COURT FILE NO.: CR-22-626

DATE: 2023/07/31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Y. Laine and N. Flynn, for the Crown Attorney

Respondent

• and -

K. F.

P. Boushy and W. Richard, for the Applicant

Applicant

HEARD: May 11, 2023

A.J. Goodman J.:

RULING ON CERTIORARI APPLICATION

(From the decision of Camara J. of the Ontario Court of Justice - November 3, 2022)

[1] This is an application for an order in the nature of certiorari quashing the ruling made by Camara J., the preliminary inquiry judge (“PJ”) of the Ontario Court of Justice, committing the accused to stand trial on the impugned count.

[2] The defence had initially sought an order for mandamus with certiorari in aid to quash the ruling and require the complainant to attend at a preliminary inquiry to be cross-examined.

[3] During oral submissions, the defence confirmed, that in the alternative, it was seeking an order quashing the count on this certiorari application.

[4] The issue is whether the PJ exceeded her jurisdiction and/or acted in breach of the principles of natural justice in refusing to permit the defence to cross-examine on the evidence pursuant to s. 540(9) of the Criminal Code, R.S.C., 1985, c. C-46. On this basis, her decision to commit the applicant to stand trial on the count would be subject to review on certiorari.

BACKGROUND:

[5] The applicant, K.F., was arrested on January 23, 2022, following a domestic occurrence report involving his former domestic partner (the “complainant”). The complainant declined to provide a video statement that day but agreed to provide a statement over the phone the following day. On January 24, 2022, Officer Rodgers took part of her statement over the phone, which he transcribed into a written statement apparently signed by the complainant, two days later, on January 26, 2022.

[6] On January 27, 2022, the applicant was charged with ten counts arising from the offences alleged by the complainant to have occurred on or between January 20, 2022 and January 23, 2022, including assault, assault with a weapon, assault with choking, forcible confinement, mischief, sexual assault, uttering threats, and administering a stupefying substance contrary to s. 246(b) of the Criminal Code, (count #7), which carries the potential for a maximum life sentence.

[7] The applicant elected a preliminary inquiry in the Ontario Court of Justice, which is statutorily available for the offence under count #7,

[8] The Crown brought an application under s. 540(7) of the Code to admit into evidence the complainant’s statement without calling her as a witness. Subsections 540(1)(a) and (7) of the Code read as follows:

540(1) 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;

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

[9] The defence subsequently brought an application to cross-examine the complainant on the statement pursuant to s. 540(9) of the Code, which reads as follows:

(9) 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).

[10] The applicant had originally conceded at the hearing that if the Crown’s s. 540(7) application were granted, committal would be made out. While the Crown argues that his concession means I should deny granting a remedy on this application, the applicant is nevertheless seeking certiorari to quash count #7 and I shall decline to consider his prior concessions in deciding a remedy.

The Applicant’s Preliminary Hearing:

[11] A “focus hearing” was held on October 18, 2022, in accordance with the Notice to the Profession issued on June 20, 2022,[^1] to deal with both applications.

[12] In a ruling on November 3, 2022, the PJ allowed the Crown’s application to admit the written statement of the complainant into evidence pursuant to s. 540(7) of the Code. She found that the statement was credible or trustworthy as the content of the statement was detailed and specific, the complainant signed the end of the statement and initialed each page to verify its accuracy, the circumstances of taking the statement involved speaking to a police officer despite not being under oath, and the statement was recorded by the officer verbatim with written question and answers. Notwithstanding that the statement was not audio or video recorded, no KGB warning was given at the outset, and no corroborative evidence was filed by the Crown, the PJ found that the statement met the low threshold for admissibility under s. 540(7) of the Code.

[13] In her reasons, the PJ cited R. v. Ali, 2015 ONCJ 765, wherein Paciocco J. (as he then was) outlined the legislative purpose of s. 540(7) and held that though the threshold reliability test is distinct from the test on a preliminary hearing, guidance can be imported from hearsay jurisprudence, as both s. 540(7) and the principled exception to the hearsay rule outlined in R. v. Khelawon, 2006 SCC 57 require an evaluation of the “indicia of reliability.” She observed from R. v. Panfilova, 2017 ONCJ 188, at para. 10 that the test of “credible or trustworthy” is “not onerous” — “[i]f there is evidence that the statement was made, and was reliably recorded it will generally meet the test. That the evidence or statement conflicts with other evidence in substance is not part of the test.” The PJ limited her determination of “credible or trustworthy” to the “four corners” of the statement.

[14] After admitting the written statement under s. 540(7) of the Code, the PJ found it was not appropriate to order the complainant to appear for cross-examination pursuant to s. 540(9) and dismissed the defence’s application.

[15] The PJ cited the test for s. 540(9) as applied in R. v. Kirkpatrick, 2011 ONCJ 112, at paras. 35-37 and R. v. J.N., 2021 ONCJ 501, per Latimer J., at paras. 29, 31. She also adopted the comments of her colleague, Wendl J., with respect to the increased focus on the screening function of preliminary hearings, in R. v. D.D., 2022 ONCJ 459, at para. 18:

Preliminary hearings serve an important screening function, assist in resolution of matters and do assist in developing veritable Charter issues. However, in today’s post-covid/Jordan era, for a preliminary hearing to be effective, counsel need to approach the matter with deliberation.

[16] The PJ went on to conclude that cross-examination of the complainant was not appropriate for the following reasons, at paras. 18-20:

In this case, counsel has requested the witness be required to attend for cross-examination at large; cross-examination with no particular focus. Counsel has confirmed he is in receipt of full disclosure from the Crown. Cross-examination is not required to lay a foundation for future evidentiary motions at trial. The request to cross-examine rests exclusively on the value of discovery in the criminal process. It is important at this juncture to recall that the Supreme Court in R. v. S.J.L. stated that the post-Stinchcombe disclosure regime has progressed to a point where “the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance.”

The value of pretrial discovery of a key Crown witness is counterbalanced by other relevant interests including conducting a preliminary hearing at time when the Provincial Courts in Hamilton are heavily backlogged. Another consideration is the negative impact participation in the court process may have on a vulnerable witness.

In my view, having weighed all the considerations present in this particular case, I conclude that cross-examination of the complainant is not appropriate.

[17] With this rationale, the PJ convened the preliminary inquiry and committed the applicant to stand trial.[^2]

Scope of Review on Certiorari

[18] It is settled law that the duty imposed upon a preliminary hearing judge under s. 548(1) of the Criminal Code and by the common law is to decide whether or not there is any admissible evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

[19] Under s. 548 of the Criminal Code, a justice who has completed a preliminary inquiry is required to order the accused to stand trial or discharge the accused. There is no appeal from a decision one way or the other, but there is a limited right to challenge the justice’s determination through certiorari.

[20] It is well established that on an application for certiorari the scope of review is “very limited”: R. v. Wilson, 2016 ONCA 235, at para. 25. See also R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10. As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172. The reviewing judge must not substitute his or her own views of the sufficiency of the evidence to justify committal or whether the reviewing court would have reached the same conclusion: R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 SCR 93, at p. 100.

[21] The superior court may review only for jurisdictional error and not simply errors of law on the face of the record: see Dubois v. The Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at pp. 373-74. As Doherty J.A. explained in R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28:

[T]he reviewing court does not simply redo the limited weighing function assigned to the preliminary inquiry judge. The reviewing court can interfere only if jurisdictional error is established. The jurisdictional error inquiry looks not at the correctness of the ultimate decision, but at whether the preliminary inquiry judge exceeded or declined to exercise his or her jurisdiction in the course of arriving at that decision. [Citations omitted.]

[22] In R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 57, Rothstein J. explained why a reviewing judge must be satisfied the preliminary hearing judge exceeded their jurisdiction on a certiorari application:

[E]xcess of jurisdiction is the standard for a preliminary inquiry judge’s decision to either commit an accused to trial or issue a discharge. This high threshold for review is premised on the fact that a preliminary inquiry does not result in a final determination of guilt or innocence; therefore, there is less need for broad supervisory remedies.

[23] Jurisdictional error is committed where the justice fails to observe a mandatory provision of a statute or acts in breach of the principles of natural justice: see R. v. Amiri, 2021 ONCA 902, at para. 5, citing Awashish, at paras. 10, 11, 20 and 23. See also R. v. Forsythe, [1980] 2 S.C.R. 268 2004 SCC 77, at para. 14, which will be discussed further in these reasons.

POSITIONS OF THE PARTIES:

[24] The applicant submits that, notwithstanding the limited availability of certiorari as a remedy in criminal proceedings, where the circumstances are such that the interests of justice require immediate intervention by a superior court, that jurisdiction can and will be exercised: see R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (C.A.).

[25] As well, the applicant submits that certiorari is available as a remedy where fundamental rights of an accused are irremediably affected by a ruling and where an appeal would offer no effective remedy: see Awashish, at para. 21.

[26] In particular, the applicant submits that denying the opportunity to cross-examine the complainant under s. 540(9) was a jurisdictional error. In enacting ss. 540(7) and (9), Parliament did not intend to eliminate the secondary discovery function of preliminary inquiries, nor convert preliminary inquiries into a paper hearing—all of which has in effect become the current reality in the Ontario Court of Justice and with the Crown attorney in this jurisdiction. As well, it was never Parliament’s intention to make cross-examination of a witness under 540(9) an exceptional or limited procedure. It is appropriate to order cross examination under s. 540(9) where that cross examination is consistent with or strengthens the legitimate purposes of the preliminary inquiry.

[27] The Crown responds that the scope of the preliminary hearing has been narrowing for decades. This is demonstrated by the Crown’s increasing disclosure obligations, and most recently in Parliament’s 2019 amendments that include not only limiting the offences eligible for a preliminary inquiry, but also giving expanded powers to preliminary hearing judges to limit the inquiry to “…specific issues and limit the witnesses to be heard on these issues.”

[28] The Crown contends that one consistent theme amongst the courts amid the uncertainty is that the discretion afforded by s. 540(9) should be determined by the purpose of the preliminary hearing itself and considered in light of the Criminal Law Amendment Act, 2001 (Bill C-15A) and Parliament’s intention in bringing forward the s. 540 amendments, including reducing the time it takes to bring criminal cases to trial and minimizing the extent to which complainants are subjected to cross-examination. Notwithstanding the controversy over the interpretation of sections 540(7) and (9) and the weight to be given to the secondary discovery function, the Crown advances the case from the Manitoba Court of Appeal in R. v. Martin, 2017 MBCA 105. The court found adopting one particular interpretation of s. 540(7) or (9) was not necessary to determine whether there was a jurisdictional error. Although the parties on appeal urged the court to provide direction as to the meaning of the sections Maniella J. went on to clarify: “In our view, given the narrow nature of our jurisdiction on this appeal, it would not be appropriate to stray from the question of jurisdictional error and comment on the correctness of any of the previous interpretations of sections 540(7) and (9) that have been given by judges of the Provincial Court or Court of Queen’s Bench…”

[29] Thus, the Crown asserts that certiorari is not available in this case. The preliminary hearing judge’s ruling was correct and it was within her jurisdiction to deny cross-examination pursuant to s. 540(9). As well, since the applicant was provided with full disclosure prior to the hearing, the applicant’s need to cross-examine at the preliminary inquiry stage was diminished. Further, the Crown submits that the applicant cannot argue a breach of natural justice because he does not have a constitutional right to a preliminary inquiry.

