (Que. C.A.) at pp. 244-45; R. v. Devlin (1976), 1976 1348 (NB CA), 32 C.C.C. (2d) 334 (N.B.S.C. App. Div.), at p. 338.

The appellant submits that the provision of a full opportunity to cross-examine at the preliminary inquiry does not necessarily ensure fairness. More specifically, he argues that 1) the trier of fact is deprived of the ability to assess the credibility of the witness through observing his or her demeanour; 2) when the evidence is taken at a preliminary inquiry the credibility of that evidence is not in issue; and 3) the accused at the preliminary inquiry may have strategic reasons for not testing the credibility, or even conducting any cross-examination, of a witness. Despite the fact that these observations may be sound and could operate to the detriment of the accused, I do not think they are of such magnitude and effect as to deprive the accused of the basics of a fair trial. I say this for the following reasons.

I note that although it is possible that an accused might suffer a detriment because of the trier of fact's inability to assess the credibility of a witness on a face to face basis, it is also true that this feature of s. 643(1) could work to an accused's benefit. In any event, because s. 643(1) can only be invoked when its stringent pre-requisites are met by the party seeking to introduce the previous testimony, it is not a provision that the Crown can use at will to its advantage or as a device to protect Crown witnesses who may not prove to be credible before the trier of fact.

Although it is true that credibility is not specifically an issue to be determined at a preliminary inquiry (see United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, per Ritchie J., at pp. 1080 and 1084; Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, per McIntyre J., at pp. 836-37), this does not mean that an accused is taken unawares or unfairly surprised by the admission of testimony taken at a preliminary inquiry if a witness subsequently becomes unavailable. If a judge presiding at a preliminary inquiry seeks to curtail cross-examination designed to test a witness's credibility and that witness's testimony is subsequently admitted at trial under s. 643(1), this may very well constitute an infringement of the accused's right under s. 7 of the Charter to have had a full opportunity to cross-examine the witness.

As for the detriment an accused might suffer from the tactical decision of his or her counsel not to press certain issues at the preliminary inquiry with a witness who may subsequently become unavailable at the trial, I am in complete agreement with the observation of Martin J.A. in Davidson, supra, at p. 298:

In my view, an accused is not deprived of "full opportunity" to cross-examine a witness at the preliminary hearing merely because his counsel, for tactical reasons, has conducted the cross-examination of a witness differently than he would have conducted the cross-examination at the trial, provided that there has been no improper restriction of the cross-examination by the provincial judge holding the preliminary hearing.

In short, I find that s. 643(1) of the Criminal Code, in so far as it allows evidence given at a preliminary inquiry to be admitted at a criminal trial when a witness is unavailable or unwilling to testify, does not infringe s. 7 of the Charter because it provides that the evidence will only be admitted if the accused has had a full opportunity to cross-examine the witness at the time the evidence was given.

(2) Section 11(d)

With respect to the appellant's submission that he was deprived of a fair trial under s. 11(d) of the Charter, I would conclude, for the reasons given above in reviewing his s. 7 claim, that this claim must also fail if his constitutional right to have had a full opportunity to cross-examine the witness on the earlier occasion was respected. However, a further question arises under s. 11(d) of the Charter. Is the presumption of innocence protected under s. 11(d) violated by the fact that under s. 643(1) of the Criminal Code the accused, and not the Crown, bears the burden of proving that he or she did not have a full opportunity to cross-examine the witness at the time the evidence was given?

What the accused must prove under the terms of s. 643(1) of the Criminal Code is that his rights were infringed through the admission of evidence on which he had not had a full opportunity to cross-examine. This is, in my view, quite different from legislation which requires an accused to disprove an essential element of an offence (see R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103) or an element substituted for an essential element of an offence (see R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636). It is also quite different, it seems to me, from legislation which specifies that, in the absence of proof by the accused of some fact on the balance of probabilities, there will be a conviction (see R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3). Absent exceptional circumstances not present here it seems to me perfectly reasonable to expect an accused to be able to prove whether or not he or she was deprived of a full opportunity to cross-examine the witness. Only the accused, after all, (or his or her counsel) knows what was comprised in that "full opportunity" and the extent to which, if at all, it was denied or restricted. A denial or restriction can only have taken place if the intention or desire to pursue certain questions was present and was frustrated.

