





CITATION:
R. v.
Vasarhelyi
, 2011 ONCA 397



DATE: 20110520



DOCKET:  C50698



COURT OF APPEAL FOR ONTARIO



Feldman, Rouleau and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Pal Vasarhelyi



Appellant



Pal Vasarhelyi, appearing in person

Heather Pringle, duty counsel



Susan Ficek, for the respondent



Heard:  January 17, 2011



On appeal from a decision of Justice John B. McMahon of the
          Superior Court of Justice on June 8, 2009.



Watt J.A.:



[1]

In 1990 Pal and Ilona Vasarhelyi divorced. The divorce
    proceedings were acrimonious.  About two
    decades later, the virulence lingered.

[2]

In late 2008, Pal Vasarhelyi (the appellant) laid
an information
under oath before a justice of the peace. The
    appellant alleged that, decades earlier, Ilona Vasarhelyi had committed
    perjury, arson and fraud.  The justice of
    the peace received the information.

[3]

About a month after he laid the information, the
    appellant testified as the only witness on the pre-enquete held to determine
    whether process should issue to compel Ilona Vasarhelyi to answer to the
    charge. The justice of the peace refused to issue process.

[4]

The appellant applied to a judge of the Superior Court
    of Justice for an order in lieu of
mandamus
to compel the justice to issue process on the information.  The judge dismissed the application.

[5]

Pal Vasarhelyi appeals the decision of the judge of the
    Superior Court. He asks that we direct the justice of the peace to issue
    process.  For the reasons that follow, I
    would dismiss the appeal.

THE BACKGROUND FACTS

[6]

Some
    procedural history and a brief recital of the essential features of the
    appellants evidence are critical to the analysis that follows.

The
    Information

[7]

The
    appellant appeared before a justice of the peace on December 4, 2008, and laid
    an information containing allegations of arson, perjury and fraud against his
    former wife.  According to the appellant,
    his ex-wife was criminally responsible for
an arson
at
    his business premises in 1985 and committed perjury on several different
    occasions between 1990 and 1998. The appellant claimed that his ex-wife also
    stole his OHIP card in 1984 and provided it to others who fraudulently obtained
    prescription drugs or health related services.

[8]

The
    justice of the peace, apparently satisfied that the allegations met the requirements
    of s. 504(a) of the
Criminal Code
,
    received the information.

The Pre-enquete

[9]

On
    January 12, 2009, a justice of the peace undertook a pre-enquete to determine whether
    process should issue to compel Ilona
Vasarhelyi to answer to the charges
    contained in the appellants information. The appellant was there with counsel.
    A student-at-law appeared for the Attorney General. The appellant was the only
    witness who gave evidence at the hearing.

The Evidence at the Pre-enquete

[10]

The
    allegations of perjury include several discrete incidents over many years.

[11]

The
    appellant claimed that, as a result of his ex-wifes perjury, he was detained
    at the airport for two or three hours in March, 1990, when he was taking their
    child to his place in Florida for March break.  He says that his ex-wife told the F.B.I. that he was a spy and an
    international criminal.

[12]

The
    appellant gave two other examples of his ex-wifes perjury.  One occurred in a family court proceeding on
    June 8, 1998, when she falsely claimed that he had harassed her physically and
    emotionally during the hearing: officials took a restraining order against me
    without my knowledge. On February 10, 1999, during the appellants trial on a
    charge of uttering death threats, his ex-wife claimed that he had hired a hit man
    to kill her. The appellant was in custody during the investigation and
    convicted of the offence charged.

[13]

The
    appellant did not produce any transcripts of the allegedly perjured testimony
    of his ex-wife. Nor was any evidence adduced capable of constituting
    corroboration of the appellants allegations as s. 133 of the
Criminal Code
requires in prosecutions
    for perjury.

[14]

The
    arson charge had to do with a fire at the appellants woodworking shop in
    1985.  The appellants only key to the
    shop had disappeared before the fire.  His wife had claimed that their child had thrown the key into the
    toilet. While his wife was not at home, the appellant removed the toilet.  He found no key.  The appellant claimed that his wife had given
    the shop key to her (then) boyfriend.

