R v Potvin [1989] 1 S.C.R. 525: Fair trial -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry

Present: Dickson C.J. and Lamer, Wilson, La Forest and Sopinka JJ.

Constitutional law -- Charter of Rights -- Fundamental justice -- Fair trial -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether s. 643(1) of the Code infringes s. 7 of the Canadian Charter of Rights and Freedoms.

Constitutional law -- Charter of Rights -- Presumption of innocence -- Fair trial -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether s. 643(1) of the Code infringes s. 11(d) of the Canadian Charter of Rights and Freedoms.

Criminal law -- Evidence previously taken -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry --Whether s. 643(1) of the Code infringes ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Criminal law -- Evidence previously taken -- Discretion to exclude -- Criminal Code permitting evidence taken at accused's preliminary inquiry to be read at trial where witness unwilling to testify at the accused's trial and where the accused had an opportunity to cross-examine the witness at the preliminary inquiry -- Whether trial judge has discretion to exclude evidence where conditions of s. 643(1) of the Code met -- Whether trial judge erred in admitting such evidence.

Criminal law -- Charge to jury -- Evidence of witness given at accused's preliminary inquiry admitted at trial following witness' refusal to testify at the accused's trial -- Witness cross-examined by accused's counsel at the preliminary inquiry -- Whether trial judge erred in not warning the jury that caution should be exercised before accepting previously taken evidence in the absence of live cross-examination -- Whether a warning is required when previously taken evidence introduced at trial is from an accomplice -- Criminal Code, R.S.C. 1970, c. C-34, s. 643(1).

Criminal law -- Charge to jury -- Failure to testify -- Whether trial judge's comments on the accused's failure to testify constitute a violation s. 4(5) of the Canada Evidence Act.

The accused and two alleged accomplices, D and T, were charged with second degree murder. The Crown proceeded against the accused first with the intention of using the other two as witnesses. Although he had testified at the preliminary inquiry, D refused to testify at the accused's trial. The trial judge allowed the Crown's application, made pursuant to s. 643(1) of the Criminal Code, to have the transcript of D's testimony at the preliminary inquiry introduced as evidence and rejected the accused's claim that the admission of the previously taken evidence would violate his rights under the Canadian Charter of Rights and Freedoms. The accused was convicted and his appeal to the Court of Appeal dismissed. The Court held that the admission of previously taken evidence under s. 643(1) did not violate ss. 7 or 11(d) of the Charter and that the trial judge made no error in admitting the evidence. The Court found that, once the conditions of s. 643(1) were met, the judge had no discretion to exclude the evidence, except perhaps pursuant to the residual common law discretion defined in Wray. The Court also held, after examining the charge to the jury, that the trial judge had not directed the jury's attention to the fact that the accused did not testify at his trial contrary to s. 4(5) of the Canada Evidence Act. Nor was the trial judge's warning to the jury as to the dangers of accepting D's testimony inadequate.

Held: The appeal should be allowed and a new trial ordered.

Per Lamer, Wilson and Sopinka JJ.: Section 643(1) of the Code, in so far as it allows evidence given at a preliminary inquiry to be admitted at a criminal trial when a witness is unavailable or unwilling to testify, does not infringe s. 7 of the Charter because it provides that the evidence will only be admitted if the accused has had a full opportunity to cross-examine the witness at the time the evidence was given. It is basic to our system of justice that an accused have a full opportunity to cross-examine the adverse witness. But the right to confront unavailable witnesses at trial is neither an established nor a basic principle of fundamental justice. To the extent that s. 7 guarantees the accused a fair trial, it cannot be said, in the absence of circumstances which negated or minimized the accused's opportunity to cross-examine the witness when the previous testimony was given, that the admission of the previously obtained testimony under s. 643(1) was unfair to the accused. It is the opportunity to cross-examine and not the fact of cross-examination which is crucial if the accused is to be treated fairly. The same is true of the accused's right to a fair trial guaranteed by s. 11(d) of the Charter.