(b) Section 643(1): Is There a Discretion?

The Court of Appeal held that s. 643(1) of the Criminal Code did not confer any discretion on the trial judge whether or not to admit the previous testimony once the conditions set out in the section had been met. McCarthy J.A. stated that [TRANSLATION] "The word `may' in s. 643 confers a right on the parties, it does not give the judge a discretion" (p. 84). In reaching this conclusion he was in agreement with the decisions reached by most, although not all, of the Courts of Appeal which have considered the point: see R. v. Tretter (1974), 1974 713 (ON CA), 18 C.C.C. (2d) 82 (Ont. C.A.); R. v. Cole (1980), 1980 2838 (ON CA), 53 C.C.C. (2d) 269 (Ont. C.A.); R. v. Oda (1980), 1980 327 (BC CA), 54 C.C.C. (2d) 466 (B.C.C.A.); R. v. Kaddoura (1987), 56 Atla. L.R. 126 (C.A.) For the opposing view see R. v. Bannerman (1966), 1966 634 (MB CA), 48 C.R. 110 (Man. C.A.), aff'd (1966), 1966 602 (SCC), 50 C.R. 76 (S.C.C.); R. v. Sophonow No. 2 (1987), 1986 104 (MB CA), 25 C.C.C. (3d) 415 (Man. C.A.)

It is my view that the word "may" in s. 643(1) is directed not to the parties but to the trial judge. I believe it confers on him or her a discretion not to allow the previous testimony to be admitted in circumstances where its admission would operate unfairly to the accused. I hasten to add, however, that such circumstances will be relatively rare and that the discretion to prevent unfairness is not a blanket authority to undermine the object of s. 643(1) by excluding evidence of previous testimony as a matter of course.

It was not until the 1955 revisions of the Criminal Code that the word "may" was inserted into the predecessor of s. 643(1): see S.C. 1953-54, c. 51, s. 619. Prior to that the provision stated that once the enumerated conditions for admission of previous evidence had been met, the evidence "shall be read as evidence in the prosecution". For example, in the 1927 revisions of the Criminal Code, R.S.C. 1927, c. 36, s. 999, the predecessor of the present s. 643(1), provided as follows:

999. If upon the trial of an accused person such facts are proved upon oath or affirmation that it can be reasonably inferred therefrom that any person, whose evidence was given at any former trial upon the same charge, or whose disposition has been theretofore taken in the investigation of the charge against such accused person, is dead, or so ill as not to be able to travel, or is absent from Canada, or if such person refuses to be sworn or to give evidence, and if it is proved that such evidence was given or such deposition was taken in the presence of the person accused, and that he or his counsel or solicitor if present had a full opportunity of cross-examining the witness, then if the evidence or deposition purports to be signed by the judge or justice before whom the same purports to have been taken, it shall be read as evidence in the prosecution, without further proof thereof, unless it is proved that such evidence or deposition was not in fact signed by the judge or justice purporting to have signed the same.

After the 1955 revisions s. 619 read:

619. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial upon the same charge, or whose evidence was taken in the investigation of the charge against the accused or upon the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved upon oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel, or

(d) is absent from Canada,

and where it is proved that his evidence was taken in the presence of the accused, it may be read as evidence in the proceedings without further proof, if the evidence purports to be signed by the judge or justice before whom it purports to have been taken, unless the accused proves that it was not in fact signed by that judge or justice or that he did not have full opportunity to cross-examine the witness.

(2) Evidence that has been taken on the preliminary inquiry or other investigation of a charge against an accused may be read as evidence in the prosecution of the accused for any other offence upon the same proof and in the same manner in all respects, as it might, according to law, be read in the prosecution of the offence with which the accused was charged when the evidence was taken.