[30] In the alternative, if a jurisdictional error is found, the Crown submits that this court should deny granting a remedy as the result would have necessarily been the same, notwithstanding the denial of natural justice. As the applicant conceded upon admission of the complainant’s statement under s. 540(7) that committal would be made out, the preliminary hearing judge had no discretion but to order the applicant to stand trial for the offence alleged pursuant to s. 548.

[31] During submissions, the Crown attorney also advised that, contrary to the applicant’s allegations, the complainant has not refused to submit a DNA sample. While the complainant did not personally attend for the interview, there is no reason to doubt the officer’s accuracy in transcribing what was reported to him. The assertion that the complainant would not have attended had cross-examination been ordered is purely speculative. In the alternative, should this Court find a preliminary hearing judge’s interpretation of the meaning of s. 540(9) falls within the realm of a jurisdictional error, the preliminary hearing’s secondary discovery function will not automatically afford an order for cross-examination.

ANALYSIS:

[32] There exists a legal conundrum over the application of ss. 540(7) and (9) when juxtaposed with s. 540(1) of the Criminal Code, which provides for the accused’s statutory right to cross-examine witnesses called by the Crown at the preliminary inquiry. It is not surprising, therefore, that these provision have inspired different approaches, both as to how the “credibility or trustworthiness” standard is to be satisfied and the sufficiency of evidence standard mandated by s. 548(1).

[33] Indeed, the meaning of the provision remains unclear as s. 540(7) is perplexing in its design. Even though preliminary inquiry judges are generally prohibited from considering whether the evidence before them is credible or trustworthy, s. 540(7) seems to require the preliminary inquiry judge to make a ruling about credibility or trustworthiness as a precondition to admissibility. Section 540(7) also shares the language found in s. 518(e), dealing with bail hearings. The provision also raises questions about its relationship to the threshold reliability inquiry under the principled hearsay exception.

[34] The central issue before me is to determine whether the learned PJ erred in making her decision about committal, and if so, whether this error goes to her jurisdiction and/or in that it amounted to a denial of natural justice. Or, whether it is an error from which there can be neither an appeal nor prerogative writ available.

[35] A preliminary hearing judge’s jurisdiction is derived from s. 548(1) of the Criminal Code, which reads as follows:

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[36] The role of a preliminary inquiry judge pursuant to s. 548(1) was discussed in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. McLachlin C.J., writing for the court, held that in determining whether there is sufficient evidence which could result in conviction, the judge is not permitted to assess credibility or reliability, and only inferences that favour committal are to be considered: Arcuri, at para. 23. See also R. v. Sazant, 2004 SCC 77, at para. 18; R. v. Magno, 2006 CanLII 21758 (Ont. C.A.), at paras. 21-23.

[37] Where the evidence is circumstantial, the preliminary hearing judge must engage in a limited weighing of the whole of the evidence to determine whether the evidence, if believed, could reasonably support an inference of guilt: see R. v. Zamora, 2021 ONCA 354, at para. 9, citing Arcuri, at paras. 23, 29-30.

[38] A jurisdictional error is committed if a preliminary inquiry judge weighs the evidence beyond the limits established in Arcuri, goes beyond the limited function assigned to them under s. 548(1), or fails to consider all of the evidence when exercising that function: see M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 47; R. v. Kamermans, 2016 ONCA 117, 346 O.A.C. 31, at para. 15. See also Zamora, at para. 33; Sazant at para. 18; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Campbell (1999), 1999 CanLII 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 7.

Were the applicant’s fundamental rights irremediably affected such that certiorari is available?

[39] As a preliminary matter, I will deal with the applicant’s brief submission that certiorari is available where the accused’s fundamental rights have been irremediably affected.

[40] The Supreme Court of Canada wrote in Awashish, at para. 21:

In obiter, Thibault J.A. stated that certiorari could be available where fundamental rights of an accused are irremediably affected by a ruling and where an appeal would offer no effective remedy. The example she gave was ordering an accused to remove her niqab while testifying. I leave for another day whether certiorari would be available in such circumstances.

[41] Thibault J.A., in the Quebec Court of Appeal’s decision in Awashish v. R., /fr/qc/qcca/doc/2016/2016qcca1164/2016qcca1164.html, also discussed ordering disclosure of privileged information (e.g., the identity of a police informant) as another example of a fundamental right which, if violated, an appeal would afford no effective remedy: see Awashish, at paras. 33-34.

[42] I am unable to find that the examples contemplated by Thibault J.A. are squarely analogous to the situation before me. It may be the case where a later appeal is neither available nor cannot repair the “damage” whatsoever occasioned to the applicant by refusing cross-examination of the witness at the preliminary hearing stage. In R. v. Lachowski, 2018 ONCJ 796, at para. 46, Band J. held that “[u]nlike at trial, a meaningful opportunity to cross-examine has less importance at the preliminary inquiry because the accused is not in jeopardy and the evidence is not being admitted for consideration by the trier of fact.” Similarly, Paciocco J. observed in Ali, at para. 25, “even if the opportunity to cross-examine is lost at the preliminary inquiry, that opportunity will be accorded where it matters most, at trial, unless the Crown satisfies a hearsay exception designed.”

[43] I distance myself from these specific comments in both Lachowski and Ali. Compared to the examples contemplated by Thibault J.A., while the issues in this application do not rise to the same degree of irremediably of “damage”, such that certiorari may not available on that basis. As I discuss in more detail when addressing the principles of natural justice, it does not foreclose the remedy being sought here.

Did the PJ err in admitting the complainant’s statement under s. 540(7)?

[44] Section 540(7) of the Code permits a justice acting as a preliminary inquiry judge to admit evidence that would not otherwise be admissible in certain circumstances, as follows:

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.

[45] In general, the threshold for what the preliminary hearing judge considers “credible or trustworthy” is a “prima facie air of reliability”: see e.g. Ali, at para. 6.

[46] Some courts have held that the threshold for admissibility applicable under s. 540(7) is akin to the “credible or trustworthy” standard under s. 518(e) of the Code in the context of a justice presiding at a bail hearing: see R. v. Muzhikov, 2005 ONCJ 67, at para. 42. See also R. v. McCormick, 2005 ONCJ 28, at para. 34; R. v. Pinnock, 2004 ONCJ 193 (unreported).

[47] In R. v. Francis (2005), 2005 CanLII 24259 (ON SC), 202 C.C.C. (3d) 147, Ratushny J. applied the prima facie test from Muzhikov. She acknowledged the distinction between a preliminary inquiry and bail hearing but described the consideration of whether the tendered information is “credible or trustworthy” as being only a threshold question of admissibility, in the context of the screening function of a preliminary hearing as compared to at trial. Ratushny J. wrote at paras 27-28:

I think it clear, however, that what is not being referred to in subsection (7) is the ultimate consideration of the credibility of the intended evidence or the ultimate weighing of it, because of course that is to be left for the trier of fact at trial after all of the trial evidence has been heard. I agree with Wright J. in Muzhikov, supra, at para.42, that the information sought to be introduced under subsection (7) has to have at least a prima facie air of reliability to allow it be admitted on the preliminary inquiry toward a consideration as to whether there is some evidence for a jury to properly consider at trial.

I also think that subsection (7) deals with a lower evidentiary threshold than would be the case at trial...The subsection itself implies a lesser threshold of admissibility by allowing the receipt as evidence of "any information that would not otherwise be admissible". The consideration of whether the tendered information is "credible or trustworthy" remains only a threshold question of admissibility in the context of the screening function of a preliminary inquiry, meant to protect the accused from having to deal with information that would not amount to being considered as any evidence at all upon which a reasonable trier of fact properly instructed could convict.

[48] Other decisions of the Ontario Court of Justice have similarly held that the threshold is akin to what is applied already in the context of judicial interim release hearings, sentencing hearings and extradition hearings: see R. v. Trac (2004), 2004 CanLII 5084 (ON SC), 3 R.F.L. (6th) 204; R. v. C.M., 2005 ONCJ 84, at para. 24.

[49] In R. v. Inglis, 2006 ONCJ 154, the court added that the applicable standard is more aligned to the approach at a show cause hearing than to a Khan/K.G.B. standard. Further, of the various factors the court considered when assessing whether to admit a videotaped statement of a child witness, the court found that the existence of an affidavit from the complainant sworn after the statement was taken attesting to its truth and accuracy was insufficient to bolster the credibility or trustworthiness of the statement.

[50] However, Paciocco J. in Ali criticized the approach from Muzhikov and Francis, which analogizes the “credible or trustworthy” standard under s. 540(7) with the “credible or trustworthy” standard under s. 518(e), at paras. 40-41:

I cannot agree, therefore, with those decisions that conduct section 540(7) hearings by analogy to bail hearings, based on the inspiration of the shared “credible or trustworthy” formula found in sections 540(7) and section 518(e). Those courts typically permit investigating officers to present all foundational information by reading from the disclosure file. This is fine where, as in the case before me, a number of investigative actions and reports were admitted through the Investigator Officer on consent, but is not appropriate, in my view, absent consent. Indeed, this is so even for actual bail hearings in Ontario. They are conducted as informally as they are on implicit consent. Where there is a dispute about facts, the law in Ontario requires that it be resolved through sworn evidence or affidavit. It is a mistake, in my view, for courts to assume that since bail hearings are typically conducted informally, the term “credible or trustworthy” in section 518(e) permits this as a matter of right, and it is therefore a mistake to mimic these practices under section 540(7).

In any event, the bail hearing analogy is inapt in settling how a section 540(7) hearing should be conducted. When section 540(7) uses the “bail hearing formula” it is not referring to how the section 540(7) hearing is to be conducted. The formula “credible or trustworthy” describes the standard that the evidence sought to be admitted after the hearing must attain to be admitted at the preliminary inquiry. There is an unsettling circularity in assuming that the rules of evidence are suspended during a hearing to determine whether the rules of evidence should be suspended. I therefore agree with R. v. Sonier, supra. [Citations omitted.]

[51] Paciocco J.’s criticisms were echoed by Doody J. in R. v. Chretien, 2017 ONCJ 336, at para. 6:

Although the language of "credible or trustworthy" is the same language used in section 518(e) with respect to bail hearings, the issue at a preliminary hearing — whether there is evidence that, if believed, could allow a reasonable jury, properly instructed, to deliver a guilty verdict — is quite different than that at a bail hearing — whether detention is necessary to ensure the defendant's attendance in court, for the protection of the public, or to maintain confidence in the administration of justice. A purposive approach to the interpretation of the language in the two sections would not lead to a conclusion that they should mean the same thing. Furthermore, as Justice Paciocco notes at paragraph 40 of Ali, where there is a dispute about the facts at a bail hearing, the law in Ontario requires that it be resolved through sworn evidence or affidavit: R. v. West (1972), 1972 CanLII 547 (ON CA), 9 C.C.C. (2d) 369 (Ont. C.A.); R. v. John, [2001] O.J. No. 3396 (S.C.J.). The practice of introducing evidence at a bail hearing by having an officer read from the disclosure file has as its basis implicit consent.

