Criminal Law Notebook

Bail Hearing Evidence

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General Principles

See also: Bail Hearings
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".[1]

In jurisdictions where controversial evidence cannot be presented orally, the evidence may be presented in affidavit.[2]

  1. ↑ R v Woo, 1994 CanLII 16629 (BC SC), 90 CCC (3d) 404 (BCSC), per Fraser J
  2. ↑ Woo, ibid.

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 (ONSC), per Durno J, 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 [judicial interim release provisions],

(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 [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)], 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).
[annotation(s) added]

– CCC

Note up: 518(1)

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 al, 1984 CanLII 3455 (ONSC), 12 CCC (3d) 339 (Ont. H.C.J.), per Ewaschuk J
  2. ↑ R v John, [2001] OJ No 3396(*no CanLII links)
  3. ↑ R v Ghany, 2006 CanLII 24454 (ONSC), per Durno J, 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 CanLII 1411 (ONSC), 9 CCC 533 (Ont. H-CJ.), per Lerner J
    R v Zeolkowsh, 1989 CanLII 72 (SCC), 50 CCC (3d) 566 (SCC), [1989] 1 SCR 1378, per Sopinka J (5:0), at p. 569
  2. ↑ R v Bouffard, 1979 CanLII 2953 (QCSC), (1979) 16 C.R (3d) 373 (Que. S.C.), per Hugessen J
  3. ↑ John, supra
  4. ↑ 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 CanLII 3517, 14 CCC (8d) 568 (Ont. H.C.), 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 CanLII 547 (ONCA), (1972) 9 CCC (2d) 369 (ONCA), per Gale CJ
  5. ↑ R v Kevork, 1984 CanLII 3455 (ONSC), [1984] OJ No 926 (H.C.J.),, 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.")
  6. ↑ 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.[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]

News and Publications

A bail court may consider news clipping and articles as a manner of reflecting certain segments of the Canadian public.[4]

  1. ↑ R v Larsen (1976) 34 CRNS 399 (BCSC)(*no CanLII links)
  2. ↑ R v Lesage, 1975 CanLII 1315 (QC CQ), (1975) 25 CCC (2d) 173, per LaGarde J
  3. ↑ R v Ghany, 2006 CanLII 24454 (ONSC), at para 60
    R v Kevork, 1984 CanLII 3455 (ONSC), (No. 2) (1984) 12 CCC (3d) 339,, per Ewaschuk J
    s. 518(1)(d.1)
  4. ↑ R v St-Cloud, 2015 SCC 27 (CanLII), [2015] 2 SCR 328, 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])

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] 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.")
  2. ↑ 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)).")
  3. ↑ Toronto Star, ibid., at para 28
  4. ↑ R v EMB, 2000 CanLII 28260 (AB QB), per Martin J, at para 11
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