This week’s top three summaries: R v Myers, 2019 SCC 18, R v Chahal, 2019 ABQB 192, and R v K(K), 2019 ONSC 1578.
R. v. Myers (SCC)
[Mar 28/19] S. 525 CCC– Detention Review - General Principles of Bail – 2019 SCC 18 [Reasons by Wagner CJC, Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Concurring]
AUTHOR’S NOTE: In reasons for the Court, the Chief Justice has effectively doubled down on his judgment in Antic. Reinforcing the importance of judicial interim release on the least onerous conditions possible, Myers breathes new life into the detention review procedure. Prior incantations of the test to be applied led to frequent waiver of these review hearings by defence counsel, where the chances of success were usually slim. However, the breadth of review now available means defence counsel should consider more routine conduct of 90-day reviews. Release at the earliest opportunity, on the most minimal conditions possible, must be the presumptive default and Myers gives defence counsel an important tool in achieving this result. (by Kelsey Sitar)
Pertinent Facts
Although Mr. Myers’ appeal was moot by the time of the SCC hearing, the Court exercised its discretion to hear the appeal on the merits. (para 14)
Mr. Myers was arrested on January 4, 2016 following a high-speed car chase with gunfire in Surrey and Delta, British Columbia. At that time, he was already on bail for unrelated charges, was on probation, and also the subject of a Canada-wide warrant. At the time of his arrest, he consented to his detention without a bail hearing. He proceeded to resolve his remaining outstanding charges and, as of October 2016, was detained on in relation to the charges arising from the January 4, 2016 allegations. (paras 1-7)
On November 9, 2016, Mr. Myers sought bail for the first time. He was in a reverse onus position. The bail justice ordered him detained. At preliminary inquiry, the Crown revealed their key witness was no longer willing to testify, and an application would be brought to admit his police statement into evidence instead. Counsel for Mr. Myers brought a s. 520 detention review on the basis of this weakness in the Crown’s case, which was denied. (para 8-9)
On March 14, 2017, the Crown asked defence counsel by way of letter whether Mr. Myers wished to pursue a review under s. 525. On July 21, 2017, Justice Riley (BCSC) heard submissions on the correct approach to take under s. 525. His reasons for judgment were released on September 27, 2017. (para 10)
“Riley J. concluded that the correct test at a s. 525 hearing involves a two-step process. He found that the accused must first convince the reviewing judge either that there has been an unreasonable delay in the proceedings on the Crown’s part or that the passage of time has had a material impact on the initial basis for detaining the accused. If either of these thresholds is met, the judge must then determine whether the detention of the accused remains justified within the meaning of s. 515(10).” (para 11)
On the basis of the accepted formulation of the test, Mr. Myers made no submissions on the s. 525 review and was ordered detailed (para 12)
Importance of Bail
“The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.” (para 1)
“Today, the right not to be denied reasonable bail without just cause, which is enshrined in s. 11(e) of the Canadian Charter of Rights and Freedoms, operates as a key organizing principle of Part XVI of the Criminal Code… This right has also been affirmed repeatedly by this Court, most recently in St-Cloud, in which the Court held that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception” … and in Antic, in which it stated that ‘“release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds”’…” (para 25, citations omitted)
“This Court has recognized that Parliament’s overarching vision of the Bail Reform Act was the creation of “a liberal and enlightened system of pre-trial release” in which accused individuals would normally be granted bail… The purpose of that Act, which was influenced by both the academic work of Professor Martin L. Friedland and the findings of the Ouimet Report, as delivered by the Canadian Committee on Corrections examining the law on bail, was to reform a system that many experts saw as punitive, arbitrary, and inconsistent with the presumption of innocence… There was also particular concern regarding the relationship between prolonged pre-trial detentions and induced guilty pleas.” (para 22, citations omitted)
Prevalence & Impacts of Pre-Trial Detention
“…on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody… In 2016-2017, approximately 7 percent of those in remand were still in custody after three months, and some spent upwards of 12 or even 24 months awaiting trial in detention… It must be said that the conditions faced by such individuals are often dire. Overcrowding and lockdowns are frequent features of this environment, as is limited access to recreation, health care and basic programming… Moreover, as is the case elsewhere in our criminal justice system, Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions…” (para 26, citations omitted)
“As this Court has recognized, the experience of pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence… It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods…The high cost of pre-trial detention was recognized at the time the Bail Reform Actwas before Parliament… The issue remains just as relevant today.” (para 27, citations omitted)
Two Competing Approaches to s. 525