[52] Following Ali and Francis, Doody J. settled on the “prima facie air of reliability test,” which other courts have subsequently endorsed, including in Panfilova: see also R. v. Mills, 2021 ONCJ 730, at paras. 23-25.

[53] The “prima facie air of reliability” test, as Paciocco J. explained in Ali, at para. 9, is founded on the understanding that the standard under s. 540(7) must be lower than the principled exception to the hearsay rule (i.e., only a “prima facie air of reliability” is required) because: (i) s. 540(7) accepts inadmissible evidence, making admissibility standards an inappropriate measure, and (ii) given the expeditious charge-screening purpose of a preliminary hearing, applying the reliability standard of the hearsay exception is too onerous.

[54] Though Paciocco J. adopts the phrase “prima facie air of reliability” from Francis as the applicable threshold, he observes that combining two different standards—“prima facie” case and “air of reliability”—is not particularly helpful. In an attempt to clarify the threshold, Paciocco J. says, at para. 8 of Ali, “[p]ut less opaquely, the inquiry is into whether there is a basis for finding information credible or trustworthy, and not whether the preliminary inquiry judge is persuaded about its reliability.”

[55] With respect, I do not adopt Ratushny J.’s interpretation of the “lower threshold” test to be applied under this provision. I agree entirely with Paciocco J’.s approach and sage analysis on point.

[56] Interestingly, in a 2002 article, Professor Paciocco (as he then was) described s. 540(7) as “putting the preliminary inquiry into intensive care,” warning that the survival of the preliminary inquiry as an institution will rest with the courts in their exercise of discretion under this section. As Lucy Chislett premonished in her 2015 conference paper:[^3]

Some may interpret the Crown’s use of section 540(7) in R v Ali as the beginning of a trend wherein the Crown makes more widespread use of section 540(7) going forward. Should that be the case, then it will be of paramount importance for defence counsel to urge courts to interpret and apply section 540(7) in a manner that will allow the preliminary inquiry to continue to fulfill its purpose as an institution designed to have a discovery and screening function.

[57] In this case, the PJ exercised her discretion to admit the complainant’s statement despite the multiple glaring weaknesses which were relevant to determining whether the complainant’s statement was “credible or trustworthy”. The impugned statement was taken over the phone without audio or visual recording, no KGB caution or any sort of oath or affirmation was given when the statement was taken, no information from the officer was provided about the circumstances of the taking of the statement and no corroborative evidence was available. Apparently, the statement was signed two days later with an arrow to indicate the space for the signature. There is no evidence as to whether the complainant even read the statement. Nonetheless, the PJ found that the complainant’s statement met the “low” threshold for admissibility set out in Ali and Panfilova.

[58] First, I must note that to apply the PJ’s the finding at para. 10 of Panfilova—that “[i]f there is evidence that the statement was made and was reliably recorded it will generally meet the test”—is to apply far too low a threshold under s. 540(7). In Panfilova, the court further stated that “[t]he evidence must be something which has an air or reality, as opposed to a bare assertion of fact”: at para. 9. Yet, I am inclined to find that the hearsay statements admitted in this case with respect to whether the complainant was administered any drugs by the applicant squarely constitutes such a “bare assertion of fact.”

[59] Second, to broadly characterize the threshold for admissibility set out in Ali as “low” is to ignore Paciocco J.’s accompanying cautionary commentary. Indeed, Paciocco J. expressly outlined his qualms about applying a lower standard compared to the principled exception’s threshold reliability standard, at paras. 10-11:

It is difficult to contemplate that section 540(7) would settle for the admission of evidence that does not afford a satisfactory basis for evaluating the truth of the statement, since a decision to find such information to be “credible or trustworthy,” even on a threshold basis, would be arbitrary or capricious.

The obvious accommodation, the one reflected in the tenor of the case law, lies in recognizing that that difference is one of degree, not kind. Both standards require a satisfactory basis for evaluating the truth of the statement, but given the different interests at stake, judges can be less demanding in applying the threshold reliability inquiry under s. 540(7), than when using the hearsay exception at trial. [Emphasis added.]

[60] Furthermore, Paciocco J. even discussed issues with s. 540(7) applications lacking “foundational proof” (such as the case here) and cautioned generally that “[t]he fact that an evidentiary error committed by the judge is not an error of jurisdiction, and therefore cannot be reviewed, does not change the fact that a judge who admits evidence not sanctioned by law is committing an error”: at para. 36. He went on, at paras. 37-39:

While I do accept that the purpose of the relevant provisions can inform their interpretation, there is nothing in the amendments that can fairly be interpreted as ousting the law of evidence during a section 540(7) application. The only express provision that can be interpreted to address how the voir dire is to be conducted is section 540(9), which can be interpreted broadly enough to permit a justice, on the application of a party, to require any person whom the justice considers appropriate to appear for examination or cross-examination during the voir dire.

Nor can the abrogation of the rules of proof be suspended by implication, in spite of the Crown’s argument that if the rules of proof are insisted upon the objective of using section 540(7) to stream-line a preliminary would be defeated. In my view, even if this was true, it is for Parliament to correct, and it has not done so. Indeed, section 540(1)(a) was preserved after the amendments. Section 540(7) applications form part of the preliminary inquiry, and section 540(1)(a) affirms the judicial obligation of judges to “take the evidence under oath of the witness called on the part of the prosecution and allow the accused or counsel for the accused to cross-examine.” Of consequence, the failure to comply with this provision is a jurisdictional error.

Even from a policy perspective, the in terrorem argument that applying the law of evidence would protract and complicate the use of section 540(7), thereby defeating the efficiency objective, is exaggerated. Much of the efficiency contemplated by the legislation can be achieved through the focus hearings provided for, and by securing admissions relating to the foundational information. Even if admissions are not forthcoming, ordinarily, the foundation to meet the generous admissibility standard provided for in section 540(7) can be expeditiously achieved by calling witnesses who can authenticate the target evidence, and provide evidence about the circumstances in which it was obtained. And even where, as here, the Crown feels the need to offer a more complex foundation by relying on confirmatory proof to show the credibility of what a witness says, it cannot be forgotten that section 540(7) provides a generous and exceptional process that can not only save witnesses from having to testify unnecessarily, but can also be relied upon to achieve committals that might not otherwise occur. The effort that complying with the rules of proof in establishing the foundation for section 540(7) admissibility may well be worth the candle, even in those rare cases where the efficiency gains seem questionable. [Emphasis added; Citations omitted.]

[61] With that, Paciocco J. says that had the s. 540(7) hearing not proceeded informally on consent, which is how the court received a number of witness statements, occurrence reports and photographs that the Crown wished to rely upon to support its application, he “would have required the Crown to prove that evidence using witnesses with personal knowledge, or through admissible hearsay”: at para. 42.

[62] Paciocco J. also provided several examples in Ali to illustrate the application of the reliability analysis under s. 540(7). When comparing those cases to the case before me, the concerns expressed by myself and other jurists with applying too low a threshold under s. 540(7) come into greater relief.[^4] None of those cases come close to a situation where a single witness statement was admitted following an informal s. 540(7) hearing, and the accused was committed to stand trial.

[63] Had the PJ fully interpreted the decision in Ali, complete with the disquietudes and commentary expressed by Paciocco J., I hazard to opine that the result may have been different in this case. Instead, what occurred in this case presents a cautionary tale with respect to taking too informal an approach to proof and readily permitting statements to substitute for testimony.

[64] Indeed, the circumstances here are very similar to the case of R. v. Dominey, 2017 ABPC 61, in which the Alberta Provincial Court took a more robust approach in deciding whether to admit hearsay evidence under s. 540(7), which formed the entirety of the Crown’s case on a charge. I would wholly endorse the court’s statements, at para. 20:

In this case, the Crown seeks to tender a statement for its truth through s. 540(7) that is hearsay, will continue to be hearsay, and will thus be presumptively inadmissible at a future trial. I was provided with several cases from across the country that carefully explore the application of s. 540(7) of the Criminal Code. None of these cases address the circumstance that arises in this case, however – a circumstance where the entirety of the Crown’s case on particular charges rests on evidence that is presumptively inadmissible at trial. In that circumstance, I find that it would be a derogation of the screening function of the preliminary inquiry judge to apply s. 540(7) without regard for the strength of the Crown’s position on the admissibility of the proffered evidence at trial. If the ultimate task of a preliminary inquiry judge is to assess the sufficiency of evidence, it would be contrary to the discharge of that task to disregard the potential admissibility of evidence which is the underpinning of the Crown’s case, when that evidence is hearsay evidence. Accordingly, I decline to exercise my discretion to admit the statement of C.P., marked as Exhibit A in this voir dire, without considering the admissibility of this evidence as hearsay evidence. While I have considered that some cases articulate a lesser measure of “credible or trustworthy” in s. 540(7) than is articulated in the Khan/KGB line of cases [see: R v Francis, et al, 2005 ONCJ 150 (Francis), for example], I find that a preliminary inquiry judge must, as part of their core function, consider whether there is sufficient evidence to commit an accused to stand trial. Hearsay evidence that is not capable of rising to the standard articulated in Khan/KGB line of cases ought not be considered sufficient for the purpose of a preliminary inquiry. [Emphasis added.]

[65] Moreover, Provincial courts in Ontario have also considered the ability of the defence to cross-examine the declarant as a relevant factor to be considered on a s. 540(7) application: see Chretien. Although Paciocco J. opined in Ali, that this was “not … as central an admissibility factor under section 540(7) as it is under the principled hearsay exception”, he nonetheless observes that the opportunity to cross-examine is clearly not immaterial and can add an additional indicium of reliability to the application: at para. 25.

[66] In Chrétien, the court went further and found that since cross-examination could not be ordered under s. 540(9) (as the declarant had died), “this raises the standard to be met because the true meaning of the declarant cannot be brought out by cross-examination”: at para. 13. In declining to admit the statement, the court noted that if the statement was introduced under s. 540(7), it would only be considered at trial if it met the principled hearsay exception standard. Thus, “[a] committal for trial based on a statement which is ‘credible or trustworthy’ but does not meet either a traditional or principled hearsay exception, when the declarant is not available to be cross-examined at trial, would be a contradiction of the very purpose of a preliminary hearing because such a statement would not be available to be used at trial”: at para. 17.

[67] Given that the PJ declined to order cross-examination of a complainant whose availability for cross-examination at trial was uncertain (as was the suggestion by defence counsel with respect to the complainant’s reluctance to co-operate with police), I find that the PJ failed to properly consider this factor in her ruling. In so finding, I reiterate the reference in para. 15 of Chrétien to the Supreme Court of Canada’s axiomatic statements in United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, at paras. 40 and 41 (decided after ss. 540(7) and (9) came into force):

I take it as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence put against the person is not available for trial. As Donald J.A., dissenting in Ortega [2005 BCCA 270] (B.C.C.A.) stated, at para. 51:

If evidence is not available for trial it should not be used as a basis for committal. The concern goes well beyond modalities and rules of evidence, it goes to the heart of the question for the judge: whether there is enough evidence to put the requested person on trial.

