INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the requirements for taking evidence and recording witness testimonies during a preliminary inquiry in a criminal case.
SECTION WORDING
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; and (b) 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.
EXPLANATION
Section 540(1) of the Criminal Code of Canada outlines the responsibility of a justice holding a preliminary inquiry. This section states that the justice must take the evidence under oath of the witnesses called on the part of the prosecution and allow the accused or their counsel to cross-examine them. Additionally, the justice must cause a record of the evidence of each witness to be taken. This record can be taken in legible writing in the form of a deposition in the prescribed form or through a stenographer appointed by the justice or pursuant to law. Alternatively, in provinces where sound recording apparatus is authorized by provincial legislation for use in civil cases, the record may be taken by the type of apparatus authorized and in accordance with the requirements of the provincial legislation. The purpose of a preliminary inquiry is to determine if there is enough evidence to proceed with a trial. The justice is responsible for ensuring that all the relevant evidence is presented and recorded accurately. The requirement for taking evidence under oath ensures that witnesses provide truthful testimony. The cross-examination of witnesses by the accused or their counsel is crucial to test the accuracy and reliability of this testimony. By requiring the justice to cause a record of the evidence to be taken, Section 540(1) ensures that the evidence is properly preserved for future use in court proceedings. This record can be in written or audio format. If written, it must be in the prescribed form to ensure consistency across all preliminary inquiries. The use of a stenographer or recording apparatus also helps to ensure accuracy and completeness of the record. In summary, Section 540(1) is an essential provision in the Criminal Code of Canada that outlines the responsibility of a justice holding a preliminary inquiry and helps to ensure fair and accurate representation of evidence in court proceedings.
COMMENTARY
Section 540(1) of the Criminal Code of Canada is a critical piece of legislation that plays a significant role in ensuring that criminal proceedings in Canada are carried out fairly and justly. The provision outlines the basic requirements that a justice holding a preliminary inquiry must follow when taking the evidence of witnesses called on the part of the prosecution. The primary objective of a preliminary inquiry is to determine whether or not there is sufficient evidence to proceed with a criminal trial. As such, it is essential that the evidence gathered during this process is reliable and credible. Section 540(1) ensures that the evidence of witnesses called on the part of the prosecution is taken under oath, allowing for cross-examination by the accused or counsel for the accused. This provision helps to ensure that the evidence is thoroughly tested, limiting the possibility of a wrongful conviction. The second requirement of Section 540(1) is that a record of the evidence of each witness is taken. This record can be taken in legible writing in the form of a deposition or by a stenographer appointed by the justice or pursuant to law. Alternatively, in a province where sound recording apparatus is authorized by or under provincial legislation for use in civil cases, the record can be taken by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation. The importance of taking a record of the evidence of each witness cannot be overstated. The record ensures that the evidence is preserved for future reference and can be used by the prosecution and defence to prepare their cases. The record also ensures that the evidence is transparent, allowing for public scrutiny of the process. Furthermore, it ensures that the justice carrying out the inquiry has a complete understanding of the evidence presented and is therefore better equipped to make an informed decision about whether the case should proceed to trial. It is important to note that the provision allows for the use of sound recording apparatus in provinces where it is authorized by law. This provision recognizes that there are technological advancements that can make the process of taking evidence more efficient, accurate and cost-effective. It also ensures that justice is accessible by reducing the barriers to entry associated with traditional recording methods. In conclusion, Section 540(1) of the Criminal Code of Canada is critical legislation that serves as a cornerstone of the Canadian justice system. It ensures that the evidence presented during a preliminary inquiry is reliable, credible, and transparent. The provision recognizes the importance of taking a record of the evidence of each witness to ensure that the process is fair, just, and thorough. Finally, it recognizes the importance of adapting to technological advancements by allowing the use of sound recording apparatus in provinces where it is authorized by law.
STRATEGY
One strategic consideration when dealing with section 540(1) of the Criminal Code of Canada is to carefully choose the witnesses to be called on the part of the prosecution. It is important to ensure that the witnesses selected are credible and will provide evidence that supports the prosecution's case. This involves conducting a thorough investigation and gathering as much evidence as possible before the preliminary inquiry. Another strategy is to prepare for cross-examination of the witnesses. This involves anticipating the defence's questions and preparing responses that will effectively refute any potential challenges to the witness's testimony. It is important to remain calm and focused during cross-examination and not to engage in argumentative or aggressive behaviour. In addition, it is important to ensure that the record of the evidence of each witness is accurate and complete. This involves reviewing the deposition or recording to ensure that it accurately reflects what was said during the preliminary inquiry. Any errors or inconsistencies should be addressed promptly to prevent them from being used against the prosecution later on. It is also important to consider the timing of the preliminary inquiry. In some cases, it may be strategic to delay the inquiry in order to gather more evidence or to allow more time to prepare. On the other hand, in some cases, it may be advantageous to proceed with the inquiry as soon as possible in order to prevent witnesses from forgetting important details or to prevent the defence from having more time to prepare. Another strategy is to consider whether to call the accused as a witness during the preliminary inquiry. This can be risky, as it may provide the defence with information that they can use to build their case. However, in some cases, it may be necessary in order to challenge the credibility of the defence's witnesses or to provide evidence that supports the prosecution's case. Overall, strategic considerations when dealing with section 540(1) of the Criminal Code of Canada involve careful preparation, anticipation of potential challenges, and effective communication with witnesses and legal counsel. By employing effective strategies, the prosecution can ensure that they are well-positioned to succeed in the preliminary inquiry and ultimately secure a conviction.