[15]

Someone
    from the Office of the Fire Marshall telephoned the appellant to
notify  him
about a
    fire at his shop.  During this discussion
    the appellants ex-wife smiled and appeared to be happy.  The appellant says that this reaction also
    proves that his ex-wife committed arson.

[16]

The
    allegation of fraud related to what the appellant claimed had been fraudulent
    use of his OHIP card to obtain antibiotics for his ex-wifes friend who had
    come to Canada from Romania to obtain medical care.  The appellant told the justice that his OHIP
    card, along with other items of his identification, had been stolen in 1984.  In 2000, a nurse told him that someone had
    been using his OHIP card.  The appellant
    obtained medical care with a replacement card.

[17]

Despite
    the presence of counsel, the appellants responses to questions at the hearing were
    discursive, often unresponsive to the questions and unfocussed. When asked
    about the delay of decades in laying the charges, the appellant responded:
    its a very funny question.  He
    explained that he wanted to wait until the only child of their marriage had
    grown up to avoid retaliatory measures towards the child by his ex-wife.  By the time the pre-enquete took place, the
    child was 26 years old.

The Submissions at the Pre-enquete

[18]

At
    the pre-enquete, counsel for the appellant contended that the appellant had
    adduced evidence that Ilona
Vasarhelyi had made untrue statements to a
    justice of the peace on June 8, 1998.  These statements, which included complaints that the appellant beat her,
    persuaded the justice to issue a restraining order against the appellant.  She also lied at the appellants trial for
    uttering death threats of which he was convicted.

[19]

Counsel
    for the appellant urged the justice of the peace to issue process on the
    allegations of arson and fraud. The fire at the workshop had been set by
    someone who had access to the building, since there were no signs of forcible
    entry. The evidence of the appellant pointed to his ex-wife as the only person
    who had access to the keys.  In a similar
    way, the appellants ex-wife had exclusive access to the appellants
    identification, including his OHIP card. Thus, it was his ex-wife who stole the
    OHIP card and provided it to a mutual friend to obtain medical benefits to
    which the friend was not entitled.

[20]

The
    articling student who appeared on behalf of the Attorney General opposed the
    issuance of process. He pointed out that the appellant had offered no evidence
    of what Ilona
Vasarhelyi had actually said in any of the hearings, or
    that what she said was false. Further, the appellant had adduced no evidence
    capable of constituting corroboration as required by s. 133 of the
Criminal Code
.

[21]

The agent of the Attorney General contended that
    the appellant had adduced no evidence on the arson charge that there had been an
    actual fire that caused damage to his workshop, let alone a fire set at the
    direction of or with the participation of Ilona Vasarhelyi.  Her smile upon learning of the events was no
    evidence of her participation in them.  Likewise, the link between the appellants ex-wife and the theft and
    fraudulent use of his OHIP card, as reported by
an unnamed
    nurse years
later, was unsupported by any evidence.

The Decision at the Pre-enquete

[22]

At
    the conclusion of the pre-enquete, the justice decided not to issue
    process.  The nucleus of his reasons for
    refusal appears in this passage:

Now
    you have to understand, the nature of a pre-enquete hearing is to decide
    whether process should be issued, whether these charges can go forward, whether
    the Crown feels that they can prosecute. The very nature of their job is to
    prosecute. They want to prosecute.  So
    when I hear from a Crown that, Listen, I dont think that, my Crowns opinion
    is that they dont think theres evidence here to prosecute, I have to pay very
    close attention to that.  And I do.

And
    I heard the same evidence today and I did hear a lot of hearsay evidence and
    Im not satisfied, Mr. Vasarhelyi, that charges can be issued, or process can
    be issued on any of these charges. Im not satisfied theres enough evidence in
    the Court today to issue process. So
process on all three
    charges, sir, are
not issued.


The Application for
Mandamus

[23]

The appellant sought an order in lieu of
mandamus
to compel the justice of the
    peace to issue process on the information. A judge of the Superior Court of
    Justice dismissed the application.

[24]

At the outset of his reasons for judgment, the application
    judge began:

I
    am mindful that under the provisions of s. 507.1 of the
Criminal Code
the applicant must satisfy the justice of the peace
    that there is a
prima facie
case
    based upon the evidence of a witness or witnesses called on the pre-enquette
    hearing.  The evidence called must be
    admissible at law.