[68] While I have criticized the threshold approach discussed in Francis, I observe that Ratushny J. aptly noted at para. 26 that the consideration of what information would meet the test of "credible or trustworthy” should not be circumscribed without reference to the situation of each case — "that consideration has to be made on a case-by-case basis as the subsection itself requires it be made 'in the particular circumstances of the case'."

[69] As I will opine later in these reasons, I urge consideration of a more robust approach when measuring the reliability of hearsay evidence, especially in these circumstances: See e.g. R. v. Sonier, 2005 ONCJ 75. In R. v. Ryall, 2018 ABPC 14, the Crown was required to demonstrate procedural reliability in the taking of the video statement, substantive reliability, and the presence of corroborative evidence before the court made a ruling on the admissibility of statements made by the complainant. The Crown was required to do none of that in this case.

[70] In the circumstances of this case, where evidence supporting the application was thin, finding that the requisite “prima facie air of reliability” was met is an elusive conclusion. Despite there being no statutory requirement for a witness statement to be admitted in a particular format, courts must nonetheless analyze such evidence in a principled manner. “For example, when evidence is being presented to the court as a statement, counsel should insist that the evidence mirrors the accepted rule of admissibility pertaining to witness statements in order for its trustworthiness to be meaningfully assessed”: Chislett, at p. 21.

[71] However, it is not lost on me that on an application for certiorari, courts have consistently held that procedural and evidentiary rulings by a preliminary inquiry judge are entitled to a high degree of deference. Decisions concerning the admissibility of evidence, even if erroneous, do not affect jurisdiction: see Quebec A.G. v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305; R. v. C.M.M., 2017 MBCA 105, at para. 10; Canadian Broadcasting Corporation et al. v. Morrison, 2017 MBCA 36, at para. 92, citing R. v. Beaven, 2012 SKCA 59, at para. 26; R. v. LeBlanc, 2009 NBCA 84; R. c. P.M., 2007 QCCA 414, at paras. 32-40.

[72] Therefore, although I find errors in the PJ’s evidentiary ruling under s. 540(7) of the Code, the jurisprudence suggests that an error in the PJ’s application of s. 540(7)—no matter how problematic—is not precisely an error going to jurisdiction. In her application of the test under s. 540(7), it cannot be said that the PJ failed to observe a mandatory provision of a statute. In this case, the errors I have identified are not jurisdictional errors from which certiorari is available.

Did the PJ commit a jurisdictional error in denying cross-examination of the complainant under s. 540(9)?

[73] Under s. 540(9), a judge who has admitted evidence under s. 540(7) may order a witness to attend and be cross-examined on that evidence, as follows:

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).

[74] Before determining this question on the certiorari application, it is necessary to consider the purpose of the preliminary hearing, the rationale behind ss. 540(7) and (9), and the relevant case law. I note that since the most recent 2019 amendments to Part XVIII of the Code, (which eliminated the availability of a preliminary inquiry on any charge where the accused faces a maximum punishment of less than 14 years imprisonment), these specific subsections have not been considered by a Superior court of this province.

Bill C-15A: ss. 540(7) and (9)

[75] Over the past decade, there have been significant changes to both the availability of preliminary inquiries and the conduct of those inquiries. In 1994, the reclassification of offences in the Code resulted in fewer offences for which preliminary inquiries are available. The amendments continued with Bill C-15A, and Bill C-14 being implemented June 1, 2004, which amended Part XVIII of the Code and introduced ss. 540(7) and (9).

[76] Subsections 540(7) and (9) were described by our Court of Appeal in R. v. Vasarhelyi, 2011 ONCA 397, at para. 44, as part of an earlier Parliamentary attempt to "expedite the hearing and circumscribe the scope of the preliminary inquiry". The Court explained, at para. 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. [Emphasis in original.]

[77] As mentioned, shortly after the 2004 amendments, the Superior Court had the opportunity to address these issues in Francis. In that case, after reviewing several prior provincial court decisions, Ratushny J. held that s. 540(9) “preserved the discovery function as well as the screening mechanism” of the preliminary inquiry as it relates to the evidentiary shortcut allowed by subsection (7)”: at para. 34.

[78] Subsequently, though, the Supreme Court of Canada opined that the preliminary hearing’s discovery function has “lost much of its relevance”: see R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426; R. v. Bjelland, 2009 SCC 38. In S.J.L., Deschamps J., for the majority, wrote, at para. 23:

Moreover, since R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown’s duty in this respect does not extend to producing a witness for discovery: R. v. Khela, 1995 CanLII 46 (SCC), [1995] 4 S.C.R. 201, at para. 18. Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance. (citations omitted).

[79] Nonetheless, following Francis and S.J.L., when determining the appropriateness of ordering cross-examination under s. 540(9), courts have continued to consider the purposes of screening, pre-trial discovery, and whether cross-examination would assist in determining admissibility under s. 540(7): see e.g. R. v. J.N., at para. 24.

[80] Several cases from the Ontario Court of Justice support this approach, especially where the statement on which cross-examination is sought under s. 540(9) was taken from a key Crown witness.

[81] In R. v. McCormick, 2005 ONCJ 28, the court held that, if the Crown wished to introduce the statement, it would order the witness making the statement to be called under subsection (9). Evidence of the officer taking the statement was not sufficient “where there are credibility concerns, where this witness is fundamental to the Crown leading some evidence on the count on the information, and where there are real and valid issues for discovery.”

[82] In Muzhikov, the two complainants were missing at the time of the preliminary inquiry and the Crown applied to have their video statements admitted pursuant to s. 540(7). The Crown was prepared to call officers to testify to the circumstances surrounding the taking or creation of the statements. The court concluded that because the witnesses were fundamental to the Crown’s case and there were real and valid issues for discovery, the Crown would not be permitted to introduce the statements under subsection (7) without those witnesses being made available for cross-examination.

[83] In R. v. Inglis, 2006 ONCJ 154, the court noted in obiter that if it had permitted the complainant’s statement to be admitted under s. 540(7), it would have required the defence to have the opportunity to cross-examine as the content of the video statement was found to have left open many avenues for legitimate and important cross-examination that could provide vital information in the accused’s possible defence.

[84] Therefore, decisions from the Ontario Court of Justice have historically held that discovery is a relevant consideration when making a ruling under s. 540(9), and that the rulings under s. 540(7) and (9) have interrelated effects upon the accused knowing the case to meet which the provincial court judge must consider.

[85] As appellate authority on the issue, in R. v. M. (P.), 2007 QCCA 414, 222 C.C.C. (3d) 393, leave to appeal ref’d, the Quebec Court of Appeal held that in determining whether to allow cross-examination, the judge should consider the accused’s legitimate interest in preparing its defence and bringing out the insufficiency and weaknesses in the Crown’s evidence.

[86] The Quebec Court of Appeal’s reasoning in M.(P.) was followed in R. v. Sweet, 2012 YKSC 37. In that case, the Crown had successfully applied under s. 540(7) at a preliminary hearing, but the justice subsequently ordered cross-examination of the complainant under s. 540(9). The Crown brought a certiorari application, arguing that cross-examination should only be permitted to the extent it assists the preliminary hearing court in exercising its statutory function—any form of discovery, or inquiry into the complainant's credibility, is inappropriate and impermissible under s. 540(9).

[87] The reviewing court disagreed and found that what is "appropriate" cross-examination under s. 540(9) is to be determined on a case-by-case basis. Nation J. observed the following at paras. 30, 32-33:

It is important for [the judge] to consider the statement, its circumstances and content in an application as to whether cross-examination will be allowed under s. 540(9).

As cross-examination under s. 540(9) is not an exceptional procedure, it must be considered in relation to the relevance of the evidence, and the evaluation of the appropriateness of allowing cross-examination in the context of the circumstances of the case. Cross-examination under this section is not limited to the purpose of determining whether the evidence is credible and trustworthy enough to be admitted pursuant to s. 540(7).

A judge in this situation must clearly be involved in balancing the interests between the potentially vulnerable witness and the rights of the accused. However, it must be remembered that the vulnerability of a young witness can be ameliorated in several ways: a screen, closed circuit TV, etc. Streamlining of cases is a worthy objective, but the over aching principle has to be that an accused knows the case he has to meet.

[88] A number of factors were outlined as to what should be considered by the preliminary inquiry judge in terms of the appropriateness of an order permitting cross-examination: at para. 35. At paras. 36-37, Nation J. went on to opine:

Highly contentious in argument, was the ability of defence to request to cross-examine on a statement for the sole purpose of exploring credibility. This is contentious as at the preliminary inquiry, a judge does not make any credibility assessment. The question for that judge is the sufficiency of evidence to allow the case to proceed to trial. However, it is naive to suggest that credibility is not of interest to counsel at the preliminary inquiry: Crown may in fact call witnesses at a preliminary inquiry to get an assessment of their willingness to appear or their ability to testify; while defence is generally interested to test the veracity of a statement and to create a record of evidence given under oath, which may be later used at trial if the evidence of a witness changes.

The Crown in this case argued that cross-examination based on credibility or veracity of the statement should not be allowed. This is very much along the lines of the Crown argument in R. v. P.M., cited above, which was rejected by the Quebec Court of Appeal. The exploratory role of a preliminary inquiry, although ancillary, is not diminished, watered down or abrogated by the amendments under discussion. If appropriate in the circumstances of the case, cross-examination must be allowed.

[89] In Sweet, the complainant's statement was short, lacking a caution, "somewhat confused," and the complainant was a “critical witness”—in those circumstances, the justice found that “the case to be met was not entirely clear,” the accused’s right to make full answer and defence was engaged and challenging the credibility of the complainant was not the sole purpose underlying the defence application: at paras. 39, 42. Considering the situation of the witness, the statement, and the effect her order may have on the administration of justice, the justice allowed cross-examination and the court declined to review her discretion on the matter: at para. 42.

[90] In R. v. Rao, 2012 BCCA 275, decided shortly after Sweet, a failure to recognize the discovery function of the preliminary hearing was held to amount to a jurisdictional error, though the circumstances were somewhat different in that case. The accused in Rao was committed to stand trial based only on a paper record admitted under s. 540(7). The preliminary inquiry justice denied the respondent’s request to cross-examine those witnesses whose evidence formed part of the paper record for the sole purpose to test and discover the Crown’s case.

[91] In finding that discovery was not a purpose “relevant to the inquiry” within the meaning of s. 541(5), the British Columbia Court of Appeal held that the justice committed a jurisdictional error by narrowly interpreting the words “relevant to the inquiry” in s. 541(5) as only relevant to the committal aspect of the inquiry. Rather, as the cases including M.(P.) suggest, “the discovery function is alive and continues to serve its historical function, albeit in a more streamlined form”: at para. 97. What is “relevant to the inquiry” under s. 541(5) includes what is relevant to the committal aspect and the discovery aspect of the inquiry.