The use of the imperative "shall" in the original version of s. 643(1) and the substitution since 1955 of the permissive "may" suggests to me that the Court of Appeal is wrong in thinking that the word "may" connotes a right in the parties to read the previous testimony into evidence at the trial. Neither the literal meaning of the word nor the purposive context in which it appears supports such an interpretation. I think the presumption must be that Parliament intended by its amendment to the section to bring about some change in the manner of its application. The word "may" is commonly used to denote a discretion while the word "shall" is used to denote an obligation. For example, it is in this sense that the word "shall" in s. 24(2) of the Charter (see R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at pp. 646-48) and the word "may" in s. 12 of the Canada Evidence Act (see R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670) have been interpreted by this Court. After the insertion of the word "may" in the section trial judges, correctly in my view, interpreted the section as giving them a discretion not to admit previous testimony even although the other requirements of the section had been met: see R. v. Romanick (1959), 2 Crim. L.Q. 471 (Ont. Co. Ct.); R. v. Bannerman, supra; R. v. Waucash (1966), 1 C.R.N.S. 262 (Ont. S.C.); R. v. Moore (1973), 1973 1497 (ON SC), 17 C.C.C. (2d) 348 (Ont. H.C.) See also C. Speyer, "The discretion vested in the Court to admit or to exclude as evidence at trial depositions of witnesses taken at a preliminary inquiry pursuant to s. 619 of the Criminal Code" (1967), 1 C.R.N.S. 267, for a discussion of this discretion.

I believe that the preferable interpretation of s. 643(1) is that the word "may" is addressed to the trial judge and confers on him or her a statutory discretion to prevent any unfairness that could otherwise result from a purely mechanical application of the section. Whatever may have been the situation prior to the 1955 revisions, whether the use of "shall" contemplated an absolute right in the party who invoked the section and met its requirements to have the prior testimony admitted or not, I do not believe that it makes any sense to construe the substituted "may" as conferring a discretion on the parties. The discretion which the parties have is whether to invoke the section or not. Once a party invokes it and meets its terms it is for the judge to decide whether the prior testimony should be admitted at the trial. This interpretation makes sense in the context of the purpose of the provision and avoids the dangers of "an inflexible rule" referred to by Wigmore in Evidence, op. cit., {SS} 1371:

But, though this doctrine is a practically inevitable corollary of the general principle, it is worthwhile to note the possible consequences of its looseness, as warnings against an inconsistent strictness shown in other applications of the general principle. For on the one hand, testimony already subjected to a cross-examination, however thorough, by a former party not in privity with the present opponent is excluded ({SS} 1388 infra); while, by the present doctrine, testimony never actually tested at all, in consequence of the carelessness, fraud, or incompetence of counsel, or of a privy in interest, is admitted, if merely the opportunity so to test it had existed. On the whole, both err in attempting to create an inflexible rule. No doubt, usually a mere opportunity to cross-examine can be trusted as a sufficient safeguard; and no doubt, usually only a privy in interest would apply a sufficient cross-examination. But room should be allowed for the exceptional instances which will certainly occur. The trial court should have a discretion.

What then is the nature and purpose of the discretion conferred in s. 643(1) which enables the trial judge not to allow the evidence in at trial even in cases in which the requirements of the section have been met? In my view there are two main types of mischief at which the discretion might be aimed. First, the discretion could be aimed at situations in which there has been unfairness in the manner in which the evidence was obtained. Although Parliament has set out in the section specific conditions as to how the previous testimony has to have been obtained if it is to be admitted under s. 643(1) (the most important, of course, being that the accused was afforded full opportunity to cross-examine the witness), Parliament could have intended the judge to have a discretion in those rare cases in which compliance with the requirements of s. 643(1) gave no guarantee that the evidence was obtained in a manner fair to the accused. This would, of course, represent a departure from the traditional common law approach that the manner in which evidence is obtained, with a few well-established exceptions such as the confessions rule, is not relevant to the question of its admissibility but it would be consistent with the contemporary approach to the expanded requirements of adjudicative fairness. An example of unfairness in obtaining the testimony might be a case in which, although the witness was temporarily absent from Canada, the Crown could have obtained the witness's attendance at trial with a minimal degree of effort. Another example might be a case in which the Crown was aware at the time the evidence was initially taken that the witness would not be available to testify at the trial but did not inform the accused of this fact so that he could make best use of the opportunity to cross-examine the witness at the earlier proceeding. These kinds of circumstances related to the obtaining of the evidence on the earlier occasion might have been in the mind of the legislator as triggering the judge's discretion with respect to its admission at the trial.