[25]

The application judge then considered the evidence
    adduced in connection with each charge.

[26]

In connection with the charge of perjury, the
    application judge noted that the only evidence about the falsity of the
    ex-wifes testimony was the appellants opinion that she lied. The judge
    concluded:

The
    learned justice of the peace I find did not exceed his jurisdiction in electing
    not to issue process on the perjury charges.  In fact, I find the justice of the peace was correct in law in not
    issuing process since there was no evidence of an essential element of the
    offence of perjury; i.e., there was no evidence of corroboration.
[1]

[27]

The application judge concluded that the justice of the
    peace had
not
committed
    jurisdictional error in failing to issue process on the proposed charge of
    fraud.  The judge reasoned:

In
    regard to the count of fraud, there was no admissible evidence presented at the
    pre-enquette to link his former wife directly to the theft of the OHIP card or
    its subsequent use.  Further, the alleged
    subsequent use was provided by way of a hearsay statement received by the
    applicant.

He added:

Further, I am satisfied that the learned justice of
    the peace was again correct in law in concluding that there was insufficient
    evidence to issue process on the fraud charge.

[28]

In his rejection of the appellants submissions on the
    arson charge, the application  judge
    said:

In
    examining whether on the totality of the circumstantial evidence if the
prima facie
test has been met, I must
    note that, first, there was no admissible evidence before the learned justice
    of the peace that could establish that the fire was deliberately set.  Second, what the superintendent is alleged to
    have said to the applicant twenty-four years ago would be inadmissible hearsay.
    Third, the applicants belief his former wife set the fire would not be
    admissible evidence at trial but would be speculation.

THE GROUNDS OF APPEAL

[29]

The
    appellant submits that the application judge was wrong in concluding that the
    justice had acted within his jurisdiction in refusing to issue process. The
    jurisdictional error left uncorrected by refusal of
mandamus
, according to the appellant, was that the justice failed
    to consider
all
the evidence in
    deciding whether to issue process.

[30]

Duty
    counsel advanced a different argument on the appellants behalf. Ms. Pringle
    submitted that the justice exceeded his jurisdiction by restricting his
    consideration to evidence that would be
admissible
at a criminal trial. The incorporation of the provisions of s. 540(7) of the
Criminal Code
, by the combined operation
    of ss. 507.1(8) and 507(3)(b), permits the introduction of evidence at the
    pre-enquete that would not otherwise be admissible in a criminal trial. Thus,
    the argument continues, the justice declined jurisdiction when he failed to
    take into account the hearsay evidence given by the appellant in determining
    whether to issue process.

[31]

For
    the respondent, Ms. Ficek contends that the appellant has failed to establish
    any jurisdictional default or error here. The justice was simply not persuaded
    that the information offered by the appellant met the standard required for the
    issuance of process. The shortcomings in the appellants testimony were not
    limited to hearsay.  What the appellant
    said under oath was rife with speculation, incapable of supporting any rational
    inference that linked the putative accused to the offences alleged.  Nothing said by the appellant was above the
    level of unfounded suspicion.

[32]

Ms.
    Ficek says that the referential incorporation of s. 540(7) into the pre-enquete
    is of no moment in this case.  At bottom,
    evidence inadmissible under traditional rules of admissibility may only be
    relied upon where the justice considers it credible and trustworthy under s.
    540(7) and the notice and disclosure required by s. 540(8) have been provided
    to the Attorney General. The justice, as he was entitled to do, considered it
    neither here. The application judge was right to conclude that the justice had
    committed no jurisdictional error.

ANALYSIS

[33]

To
    determine whether an order in lieu of
mandamus
should have issued, an appropriate foundation on which to begin combines a
    brief measure of the purpose of the pre-enquete, a ration of the procedure that
    governs the hearing and a portion of the principles that govern the
    extraordinary remedy of
mandamus
.

The Pre-enquete

[34]

Section
    504 of the
Criminal Code
describes
    who may lay
an information
before a justice of the
    peace alleging that a person or persons committed an indictable offence.  The section describes the form of the
    information and defines the circumstances in which the justice is required to
    receive it.