[92] At para. 73, the court described the preliminary hearing justice’s mandate under s. 540(9) as follows:

In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand, the accused's legitimate interest in preparing his or her defence and bringing out, at the preliminary inquiry stage, the insufficiency or the weaknesses of the Crown's evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requested by the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. If the relevance is not demonstrated, the request will be denied.

[93] Although the accused did not bring his application under s. 540(9), the court in Rao held that the accused’s request to cross-examine was, in substance, an assertion of the right set out in s. 540(9): at paras. 68, 70. Because s. 540(9) was overlooked in her analysis, the court found that the justice acted without jurisdiction and in breach of natural justice: at para 74.

[94] In R. v. K.(V.), 2012 ONCJ 806, MacLean J. relied on the reasoning in Rao, and held that discovery is to be considered in the s. 540(9) analysis:

Frankly, until Parliament says that is no longer purpose of preliminary inquiry, I accept that it is and that it has a legitimate purpose and it should be considered in determining when witnesses should be produced for cross-examination. It will very much be determined by the facts of each case. It will turn on factors such as the extent of harm or trauma that might be done to a witness by having him or her testify, balanced against the areas of inquiry that wish to be made. The judge will have to apply in each circumstance logic and reasoning, common sense to balancing those factors and come to a determination about whether it is appropriate to produce someone for cross-examination.

[95] In R. v. Catellier, 2016 MBQB 190, citing Sweet, the court held that the discretionary decision to order cross-examination under s. 540(9) requires a consideration of facilitating the defence’s ability to know the case it needs to meet, particularly as it relates to core witnesses and the possible evidentiary foundation for motions or applications at trial: at para. 89.

[96] Leading up to the enactment of Bill C-75, De Sa J. reached a similar conclusion in R. v. C.D.R., 2018 ONSC 5906, at para. 32: “the jurisprudence makes clear that the defence can use the preliminary inquiry for the purposes of discovery.”

Bill C-75: Further Streamlining of Preliminary Hearings

[97] In my view, the discovery purpose of a preliminary hearing has not diminished following Parliament’s amendments in Bill C-75, which came into force on September 19, 2019, and eliminated the availability of a preliminary inquiry on any charge where the accused faces a maximum punishment of less than 14 years imprisonment.[^5]

[98] The legislative purposes behind Bill C-75, which were similar to those behind the 2004 amendments, were summarized by the Court of Appeal in R. v. Windebank, 2021 ONCA 157, at paras. 19-22, 31:

Bill C-75 had a number of purposes, one of which was stated to be to restrict the availability of preliminary inquiries. The point behind limiting the availability of preliminary inquiries was said to be to free up court time and resources in provincial courts, while, at the same time, reducing the burden on some witnesses and victims by preventing them from having to testify twice in cases where there was currently an entitlement to a preliminary inquiry.

The Bill was partly in response to a 2017 report of the Standing Senate Committee on Legal and Constitutional Affairs that recommended taking steps to eliminate or limit the use of preliminary inquiries to reduce delays in criminal cases. A backgrounder to the Bill pointed out that, since coming into force on July 1, 1893, the preliminary inquiry provisions of the Criminal Code had only been substantially modified once, in 2001, to make the preliminary inquiry available on request rather than automatically.

Another driving force behind the desire to reduce the number of preliminary inquiries was two decisions of the Supreme Court of Canada. One is R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, which held that the Crown has a legal duty to disclose all relevant information to the defence. In reaching that conclusion, the court said that the fruits of an investigation are not the property of the Crown for use in securing a conviction but, rather, are taking steps to ensure that justice is done. The decision in Stinchcombe led many to suggest that the obligation to disclose placed on the Crown by the decision undermined the need for preliminary inquiries, which had often been used simply to obtain that disclosure: see, for example, R. v. L.-G. (S.J.), [2009] 1 S.C.R. 426, [2009] S.C.J. No. 14, 2009 SCC 14, at para. 23.

The other decision is R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, where the court placed a presumptive ceiling beyond which delay -- from the charge to the actual or anticipated end of trial -- is presumed to be unreasonable under s. 11(b) of the Canadian Charter of Rights and Freedoms, unless exceptional circumstances justify it. The Jordan decision had the effect of emphasizing the need for prosecutions to move more expeditiously towards trial and completion. Preliminary inquiries were seen as a main source of delay in the prosecution of cases.

Once again, the focus was on restricting preliminary inquiries to the most serious offences. Parliament balanced the need for preliminary inquiries in cases involving the most serious offences with its objectives of reducing delays and preventing the re-traumatization of victims and witnesses. Throughout the debates surrounding the Bill, the focus was on delineating the offences that could give rise to the availability of preliminary inquiries, while reducing the number of those offences. The idea was to remove discretion, reduce complexity, and provide certainty.

[99] The Court of Appeal has since reaffirmed the important discovery purpose of preliminary hearings. As Doherty J.A. stated in R. v. R.S., 2019 ONCA 906, writing for the court, at paras. 48, 64:

The preliminary inquiry is a process by which the accused may challenge the Crown’s right to proceed to trial and gain information and insights that may assist in the preparation for trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at paras. 30-31; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at paras. 21-23.

Traditionally, the preliminary inquiry has provided valuable assistance to an accused in making full answer and defence. The preliminary inquiry allows for discovery of the Crown’s case, testing of that case, and permits counsel to lay the groundwork for arguments and defences that may be advanced at trial: see G.A. Martin, “Preliminary Hearings”, Special Lectures of the Law Society of Upper Canada, 1955, at p. 1.

[100] The PJ in this case was of the view that the discovery purpose of the preliminary hearing has largely been rendered obsolete since Stinchcombe. Indeed, this seemed to be the extent of her consideration of the “value of discovery” in her ruling under s. 540(9). Despite the Crown’s assertion that the PJ properly turned her mind to the discovery function and other relevant considerations under s. 540(9), I disagree.

[101] I also do not accept the Crown’s argument that, in this case, as was held in Bjelland, at para. 36, “the discovery purpose of the preliminary hearing has been met through other means, such as providing the accused with witness statements.”

[102] I note that Bjelland dealt with the issue of whether late disclosure on the eve of trial, which deprived the appellant the opportunity to cross-examine the potential Crown witnesses at a preliminary hearing, infringed the appellant’s right to make full answer and defence as guaranteed by s. 7 of the Charter. The Court held at para. 36 that despite the ancillary discovery purpose of a preliminary hearing, “if Crown disclosures are otherwise complete, then the accused’s s. 7 right has not been infringed by his not being able to cross-examine a witness at a preliminary hearing.”

[103] Since Bjelland involved the exclusion of evidence under s. 24(2) of the Charter at a much later stage of proceedings on the eve of trial, I do not find the case assists me with examining the applicant’s situation and conducting a review of the PJ’s decision. Nothing in Bjelland eliminates the discovery purpose of a preliminary hearing. The fact that there is no constitutional right to cross-examine at a preliminary inquiry does not preclude certiorari review based on jurisdictional error or breach of natural justice.

The Discovery Purpose of Preliminary Hearings:

[104] I am satisfied that any legislative streamlining of preliminary hearings by Parliament – most recently in 2019 - has not ousted their derivative discovery function, notwithstanding any alleged diminished significance it may have acquired over the years post-Stinchcombe.

[105] Indeed, nothing in Bill C-75 addressed the issue of the admissibility of evidence at a preliminary hearing. Sections 540(7) and 540(9) were left unscathed. While there exists a policy statement acknowledging “vulnerable victims”, there is no indication throughout the various legislative debates of an intent to claw back the evidential foundation for the preliminary inquiry. It is true that Parliament limited the accused’s right to cross-examine under s. 540(1)(a) as being “subject to subsection 537(1.01)” (which gives the power of the justice to, among other things, limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues). However, these increased powers bestowed upon preliminary hearing judges in streamlining the conduct of preliminary hearings does not amount to limiting the accused’s ability to discover the case against him or her to a vanishing point.

[106] In addition, considering that ss. 540(1) and 541(5) impart rights of the accused, which are related to his or her ability to make full answer and defence by cross-examining witnesses, it is clear that the application of the procedural sections in ss. 540(7) and (9) should be applied in a fashion that is consistent with the two-fold functions of the preliminary inquiry, both of which are preserved and reflected throughout Part XVIII. As mentioned earlier, and expressed by other courts, s. 540(1) poses a conflictual analysis to this issue.

[107] The jurisprudence also confirms that what the PJ considers “appropriate” cross-examination under s. 540(9) is not simply limited to what is necessary to seek committal, which is the primary purpose of a preliminary inquiry, it also extends to the derivative purpose of discovery, which assists in making full answer and defence, as one example of the very legitimate purposes of cross-examination that can lay a foundation to deal with issues at trial later on.

[108] In Panfilova, as another example, the defendant sought to cross-examine the declarant for the purpose of discovery, “namely to pursue issues of credibility which would be raised at trial”: at para. 13. The court applied the test under s. 540(9) as outlined in R. v. M.(P.), 2007 QCCA 414, at para. 86:

In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand, the accused’s legitimate interest in preparing his or her defence and bringing out, at preliminary hearing stage, the insufficiency or the weakness of the Crown’s evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requested by the accused is relevant to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. If the relevance is not demonstrated, the request will be denied.

[109] As the proposed cross-examination in Panfilova sought to further the “ancillary purpose” of discovery, the court determined that the requirement under s. 540(9)—where “[a]t a bare minimum relevance must be demonstrated”—was met: at para. 15.

[110] Here, the applicant sought to cross-examine in order to challenge the complainant’s credibility, and in turn, whether the test for committal was met. It is not like in cases involving the right to cross-examine on Charter-related issues, which is subject to the discretion of the PJ: see R. v. Ben-Aissa, 2016 QCCQ 2830, at para. 77. Nor is it like the case of J.N., wherein Latimer J. opined that it is less appropriate to order cross-examination which is “exclusively for the purpose of pre-trial discovery” due to the Supreme Court’s statements in S.J.L.

[111] Rather, like the courts found in Panfilova and Rao, the applicant’s right to cross-examine under s. 540(9) in this case was properly related to the offence itself. The discovery function furthered by the evidence at issue fell within the opportunity to assess the nature and strength of the case against the accused, including the credibility of potential Crown witnesses. As in R. v. B.(E.) (2002), 2002 CanLII 23582 (ON CA), 162 C.C.C. (3d) 451 (Ont. C.A.), the evidence sought on cross-examination was relevant to the sufficiency of evidence and whether the applicant might be committed for trial, and the applicant could not obtain this information by any other available means.

[112] Clearly, while the applicant here sought cross-examination, albeit framed as credibility, the true proposed cross-examination is premised on issues relevant to committal, addressing the statement and to the derivative purpose of discovery.

[113] In the PJ’s analysis, it seems Her Honour understood that cross-examination under s. 540(9) must be relevant to the committal aspect of the preliminary hearing and not the discovery purpose. Since the applicant sought to cross-examine for purposes of discovery and challenging credibility, cross-examination was not permitted. In this way, the PJ undercut discovery as a relevant consideration in the preliminary hearing and overlooked that the proposed cross-examination was in substance on issues critical to the preliminary hearing, including committal. The PJ merely pointed to Crown disclosure obligations as a substitute for discovery at a preliminary hearing and stated that cross-examination was not required to lay a foundation for future evidentiary motions at trial. No consideration was given to the circumstances of the taking of the statement, whether the applicant could or could not obtain the information by any other means, or how refusing cross-examination would impact on the applicant’s ability to contest committal.

