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Represent Yourself in Court

Defence Cross-Examination of Witnesses

The Preliminary Inquiry

Table:  CCC section on which Zaor relies / Sequential enactments from 1953-2018
Criminal Code, 1953-54 (Can.), c. 51 Years 1953 to 1969
Section 453. (1)(a)
When the accused is before a justice holding a preliminary inquiry, the justice shall take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross-examine them.
Criminal Code, R.S.C. 1970, c. C‑34 Years 1970 to 1984
Section 468. (1)(a)
Where the accused is before a justice holding a preliminary inquiry, the justice shall take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross-examine them.
Criminal Code R.S.C. 1985, c. C-46 Years 1985 to 2003
Section 540. (1)(a)
Where an accused is before a justice holding a preliminary inquiry, the justice shall take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross-examine them.
Criminal Code R.S.C. 1985, c. C-46 Years 2004 to 2018
Section 540. (1)(a)
Where an accused is before a justice holding a preliminary inquiry, the justice shall 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.

* R.S.C. means Revised Statutes of Canada

Zaor and The Queen (1984) QueCA

Cross-Examination:  Choice Belongs to the Accused

The Canadian Criminal Code Part XVIII sets down the Procedure on Preliminary Inquiry. All of its provisions are mandatory, including section 540(1) which permits the accused or his counsel to cross-examine witnesses called by the Prosecution.

A Preliminary Inquiry Justice has wide discretion in regulating the proceedings, but still he is not empowered to choose who, between an accused and his counsel, will conduct a cross-examination.

At his Preliminary Inquiry, Mr. Zaor asked to participate in cross-examination, but was refused based solely on the fact that he had a lawyer. With this refusal, the Preliminary Inquiry Judge exceeded his jurisdiction. Zaor filed a certiorari application. It reached the Quebec Court of Appeal, which said the Prelim shall be re-opened to grant Zaor the right to cross-examine all witnesses. The Court held:

The choice as to whether witnesses are to be cross-examined by the accused himself, or by his counsel, belongs to the accused and no one else.

An accused who is represented by counsel is entitled, if he wishes, to withdraw from counsel the normal mandate to examine or cross-examine witnesses, so that he can cross-examine some or all of them himself.

He ought to be in no less favorable a position than he would be if he had engaged two attorneys who were to divide the witnesses to be cross-examined.

It may or may not be wise for an accused represented by counsel to take over a part of his own defence, but he cannot be prevented from exercising this choice if he wishes. The law has no provision to deprive him of that right. At the Preliminary Inquiry stage, an accused is entitled to try to show that the evidence is not sufficient to place him on trial, and to obtain a discharge if he can. His right to cross-examine Crown witnesses, and to call his own witnesses, must not be curtailed.

Over the years, Parliament has expanded the Canadian Criminal Code. The Zaor precedent of 1984 relied on CCC s 468(1)(a) – which today is CCC s 540(1).

R. v. Hughes (2007) ONSC 20780

Judge Has Restricted Role in Examining Witnesses

The Preliminary Hearing originated in England in 1554: Before granting bail, a Justice of the Peace inquired of the accused, and any witnesses, as to the circumstances of the alleged offence, and took depositions of those examined. At that time, the Preliminary Hearing was truly the Justice’s inquiry. Over time, the practice of examining the accused fell away, but the examination of witnesses continued.

In 1848, the Preliminary Hearing was modified by English statute to require witnesses to be examined in the presence of the accused, who in his turn was afforded a right to cross-examine the Crown witnesses, and an opportunity to make a statement after being cautioned. This approximates its modern form.

Today the Canadian Criminal Code sets down the Procedure on Preliminary Inquiry, beginning with s. 535 which states: The Justice may inquire into the charge and any other indictable offence, in respect of the same transaction. A Preliminary Inquiry Judge may himself occasionally question a witness to clear up ambiguities, fill in gaps, or point up something relevant. But this mandate has boundaries.