[35]

Receipt
    of
a sworn
information by a justice of the peace does
    not, on its own, require the person alleged to have committed the offence to
    answer to the charge.  The next step is a
    hearing or an inquiry to determine whether the person alleged to have committed
    the offences described in the sworn information should be compelled to appear
    in answer to those charges. This hearing or inquiry determines whether process
    should issue.

[36]

The
Criminal Code
contains two separate
    provisions for inquiries about the issuance of process. The distinction resides
    in the status of the informant. One provision governs where the informant is a
    law enforcement official and the other, where the informant is a private
    citizen. Where, as in this case, the informant is a private citizen,
    s. 507.1 of the
Criminal Code
governs the inquiry into the issuance of process, commonly described as the
    pre-enquete.

[37]

Under
    s. 507.1, the purpose of the pre-enquete is to determine whether process should
    issue to compel the appearance of the prospective accused to answer to the
    charges contained in the information. The designated justice or provincial
    court judge who presides at the pre-enquete decides whether a case has been
    made out for the issuance of process on the basis of the
allegations
of the informant and the
evidence
of witnesses.

[38]

The
    language used in s. 507.1(3), which defines the conditions to be satisfied
    before process may issue, is discretionary: the judge or designated justice
may
issue a summons or warrant.  The standard or test the judge or justice is
    to apply emerges from s. 507.1(2): that a case for doing so is made out.  Sections 507.1(5)  (7) describe the effect
    of a finding that no case has been made out for the issuance of process.

Evidence at the Pre-enquete

[39]

Section
    507.1(3
)(
a) distinguishes between the
allegations
of the informant, on the
    one hand, and the
evidence
of
    witnesses, on the other. Unlike s. 507(1
)(
a)(ii),
    applicable to informations laid by law enforcement officers, where the
    introduction of the
evidence
of
    witnesses is only required where the justice considers it desirable or
    necessary to do so, s. 507.1(3)(a) appears to make the introduction of
    evidence of witnesses essential.  Such
    a requirement serves as an important control over invocation of the criminal
    process to further the fevered imaginings of a private informant.

[40]

Despite
    this apparent requirement of the evidence of witnesses at the pre-enquete
    under s. 507.1(3), the section does
not
specify or otherwise describe, in express words, the substance or kind of
    evidence that must or may be introduced on the inquiry.  For example, nothing like s. 518(1),
which sets the boundaries of the justices inquiry and delineates
    the nature and scope of evidence that may be received at a judicial interim
    release hearing, appears in s. 507.1.

[41]

The
    absence of express provisions governing the evidence of witnesses at the
    pre-enquete is alleviated by the provisions of s. 507.1(8), which incorporate
    by reference ss. 507(2)-(8). Among the incorporated provisions of ss.
    507(2)-(8) is s. 507(3)(b), which requires a justice who hears the evidence of
    a witness under s. 507(1), a provision like ss. 507.1(2) and (3), to
    cause the evidence to be taken in accordance with section 540 in so far as
    that section is capable of being applied.

[42]

Section
    540 is one of several provisions that appear under the heading,
Taking Evidence of Witnesses
,

under Part XVIII that deals with the
    procedure on the preliminary inquiry.

[43]

Sections
    540(1)  (5) have appeared in one form or another, since the
Criminal Code
of 1892. With the more
    recent addition of subsection (6), these provisions describe the mechanics of
    recording evidence received in the proceedings. They do not concern themselves
    with what may be given in evidence, only with how it is to be recorded once
    received.

[44]

Sections
    540(7)  (9) entered service on June 1, 2004, as part of a comprehensive series
    of amendments intended to expedite the hearing and circumscribe the scope of
    the preliminary inquiry.  The current
    regime for private prosecutions, including the procedure to be followed at the
    pre-enquete, came into force on July 23, 2002. The referential incorporation of
    the provisions of s. 540 by what is now s. 507(3) continues provisions to the
    same effect that have been in force since prior to the 1955 revision of the
Criminal Code
.

[45]

Sections
    540(7)-(9) and sections 540(1)-(6) serve entirely different functions.

