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While the purpose of the prohibition provisions is clear, the courts have found that the nature of the hearing created is less clear. Disagreement on this point has been the basis for much of the division on the issue of whether hearsay evidence is admissible under s. 98. In Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont. Co. Ct.); R. v. Dhillon (1981), 64 C.C.C. (2d) 483 (B.C. Co. Ct.); R. v. Krieger (unreported February 2, 1984, Sask. Prov. Ct.); and Duguay v. Houle (unreported September 24, 1985, Que. Sup. Ct.), hearsay was ruled admissible in a reference hearing under s. 98(7). In R. v. Linder (1980), 5 W.C.B. 86 (Ont. Co. Ct.), and most recently, in Re Creusot (1987), 62 Sask. R. 112 (Sask Prov. Ct.), hearsay was ruled inadmissible in an application hearing under s. 98(6). In R. v. Anderson, supra, Lane Co. Ct. J., in an obiter comment, stated at p. 449: "I agree that the ordinary rules of evidence should apply...." The appellate courts which have considered this issue are also divided, with a majority of the Manitoba Court of Appeal in the present case finding hearsay testimony to be inadmissible, while the Nova Scotia Supreme Court, Appeal Division in R. v. McWhirter, supra, held such evidence to be admissible. I might also note that this disagreement may inhibit resort to s. 98; the vagueness of the procedural guidelines concerning the conduct of the hearing has been identified as engendering some reluctance to use the pre-emptive prohibition (Scarff, supra, Executive Summary, at p. 11).
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