The number of interventions by a Judge is not by itself determinative; the tenor also matters. When examining the nature of interventions made by a Preliminary Hearing Judge, it helps to compare them to the principal types of interventions by a Trial Judge that would cause a conviction to be quashed. These interventions include:

  1. Questioning an accused or his witnesses to an extent, or in a manner, which conveys the impression that the Judge is placing his authority on the side of the prosecution, and conveys the impression of disbelief of the accused or defence witnesses.
  2. Interventions that make it impossible for the defence attorney to do his job. Examples: Interruptions from the Judge during cross-examination that divert counsel from the topic-line of his questions, or which break the sequence of questions and answers, and thereby prevent counsel from properly testing the evidence of the witness.
  3. Interventions that prevent the accused from doing himself justice or telling his story in his own way.
  4. Interventions suggesting that counsel is acting unethically. The courts draw a distinction between conduct on the part of the presiding Judge which is discourteous to counsel and indicates impatience but which does not invite the jury to disbelieve defence witnesses – versus conduct which actively obstructs counsel in his work. An example of the latter: if a Judge suggests that the defence lawyer is using unethical tactics to mislead the jury, then the integrity and good faith of the defence may be denigrated.

Prejudice is not a prerequisite. The ultimate question is not whether the accused was in fact prejudiced by the interventions, but whether a reasonably minded person who was present throughout the proceedings would say the accused was not given a fair Hearing.

The judge should not act as a second prosecutor; that day is long past. Today, a judge should be neutral. When an Amicus Curiae is in the courtroom neither should he act as a second prosecutor.

R. v. Hynes 2001 SCC 82

Defence May Call Its Own Witnesses

The main function of a Preliminary Inquiry is to test whether the evidence is strong enough for committing the case to a full trial. But there also is an important discovery mechanism associated with a Preliminary Inquiry, acknowledged by the statutes:

[82]   Some Prosecutors only introduce sufficient evidence to satisfy the Shepherd test for committal to trial. However, if the Crown only introduces evidence to satisfy a bare minimum standard, then counsel for the accused may fill in the blanks by calling its own witnesses. The Criminal Code states:

CCC 541 Taking Evidence of Witnesses at a Preliminary Inquiry

(1) When the evidence of the witnesses called on the part of the Prosecution has been taken down and, where required, has been read, the Justice shall hear the witnesses called by the accused.

(4) Where an accused is not represented by counsel, the Justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) and (3) are complied with.

[83]   Many judges have held that the admissibility of evidence at the preliminary inquiry is determined by the concept of relevance, subject to applicable exclusionary rules. But relevance is not limited to the Shepherd test for committal. If relevance was governed solely by that narrow test, not much would be left of either the statutory right to cross-examine the Crown's evidence, or the right to call defence evidence.

[84]   Defence counsel have long recognized the important function afforded by the right to call their own witnesses. While it has been said that the Crown is only required to call witnesses sufficient to obtain a committal for trial, CCC s. 541 provides the accused with an opportunity to call witnesses the Crown chose not to call at the Preliminary Inquiry, but whom the Crown would likely call at trial. CCC s. 541 facilitates discovery of the Crown's case and should not be overlooked.

[85]   Accordingly, if Crown counsel chooses to call only sufficient evidence to meet the basic Shephard test, then CCC s. 541 could do much to highlight all the circumstances surrounding an offence. In face of this, a Preliminary Inquiry Justice will virtually be compelled, let alone able, to engage in the much more comprehensive appraisal that Supreme Court Justice McLachlin indicates a Justice must undertake before ruling on evidence.

Canadian Criminal Code

Part XVIII: Procedure on Preliminary Inquiry

Powers of Justice:  Preliminary Inquiry

CCC s 537 (1)(g)  –  A justice acting under this Part may receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them.

Taking Evidence at a Preliminary Inquiry

CCC s 540 (1) - Where an accused is before a justice holding a preliminary inquiry, the justice shall:

  1. take the evidence under oath of the witnesses called on the part of the prosecution and allow the accused or counsel for the accused to cross-examine them; and
  2. cause a record of the evidence of each witness to be taken (i) in legible writing in the form of a deposition, in Form 31, or by a stenographer appointed by him or pursuant to law, or (ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation.

Hearing of Witnesses

CCC s 541 (1)  –  When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice shall, subject to this section, hear the witnesses called by the accused.

Witnesses for Accused

CCC s 541 (2)  –  Where an accused is not represented by counsel, the justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) and (3) have been complied with.

Depositions if Such Witnesses

CCC s 541 (3)  –  The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with such modifications as the circumstances require.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

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