[46]

The
admissibility
of evidence at a
    preliminary inquiry is the focus of ss. 540(7
)-
(9).  In other words, these provisions have to do
    with
what
the justice may receive as
    evidence at the inquiry.  Sections
    540(7)-(9) expand the scope of what may be received as evidence beyond what the
    traditional rules of admissibility would permit.  Provided the information tendered for
    reception is credible and trustworthy, and the opposite party has received
    reasonable notice of the intention to introduce it, together with disclosure,
    the justice may admit the information as evidence even though the traditional
    rules of evidence would exclude it.

[47]

In
    contrast, ss. 540(1)-(6)
have
nothing to do with
what
may be admitted as evidence at the
    preliminary inquiry.  Their focus is on
how
what is admitted as evidence is to
    be recorded, not on the evidentiary composition of the record.

[48]

In
    combination, ss. 507.1(8) and 507(3
)(
b) appear to
    incorporate s. 540 in its entirety in so far as that section is capable of
    being applied to the pre-enquete.  By
    contrast, s. 646,
[2]
the marginal heading of which is also taking evidence, expressly excludes ss.
    540(7)-(9) from its incorporation of the evidence taking provisions of Part
    XVIII.

[49]

Unlike
    a preliminary inquiry to which s. 540 applies directly, a pre-enquete is not an
    adversarial proceeding.  The person
    against whom the informant seeks to have process issued is not present and is
    not represented by counsel.  The Attorney
    General is entitled to notice of the hearing, an opportunity to attend, to
    cross-examine and call witnesses and to present any relevant evidence at the
    pre-enquete without being deemed to intervene in the proceeding.  The Attorney General may also enter a stay of
    proceedings on a private information as soon as the information has been laid
    or withdraw the information once a justice has determined that process should
    issue:
Criminal Code
, s. 579(1);
R. v. Dowson
, [1983] 2 S.C.R. 144; and
R. v. McHale
(2010), 256 C.C.C. (3d) 26
    (Ont. C.A.), at para.
89,
leave to appeal to S.C.C. refused,
    [2010] S.C.C.A. No. 290.

Evidentiary Decisions and Extraordinary Remedies

[50]

The
    appellant seeks 
mandamus
/
certiorari
compelling the issuance of
    process.  Both
mandamus
and
certiorari
are extraordinary remedies that issue out of a superior court for
    jurisdictional default or excess. Each is discretionary. Neither issues as of
    right.

[51]

An
    order in lieu of
mandamus
may be
    granted to compel a court of limited jurisdiction to exercise a jurisdiction or
    discharge a duty, but not to compel the court, tribunal or official to exercise
    the jurisdiction or discharge the duty in a particular way.

[52]

Jurisdiction
    has to do with the authority to decide an issue or perform a duty, not the
    nature or correctness of the decision made:
Belgo
    Canadian Pulp & Paper Co. v. Court of Sessions of Peace of Three Rivers
(1919),
    33 C.C.C. 310 (Q     ue. S.C. In Review),
    at pp. 317-318. On subjects within its jurisdiction, if a court of limited
jurisdiction  misconstrues
a statute or otherwise misdecides the law, the remedy to correct the legal
    error is an appeal from the final disposition, not an application for an order
    in lieu of the extraordinary remedies of
mandamus
or
certiorari
:
Re Longpoint Co. v. Anderson
(1891), 18
    O.A.R. 401 (C.A.), at pp. 406; 407-408; 411.

[53]

As
    a general rule, errors in the admission or exclusion of evidence are not
    jurisdictional errors:
Attorney General
    for Quebec v. Cohen
, [1979] 2 S.C.R. 305, at pp. 307-308.  Further, errors in the application of the
    rules of evidence are not jurisdictional errors:
R. v. Deschamplain
, [2004] 3 S.C.R. 601, at para. 17.  The same may be said about errors in interpreting
    statutory provisions that are not jurisdictional in nature.

The Principles Applied

[54]

The
application of the governing principles to the circumstances
    of this case compel
the conclusion that the application judge did not
    err when he refused the relief sought. I reach this conclusion, however, on a
    different basis than did the application judge.