[114] I note that the PJ’s view on this point—that court backlogs combined with the diminished discovery purpose of preliminary hearings weigh against permitting cross-examination—is largely in line with Band J.’s view as expressed in Lachowski, at para. 48:

In my experience, as a matter of culture or convention, Ontario courts and Crown counsel have shown more tolerance for discovery-type questions. However, in light of the amendments to the Criminal Code, recent Supreme Court of Canada jurisprudence concerning the discovery role of the preliminary inquiry and the ever-present concerns about delays in the post-Jordan era, there is merit to the approaches exemplified by the courts of other provinces.

[115] An earlier comment from Rose J. in Panfilova, at para. 12, stated similarly:

In wake of R. v. Jordan, 2016 SCC 27 (S.C.C.), the Crown should be encouraged to use s. 540(7) more often to focus preliminary hearings so that court time is used as efficiently as possible. This is one of those instances.

[116] I suspect that encouraging the Crown attorney’s office to “use s. 540(7) more often” has, perhaps unexpectedly, led us to where we are today. The goal of alleviating administrative burden has resulted in committing an accused on a paper record consisting of a single written statement with no ability for the accused to test committal. What more is needed to put the preliminary inquiry as an institution into “intensive care,” as Professor Paciocco (as he then was) forewarned in 2002?

[117] In fact, the Ontario Court of Justice has previously recognized that ss. 540(7) and (9) were not enacted with the intent to convert preliminary hearings into paper hearings. In Kirkpatrick, at para. 23, the court stated:

It is no longer necessary for the Crown to call individual witnesses to prove essential elements of the offence (s. 540(7)). In addition, the justice at the preliminary inquiry has the discretion to limit the attendance of witnesses to be cross-examined as he or she considers appropriate pursuant to s. 540(9). However, courts have cautioned that does not mean that preliminary inquiries should be converted into paper hearings where there is no viva voce evidence called to permit an assessment of witnesses’ credibility and trustworthiness: see R. v. Sonier, 2005 ONCJ 75, [2005] O.J. No. 1234. [Emphasis added]

[118] Yet, this is the approach which the Crown attorney confirms is currently being practiced by the Crown attorney’s office and broadly applied in this region. This practice of conducting paper hearings with no viva voce evidence in the Ontario Court of Justice appears to be a recent, ubiquitous phenomenon, perhaps as a renewed response to court backlogs and judicial resources following the COVID-19 pandemic.

[119] Specifically, in this region, Wendl J. commented as such in the wake of COVID-19 in R. v. Bruzzese, 2020 ONCJ 318, at paras. 12-13:

Bill C-75 introduced amendments which eliminated a preliminary hearing for matters which have a maximum sentence of ten years or less. In addition to that, it increased the power of the preliminary judge, through sections 537(1)(i) and 537(1.01) [3], to limit the issues and witnesses to be heard with a view to making the hearing more efficient and effective. The purpose of these amendments, amongst others, is to free up court time in the provincial courts.

This is of particular relevance now. Trial courts in the Ontario Court of Justice have been closed since the end of March 2020. The Ontario Court opened in a limited capacity on July 6th and in Guelph only on July 7th. Usually, in Guelph we have two or three trial courts running per day. Now only one. In addition to that, courtroom proceedings are slowed due to COVID-19 safety precautions. Simply put, court time is at a premium.

[120] Wendl J. went on in obiter to opine, at para. 21:

One final thought, given the foregoing reasons and the limited judicial resources, it is incumbent on the Crown to begin using section 540(7) of the Criminal Code, a section that has been in force for over 15 years, but infrequently utilized, to streamline preliminary hearings. Again, judicial time is at a premium and the evidence of witnesses called, such as [the officer], who took pictures of the scene, could have easily been provided in a 540(7) application. Ultimately, had this approach been taken, at least one or two days may have been taken off the time required for this hearing.

[121] And in D.D., Wendl J. once again reinforced his views regarding limited judicial resources and streamlining the process with respect to preliminary hearings. At para. 17, he wrote:

The simple reality of today's Ontario Court of Justice is that time is limited. Counsel must demonstrate some probative value to their cross-examination under 540(9) above and beyond bald assertions of discovery or committal. Applications under 540(9) need to specifically demonstrate to the preliminary hearing judge why valuable court time must be diverted from trials, which are being stayed on a frequent basis in this jurisdiction, to preliminary hearings. The days of commandeering a judge for a preliminary hearing based on the blanket statement that committal is at issue is not sustainable. The Supreme Court of Canada in Jordan was highly critical of delays occasioned by preliminary hearings and indicated that everyone in the justice system must work in concert to obtain speedier trials.

[122] At the same time, in D.D. Wendl J. did give credence to the utility of the preliminary inquiry for legitimate purposes as described at para. 18:

I am not saying that preliminary hearings have no purpose, and that cross-examination must never be allowed. Preliminary hearings serve an important screening function, assist in resolution of matters, and do assist in developing veritable Charter issues. However, in today's post-COVID/Jordan era, for preliminary hearings to be effective, counsel need to approach the matter with deliberation. For example, when committal is clearly not an issue, but counsel would like to develop potential Charter issues, a discovery preliminary hearing should be requested, or discussions need to take place to streamline witnesses to limit the scope of the preliminary hearing to genuine issues. To do otherwise risks taking up valuable trial time from other matters.

[123] However, I take issue with how the other obiter sentiments in para. 21 referenced above, and other judicial commentary have been interpreted and applied on the ground. The case before me is but one example, where these sentiments respecting s. 540(7) and s. 540(9) have been overused to the point of encroaching on the accused’s right to have a preliminary inquiry which is conducted fairly and with regard to their substantive rights.

[124] I disagree with the Crown attorney that the recent and current practice, which appears to have recently evolved in the Ontario Court of Justice, could be in line with Parliament’s intent in enacting Bill C-15A or Bill C-75. While ss. 540(7) and (9) were enacted years ago to streamline the conduct of preliminary hearings and avoid repeated or unfocussed testimony from vulnerable or other witnesses, these subsections were never meant to be utilized to strip down the entire preliminary hearing process to a mere paper exercise. If Parliament intended to neutralize or eliminate preliminary hearings, they would have so legislated.

[125] While I am sympathetic to the concern for the efficient use of judicial resources, especially with the impact and subsequent fall-out arising from COVID-19, I respectfully disagree with applying that as an overarching consideration which outweighs the accused’s ability to test the prosecution’s case by some form of focused discovery at a preliminary hearing. In my opinion, the approaches now percolating in the provincial court ought not be the wholesale approach to the interpretation of these relevant provisions.

[126] Similarly, the message urged by the Ontario Court of Justice to the Crown attorneys’ office, in line with the legislature’s intention, is to reduce volume and delay in the provincial courts by using ss. 540(7) and (9) to streamline preliminary hearings, albeit not to effectively all but neuter them completely.

[127] Returning to Bruzzese, the ruling was made where cross-examination was sought on a proposed witness who had no bearing on committal—the purpose for calling the police officer who took pictures of the scene was purely and exclusively for discovery. In D.D., Wendl J.’s comments were made in the context of a “straightforward” case involving possession for the purpose of trafficking and two counts of fail to comply with a release order. The defendant was arrested while in breach of his release order, and video surveillance led to “the almost inexorable conclusion” that in a duffel bag containing drugs belonged to the defendant. The video, the arresting police officer’s fulsome notes and a will say had been disclosed.

[128] In the context before me, the complainant’s written statement formed the entirety of the Crown’s case, and its credibility or trustworthiness was tenuous at best. The preliminary hearing was not one in which, using Wendl J. words, “committal is clearly not an issue.” None of the defendants in Lachowski, Paniflova, Bruzzese, or D.D. were ordered to stand trial in such circumstances.

[129] In following the reasoning from the aforementioned cases, not only did the PJ erroneously conclude that cross-examination was similarly “exclusively for discovery,” but the PJ also failed to recognize that the witnesses in these cases had drastically different bearings on the test for committal. As such, the views expressed in Wendl J.’s decisions were an inappropriate consideration in the PJ’s decision in this particular case, and provincial courts must be mindful not to apply such views too generally.

[130] In order to facilitate a proper understanding of the Crown’s case, preliminary hearing judges have a duty to ensure that sufficient particularization of the case against the accused is articulated in a written statement before admitting it under s. 540(7), refusing cross-examination on the statement, and committing the accused to stand trial on the basis of that statement alone. This rings especially true in this case where the entirety of the prosecution’s evidence at a preliminary inquiry against the accused is based on - what can only be described as - second hand or hearsay evidence. There is a need for further detail that would enable investigation and consideration of defence theories prior to trial. Indeed, in addition to lack of testimony, unexpected testimony by the complainant at trial could lead to an adjournment request for investigation purposes. Certainly, this would not serve the streamlining goal of the preliminary inquiry process.

[131] This is not to suggest that every case needs to go to a full preliminary hearing—there may be appropriate cases where committal may be made out on a focused, reliable and admissible record: see Rao, at para. 63.

[132] Having said all of this, again, my view of an error in the PJ’s application of s. 540(9) does not necessarily mean certiorari is available to me as the reviewing judge. Just as I am aware that the PJ’s ruling under s. 540(7) is within her jurisdiction to make, I am reluctant to find a jurisdictional error in the PJ.’s discretionary decision with respect to ordering cross-examination under s. 540(9). Equally, I am unable to say that the PJ failed to observe a mandatory statutory provision in her ruling under s. 540(9).

Did the PJ commit jurisdictional error in ordering committal under s. 548(1)?

[133] The test for committal under s. 548(1) was clearly articulated by the Supreme Court of Canada in Arcuri, at para. 29:

… where the Crown has adduced direct evidence on all the elements of the offence, the preliminary inquiry judge must commit the accused to trial …

[134] The test was reiterated and further articulated in R. v. Sazant, 2004 SCC 77, at para. 16:

If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to trial: see United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Thus, where the Crown has adduced direct evidence on all the elements of the offence, the preliminary inquiry judge must commit the accused to trial even if the defence proffers exculpatory evidence: see R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, at para. 29. [Emphasis added.]

[135] As the Court went on to observe in Sazant, “[i]t is a jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essential element of the charge”: para. 16 (emphasis added), citing Skogman, at p. 104.

[136] A reviewing court can only vacate an order to stand trial on this basis when there is not a scintilla of evidence of the essential element, or, as it is often put, where there is no evidence before the committing justice upon which, acting judicially, he could form an opinion that the evidence in relation to the essential element is sufficient to put the accused on trial: see R. v. Martin, 2001 CanLII 4971 (Ont. C.A.).

[137] Since there was a scintilla of evidence following the admission of the complainant’s statement under s. 540(7), I am at once hesitant to find that the PJ committed a jurisdictional error in ordering the applicant to stand trial on the count.