“The parties suggest that the choice before this Court is between two competing approaches to s. 525 hearings. According to the first approach, unreasonable delay in getting the case to trial is a threshold condition. In the absence of an unreasonable delay, the judge at a s. 525 hearing cannot ask whether the detention remains necessary on the basis of the grounds set out in s. 515(10)… Under the alternative approach, unreasonable delay is not a threshold condition. Instead, the judge at a s. 525 hearing simply considers whether the continued detention of the accused is necessary on the basis of s. 515(10), and unreasonable delay is one possible factor in that analysis…” (paras 16-17, citations omitted)
“Whether or not unreasonable delay operates as a threshold condition is clearly of fundamental importance to this appeal. However, this case requires the Court to do more than simply choose one approach or the other. Like Antic, it concerns a provision of federal law that has been applied inconsistently across the country… Practices vary widely from place to place in terms of when s. 525 hearings happen, whether they are mandatory, what factors are considered and which test is applied. It is up to this Court to apply the principles of statutory interpretation in order to resolve this issue.” (para 18, citations omitted)
Correct Approach to s. 525 Reviews
Unreasonable Delay is Not a Precondition
Unreasonable delay is not a threshold requirement for reviewing detention under s.525. It is an error of law to treat unreasonable delay as a precondition for review. (paras 29-32)
“Circumstances that favour the release of the accused, issues related to unreasonable delay, or the need for a court to intervene to expedite the trial will not always have arisen when the 90-day mark is reached. Instead, 90 days following the last detention order against the accused is simply the point at which Parliament has specified that a judge must determine whether the continued detention of the accused is justified. The impact of the passage of time generally (and of unreasonable delay specifically) may be properly considered in the judge’s analysis at that time.” (para 33)
Timeline for 525 Reviews
In summary conviction matters, obligation to make application is triggered at the 30-day mark. In indictable matters, the timeline is 90 days. (para 35)
“…the application must be made immediately upon the expiration of 90 days following (i) the date on which the accused was taken before a justice under s. 503, or (ii) the later of the date on which the accused was taken into custody and the date of a detention order under s. 520, 521 or 524.” (para 35)
“The rule is therefore as follows: the person having custody of the accused must ordinarily apply to the judge immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503: s. 525(1)(a)(i)Cr. C. Where, however, a new detention order is made against the accused — or a decision is made to continue an existing order — under s. 520, 521 or 524 after the initial appearance of the accused under s. 503, the result of s. 525(1)(a)(ii)is that the 90-day period will effectively begin again.” (para 37)
Where an individual has not had a full provincial court bail hearing but remains in custody after 90 days, a hearing should be held under s. 525. (paras 42-43)
“The deadlines imposed by Parliament for an application under s. 525 are known to and foreseeable by all involved, including the correctional facility, the Crown and the court. It may well be that administrative reforms are required in order to ensure that s. 525 applications are made on time every time, for every eligible accused person. Delays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed.” (para 38)
“Thus, in order for the s. 525 hearing to fulfill its purpose of meaningfully safeguarding the accused person’s liberty, the jailer must make the application within the appropriate time limit, and the court must fix the date of the hearing without delay. And upon receiving the application from the jailer, the judge must schedule the hearing for the first available date.” (para 39)
Adjournments of 525 reviews are not precluded where “it clearly serves the interests of justice and the underlying purposes of the provision. For example — without limiting the foregoing — where a key piece of information is missing or a key event is pending, it would be entirely appropriate for the judge to adjourn the hearing until such time as the detention of the accused can be meaningfully assessed.” (para 41)
Jailer Has Obligation to Apply for Review
525 hearings are automatic – it is not an “opt-in” affair. “The mandatory obligations to make the application and to fix a date lie with the jailer and the judge, respectively. … Form letters which place the burden on the accused to pursue a s. 525 hearing are inconsistent with the law.” (para 44)
Material to be Considered on Review
On a 525 review, the prosecutor may show the circumstances of the allegations + a wide discretion is granted for a justice to make inquiries and consider any evidence considered to be credible or trustworthy. Reliance may be placed upon the transcript, exhibits and reasons from any prior hearings or reviews. (para 48)
“While any previous bail decisions will be relevant and will likely inform the proceedings, reviewing judges must be careful not to simply “rubber-stamp” such decisions.” (para 55)
Admissibility of materials that existed at the time of the initial hearing but not presented there will be governed by the due diligence and relevance criteria set out in St-Cloud, at paras 130-135.
