Bail Hearing Evidence
- Presentation of Evidence
Depending on the jurisdiction, there may be a practice of presenting Crown evidence by verbal statements from the Crown. In some jurisdictions, verbal statements from the Crown is only permitted where there the evidence is not subject to "controversy or contradiction".
In jurisdictions where controversial evidence cannot be presented orally, the evidence may be presented in affidavit.
The accused cannot be questioned about the offence by the Crown unless the defence counsel opens the issue in direct examination.
Rules of Evidence
A bail hearing is an informal process where the strict rules of evidence do not apply.
Section 518 addresses the issues of admissibility, relevance and jurisdiction:
Section 518(1)(e) establishes the primary standard of the acceptance of evidence where it is "credible or trustworthy". The practice in many provinces is for the Crown to "narrate the circumstances of the alleged [offences] and to produce a CPIC printout regarding any prior criminal record." Consequently, the Crown does not normally need to have witnesses present for bail.
A judge's power over its own process can permit the judge to prohibit the use of the hearing for discovery.
- Evidence by Submission of Counsel
The reading of unsworn police summaries from the disclosure package requires that the source be "fair and balanced, without vagueness or unstated or unsupported conclusions and inclusive of factors capable of detracting from the reliability of the accumulated evidence". This should include:
- known bias or interest of principal witnesses,
- the circumstantial limits of investigative facts in possession crimes,
- identification evidence frailties, and
- without concealment of acts suggesting constitutionally questionable evidence-gathering techniques.
However, there is some dispute over whether defence must consent to unsworn allegations being admissible. Certain courts have stated that narration of alleged facts cannot be accepted as evidence without consent of the accused. Others have found hearsay readings of summaries is sufficient.
In certain exceptional cases, the liberty interests of the accused warrants that the defence may demand oral evidence that can be cross-examined.
Re Powers and the Queen (1972), 9 CCC 533 (Ont. H-CJ.), 1972 CanLII 1411 (ON SC), per Lerner J
R v Zeolkowsh,  1 SCR 1378, 1989 CanLII 72 (SCC), (1989), 50 CCC (3d) 566 (SCC), per Sopinka J (5:0), at p. 569
- R v Bouffard (1979) 16 C.R (3d) 373 (Que. S.C.), 1979 CanLII 2953 (QCSC), per Hugessen J
- John, supra
John, supra ("A factual narration as to the circumstances of the alleged offence(s), by the prosecutor without consent of the accused, does not constitute evidence")
R v Hajdu (1984), 14 CCC (8d) 568 (Ont. H.C.), 1984 CanLII 3517 (ON SC), per Barr J, ("A justice of the peace cannot, acting judicially, save perhaps in very exceptional circumstances, hold hearsay evidence on a material point to be trustworthy where it is untested by cross-examination.")
R v West (1972) 9 CCC (2d) 369 (ONCA), 1972 CanLII 547 (ON CA), per Gale CJ
R v Kevork,  OJ No 926 (H.C.J.), 1984 CanLII 3455 (ON SC), per Ewaschuk J ("In my opinion, a statement by Crown counsel, whether oral or in writing of the alleged material facts of the charges should provide sufficient evidence upon which a justice may act as a bail hearing.")
- John, supra (" In certain cases, which may be few in number, protection of liberty requires the defence demand oral evidence and a meaningful opportunity for cross-examination")
Types of Evidence
- Documentary Evidence
A prior criminal record is admissible as well as any acquittals on similar charges.
- Audio Evidence
A telephone calls alleged to be made by the accused are admissible without proof of voice identification.
- Wiretap Evidence
Evidence from a intercepted communications (i.e. wiretaps) can be admitted without notice.
- News and Publications
A bail court may consider news clipping and articles as a manner of reflecting certain segments of the Canadian public.
- R v Larsen (1976) 34 CRNS 399 (BCSC)(*no CanLII links)
- R v Lesage (1975) 25 CCC (2d) 173, 1975 CanLII 1315 (QC CQ), per LaGarde J
R v Ghany, 2006 CanLII 24454 (ON SC), at para 60
R v Kevork (No. 2) (1984) 12 CCC (3d) 339, 1984 CanLII 3455 (ON SC), per Ewaschuk J
- R v St-Cloud, 2015 SCC 27 (CanLII), at para 84 ("I wish to point out that this does not mean the courts must automatically disregard evidence that comes from the news media. It must be recognized that the media are part of life in society and that they reflect the opinions of certain segments of the Canadian public. ... The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being. Such opinion evidence can therefore be considered by the courts when it is admissible and relevant. This will be the case where it corresponds to the opinion of the reasonable person I described above." [quotation marks removed])
Section 518(1)(c) permits the admission of relevant evidence on previously convicted offences, pending charges, convicted under s. 145, and the circumstances of the alleged offence.
Bad character evidence may be relevant.
- cautioned statement irrespective whether voluntary or Charter compliant;
- bad character evidence;
- wiretap evidence;
- ambiguous post-offence conduct;
- untested similar fact evidence;
- prior record;
- untried charges; or
- personal information on social and living habits.
- Domestic Offences
In offences of spousal and intimate partner violence the crown may adduce evidence including: 
- Whether there is a history of violence or abusive behaviour, and, if so, details of the past abuse;
- Whether the complainant fears further violence if the accused should be released and, if so, the basis for that fear;
- The complainant's opinion as to the likelihood of the accused obeying terms of release, in particular no contact provisions; and
- Whether the accused has any drug or alcohol problems, or a history of mental illness.
- R v Gamelin,  OJ No 1113(*no CanLII links) ("In my view, evidence of alleged acts of violence in previous long term relationships would be relevant to these issues and, in some circumstances, evidence of prior charges, which had been withdrawn, may also be relevant to these issues.")
- Toronto Star Newspapers Ltd. v Canada, 2010 SCC 21 (CanLII), per Deschamps J (8:1), at para 28 ("...There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified. According to s. 518(1)(e) Cr.C., the prosecutor may lead any evidence that is "credible or trustworthy", which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, UNTRIED CHARGES, or personal information on living and social habits. The justice has a broad discretion to "make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable" (s. 518(1)(a)). The process is informal; the bail hearing can even take place over the phone (s. 515(2.2)).")
- Toronto Star, ibid., at para 28
R v EMB, 2000 CanLII 28260 (AB QB), per Martin J, at para 11