The Crown sought to admit the preliminary inquiry testimony of a shooting victim under s. 715(1) of the Criminal Code and the principled exception to the hearsay rule after the witness failed to appear for trial and could not be located.
The witness had previously been declared hostile and repeatedly denied knowledge of the accused or the identity of the shooter, while the Crown relied on intercepted telephone conversations to suggest otherwise.
The court held that the reliability of the testimony was deeply compromised and that the jury would be unable to assess the witness’s demeanor or interpret his evasive and sarcastic responses.
Much of the proposed evidence depended on untested hearsay and Crown questioning that embedded the prosecution theory rather than probative admissions by the witness.
Balancing fairness to the accused against the probative value of the evidence, the court exercised its discretion under s. 715(1) to exclude most of the prior testimony.