Conduct of a S. 525 Review where No Prior Bail Hearing Conducted
“To give proper effect to s. 525 in such situations, the judge is required to conduct the full bail hearing “from the ground up” in accordance with the ladder principle articulated in Antic, taking into account the time the accused has already spent in pre-trial custody.” (para 56)
Question to be Answered at the Hearing
“The question that the judge must answer at a s. 525 hearing is… as follows: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.” (para 46)
“The question in the s. 525 review – whether the continued detention of the acused is justified – is somewhat different in nature than the question at the initial bail hearing or in a review under s. 520 or 521. While ss. 520 and 521 exist for the purpose of reviewing a prior order, a review under s. 525 is more properly characterized as a review of the detention itself. Yet there is no indication that Parliament intended the judge presiding a s. 525 detention review hearing to reconduct the original bail hearing in its entirety simply because 90 days have elapsed.” (para 47)
“…the judge at the s. 525 hearing should in his or her analysis show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them. Similarly, any balancing exercise or weighing of factors conducted by the initial bail judge must be reviewed in light of the time that has already elapsed and any other relevant considerations...” (para 47)
Importance of New Evidence/Change in Circumstances
“In the context of a s. 525 review, the judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question whether his or her continued detention in custody is justified. For example, the period of pre-trial detention may have afforded the accused person time to make arrangements for a suitable surety, develop a comprehensive release plan or take other steps that would negate the initial basis for his or her detention under s. 515(10).” (para 49)
Impact of the Passage of Time
“In determining whether the detention remains justified under s. 515(10), the judge should also consider whether the time that has already elapsed has had — or the anticipated passage of time will have — an impact on the appropriateness or proportionality of the detention. In particular, it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice…” (para 50, citations omitted)
“This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted…” (para 51, citations omitted)
“The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system.” (para 51)
“As part of this analysis, the judge may consider whether either party has been responsible for any unreasonable delay in the trial of the charge: s. 525(3) Cr. C. If an unreasonable delay in getting the case to trial can be attributed to one of the parties, that factor will be relevant in determining whether the continued detention of the accused is proportionate or appropriate. Thus, if the accused appears to have engineered an unreasonable delay in his or her own trial, the basis for making a release order will clearly be weaker, but if the Crown is responsible for an unreasonable delay, this will weigh in favour of release.” (para 54)
“While the term “unreasonable delay” in s.525 clearly cannot have the same meaning as it does in the context of s. 11(b) of the Charter, the two can be seen to be conceptually related… The judge must therefore rely on his or her judgment and experience in determining what impact, if any, the passage of time and an unreasonable delay should have on the continued detention of the accused.” (para 54)
Power to Expedite Trials
“It is a longstanding principle of our criminal justice system that individuals in pre-trial custody should be given a certain priority in scheduling trials. This general guiding premise has not been displaced by R. v. Jordan... Sections 525(9) and 526, which confer on the reviewing judge a discretion to give directions for expediting the trial of and any proceedings in relation to an accused, continue to operate as a reflection of that principle.” (para 23)
“For these provisions to operate as meaningful safeguards against unreasonable delay and excessively long pre-trial detention, all stakeholders — including the prosecution, defence counsel and the courts — must take an active role in ensuring the timely progress of the trial.” (para 57)
