The answer to that is essentially no.
You are quite correct when you say that the definition in the bill of what constitutes “routine evidence” is potentially very broad, but it is still qualified by the use of the term “routine”. As my colleague Mr. Taylor has pointed out, there are factors set out in the legislation for the judge to consider, which include a consideration of how central the evidence is to the prosecution case or, for that matter, the defence case.
You are also right, Mr. Fraser, when you say that oftentimes things such as continuity of the handling of evidence or routine observations made by police officers are the subject of admissions. However, the reality is that very often those admissions do not come until very late in the process. Often, on the day of trial, I will be told by defence counsel, “I will admit continuity of evidence.” Well, that's great, and I can send three police officers home, but they're already earning double time for having shown up in court.
This permits a mechanism for these issues to be dealt with at an earlier stage.
Here is the reality of the situation. It's always going to be up to the judge to decide whether or not the affidavit evidence will get admitted. No sane Crown is going to attempt to use these provisions for evidence that we feel will be in any way contentious from the perspective of the defence. Also, of course, we have to give notice to the defence of our intention to tender such evidence. If they object to it, they have to give me notice back.
If, in fact, I give that notice to the defence and it turns out that the defence does object—they have some articulable reason why they want the police officer to attend in court for cross-examination—I'm not going to try to litigate that. I'll just withdraw my notice. I think that this would pretty much be the reaction of any Crown, the sole exception being that if we think the defence is objecting to the admission of the evidence in bad faith, just to try to game the system, we might try to take him to the woodshed by bringing the matter before a judge. That would be the rare exception.