[138] As the Supreme Court stated in Deschamplain, at para. 17 (citations omitted), “[a]ny error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction) constitutes an error of law, not a jurisdictional error.”

[139] Thus, albeit based on unreliable hearsay evidence alone, it cannot be said that the PJ failed to comply with her statutory mandate in her decision under s. 548(1). I decline to find a jurisdictional error in this regard.

Has there been a denial of natural justice leading to jurisdictional error?

[140] As mentioned earlier in these reasons, the Supreme Court of Canada in Forsythe held that a preliminary inquiry judge will have committed a jurisdictional error if the proceeding is conducted in a manner which is a denial of natural justice.

[141] In R. v. Hughes (2007), 2007 CanLII 20780 (ON SC), 262 C.C.C. (3d) 98 (Ont. S.C.), considering whether the extent of judicial intervention at a preliminary hearing constituted a denial of natural justice, Dambrot J. wrote, at paras. 63-64:

My only point is that while the preliminary hearing today is conducted in accordance with the adversary system, and the accused has the right to natural justice at the hearing, nonetheless the scope of proper judicial intervention at the preliminary hearing, by virtue of its nature, may be greater than it is at trial.

The ultimate question for me to answer, then, is not whether the accused was in fact prejudiced by the interventions at the preliminary hearing, but whether he might reasonably consider that he had not had a fair preliminary hearing, or whether a reasonably minded person who had been present throughout the preliminary hearing would consider that the accused had not had a fair preliminary hearing.

[142] Indeed, the requirement to conduct a fair preliminary inquiry in accord with natural justice is enshrined in s. 540(8) of the Code, which provides for reasonable notice requirements if a party wishes to tender evidence through s. 540(7): see Francis, at para. 32.

[143] Further, under s. 540(9), I agree with the commentary articulated in the case of R. v. Ahmad et al., 2014 ONCJ 88, at para. 19:

Procedural fairness is provided to the accused under s. 540(9) by allowing the accused to apply to the preliminary inquiry judge to examine or cross-examine “any person” with respect to the information that is admitted. … No exact definition of relevancy or materiality that must be shown by the applicant is found in s. 540(9). It is a broad discretion given to the preliminary inquiry judge when he or she finds it “appropriate” to require a person to give evidence. The exercise of this discretion is only limited by the purposes of the preliminary inquiry which includes a discovery function, the powers specifically given to the preliminary inquiry judge to regulate the proceedings, and the overarching Parliamentary intent to streamline the inquiry. [Citations omitted, emphasis added.]

[144] In the criminal context more generally, recall that Ratushny J. commented in Francis, at para. 18 as follows:

Natural justice has been defined as the principles of procedural fairness developed by the common law and re-enforced frequently by statute. Section 7 of the Canadian Charter of Rights and Freedoms has enshrined principles of natural justice. They consisted historically of two limbs: the right to be heard and the right to an unbiased decision maker. In a modern criminal context, natural justice includes both procedural fairness and substantive fairness. [Emphasis added; Citations omitted.]

[145] In an application for certiorari, the court in R. v. Newburgh, 2015 ONSC 5279 said the following when determining whether the judge acted in breach of the principles of natural justice, at paras. 23-26:

An accused person’s right to make full answer and defence is one of the principles of fundamental justice protected under the Canadian Charter of Rights and Freedoms. While the accused is not entitled to those rules and procedures most likely to result in a finding of innocence, he/she is entitled to rules and procedures, which are fair in the manner in which they enable the accused to defend against and answer the Crown’s case.

The principles of natural justice concern procedural fairness that ensure that an objective decision maker reaches a fair decision. In the context of the right of an accused person to make full answer and defence, there are some fundamental rules related to natural justice or procedural fairness.

First, when an accused person’s interests might be adversely affected by a court, the court must allow the accused an opportunity to present his/her case which may include preparing and presenting evidence and/or responding to arguments presented by the Crown.

Second, a court’s decision, which affects the right of the accused to make full answer and defence, should be based on logical proof or evidence.

[146] It is unquestioned that a preliminary inquiry judge has a duty to conduct the hearing fairly and according to natural justice: see e.g. R. v. Farewell, 2006 ONCJ 209. Accordingly, a motion to quash, or certiorari, may be brought on the ground of a want or excess of jurisdiction, which term embraces the denial of natural justice including the right to a fair hearing: see R. v. Botting (1966), 1966 CanLII 229 (ON CA), 2 O.R. 121 (Ont. C.A.), at para. 42; Reference Re Dick; (1968), 1968 CanLII 231 (ON SC), 2 O.R. 351, (Sup. Ct.), Farewell, at para. 61.

[147] A denial of cross-examination is one example where a denial of natural justice may occur. As outlined in Laskin C.J.’s (speaking for the court) in Forsythe, the jurist provided an-oft quoted statement on when denial of natural justice occurs as a result of a decision or ruling at a preliminary inquiry:

Canadian law recognizes that a denial of natural justice goes to jurisdiction: see Alliance des Professeurs catholiques de Montreal v. Labour Relations Board of Quebec [1953 CanLII 45 (SCC), [1953] 2 S.C.R. 140.]. In the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses. Mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence would not, in my view, amount to a jurisdictional error. However, the judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 of the Criminal Code.

[148] This was reiterated by the Supreme Court of Canada in R. v. Dubois, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366 where the Court stated, at para. 19:

In summary, it is clear enough that no jurisdictional error is committed where the justice incorrectly rules on the admissibility of evidence or incorrectly decides that a particular question or line of questioning cannot be pursued at the preliminary inquiry. This is, of course, subject to the important condition that rulings in the course of a preliminary hearing on evidentiary questions as to the extent of limitation on the basic right to cross-examine or to call witnesses, may develop into a violation of natural justice and fall within the condemnation of Forsythe ... and hence be subject to judicial review. [Emphasis added.]

[149] Other subsequent cases have also applied the observations of Laskin C.J. in Forsythe. The difficulty is in determining what constitutes a “complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses” as opposed to “mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence.”

[150] Two cases are useful in illustrating the two ends of the spectrum. Both are from the Court of Appeal and deal with the issue of the effect of a denial of cross-examination.

[151] R. v. George (1991), 1991 CanLII 7233 (ON CA), 69 C.C.C. (3d) 148 (Ont. C.A.) is a case where the court denied certiorari. In that case, the Provincial Court judge had refused the right to cross-examine on the basis for a search warrant. Carthy J.A., for the court, noted that “the issue was whether erroneous rulings concerning the right to cross-examine, made by the judge on the preliminary hearing, go to his jurisdiction or are legal errors from which there is no appeal”. In the result, Carthy J.A. concluded that what had occurred was a “mere disallowance of a question or questions” as referred to in Forsythe, and did not constitute jurisdictional error. Generally, however, the court held, “[w]hether interference with an accused's right to cross-examine on a preliminary hearing constitutes an error going to the jurisdiction of the Provincial Court judge will depend on the seriousness of the interference.” The ratio in the case related to a question or a series of questions.

[152] R. v. B.(E.) (2002), 2002 CanLII 23582 (ON CA), 162 C.C.C. (3d) 451 (Ont. C.A.) upheld an order granting certiorari. Counsel for the accused sought to cross-examine the complainant on matters relating to his personal diary. The matter was governed by s. 278.3 of the Code, which requires that an accused who seeks production of such a diary must make an application to the judge before whom the accused is to be tried. Subsection 278.3(2) specifically provides that such an application may not be made to a justice presiding at a preliminary inquiry. Counsel for the accused made it clear that he wished to cross-examine the complainant at the preliminary inquiry so that he could lay an evidentiary foundation for an application to the trial judge under s. 278.3. The preliminary inquiry judge denied the right to cross-examine. Cronk J.A., for the Court of Appeal, held that this resulted in jurisdictional error. At pp. 466 and 467, Cronk J.A. referred to the different purposes of a preliminary inquiry, as follows:

It is well-established that the primary purpose of the preliminary inquiry in Canada is to determine if there is a sufficient evidence to warrant committing the accused to trial. Such inquiries have traditionally been regarded, however, as having a second function or aspect, in the nature of a discovery opportunity, permitting an accused to discover the Crown’s case against him or her and to explore the credibility of the Crown’s witnesses and the availability of potential defences. This second function or aspect of the preliminary inquiry has been recognized as an important component of the constitutionally protected right of an accused to make full answer and defence.

The discovery aspect of the preliminary inquiry is supported by the clear statutory right of an accused under s. 540(1)(a) of the Criminal Code to cross-examine witnesses called by the prosecution at the inquiry. Although the right to cross-examine is not unlimited, particularly in sexual assault cases, the fundamental importance of the right in the criminal process is unquestioned. It forms an integral part of an accused’s constitutional right to make full answer and defence.

[153] At p. 472, Cronk J.A. noted that, for the purpose of laying an evidentiary foundation for an application for production under s. 278.3, it was unlikely that the accused could obtain information relating to the complainant’s diary by any available means other than through cross-examination of the complainant, and that the facts related to the diary or knowledge of its contents, its physical characteristics and the circumstances of its creation and maintenance are generally within the exclusive knowledge of the complainant. In these circumstances, a denial of cross-examination was vital to the accused, and would significantly affect his interests at trial. Thus, certiorari was upheld.

[154] I observe that there are cases wherein courts declined to find a breach of natural justice in refusing cross-examination under s. 540(9). For example, in R. v. Gerlitz, 2013 ABQB 576, the court held that the refusal to allow the accused to cross-examine the witness was a decision taken within the preliminary inquiry judge’s jurisdiction and even if it was an error to dismiss the application, the error fell within the judge’s jurisdiction: at para. 79. However, the important distinguishing factor, as mentioned in Gerlitz and present in other cases, is that the complainant’s statement was not contentious and did not form the entirety of the Crown’s case.

[155] In distinguishing between denials of cross-examination that result in a breach of natural justice and those that do not based on the case law, Gray J. in R. v. Kergan, 2007 CanLII 4577 concluded that it depends on “whether the subject matter of cross-examination affects a vital or significant interest of the accused that can potentially prevent him or her from making full answer and defence”: at para. 25.

[156] In R. v. Dawson (1997), 1997 CanLII 12348 (ON SC), 32 O.T.C. 257, the Court of Appeal agreed that the refusal to permit cross-examination of an affiant on an affidavit, filed in support of an application for judicial authorization to intercept private communications, amounted to an “incidental interference” with the right to discovery of the Crown’s case.

[157] On the other hand, in R. v. Al-Amoud (1992), 1992 CanLII 7600 (ON SC), 10 O.R. (3d) 676, Then J. granted certiorari because, in his view, the denial of cross-examination in that case resulted in a loss of jurisdiction. The preliminary inquiry judge refused to allow cross-examination of the complainant in relation to her statements to the police, and in particular with respect to a portion of her statement in which she expressed her doubts as to her ability to identify her assailant. Identity of the assailant was a critical issue in the case. Then J. held that:

This is not a situation as in George where the judge prevented cross-examination by disallowing a single question in a relatively unimportant area. Rather, by the curtailing of cross-examination in a crucial area at the preliminary inquiry, the judge in the instant case substantially deprived the applicant of his ability to make full answer and defence at trial on the important issues of identification and credibility. It appears to me that R. v. George as well as R. v. Cover contemplate that jurisdictional error will occur when the right to cross-examine at the preliminary inquiry is substantially attenuated to the point where the right of the accused to full answer and defence is compromised. It may be difficult to draw the line with precision but in my view the judge on the preliminary inquiry has fallen into jurisdictional error in the circumstances of this case.