“… s. 525 must be understood as more than just a “Jordan check- up”. Individuals in pre-trial detention, who are presumed innocent, bear a particularly high cost in terms of loss of liberty while awaiting their day in court. The judge should always determine whether the case presents an appropriate occasion to exercise his or her discretion to give directions for expediting the trial and related proceedings under ss. 525(9) and 526. Also, a judge who finds that the continued detention of the accused is justified on the basis of the grounds set out in s. 515(10) must look ahead to ensure that the accused will not be in a “time served” position before the prospective trial date.” (para 59)
“In deciding whether to give directions under s. 525(9)or 526, the reviewing judge must consider all the circumstances of the case and any relevant submissions by the parties. Relevant factors could include the relative complexity of the case, the involvement of co-accused individuals, the completeness of disclosure, problems related to evidence, the presence of any exceptional circumstances and the typical delay in getting comparable matters to trial in the jurisdiction in question. The analysis should be forward-looking. It should also be realistic, as the purpose of s. 525is not to provide a pretext for judicial micro-management.” (para 60)
R v Chahal (ABQB)
[Mar 20/19] Charter s.8 - Search Incident to Arrest - Charter s.24(2) - Seriousness of Violation Where Police Fail to Explain Themselves 2019 ABQB 192 [W.T. deWit J.]
AUTHOR’S NOTE: In this decision Justice deWit was faced with a case where police clearly ignored long standing law that they must have reasonable grounds to believe their safety or the public's safety is at risk to conduct a search for weapons - this is so even when the search occurs after arrest. The officer safety concern must be reasonable in the circumstances. The real concern here was that police never even sought to justify their actions here - this inured to the finding of a serious Charter violation and ultimately, exclusion.
Pertinent Facts
"This case involves a traffic stop where Arshdeep Singh Chahal (the "Accused") was arrested for a traffic infraction and because of a warrant. He was asked to exit his vehicle and his pockets were searched and drugs and money were found. The vehicle of the accused was then searched and further drugs and money were found. The issues in this case are whether the searches were legal pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (the "Charter") and whether the evidence of the drugs and money should be excluded pursuant to s. 24(2) of the Charter." (Para 1)
"The Accused had been pulled over because he had been using his cell phone while driving. Once the Accused provided his licence a CPIC search was done by Cst. Lally which indicated that there was a traffic warrant for the Accused's arrest for disqualified driving and it was learned he was disqualified from driving." (Para 4)
"The Accused was asked to exit his vehicle, a white Ford Fusion, and he walked to the sidewalk where he was handcuffed with his hands behind his back by Cst. Lally. In examination in chief, Cst. Lally testified that the Accused attempt to walk away, but in cross-examination he admitted that the Accused simply walked over to the sidewalk. Cst. Lally further agreed that the Accused never tried to leave the location and he agreed that the Accused was compliant and did not resist when they put him in handcuffs." (Para 7)
"In cross-examination, he agreed that the purpose of the search of the Accused pockets was for officer safety. He further agreed that he did not do a pat down search and never touched the outside of the Accused pockets. He simply reached inside the pockets immediately looking for knives and guns or some other sharp edged instrument." (Para 13)
"This was the extent of Cst. Lally's evidence with respect to the initial search. Cst. Lally did not testify as to why he thought the Accused may have a weapon or why he did not first do a pat down search. He agreed that the Accused, because his hands were handcuffed behind his back, could not access his pockets. He did not explain how he subjectively believed that there was a danger with respect to officer safety. He did not describe any objective grounds for such a belief." (Para 14)
Charter s.8 - Search Incidental to Arrest
"In Caslake, the SCC made it clear that an individual maintains their expectation of privacy when arrested and a search incident to arrest must be truly incidental to the arrest in question. The Court stated at paras 19-21:
19 As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one.
20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a "valid objective" served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.