A different concern at which the discretion might have been aimed is the effect of the admission of the previously taken evidence on the fairness of the trial itself. This concern flows from the principle of the law of evidence that evidence may be excluded if it is highly prejudicial to the accused and of only modest probative value: see Noor Mohamed v. The King, 1949 437 (UK JCPC), [1949] A.C. 182 (P.C.), at p. 192; R. v. Wray, supra, at p. 295; Morris v. The Queen, 1983 28 (SCC), [1983] 2 S.C.R. 190, at p. 201. How the evidence was obtained might be irrelevant under this principle.

In practice the two types of situations at which the discretion may have been aimed are not as distinct as the above analysis might suggest. As has been recognized in the constitutional context of s. 24(2) of the Charter, unfairness in the manner in which evidence is obtained can have a significant effect on the fairness of the trial: see R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265; R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233. In my view, therefore, s. 643(1) of the Code should be construed as conferring a discretion on the trial judge broader than the traditional evidentiary principle that evidence should be excluded if its prejudicial effect exceeds its probative value. I would respectfully differ in this regard from Martin J.A. who, while not interpreting s. 643(1) as conferring a discretion on the judge, nevertheless held that the operation of the section was subject "to the limited discretion recognized in The Queen v. Wray": see Tretter, at p. 89.

In my view, once it is accepted that s. 643(1) gives the trial judge a statutory discretion to depart from the purely mechanical application of the section, the discretion should be construed as sufficiently broad to deal with both kinds of situations, namely where the testimony was obtained in a manner which was unfair to the accused or where, even although the manner of obtaining the evidence was fair to the accused, its admission at his or her trial would not be fair to the accused. I would stress that in both situations the discretion should only be exercised after weighing what I have referred to as the "two competing and frequently conflicting concerns" of fair treatment of the accused and society's interest in the admission of probative evidence in order to get at the truth of the matter in issue: see Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, at pp. 392-93. Having regard to the reservations that have been expressed over the restrictive formulation of the common law discretion in Wray, supra (see Morris v. The Queen, supra, at p. 202; Clarkson v. The Queen, at pp. 392-93, R. v. Corbett, supra, at pp. 738-39), I believe there is no need or justification for importing a similar restriction into the statutorily conferred discretion in s. 643(1). The protection of the accused from unfairness rather than the admission of probative evidence "without too much regard for the fairness of the adjudicative process" (see Clarkson, at p. 393) should be the focus of the trial judge's concern.

It will follow that I cannot accept the hard and fast rule approach to this issue taken by the Manitoba Court of Appeal in Sophonow, supra. That Court seems to suggest that the very importance of the evidence requires it to be excluded. For example, Huband J.A. states categorically at p. 432 that s. 643(1) "was never intended to apply to a crucial witness whose evidence could work an injustice to the accused if the jury were deprived of seeing his demeanour and his reaction to cross-examination". I believe that this proposition is at odds with the purpose of s. 643(1) in ensuring that evidence, even important and highly probative evidence, is not lost because of the unavailability of a witness at trial. As Vancise J.A. stated in Rodgers, supra, at p. 63 "There is nothing in the section which restricts the use of the section to evidence which is not crucial to proof of the Crown's case".

In the case at bar I am of the view that the trial judge did not instruct himself properly as to the nature and scope of his discretion under s. 643(1). He stressed the high probative value of the evidence of someone who had been in the victim's home at the time the events occurred but failed, in my view, to give adequate consideration to possible unfairness to the accused arising from either the manner in which the evidence was obtained or the effect of its admission on the fairness of the trial. The Court of Appeal proceeded on the basis that the trial judge had no discretion other than the restrictive common law formulation in Wray. Neither court applied its mind to the question whether in the circumstances of this case the trial judge should have exercised his statutory discretion in s. 643(1) to exclude the evidence.

