R. v. Rao, 2012 BCCA 275 (CanLII)
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[62] I agree with the preliminary inquiry judge that s. 540(7) is intended to provide the Crown with an alternative method of presenting its case at the preliminary inquiry, by filing “information” which would not previously have been admissible, as long as the preliminary inquiry judge is satisfied that the information is credible or trustworthy. The section does not displace the Crown’s right to call viva voce evidence; nor does it require the Crown to proceed on paper. Rather, it gives the Crown an additional method of proceeding, taking into account such things as the nature of the case, the apparent reliability of the evidence and, presumably, considerations arising from any discussions with defence counsel. The latter considerations are relevant in that it is open to defence counsel to request the attendance of Crown witnesses whose evidence is to be tendered under s. 540(7) for cross-examination pursuant to s. 540(9). Historically, the Crown has generally been disposed to call certain of its witnesses to permit cross-examination at the behest of the defence. In this case, however, the preliminary inquiry judge effectively encouraged the Crown to proceed by way of a paper record, rather than to proceed with its original plan of calling an agreed number of Crown witnesses to give viva voce evidence.
[63] In my view, the preliminary inquiry judge was correct in concluding that, in some cases, the entirety of the Crown’s case can be placed before the court in paper form pursuant to s. 540(7). She found that this was such a case and, insofar as that decision concerned the admissibility of evidence, she cannot be said to have acted without jurisdiction or in breach of the principles of natural justice. Questions concerning the admissibility of evidence are not jurisdictional questions; nor are questions concerning the credibility or trustworthiness of that evidence.
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