21 In my view, it would be contrary to the spirit of the Charter's s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer's belief that he or she has a legitimate reason to search is reasonable in the circumstances. (Para 16)
"A search incident to arrest must be for one of the three purposes set out in Caslake. In this case, Cst. Lally said that only reason for the search was officer safety. A search cannot be for other evidence not related to the charge the Accused has been charged with and in this case there would be no other evidence that could be obtained with respect to the disqualified driver charge or the using a cell phone while driving charge." (Para 17)
"Cst. Lally clearly indicated that officer safety was his purpose for the search. The issue is whether it was a reasonable objective for Cst. Lally to check whether the Accused was armed for officer safety, in the circumstances." (Para 18)
"Although there was a reasonable basis for the pat down search in Mann, there was no reasonable basis for reaching into the Accused's pockets even though there were reasonable grounds to suspect that the detainee had been involved in a break and enter, which may include tools that could be used as a weapon and it was late at night with no one around. Although Mann involved a detention and not an arrest, the SCC required a reasonable basis for reaching into the pocket. This objective element is also needed for a search incident to arrest as stated in Caslake." (Para 22)
"A search incident to arrest must be grounded on objectively discernible facts to prevent fishing expeditions. In my view, there is no such objective element or reasonable basis for Cst. Lally's claimed subjective belief that there was an officer safety issue which required that he search the Accused's pockets. Cst. Lally gave no objective reasons for his belief. The stop was not late at night with no one around but was in a populated busy area of town at approximately noon. The Accused was not arrested for a criminal offence, but rather traffic and driving related offences. The Accused had his hands handcuffed behind his back and he could not access the area that was searched. The officer was not placing the Accused in a police vehicle at the time of the search and there was no evidence that Cst. Lally was considering this. Cst. Lally did say in cross examination he could see something in the Accused's pockets but did not describe what he saw or give any suggestion that it might be something hard or soft or that it could be a weapon. According to Cst. Lally, the Accused was not aggressive but was cooperative. There is simply no objective basis for Cst. Lally having concerns regarding officer safety that would require a pocket search of the Accused." (Para 25)
"In this case, there is no objective or reasonable basis for Cst. Lally performing an intrusive pocket search other than he simply wanted to know what was in the Accused's pockets. Such a search was not for safety concerns, but for the collection of evidence. This is not a basis related to the arrest." (Para 26)
" I have found that the initial pocket search of the Accused was unconstitutional. The officer claimed to have grounds to search the motor vehicle because of what he had found in the unconstitutional search of the Accused’s pockets. Facts in the knowledge of the police because of a Charter violation cannot be used to provide grounds for a subsequent search. This is commonly referred to as “fruit from the poison tree” or tainted evidence. In this way, the state is prevented from benefiting from the illegal acts of police officers: R. v. Grant, 1993 CanLII 68 (SCC); R. v. Kokesch, 1990 CanLII 55 (SCC). This information is the only evidence relied upon by Cst. Lally for his search of the Accused’s motor vehicle. Therefore, Cst. Lally’s search of the motor vehicle is also unreasonable and a further breach of s. 8 of the Charter." (Para 29)
Charter s.24(2) Exclusion of Evidence
Seriousness of the Charter-infringing State Conduct
"As I stated earlier Cst. Lally did not provide any objective basis for his concern for officer safety. Therefore, I am unable to analyse his awareness of his powers and authority when searching the Accused in this case. As I have just read in Mann, Individuals have a reasonable expectation of privacy in their pockets and the search of those pockets without justification is a serious breach. I do not intend to second guess the SCC as to whether this is a serious breach." (Para 53)
"The law has been made known to the police for at least 14 years and in this case the police provided no evidence as to why they did not follow this precedent. Therefore, there is certainly no good faith on the part of the police in this case. They knew or ought to have known that they could not simply search the Accused’s inner pocket without an objective basis. If the police had provided at least some objective basis, even if it was not reasonable, it would have lessened the seriousness of the breach. However the lack of any objective reasons, in my view, heightened the seriousness of the breach. In my view the breach in this case was serious and favours exclusion of the evidence." (Para 55)