There can be no doubt about the fact that the decision whether or not to exercise the statutory discretion in this case would not have been an easy one. In favour of the admission of the evidence is the absence of any allegation that the manner in which Deschênes' testimony was obtained was unfair to the appellant. Moreover, the appellant's counsel exercised his right to cross-examine Deschênes at the preliminary inquiry and there was some cross-examination. There was also a measure of corroboration of Deschênes' testimony (so far as it pinpointed Potvin as the culprit) by the testimony of Thibault at trial. Also favouring admission of Deschênes' testimony was the factor emphasized by the trial judge, namely its high probative value. The testimony purported to be an eyewitness account of the appellant beating and killing the victim. On the other hand, given the appellant's defence that he was a passive observer and that it was Deschênes, the unavailable witness, who did the actual beating and killing, the issue of Deschênes' credibility was obviously critical to the trier of fact's decision whether to accept or reject Deschênes' version of the events. Yet the jury had no opportunity to observe Deschênes' demeanour as an aid in assessing that witness's credibility.

This is not, however, a matter for this Court to decide but rather a matter to be referred back to a trial judge properly instructed as to the nature and scope of his or her statutory discretion under s. 643(1).

(c) The Warnings

The appellant submits that the trial judge erred in not warning the jury of the dangers of accepting evidence and attempting to assess credibility in the absence of live cross-examination and in not warning the jury of the dangers of accepting the evidence of an accomplice in the absence of live cross-examination at trial. I am of the view that it is highly desirable in all cases in which previous testimony is introduced at trial pursuant to s. 643(1) that the trial judge remind the jury that they have not had the benefit of observing the witness giving the testimony. This is not to say that failure to do so will constitute reversible error in every case, but a warning seems particularly desirable in a case such as this where the unavailability of the witness to testify at trial is not the result of some unforeseen contingency such as death or illness but the result rather of a deliberate decision by the witness not to give his evidence under oath before the trier of fact.

Moreover, in this case there was more than a simple failure to warn. The trial judge compounded the failure to warn with the following instruction to the jury:

[TRANSLATION] As the Act was clearly made, the Act was designed and made to ensure that the truth will come out in our courts, to ensure that those who have to try cases will not have half-truths in front of them but truths which are as complete as possible, I have allowed a request by the Crown to apply a section of the Criminal Code which I explained to you at the time and which allows in such a case -- a witness who is ill, dead or refuses to testify -- which under certain conditions allows his testimony previously given, at the preliminary inquiry as was the case here, to be read, to be passed on to the jury, testimony previously given on oath like the other witnesses whom you heard.

And I told you that this testimony was evidence before you like all the other testimony you heard. When I say "is evidence", it is for you and you alone to decide whether it proves anything, and if it does, what it proves; but it is evidence like all the other testimony.

This instruction was apparently designed to give the jury the impression that the transcript of Deschênes' testimony at the preliminary inquiry was evidence like all the other testimony at the trial. I think this was wrong. Deschênes' testimony differed from the other testimony the jury heard at trial because it alone was not subject to live cross-examination at the trial. Deschênes was not simply a witness who because of death, illness or absence from Canada had become unavailable to testify at trial. He was a co-accused with the appellant and, according to the theory of the defence, directly implicated in the crime, who for whatever reasons refused to testify before the jury. His evidence was crucial in that it purported to be an eyewitness account which, if believed, was almost conclusive of the appellant's guilt. I cannot accept in these circumstances that no miscarriage of justice resulted from the trial judge's misdirection to the jury in this matter.

Although it is not strictly necessary, given the view I have taken of the combined effect of the failure to warn the jury concerning the dangers of accepting Deschênes' testimony and the judge's erroneous instruction to them that the transcript of Deschênes' testimony at the preliminary inquiry was to be treated as testimony like all the other testimony at the trial, I believe it is important to deal with the appellant's submission that a warning was required under this Court's decision in Vetrovec, supra, because of the fact that Deschênes fell into the category of an accomplice.

