INTRODUCTION AND BRIEF DESCRIPTION

This section allows a justice to consider any information they find credible, even if it would not otherwise be admissible in court, including written or recorded statements from witnesses.

SECTION WORDING

540(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.

EXPLANATION

Section 540(7) of the Criminal Code of Canada is a provision that allows a justice to receive as evidence any information that would otherwise be inadmissible in a criminal trial. This provision is particularly useful in cases where the prosecution does not have enough evidence to prove guilt, or when the evidence available is unreliable, as it gives a judge or justice the discretion to take into account any relevant information that may be necessary in determining the guilt or innocence of an accused. Under this section, a justice is able to consider evidence that may not meet the usual requirements for admissibility, such as hearsay evidence or evidence that would otherwise be excluded under the rules of evidence. This includes any statements made in writing or that have been otherwise recorded, provided that the justice considers them to be credible or trustworthy in the circumstances of the case. In practice, the application of this section allows for the admission of a range of evidence that may be crucial to the outcome of a criminal case. This may include eyewitness testimony, confessions made to police officers or written statements from victims or other witnesses. However, it is important to note that the justice retains the discretion to determine the weight that should be given to any evidence received under this provision, and that the evidence must still be assessed in accordance with the principles of fairness and natural justice. Overall, section 540(7) represents an important tool for criminal justice professionals in Canada, as it allows for the admission of evidence that may not otherwise be admissible, providing a greater degree of flexibility and potentially improving the accuracy of criminal trials.

COMMENTARY

Section 540(7) of the Criminal Code of Canada is a powerful tool for judges and other judicial officials to use when trying criminal cases. This provision opens the door for admissibility of any information that would not be admissible under normal circumstances but is deemed credible or trustworthy by the justice. This information could be in the form of a written statement or any other recorded form. The provision introduces flexibility into the evidence-gathering process and allows the court to access evidence that might have been otherwise inadmissible. The provision is particularly useful in situations where the traditional rules of evidence, such as hearsay or the best evidence rule, might stand in the way of a justice or judge receiving relevant evidence. Hearsay evidence, for example, is generally inadmissible in court, as it is considered too unreliable to be used to prove a point. However, there are situations where hearsay evidence can be trusted, particularly if it is corroborated by other evidence or if the witness has a particular expertise or experience that gives their hearsay evidence greater credibility. The provision in section 540(7) of the Criminal Code allows the judge or justice to access this kind of evidence despite it being hearsay. Another way that Section 540(7) of the Criminal Code can be useful is in cases where the prosecution is unable to present the best evidence available. The best evidence rule states that the best available evidence should be presented in order to prove a particular fact. However, there are times when the best evidence is not available, such as when a document that would have provided the best evidence has been lost or destroyed. In these instances, the justice or judge can consider any other evidence that is available and that is deemed trustworthy and reliable. The provision in Section 540(7) of the Criminal Code also acknowledges that certain forms of evidence, such as confessions or statements made by witnesses, may be reliable in certain circumstances. For example, a confession made to a police officer may be admissible if it is deemed to be trustworthy and made voluntarily. The provision gives the judge or justice the power to determine whether such evidence is credible and trustworthy or not. However, the provision is not without its critics. Some argue that it can be used to admit unreliable evidence, particularly if the justice is not sufficiently skeptical of the information presented to them. It may also be argued that the provision is too broadly worded, and could be used to admit any kind of evidence, regardless of its reliability. Overall, Section 540(7) of the Criminal Code of Canada is a powerful tool for judges and justices to use when trying criminal cases. It allows for greater flexibility in the evidence-gathering process and ensures that relevant evidence is not excluded because of technicalities or procedural rules. However, it is important that the provision be used judiciously and with care, to ensure that any evidence admitted is reliable and trustworthy.

STRATEGY

Section 540(7) of the Criminal Code of Canada provides a unique opportunity for a party to admit evidence that would otherwise be inadmissible. This section allows the presiding justice to admit evidence that is considered credible or trustworthy in the circumstances of the case. This provision is a powerful tool in the hands of a skilled lawyer and can significantly impact the outcome of a case. However, to use this provision effectively, several strategic considerations need to be taken into account. The first strategic consideration is the credibility of the evidence. The lawyer needs to assess the reliability of the evidence and convince the justice that it is both credible and trustworthy. This means that the lawyer has to take into account the authentication of the evidence, the source of the information, and the manner in which it was obtained. For example, a witness statement recorded on an iPhone may be considered reliable if the witness's identity can be verified, and the recording was made under appropriate circumstances. The second strategic consideration is transparency. The lawyer needs to be transparent about the source and nature of the evidence being presented. The presiding justice needs to be satisfied that the evidence was obtained legally and is not prejudicial to the other party. A lawyer wanting to admit evidence under this section is also required to disclose to the other party any information that would be helpful in determining the reliability of that evidence. The third strategic consideration is timing. A lawyer should not wait until the eleventh hour to seek to admit evidence under this section. The lawyer must present the evidence at the earliest opportunity so that the opposing counsel can make a full analysis of that evidence and properly prepare their case. The fourth strategic consideration is the impact of the evidence. Lawyers should be keen on the potential effects of the evidence on the case outcome. Evidence presented under this section can be incredibly powerful, and lawyers should consider how much weight it could carry in the overall decision making process. The strategies that can be employed to maximize the use of this section of the code include the following: Firstly, a lawyer should start by building a strong case to support the admissibility of the evidence. The lawyer should argue the credibility and reliability of the evidence to persuade the justice to consider it. A well-supported argument can be a crucial factor in the decision making process. Secondly, a lawyer should be transparent in the presentation of this evidence. The presentation should be clear and concise, and all legal obligations with respect to disclosure should be followed to the letter. Thirdly, lawyers can seek to strengthen their evidence by presenting it through different channels. For example, a written statement can be supported by video footage or audio recordings to provide additional evidence and enhance the credibility of the statement. Fourthly, timing strategies can be used to maximize the evidence's impact and provide better outcomes to the case. A lawyer should consider when it is best to present the evidence and how doing so will affect the overall case outcome. In conclusion, Section 540(7) can be a powerful tool in the hands of a skilled lawyer. To use this section effectively, lawyers should be familiar with the strategic considerations and strategies that can be employed. Using this section proactively and effectively can significantly impact the outcome of a case.