[55]

The
    task set for the justice of the peace by s. 507.1 was to determine whether he
    considered that the appellant had made out a case for the issuance of process
    to compel the appearance of the prospective accused to answer allegations of
    three historical indictable offences. The justices decision, according to s.
    507.1(3
)(
a), was to be based upon a hearing and
    consideration of the
allegations
of
    the informant and the
evidence
of
    witnesses. Unlike the provisions of s. 507(1
)(
a)(ii),
    applicable to informants associated with law enforcement, s. 507.1(3)(a)
    appears to
require
the evidence of
    witnesses.  The only witness here was
    the appellant.

[56]

Section
    507.1 contains no express provisions about what is admissible as evidence at
    the pre-enquete. Such a lacuna is scarcely remarkable. As a matter of general
    principle, however, it would seem logical to conclude that, at the very least, evidence
    that showed or tended to show the commission of the listed offences by the
    prospective accused would be relevant and material at the pre-enquete:
R. v.
    Grinshpun
(2004), 190 C.C.C. (3d) 483 (B.C.C.A.), at para.
33,
leave to appeal to S.C.C. refused, [2004] S.C.C.A. No.
    579.

[57]

No
    principled reason would exclude from the evidentiary mélange at the
    pre-enquete, evidence that would be relevant, material and admissible (under
    the traditional rules of evidence) in support of committal at the preliminary
    inquiry or in proof of guilt at trial.

[58]

We
    need not decide in this case whether the absence of exclusionary or more
    restrictive language from s. 507(3
)(
b) renders the
    expansive provisions of ss. 540(7)-(9) applicable at the pre-enquete for
    private informations. Nor need we decide whether competing policy
    considerations overwhelm the expansive language of incorporation and exclude
    the operation of ss. 540(7)-(9) in the non-adversarial proceedings of the
    pre-enquete. In the end, the conclusions at first instance and on review that
    process should not issue in this case are firmly grounded and
    unassailable.  I say so for several
    reasons.

[59]

First,
    when the reasons of the justice of the peace and application judge are read as
    a whole, neither conclusion rests exclusively on the basis that process should
    not issue because the evidence on which the application was grounded would not
    be admissible at trial.

[60]

The
    justice of the peace referred to the hearsay nature of the appellants evidence,
    but concluded that the evidence, as a whole, was simply not sufficient to
    warrant the issuance of process. He did not say, expressly or by necessary
implication, that
process would not issue because the
    informants evidence would not be admissible at trial.

[61]

Some
    passages in the reasons of the application judge support the contention that he
    considered that only admissible evidence could be taken into account in the
    decision about the issuance of process. But elsewhere the application judge
    refers to no evidence and insufficient evidence to justify the issuance of
    process. Reading his reasons as a whole, I am not satisfied that the
    application judge grounded his conclusion on the failure of the appellants
    evidence to satisfy the traditional rules of admissibility.

[62]

Second,
    I have grave doubts whether an error about the nature of the evidence that may
    be considered in determining the issue framed for consideration of the justice
    at the pre-enquete amounts to jurisdictional error remediable by recourse to
    orders in lieu of
mandamus
or
certiorari
.

[63]

Finally,
    the hearsay rule was well down the list of reasons for declining to issue
    process. The appellants testimony lacked many of the indicia of evidence. The
    appellants evidence consisted of an amalgam of unshakeable beliefs, unbridled
    speculation and patent animus. It left untouched many, if not most essential
    elements of the offences alleged in the information. On no standard of measure
    could it justify the issuance of process.

CONCLUSION

[64]

For these reasons, I would dismiss the appeal.

David Watt J.A.

I agree K. Feldman J.A.

I agree Paul Rouleau J.A.

RELEASED:  May 20,
    2011 KF


APPENDIX A

Applicable
Criminal Code
provisions

Section 504

504.    In
    what cases justice may receive information  Any one who, on reasonable
    grounds, believes that a person has committed an indictable offence may lay an
    information in writing and under oath before a justice, and the justice shall
    receive the information, where it is alleged

(a)
that
the person has committed, anywhere, an indictable
    offence that may be tried in the province in which the justice resides, and
    that the person

(i)
is
or is
    believed to be, or

(ii)
resides
or is
    believed to reside,

Within the territorial jurisdiction of the
    justice;

(b)
that
the person, wherever he may be, has committed an
    indictable offence within the territorial jurisdiction of the justice;

(c)
that
the person has, anywhere, unlawfully received property
    that was unlawfully obtained within the territorial jurisdiction of the
    justice; or

(d)
that
the person has in his possession stolen property within
    the territorial jurisdiction of the justice.



