R. v. Pichler, 2026 ONSC 3331

CITATION: R. v. Pichler, 2026 ONSC 3331

COURT FILE NO: CR-25-40000369-0000

DATE: 20260605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ROBERT PICHLER

Respondent

Anita Singh, for the Crown

Elysia Nocida, for the Respondent

HEARD: April 20, 2026, and May 20, 2026

RHINELANDER, J.

Overview

1Mr. Pichler was arrested and charged with the robbery of Syed Asim Raza, a clerk at a 7‑11 convenience store located at 372 Bay Street, Toronto. During the robbery, Mr. Pichler is alleged to have used an airsoft handgun.

2A preliminary inquiry was held. Mr. Syed Asim Raza attended in person and testified under oath on May 8, 2025, at the Ontario Court of Justice, regarding this incident. Mr. Pichler was present at that proceeding. Mr. Raza was cross-examined by counsel for Mr. Pichler who is the same counsel on this application and the trial.

3Mr. Raza was a resident of Canada at the time of the incident and when he testified at the preliminary inquiry. He was in Canada pursuant to a work visa which has since expired. Mr. Raza is currently in Pakistan and is waiting to obtain a visa to return to Canada.

4The Crown seeks an Order pursuant to section 715(1) of the Criminal Code for the evidence of Mr. Raza taken at the preliminary inquiry to be admitted at the trial of Mr. Pichler. In the alternative, the Crown relies on the principled approach to hearsay for the admission of the evidence taken at the preliminary inquiry admitted at trial for the truth of its contents.

5The Respondent is opposed. The Respondent’s position is Mr. Raza’s testimony at the preliminary inquiry does not meet the statutory requirements of s.715(1), nor does it meet the threshold requirements established by the principled exception to the hearsay rule.

6On May 21, 2026, I provided brief oral reasons granting the Crown’s application and advised I would provide more fulsome reasons.

Legal Framework and Analysis

7Section 715(1) provides that evidence given by a witness on the preliminary inquiry into the charge may be admitted at trial where it is established that the witness is absent from Canada and the evidence was taken in the presence of the accused person. Such evidence is not admissible if the accused person proves they did not have a full opportunity to cross‑examine the witness.

8The following is not in dispute:

• Mr. Raza testified under oath at the preliminary inquiry.
• Mr. Raza’s evidence was received in the presence of Mr. Pichler.
• Mr. Pichler was afforded a full opportunity to cross-examine Mr. Raza at the preliminary inquiry subject to tactical decisions made by counsel based on circumstances known at that time.

9For the following reasons, I am satisfied it can reasonably be inferred that Mr. Raza is absent from Canada.

• On January 22, 2026, Mr. Raza informed the officer-in-charge of this case, that he was in Pakistan and did not have access to his Canadian mobile network. Mr. Raza provided other contact methods to correspond with the officer. Mr. Raza was awaiting approval of a work permit before applying for a travel visa to return to Canada. He was unable to provide an anticipated return date.
• Mr. Raza confirmed he was still in Pakistan on March 11, 2026.
• On April 13, 2026, the Canada Border Service Agency confirmed Mr. Raza left Canada on December 28, 2025, from the Lester B. Pearson International Airport. His student visa was expired. There was no evidence Mr. Raza had returned to Canada.

10Despite the statutory preconditions having been met, the defence argued the evidence of Mr. Raza should not be admitted at trial. The prejudicial effect would impact Mr. Pichler’s right to a fair trial and his prejudice was further compounded because there had been a failure by the Crown to make efforts to have Mr. Raza testify remotely.

11Where the statutory preconditions of section 715(1) have been met, the Court retains a residual discretion to refuse to allow the evidence of the preliminary inquiry to be read in at trial where it would impact trial fairness: R. v. Potvin, [1989] 1 S.C.R. 52, at pp. 447 - 553; R. v. Li, 2012 ONCA 291, at para. 29; R. v. Saleh, 2013 ONCA 742, at para. 73.

12In determining unfairness, a trial court can consider the degree of effort required to obtain the witness’ attendance at trial and whether the Crown was aware at the preliminary inquiry the witness would not be available at trial and failed to advise the accused person. Another consideration arises from the impact the admission of the earlier evidence may have on the trial itself: Potvin, at p.552; Li, at paras. 44 – 45. This must be balanced with society’s interest in having the case adjudicated on its merits based on the truth: Potvin, at p. 553.

13Circumstances where the exercise of discretion under s. 715(1) to exclude evidence previously given will be rare: Saleh, at para. 78. As stated in Potvin, it “is not a blanket authority to undermine the object of s.643(1) [now s.715(1)] by excluding” such evidence as a matter of course: p. 548.

14I have considered the fairness of Mr. Pichler’s trial and society’s interest in the admission of probative evidence to obtain the truth in the exercise of my discretion whether to admit the preliminary inquiry evidence of Mr. Raza.

15The importance of Mr. Raza’s evidence is to establish a robbery occurred, what items were taken, and a description of the alleged robber. The latter point is less significant as Mr. Raza did not identify Mr. Pichler as the person responsible for the robbery at the preliminary inquiry and the incident was captured on several security cameras within the store which enables the trier to make their own observations of the suspect.

16There was no unfairness in the way the preliminary inquiry evidence was obtained. Nor would there be any unfairness in the trial itself caused by the admission of this evidence.

17The defence acknowledged there was no dispute a robbery occurred. The issue for the trier of fact is identity. Based on this concession, Mr. Raza’s evidence could be summarized and admitted at trial as an agreed statement of fact.

18I turn now to address the efforts made to have the witness testify virtually. Upon becoming informed Mr. Raza was absent from Canada, and not able to return pending approval of a visa, the Crown contacted the Crown Law Office – Criminal (CLOC), to determine what could be done as Canada does not have a Mutual Legal Assistance Treaty with Pakistan. The Crown was informed where assistance from a foreign country is required, Canada must seek approval and enter into an agreement with the other country. Correspondence was sent to Pakistan; however, no response was forthcoming.

19Although the witness is cooperative, responded to police, and was prepared to testify from his home in Pakistan, it is unclear what if any safety risks exist should he do so. He advised police he was unable to provide his testimony from a police station or courthouse.

20The witness is not compellable as he is out of the country. Canada cannot force Pakistan to respond to its request. In the absence of a response, no treaty with Pakistan, no evidence regarding the laws of Pakistan and/or the safety of the witness, I cannot say the Crown failed to make efforts to have Mr. Raza testify remotely.

Disposition

21The Crown’s application to introduce Mr. Raza’s preliminary inquiry evidence under section 715 is granted.

22As I determined the evidence is admissible pursuant to the statutory exception set out in section 715, I have not addressed the Crown’s alternate argument for admissibility under the principled exception to hearsay.

C. Rhinelander J.