Bail Hearings

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General Principles

The purpose of a "show cause" hearing (or "bail hearing") is to provide an expeditious hearing that is flexible and procedurally informal while still protecting the liberty interests and security of the public.[1]

A bail hearing is not is not meant to like a trial or adopt an sort of complexity.[2]

The key elements of bail hearings are that they are done in a timely manner. This requires a "certain level of informality" including relaxed rules of evidence and expansive application of relevance.[3]

Section 493 defines a "judge" within the provisions of bail as:

493
...
“judge” means

(a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,
(b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,
(c) [Repealed, 1992, c. 51, s. 37]
(d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland and Labrador, a judge of the superior court of criminal jurisdiction of the Province,
(e) in Yukon and the Northwest Territories, a judge of the Supreme Court, and
(f) in Nunavut, a judge of the Nunavut Court of Justice;

...
R.S., 1985, c. C-46, s. 493; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 5, c. 17, s. 12; 1992, c. 51, s. 37; 1994, c. 44, s. 39; 1999, c. 3, s. 30; 2002, c. 7, s. 143; 2015, c. 3, s. 51.


CCC

A bail judge is not a "court of competent jurisdiction" for the purpose of Charter violations.[4] Thus, a bail hearing is not the forum for s. 24 Charter relief. Evidence going towards a breach is not relevant.[5] Similarly, applications for prerogative writs such as habeas corpus do not apply.[6]

  1. R v Ghany, 2006 CanLII 24454 (ON SC) at para 59
  2. Ghany, ibid. at para 59
  3. Ghany, ibid. at para 62 citing Law of Bail in Canada
  4. See Criminal Code and Related Definitions
  5. Ghany at para 62
    R v Reimer (1987) 2 WCB (2d) 94 (MBCA)
  6. R v Pearson, 1992 CanLII 52 (SCC), [1992] 3 SCR 665
    R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711

Onus

The burden of proof is presumed to be on the crown on a balance of probabilities.[1] The burden is upon the Crown to establish that one of the three grounds for denying bail have been made out unless the offence is one that engages the reverse onus.

  1. R v Julian (1972) 20 CRNS 227 (NSSC)

Reverse Onus

That is, unless the charge falls within the offences listed in s.515 (6):

515.
...
Order of detention
(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
(ii) that is an offence under section 467.11, 467.111, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,
(iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,
(iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,
(v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in subparagraph (iv),
(vi) that is an offence under section 99, 100 or 103,
(vii) that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or
(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or
(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.


...
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20.


CCC

For the purpose of reverse onus, "indictable offences" includes hybrid offences, but not those in which there was a summary election.[1]

The reverse onus for offences under s. 469 is constitutional.[2]

Where a person is charged with multiple offences, only some of which are reverse onus offences, the non-reverse onus offences do not change onus.[3]

When the accused is a young person. The YCJA governs the onus on bail.

  1. R v Cooper, 2007 NSSC 224 (CanLII), (2007) 256 NSR (2d) 200 (NSSC)
    R v Hopkins, 2004 BCSC 1383 (CanLII), [2004] BCJ No 2273 (BCSC)
    R v Taylor [2001] O.J. No. 2625 - crown elected summary conviction but still treated as "indictable" for purpose of bail
  2. R v Sanchez (1999) 136 CCC (3d) 31 (NSCA)
  3. see R v Villota, 2002 CanLII 49650 (ON SC), (2002), 163 CCC (3d) 507 (S.C.J.) at para 78

Adjourning Hearing

On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516)

Remand in custody
516. (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
Detention pending bail hearing
(2) A justice who remands an accused to custody under subsection (1) or subsection 515(11) may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.
R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble).


CCC

When requested a judge "is obliged to grant a reasonable opportunity" for the crown to show cause.[1]

When an accused adjourns show cause, the judge must issue a Warrant of Remand under s. 516 using Form 19.

A judge may also adjourn show cause under s. 537, which will also require a Warrant of Remand under Form 19.

"Clear days" is defined and calculated under section 27 of the Interpretation Act.

  1. R v F. (C.G.), 2003 NSCA 136 (CanLII), [2003] NSJ No 456 (NSCA)

Non-Communication Condition While Remanded

516.
...
Detention pending bail hearing
(2) A justice who remands an accused to custody under subsection (1) or subsection 515(11) may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.
R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble).


CCC

515.
...
Order re no communication
(12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14.


When relating to an offence under s. 469 a similar condition can be imposed under s. 522(2.1).