[158] As Vertes J. pointed out in R. v. Kasook, 2000 NWTSC 33, at para. 41, it is a combination of the area of cross-examination and the extent of the prohibition which determines whether a jurisdictional error has been committed:

Ordinarily, certiorari does not lie for an error of law made within jurisdiction (such as an erroneous ruling on the admissibility of evidence or that a line of questioning cannot be pursued). This is subject of course to the proviso that rulings limiting the right to cross-examine may develop into a violation of natural justice. It is a question of the extent to which the statutory right to cross-examine has been restricted. Numerous decisions indicate that, while incidental questions in cross-examination may be curtailed by the judge at the preliminary inquiry, a blanket refusal to permit cross-examination on matters that may be relevant to issues at trial constitutes a denial of the right to make full answer and defence at the subsequent trial and would thus be jurisdictional error: [Citations omitted; Emphasis added.]

[159] Although it is critical to note that these cases were decided prior to the enactment of ss. 540(7) and (9), and were referring to the accused’s right to cross-examine under other sections in the Criminal Code, inherent throughout the provisions in Part XVIII are the accused’s limited interests in pre-trial discovery and to assess the nature and strength of the case against them, including s. 540(1)(a): see Skogman, at p. 106. The principles continue to apply, notwithstanding the subsequent enactment of ss. 540(7) and (9).

[160] Subject to further remarks, regardless of whether the evidence is tendered viva voce or tendered on a paper record, curtailing cross-examination to the point of compromising the rights of an accused at a preliminary hearing in the appropriate case, may invite a breach of natural justice.

[161] In the case of the United States of America v. Turenne (1999), 1999 CanLII 14200 (MB KB), 137 Man R (2d) 247 (Q.B.), in reference to a preliminary inquiry, it was observed that “the court must consider whether the principals of fundamental justice require that the accused be forced to stand trial to answer what may be a manifestly unreliable case. They may be forced to stand trial even though they may eventually be acquitted”: at para. 28.

[162] Indeed, the Supreme Court of Canada has made it clear that the judicial screening function performed by preliminary inquiries is an important safeguard of individual rights. Its paramount purpose is to protect citizens against exposure to the risk of unwarranted trials: Skogman, at p. 105; Hynes, at para. 30.

[163] To that end, I return to the case of R.S. referenced at para. 99 of this ruling, and fully adopt those comments along with the following principles that were more recently and fully articulated by Doherty J.A., at paras. 50-52:[^6]

The primary purpose of the preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial. The accused is entitled to have this determination made after an inquiry governed by Part XVIII, at which the accused has a full opportunity to challenge the evidence presented by the Crown. If the accused obtains a discharge, the prosecution comes to an end, except in those rare cases where the Attorney General initiates new proceedings by way of a preferred indictment. I have no difficulty in concluding that the right to challenge the evidentiary basis for the prosecution at an early stage in the process, and potentially bring the prosecution to an end, is a substantive right: see Downey (ONSC), at para. 73.

It is often said that a preliminary inquiry is not a trial and the guilt of the accused is not an issue. Both are true. To acknowledge those realities is not, however, to diminish the significance of the preliminary inquiry to an accused. As observed by McLachlin C.J. in Hynes, at para. 30:

The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to ‘protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. [citation omitted]

An accused’s right to obtain a timely judicial evaluation of the evidence offered by the Crown with a view to avoiding “a needless and, indeed, improper, exposure to public trial” is a significant and substantive right, having a meaningful and direct impact on an accused’s liberty and security of the person interests. [emphasis added].

[164] A provincial court judge deciding applications under ss. 540(7) and (9) must still balance the interests between the potentially vulnerable witness and the rights of an accused. That said, at a preliminary inquiry, where a complainant’s statement forms the entire case against the accused, notably – but not limited to circumstances where the statement leaves open the live question of its threshold reliability - leaving the accused with no opportunity to cross-examine on that statement is, in effect, a denial of a significant and substantive right leading to a breach of natural justice.

Application of the Principles of Natural Justice to this Case

[165] In light of the jurisprudence, in this case, I find that the learned PJ exceeded her jurisdiction in this regard—the denial of the applicant’s request to cross-examine the sole Crown witness whose statement was tendered under s. 540(7) falls within the condemnation of Forsythe and resulted in a repudiation of natural justice.

[166] As I observed earlier, the accused has a statutory right to cross-examine under s. 540(1)(a). The Crown rightly submits however, that the statutory right under s. 540(1) is only in play where the Crown calls a witness, and s. 540(7) is an alternative means for the court to receive that evidence. Yet, especially with the PJ’s foregone conclusion at para. 12, that “[u]pon admission of this evidence, the test for committal is easily met,” it becomes clear that ss. 540(7)-(9) have been used as a sword at the instance of the Crown and adopted by the PJ to render a blanket denial of the applicant’s right to cross-examine on evidence forming the entire basis for his committal and therefore his right to be heard.

[167] The PJ’s mere conclusion that “[t]he value of pretrial discovery of a key Crown witness is counterbalanced by other relevant interests” including the court’s heavy backlog and the negative impact on vulnerable witnesses failed to give any meaningful consideration into how the accused’s right will be impaired in any substantial sense and amounted to a denial of natural justice.

[168] I have already raised some trepidation regarding the recent phenomena of the wholesale application of the applicable sections in the Code as an ubiquitous approach to reduce the preliminary hearing, where available, to a mere paper exercise. The court backlog—no matter how heavy—as expressed by numerous judges of the Ontario Court is an unacceptable justification in these - and perhaps other - circumstances for trampling upon the procedural and substantive rights of the accused. While this is not a Charter case, an analogous argument was made years ago, in the seminal case of R. v. Askov 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 regarding dismissal for delay. In Askov, the Supreme Court was clear that administrative delay or the lack of institutional resources was not a reason to save the section under s. 1 of the Charter.

[169] In my opinion, the principle of trial economy should not be permitted to supersede the importance of fairness and natural justice.

[170] The PJ also pointed to the fact that the Crown had met its disclosure obligations up to that point and that cross-examination is not required to lay a foundation for future evidentiary motions at trial. No consideration was given to the fact that the complainant’s statement is the sole piece of evidence underlying the Crown’s entire case. In such circumstances, it goes without saying that cross-examination would be critical to create a record of evidence given under oath, to determine the circumstances of the taking of the statement, which may be later used at trial if the evidence of a witness recants or even if there is a live question as to its accuracy.

[171] However, by employing the discretion under ss. 540(7) and (9) to commit accused persons to trial based on the filing of one written statement, not to mention a statement which strains the debatable threshold, for “credible and reliable”, given the weak indicia of reliability, constitutes an overuse and abuse of these subsections in a way that sidesteps the substantive natural justice rights of the accused at a preliminary hearing.

[172] Notwithstanding the renewed statutory objective of reducing delays and important considerations regarding vulnerable witnesses, the admissibility of evidence and the application of s. 540(9) to sustain a committal under s. 548(1), must also be influenced by the principles of fairness and natural justice, which was not given due consideration in this case.

Should a remedy be granted?

[173] Even where there has been a denial of natural justice leading to a loss of jurisdiction, this court retains the discretion as to whether to grant any relief on a certiorari application: see R. v. LeBlanc, 2009 NBCA 84; R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 196 O.A.C. 335 (Ont. C.A.).

[174] Courts have exercised their discretion to deny any relief in situations where the denial of natural justice was such that the defendant had not suffered any prejudice. A superior court can refuse prerogative relief if there is an equally effective alternative remedy: See e.g. Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, at p. 588.

[175] The Crown attorney argues that the result would have been the same since the applicant conceded that committal would be made out upon admission of the complainant’s statement under s. 540(7) and I should therefore decline to grant a remedy. I am not convinced by the Crown’s argument. In contrast to the other counts in the indictment, the impugned count carries a significant penalty. There is no other effective, statutory or legal remedy available to the defence at this stage of the proceedings short of affording prerogative relief.

CONCLUSION:

[176] I find that, in the circumstances of this case, the learned PJ erred in that there was a breach of the principles of natural justice, which led to a loss of jurisdiction. The certiorari application with mandamus in aid is hereby granted.

[177] In lieu of quashing the count, at the Crown’s discretion, count #7 is remitted back to the Ontario Court of Justice before a different judge for a preliminary inquiry and focused cross-examination of the witness, in accordance with this ruling.

[178] However, given the delay with the potential for a s. 11(b) Charter application, the Crown may wish to consider foregoing a further preliminary inquiry on the one remaining count and have the nine other substantive counts advance to trial in the Superior Court, without further interruption.

[179] Order accordingly.

A.J. Goodman J.

Date: July 31, 2023

COURT FILE NO.: CR-22-626

DATE: 2023/07/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

• and -

K.F.

Applicant

RULING ON CERTIORARI APPLICATION

A.J. Goodman J.

Released: July 31, 2023

[^1]: The Notice to the Profession issued by Fiorucci J., Local Administrative Judge of the Ontario Court of Justice, effective July 4, 2022, mandated that in any case where the prosecution or defence request a preliminary inquiry, with the exception of first or second degree murder cases, a focus hearing under s. 536.4 of the Code would be conducted, and certain notice requirements must be complied with.

[^2]: Transcripts of the hearing on November 3, 2022, reveal that the issue of committal was to be decided at the next scheduled appearance. Although transcripts of the return date were not filed, the applicant was ordered to stand trial on November 8, 2022.

[^3]: Lucy Chislett, “Evidence at preliminary inquiries: Section 540(7) case law overview and update”, (County of Carleton Law Association, 27th Annual Criminal Law Conference, 2015 Oct 17-18).

[^4]: For example, with the cases mentioned in Ali, at para. 17, I note the following: In R. v. McFadden, 2010 BCPC 189, the court admitted a video-taped statement along with 35 separate documents which were filed, including police reports, statements of various witnesses, forensic reports and exhibit logs. In R. v. Vaughn, 2009 BCPC 142, the Crown had the evidence of the investigating officer who took the statement, who was “careful to observe many of the precautions that are discussed in Khan et. al.” and who had videotaped the entire interview. Nonetheless, the court held that before it could admit the statements, a voir dire was required during which “[t]he video is usually authenticated through the testimony of the investigating officer” and “that officer or other witnesses will generally provide the court with evidence surrounding the taking of the statement and as to other factors upon which the court can found a decision as to the credibility and trustworthiness of the statements”: at para. 6. In R. v. Ireland, 2005 ONCJ 218, the court admitted a videotaped statement considering that the declarant was available for cross-examination and had been called as a witness by the Crown.

[^5]: Section 535 of the Criminal Code now provides: If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

[^6]: The issue in R.S. was whether there was prospective or retrospective application of the Bill C-75 legislative amendments related to preliminary hearings.