Bail Hearings (Until December 18, 2019)

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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.

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

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.

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(c) [Repealed, 1992, c. 51, s. 37]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.

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

Onus

The burden of proof is presumed to be on the crown on a balance of probabilities. 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.

Reverse Onus

• Reverse Onus Provisions Under Section 515

Application to Adjourn Bail 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).

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Examinations

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:

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).

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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.

Hearsay Evidence

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

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.

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.

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.

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

• 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:

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.

Publication Ban

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.

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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.

Decision to Deny Bail

515
...
Detention in custody
(5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.
...

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Release on Guilty Plea During Bail Hearing

518 (1) ...
Release pending sentence
(2) Where, before or at any time during the course of any proceedings under section 515, the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part for the release of the accused until the accused is sentenced.
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).

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See Also

• Grounds of Denying Bail