G. Kim

The Crown applied to admit the preliminary inquiry testimony of the accused's deceased mother under s. 715 of the Criminal Code or the principled exception to the hearsay rule.

The defence opposed, arguing the subpoena compelling her attendance at the preliminary inquiry was invalid because it was issued by a Superior Court judge rather than an Ontario Court of Justice judge.

The court held that under s. 5 of the Justices of the Peace Act, a Superior Court judge has the powers of a justice of the peace and can issue such subpoenas.

Furthermore, the witness testified under oath and was subject to cross-examination, satisfying the requirements of s. 715 and the procedural reliability threshold of the principled exception to the hearsay rule.

The application was granted.

The accused pleaded guilty to aggravated assault, threatening death, unlawful confinement, and mischief over $5,000 following a prolonged attack on his former intimate partner in her home.

The court accepted a joint submission, sentencing the accused to two years in the penitentiary in addition to three years and 64 days of pre-sentence custody credit, followed by three years of probation.