Section 643(1) of the Code does not violate the presumption of innocence guaranteed by s. 11(d) of the Charter by the fact that, under s. 643(1), the accused, and not the Crown, bears the burden of proving that he did not have a full opportunity to cross-examine the witness at the time the evidence was given. Absent exceptional circumstances not present here, it is perfectly reasonable to expect an accused to be able to prove whether or not he was deprived of a full opportunity to cross-examine the witness. Only the accused, after all, knows what was comprised in that "full opportunity" and the extent to which, if at all, it was denied or restricted. A denial or restriction can only have taken place if the intention or desire to pursue certain questions was present and was frustrated.

The trial judge did not violate s. 4(5) of the Canada Evidence Act in directing the jury's attention to the fact that the accused did not testify in his own defence. Section 4(5) requires something more than an offhand reference to the fact that an accused did not testify at trial. The trial judge's first comment was part of a general direction to the jury at the beginning of the charge. The second comment was in the nature of an offhand remark. Even if that remark could have prejudiced the accused, it was more than compensated by the trial judge's unambiguous and sustained comments throughout the charge concerning the burden on the Crown to prove the guilt of the accused.

A new trial should be ordered, however, because the trial judge misdirected himself as to the proper interpretation of s. 643(1) of the Code and because of the combined effect of the trial judge's failure to warn the jury concerning the use of s. 643(1) and his erroneous instruction that the transcript of testimony taken at the preliminary inquiry should be treated in the same manner as live testimony given at trial.

The trial judge has, under s. 643(1) of the Code, a discretion whether or not to admit the previous testimony once the conditions set out in the section are met. The word "may" in s. 643(1) is addressed to the trial judge and gives him a statutory discretion to depart from the purely mechanical application of the section. The discretion should be construed broadly enough to deal with situations where the testimony was obtained in a manner which was unfair to the accused or where, even though the manner of obtaining the evidence was fair to the accused, its admission at his trial would not be fair to the accused. Section 643(1), therefore, confers on the trial judge a discretion broader than the traditional evidentiary principle that evidence should be excluded if its prejudicial effect exceeds its probative value. In this case, the trial judge did not instruct himself properly as to the nature and scope of his discretion under s. 643(1). He stressed the high probative value of the evidence but failed to give adequate consideration to possible unfairness to the accused arising from either the manner in which the evidence was obtained or the effect of its admission on the fairness of the trial. The Court of Appeal proceeded on the basis that the trial judge had no discretion other than the restrictive common law formulation in Wray. Neither court applied its mind to the question whether in the circumstances of this case the trial judge should have exercised his statutory discretion in s. 643(1) to exclude the evidence.

Further, it is highly desirable in all cases in which previous testimony is introduced at trial pursuant to s. 643(1) of the Code, and in particular in a case such as this where the unavailability of the witness to testify at trial is the result of a deliberate decision by the witness not to give his evidence under oath before the trier of fact, that the trial judge remind the jury that they have not had the benefit of observing the witness giving the testimony. A failure to do so will not constitute a reversible error in every case. Here, however, the trial judge compounded the failure to warn with an instruction designed to give the jury the impression that the transcript of D's testimony at the preliminary inquiry was evidence like all the other testimony at the trial. This was wrong. D's testimony differed from the other testimony the jury heard at trial because it alone was not subject to live cross-examination at the trial. His evidence was crucial in that it purported to be an eyewitness account which, if believed, was almost conclusive of the accused's guilt.

Where accomplice's evidence is introduced at trial pursuant to s. 643(1) of the Code, it is for the trial judge in every case, on the basis of his appreciation of all circumstances, to decide whether a warning is required.

Per Dickson C.J. and La Forest J.: Section 643(1) of the Criminal Code is not directly addressed to the prosecution or the judge, although it has implications on how they perform their duties. The provision is directed at a certain type of evidence. It makes it admissible. The parties to a trial may, therefore, invoke the provision if they wish. But the provision does not provide that the evidence previously taken shall be accepted; it provides, rather, that it may be read as evidence. This leaves room for the operation of the ordinary principles of the law of evidence, including the rule that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value. That discretion, which is grounded in the judge's duty to ensure a fair trial, is not limited solely to situations where the evidence is highly prejudicial to the accused and only of modest probative value. In this case, the trial judge failed to properly instruct himself either about the existence of the discretion or, more likely, about its nature. He repeatedly stressed the relevance of the evidence without any consideration of its prejudicial character. Therefore, the trial judge failed to exercise the discretion which was incumbent upon him to ensure a fair trial.

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