Section 507

507. (1) Justice to hear informant and witnesses  public
    prosecution  Subject to subsection 523(1.1), a justice who receives an
    information laid under section 504 by a peace officer, a public officer, the
    Attorney General or the Attorney Generals agent, other than an information
    laid before the justice under section 505, shall, except if an accused has
    already been arrested with or without a warrant,

(a)
hear
and consider,
ex parte
,

(i)
the
allegations
    of the informant,  and

(ii)
the
evidence of
    witnesses, where  he  considers it desirable or  necessary
    to do so; and

(b)
where
he considers that a case for so doing is made out,
    issue, in accordance with this section, either a summons or a warrant for the
    arrest of the accused to compel the accused to attend before him or some other
    justice for the same territorial division to answer to a charge of an offence.

(2)       Process
    compulsory  No justice shall refuse to issue a summons or warrant by reason
    only that the alleged offence is one for which a person may be arrested without
    warrant.

(3)       Procedure
    when witnesses attend  A justice who hears the evidence of a witness pursuant
    to subsection (1) shall

(a)
take
the evidence on oath; and

(b)
cause
the evidence to be taken in accordance with section
    540 in so far as that section is capable of being applied.

(4)       Summons
    to be issued except in certain cases  Where the justice considers that a case
    is made out for compelling an accused to attend before him to answer to a
    charge of an offence, he shall issue a summons to the accused unless the
    allegations of the informant or the evidence of any witness or witnesses taken
    in accordance with subsection (3) disclose reasonable grounds to believe that
    it is necessary in the public interest to issue a warrant for the arrest of the
    accused.

(5) No process in blank  A justice shall not sign
    a summons or warrant in blank.

(6)       Endorsement
    of warrant by justice  A justice who issues a warrant under this section or
    section 508 or 512 may, unless the offence is one mentioned in section 522,
    authorize the release of the accused pursuant to section 499 by making an
    endorsement on the warrant in Form 29.

(7)       Promise
    to appear or recognizance deemed to have been confirmed  Where, pursuant to
    subsection (6), a justice authorizes the release of an accused pursuant to
    section 499, a promise to appear given by the accused or a recognizance entered
    into by the accused pursuant to that section shall be deemed, for the purposes
    of subsection 145(5), to have been confirmed by a justice under section 508.

(8)       Issue
    of summons or warrant  Where on an appeal from or review of any decision or
    matter of jurisdiction, a new trial or hearing or a continuance or renewal of a
    trial or hearing is ordered, a justice may issue either a summons or a warrant
    for the arrest of the accused in order to compel the accused to attend at the
    new or continued or renewed trial or hearing.

Section 507.1

507.1  (1)       Referral when private prosecution  A
    justice who receives an information laid under section 504, other than an
    information referred to in subsection 507(1), shall refer it to a provincial
    court judge or, in Quebec, a judge of the Court of Quebec, or to a designated
    justice, to consider whether to compel the appearance of the accused on the
    information.

(2)       Summons
    or warrant  A judge or designated justice to whom an information is referred
    under subsection (1) and who considers that a case for doing so is made out
    shall issue either a summons or warrant for the arrest of the accused to compel
    him or her to attend before a justice to answer to a charge of the offence
    charged in the information.

(3)       Conditions
    for issuance  The judge or designated justice may issue a summons or warrant
    only if he or she

(a)
has
heard and considered the allegations of the informant
    and the evidence of witnesses;

(b)
is
satisfied that the Attorney General has received a copy
    of the information;

(c)
is
satisfied that the Attorney General has received
    reasonable notice of the hearing under paragraph (a); and

(d)
has
given the Attorney General an opportunity to attend the
    hearing under paragraph (a) and to cross-examine and call witnesses and to
    present any relevant evidence at the hearing.

(4)       Appearance
    of Attorney General  The Attorney General may appear at the hearing held under
    paragraph (3
)(
a) without being deemed to intervene in
    the proceeding.

