R v Atkinson, 2018 MBCA 136 (Cameron):

[3] The accused maintain that the only evidence as to what occurred inside the suite came from the admission of an audio recording of the sworn testimony given by Garneau at the preliminary inquiry of the charges (the Garneau evidence). They argue that the trial judge erred by admitting that evidence in their trial. They also argue that the trial judge erred in convicting them of the offence of break and enter as there was another reasonable explanation for them being in Dmytruk’s suite–that they were invited. Finally, Kirton argues that the trial judge erred in his application of R v W(D), [1991] 1 SCR 742.
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[13] The trial was scheduled for two weeks. Although he had been personally served with a subpoena, Garneau did not attend court on the first day scheduled for trial. That day, the trial judge issued a warrant for his arrest. The warrant was immediately sent for execution to Detective Sergeant Bauer (Sgt. Bauer), who had earlier served Garneau with the subpoena for the trial. The Crown indicated that, in the event that Garneau was not located or arrested, it intended to apply to have the evidence that he gave at the preliminary inquiry entered into evidence in the trial.

[14] The Crown presented video-recorded, police, identification, forensic and expert evidence over the course of the next three days. On the fourth day, when Sgt. Bauer was unable to locate Garneau, the Crown applied to have the evidence that he gave at the preliminary inquiry entered pursuant to section 715(1). Relevant to this case, that section allows for evidence previously taken at a preliminary inquiry to be entered at the trial for the same charge in circumstances where a witness subsequently refuses to give evidence. As well, the Crown applied to have the Garneau evidence admitted pursuant to the principled approach on the basis that the requirements of necessity and reliability, as articulated in R v Khelawon, 2006 SCC 57, had been met.

[15] After hearing testimony from Sgt. Bauer regarding the circumstances surrounding his service of the subpoena on Garneau and his subsequent attempts to locate him as well as considering the wording of the subpoena, the trial judge admitted the evidence pursuant to both section 715(1) and the principled approach. After the admission of that evidence, the Crown closed its case. Refusal to Testify–Was the Statutory Requirement Met?
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[32] The accused assert that the trial judge erred by inferring that Garneau’s failure to appear in answer to the subpoena amounted to a refusal to testify as required by section 715(1). In support of this argument, they maintain that the Crown and police did not do enough to ascertain Garneau’s whereabouts that would allow such an inference to be drawn. They argue that Garneau may not have attended court for a number of reasons. For example, they argue that after the preliminary inquiry, Garneau was charged with a number of serious offences and after he was subpoenaed, a warrant issued for his arrest. They reason that he may not have attended because he did not want to be arrested on that warrant as opposed to refusing to testify. They also argue that he could have been in the hospital or in custody.

[33] The Crown argues that Garneau’s failure to attend court, contact the Crown or police or provide a forwarding address constituted a refusal pursuant to section 715(1). It relies on the evidence that it tendered at trial in support of its position.

[34] As earlier stated, the Crown called Sgt. Bauer in support of its application pursuant to section 715(1). Sergeant Bauer was familiar with Garneau. He testified that, when the subpoena for trial could not be served in the normal course by the commissionaires, it was forwarded to him for service. After checking for updated addresses on the police system, he was able to locate and serve Garneau. When he served the subpoena on Garneau he confirmed that Garneau knew what the case was about and remembered it. He also provided Garneau with phone numbers at which he could contact both Sgt. Bauer and the Crown Attorney assigned to the prosecution. Garneau was served with the subpoena approximately five and one-half weeks prior to the commencement of the trial. At that time, he was pending on a number of charges that had arisen after the preliminary inquiry, but there was no warrant out for his arrest.

[35] Just short of two weeks after the subpoena was served, a warrant issued for Garneau for the charges on which he was pending. Sergeant Bauer indicated that the warrant was unendorsed, meaning that, if executed, Garneau could not have been released by police. The warrant was still outstanding as of the date that the section 715(1) application was made. This indicated to Sgt. Bauer that the police had not had contact with Garneau since the warrant was issued.

[36] In addition, Sgt. Bauer confirmed that the Crown attempted to contact Garneau by sending two letters to him, one by regular post and one by registered mail, to the address where he was served.

[37] In his attempts to locate Garneau, Sgt. Bauer went to two addresses associated with Garneau. Garneau was no longer at either of them. Next, he went to an address where he believed Garneau’s family members lived. In addition, he checked an address outside of Winnipeg where Garneau had been staying at the time of the preliminary inquiry. Finally, he checked Garneau’s social media account (Facebook). None of the above led him to Garneau. It was only on the fourth day of the trial, after all of the above efforts had been made, that the Crown applied to have the Garneau evidence read in.
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[40] The accused have not satisfied me that the trial judge erred in drawing the inference that Garneau was refusing to testify. First, I agree with the Crown that an analogy may be made to the decision of R v Williams and Khamis, 2015 ONSC 6884. In that case, the witness, who had testified at the preliminary hearing, could not be located for service of a subpoena to attend the trial. The Court held that the evasion of service by the witness to avoid testifying at a trial constituted a refusal to testify within the meaning of section 715(1). Also see R v Brown, 1997 CarswellOnt 260 (CA).