The appellant was convicted of second degree murder after the trial judge admitted the preliminary inquiry testimony of an alleged accomplice who refused to testify at trial, pursuant to s. 643(1) of the Criminal Code.
The Supreme Court of Canada held that s. 643(1) does not violate ss. 7 or 11(d) of the Charter, provided the accused had a full opportunity to cross-examine the witness at the preliminary inquiry.
However, the Court allowed the appeal and ordered a new trial because the trial judge failed to recognize his statutory discretion to exclude the evidence to ensure a fair trial, and erred by instructing the jury to treat the transcript exactly like live testimony without warning them of the dangers of accepting such evidence.