(5)       Information
    deemed not to have been laid  If the judge or designated justice does not
    issue a summons or warrant under subsection 92, he or she shall endorse the
    information with a statement to that effect. Unless the informant, not later
    than six months after the endorsement, commences proceedings to compel the
    judge or designated justice to issue a summons or warrant, the information is
    deemed never to have been laid.

(6)       Information
    deemed not to have been laid  proceedings commenced  If proceedings are
    commenced under subsection (5) and a summons or warrant is not issued as a
    result of those proceedings, the information is deemed never to have been laid.

(7)       New
    evidence required for new hearing  If a hearing in respect of an offence has
    been held under paragraph (3
)(
a) and the judge or
    designated justice has not issued a summons or a warrant, no other hearings may
    be held under that paragraph with respect to the offence or an included offence
    unless there is new evidence in support of the allegation in respect of which
    the hearing is sought to be held.

(8)       Subsection
    507(2) to (8) to apply  Subsections 507(2) to (8) apply to proceedings under
    this section.

(9)       Non-application
     Information laid under section 810 and 810.1  Subsections (1) to (8) do not
    apply in respect of
an information
laid under section
    810 or 810.1.

(10) Definition of
designated justice  In this section,
designated justice means a justice designated for the purpose by the chief
    judge of the provincial court having jurisdiction in the matter or, in Quebec,
    a justice designated by the chief judge of the Court of Quebec.

(11)     Meaning of Attorney General  In this
    section, Attorney General includes the Attorney General of
Canada  and
his or her lawful deputy in
    respect of proceedings that could have been commenced at the instance of the
    Government of Canada and conducted by or on behalf of that Government.



Section 540

540.
    (1)          Taking evidence  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.

(2)       Reading and signing depositions  Where a
    deposition is taken down in writing, the justice shall, in the
presence  of
the
    accused, before asking the accused if he wishes to call witnesses,

(a)
cause
the
    deposition to be read to the      witness;

(b)
cause
the
    deposition to be signed by the witness;
    and

(c)
sign
the deposition himself.

(3)       Authentication
    by justice  Where depositions are taken down in writing the justice may sign

(a)
at
the end of each deposition; or

(b)
at
the end of several or all of the depositions in a manner
    that will indicate that his signature is intended to authenticate each
    deposition.

(4)       Stenographer
    to be sworn  Where the stenographer appointed to take down the evidence is not
    a duly sworn court stenographer, he shall make oath that he will truly and
    faithfully report the evidence.

(5)       Authentication
    of transcript  Where the evidence is taken down by a stenographer appointed by
    the justice or pursuant to law, it need not be read to or signed by the
    witnesses, but, on request of the justice or of one of the parties, shall be
    transcribed, in whole or in part, by the stenographer and the transcript shall
    be accompanied by

(a)
an
affidavit of the stenographer that it is             a true report of the evidence; or

(b)
a
certificate that it is a true report of the evidence if
    the stenographer is a duly sworn court stenographer.

(6)       Transcription
    of record taken by sound recording apparatus  Where, in accordance with this
    Act, a record is taken in any proceedings under this Act by a sound recording
    apparatus, the record so taken shall, on request of the justice or of one of
    the parties, be dealt with and transcribed, in whole or in part, and the
    transcription certified and used in accordance with the provincial legislation,
    with such modifications as the circumstances require mentioned in subsection
    (1).

(7)       Evidence
     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.

(8)       Notice
    of Intention to tender  Unless the justice orders otherwise, no information
    may be received as evidence under subsection (7) unless the party has given to
    each of the other parties reasonable notice of his or her intention to tender
    it, together with a copy of the statement, if any, referred to in that
    subsection.

(9)       Appearance
    for examination  The justice shall, on application of a party, require any
    person whom the justice considers appropriate to appear for examination or
    cross-examination with respect to information intended to be tendered as
    evidence under subsection (7).





[1]

Corroboration is not an essential
    element of the offence of perjury, but is an evidentiary requirement for
    conviction under s. 133.



[2]
Section
    646 applies to jury trials. A similar provision excluding ss. 540(7)-(9)
    appears in s. 557 that applies to trials without a jury.