In Vetrovec this Court held that there was no rule of law that required a judge to warn a jury of the dangers of accepting the evidence of an accomplice and that required corroboration of an accomplice's evidence. The appellant submits that in the context of s. 643(1) a pre-Vetrovec approach is warranted. The Crown in its submissions seems to accept this return to the complexities of the pre-Vetrovec jurisprudence by stressing that Deschênes' testimony was corroborated by the testimony of the co-accused Thibault at trial. With respect I would reject both the appellant's submission that a special warning is required whenever an accomplice's evidence is introduced pursuant to s. 643(1) and the respondent's suggestion that the fact of corroboration in and of itself removes the dangers attendant on the acceptance of Deschênes' testimony. Vetrovec, in my view, represents a rejection of formalistic and a priori categories concerning the trustworthiness of evidence both with regard to warnings and corroboration. In every case it is for the trial judge on the basis of his or her appreciation of all the circumstances and, may I add, on the basis of the application of sound common sense, to decide whether a warning is required.

(d) Section 4(5) of the Canada Evidence Act

The appellant draws attention to two passages from the trial judge's charge to the jury and submits that they constitute a violation of s. 4(5) of the Canada Evidence Act by making the failure of the appellant to testify the subject of comment. The first passage is as follows:

[TRANSLATION] That being understood, I must tell you that whether you accord a witness more or less credibility must be based on good reasons, not simply on fantasy or caprice, on speculation or on frivolity, especially of course, especially if the fact stated by witness is not denied by other witnesses and if that witness is not contradicted by anyone in general or in particular is not contradicted by any person or persons who may have been in a position to contradict him.

The second passage reads:

[TRANSLATION] The defence argument is therefore as follows: it is that the Crown has not discharged its burden of establishing the guilt of Pierre Potvin, the accused, before you beyond any reasonable doubt.

The defence has told you, the defence which has not made a defence has told you: the Crown evidence is so weak, there are so many contradictions that you, ladies and gentlemen of the jury, must have a reasonable doubt and give the accused Pierre Potvin the benefit of this doubt.

As the Court of Appeal noted, this Court has interpreted s. 4(5) of the Canada Evidence Act as requiring something more than an off-hand reference to the fact that an accused did not testify at trial. Ritchie J. interpreted s. 4(5) in a purposive as opposed to a literal manner in McConnell and Beer v. The Queen, 1968 22 (SCC), [1968] S.C.R. 802, at p. 809:

I think it is to be assumed that the section in question was enacted for the protection of accused persons against the danger of having their right not to testify presented to the jury in such fashion as to suggest that their silence is being used as a cloak for their guilt.

Given this approach, which I approve and believe to be consistent with the approach to statutory interpretation enunciated by this Court in R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, I do not think it can be said that the comments to which the appellant draws attention constitute a violation of s. 4(5) of the Canada Evidence Act. As the Court of Appeal noted, the first passage is part of a general direction to the jury at the beginning of the judge's charge. The second passage is taken from the concluding part of the judge's charge but seems to be somewhat ambiguous and, in the context, in the nature of an off-hand remark. Even if the remark could have prejudiced the accused it was, in my view, more than compensated by the trial judge's unambiguous and sustained comments throughout the charge concerning the burden on the Crown to prove the guilt of the accused. I conclude, therefore, that the trial judge did not violate s. 4(5) of the Canada Evidence Act in these passages from his charge to the jury.

V. Disposition

I would allow the appeal and order a new trial because the trial judge misdirected himself as to the proper interpretation of s. 643(1) of the Criminal Code and because of the combined effect of the trial judge's failure to warn the jury concerning the use of s. 643(1) and his erroneous instruction that the transcript of testimony taken at the preliminary inquiry should be treated in the same manner as live testimony given at trial.

I would answer the constitutional questions set by the Chief Justice as follows:

Q. 1. Does section 643 of the Criminal Code in so far as it allows the Crown to ask the trial judge to read as evidence before a jury the evidence of an accomplice given at the preliminary inquiry, when the said accomplice refuses to give evidence at the trial, violate ss. 7, 11(d) and 12 of the Canadian Charter of Rights and Freedoms?

A. No as to ss. 7 and 11(d). It is not necessary to answer the question with respect to s. 12 as the appellant did not argue this issue.

Q. 2. If the answer to question 1 is in the affirmative, is the resort to that section justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

A. In light of the answer to Question 1 it is not necessary to answer this question.

Appeal allowed and new trial ordered.

Solicitor for the appellant: Alain Dumas, Québec.

Solicitor for the respondent: Michel Parent, Sept-{uIc}les.

Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.