Examinations

The accused cannot be questioned about the offence by the Crown unless the defence counsel opens the issue in direct examination.[1]

  1. R v Ghany, 2006 CanLII 24454 (ON SC) at para 60

Rules of Evidence

A bail hearing is an informal process where the strict rules of evidence do not apply.[1]

Section 518 addresses the issues of admissibility, relevance and jurisdiction:

Inquiries to be made by justice and evidence
518. (1) In any proceedings under section 515,

(a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable;
(b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way of cross-examination unless the accused has testified respecting the offence;
(c) the prosecutor may, in addition to any other relevant evidence, lead evidence
(i) to prove that the accused has previously been convicted of a criminal offence,
(ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence,
(iii) to prove that the accused has previously committed an offence under section 145, or
(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused;
(d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel;
(d.1) the justice may receive evidence obtained as a result of an interception of a private communication under and within the meaning of Part VI, in writing, orally or in the form of a recording and, for the purposes of this section, subsection 189(5) does not apply to that evidence;
(d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence; and
(e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.

...
R.S., 1985, c. C-46, s. 518; R.S., 1985, c. 27 (1st Supp.), ss. 84, 185(F); 1994, c. 44, s. 45; 1999, c. 25, s. 9(Preamble).


CCC

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.[2]

A judge's power over its own process can permit the judge to prohibit the use of the hearing for discovery.[3]

  1. R v Kevork et a1 (1984), 12 CCC (3d) 339 (Ont. H.C.J.)
  2. R v John, [2001] O.J. No. 3396
  3. Ghany at para 61

Hearsay Evidence

The court is permitted to consider hearsay evidence.[1] This includes admissions and confessions by the accused, and does not require a voir dire for voluntariness.[2]

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".[3] 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.[4] Others have found hearsay readings of summaries is sufficient.[5]

In certain exceptional cases, the liberty interests of the accused warrants that the defence may demand oral evidence that can be cross-examined.[6]

  1. Re Powers and the Queen (1972), 9 CCC 533 (Ont. H-CJ.)
    R v Zeolkowsh (1989), 50 CCC (3d) 566 (S.C.C.) at p. 569
    R v Powers (1972), 9 CCC (2d) 533 (Ont. H.C.J.)
  2. Bouffard v R. (1979) 16 C.R (3d) 373 (Que. S.C.)
  3. R v John
  4. R v John ("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 C.C.C, (8d) 568 (Ont. H.C.) ("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)
  5. R v Kevork, [1984] O.J. No. 926 (H.C.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.")
  6. R v John (" 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.[1]

Audio Evidence
A telephone calls alleged to be made by the accused are admissible without proof of voice identification.[2]

Wiretap Evidence
Evidence from a intercepted communications (i.e. wiretaps) can be admitted without notice.[3]

  1. R v Larsen (1976) 34 CRNS 399 (BCSC)
  2. R v Lesage (1975) 25 CCC (2d) 173
  3. R v Ghany, 2006 CanLII 24454 (ON SC) at para 60
    R v Kevork (No. 2) (1984) 12 CCC (3d) 339 s. 518(1)(d.1)

Relevancy

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.[1]

The Crown can admit most any evidence as long as it is "credible and trustworthy".[2] This can include:[3]

  • cautioned statement irrespective whether voluntary or Charter compliant;
  • bad character evidence;
  • wiretap evidence;
  • hearsay;
  • 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: [4]

  1. Whether there is a history of violence or abusive behaviour, and, if so, details of the past abuse;
  2. Whether the complainant fears further violence if the accused should be released and, if so, the basis for that fear;
  3. The complainant's opinion as to the likelihood of the accused obeying terms of release, in particular no contact provisions; and
  4. Whether the accused has any drug or alcohol problems, or a history of mental illness.
  1. R v Gamelin [1994] O.J. No. 1113 ("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.")
  2. Toronto Star Newspapers Ltd. v Canada, 2010 SCC 21 at para 28 per Deschamps J ("...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)).")
  3. Toronto Star, ibid. at para 28
  4. R v EMB, 2000 CanLII 28260 (AB QB) at para 11

Publication Ban

See also: Public and Media Restrictions

Section 517 permits a publication ban upon all evidence presented at a bail hearing:

Order directing matters not to be published for specified period
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply
(2) Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.


CCC

This section was found to violate s. 7 of the Charter for violating the freedom of expression but was saved by s. 1 of the Charter and is therefore constitutional.[1]

  1. Toronto Star Newspapers Ltd. v Canada, 2009 ONCA 59 (CanLII)

See Also