The Crown applied under s. 715(1) of the Criminal Code to introduce the preliminary inquiry evidence of a police constable at trial, arguing the constable was too ill to testify due to psychological disorders.
The court dismissed the application, finding that the constable was not "unable to testify" as required by the section, given his prior testimony at the preliminary inquiry and the speculative nature of anticipated harm.
Furthermore, while the accused had full opportunity to cross-examine at the preliminary inquiry, the court exercised its discretion to exclude the evidence, balancing its slight probative value against the material prejudice to the defence's ability to challenge credibility at trial, especially since other evidence was readily available.
