Bail Hearing Evidence

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General Principles

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.

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 [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

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.