Impact on the Charter-protected Interests of Accused
"As stated in Mann a pat down search is minimally intrusive where there are grounds for such a search. However, such a search can be intrusive where there are not grounds for such a search as recognized in Tannas-Marcichiw, 2017 CarswellAlta 803 when the Court started at para 15:
15 A second line of inquiry focuses on the impact that the breach had under Charter-protected interests of the accused. A pat-down search may not be — may not seem to be much; however, everyone, including the accused, has a general expectation of privacy in relation to their body. In this case, the police officer touched the accused without his consent; and thus, his Charter rights were violated. The violation of the accused's privacy rights arising from the pat-down search are significant and also favours the exclusion of the evidence. (Para 58)
"If the search of Mr. Chahal's person had been legal I may very well have found that the search of his motor vehicle was also legal. However, as mentioned earlier I have found that the search of the Accused's person was not a legal search and therefore the fruits of that search cannot be used as grounds for the search of the motor vehicle. Without that evidence there is no basis for a search of the motor vehicle and therefore the search of the motor vehicle was also unconstitutional." (Para 39)
Balancing
"In coming to my determination as to whether the exclusion of the evidence in this case would bring the administration of justice into disrepute I must balance the three factors I have just discussed. There are no overarching rules with respect to how this balance is to be struck. No one factor takes precedent over the others. In this case considering all of the evidence and circumstances of this case exclusion of the evidence found on the Accused and in his motor vehicle would not bring the administration of justice into disrepute. Therefore, I would grant the defence application to exclude the evidence in this case."
R v KK (ONSC)
[Mar 11/19] – Bail Hearings - Prohibition on Crossing Sureties about Offence - Prohibition on Forced Defence Disclosure – 2019 ONSC 1578 [D.E. Harris J.]
AUTHOR’S NOTE: It appears some prosecutors in the Central West Region of Ontario have been playing a dirty, but until now not legally sanctioned trick on those seeking release at a bail review. They cross-examine sureties not only on the the legally relevant ability to supervise the accused, but also on anything the Accused might have told them about the offence. In essence, the price of potential liberty now, is potentially the end of liberty at the end of a trial. Justice Harris, in this decision, provides a well-reasoned opposition to this legally dubious practice. Ultimately, he finds the practice impermissible because it is a violation of the right against self-incrimination, its probative value exceeds its prejudicial effect, and it is a waste of judicial resources in the R v Jordan era for a judge to have to sit through the Crown going on a fishing expedition that has little to do with the issue to be decided (bail).
Pertinent Facts
"Affidavits from the two new sureties were filed on the review and Crown counsel cross-examined them both extensively. The Crown, as is generally the case based on my experience in Central West Region, sought to elicit from proposed surety Mr. Butts anything the accused said to him about the alleged offence. I do not believe this is a proper line of questioning and prohibited it. These reasons explain why." (Para 2)
"Years ago, a prominent Ontario prosecutor advocated for taking full advantage of the opportunity which presents itself when sureties assume the witness box at a bail hearing. He recommended that prosecutors,
. . . ask the surety if he or she has discussed the outstanding charges with the accused. While you cannot ask the accused about the charges [by reason of Section 518(1)(b)] you certainly can ask other witnesses and often the surety will give you information about a confession by the accused of which you and the police would otherwise have been unaware. (You will then want to order a subpoena for trial and a copy of the bail hearing transcripts.)
G.D. Burrow, Q.C., Bail Hearings (Scarborough, Ont.: Carswell, 1993), at p. 49 as quoted in S. Casey Hill, David M. Tanovich, Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Carswell, 2019), at 35:40.20." (Para 4)
"Based on how common the practice is here in Central West Region, this advice has been taken to heart." (Para 5)
Analysis of the Practice
"The attempt to elicit admissions made by the accused to prospective sureties for the purpose of adding to the Crown’s case is not only divorced from the purpose of a bail hearing, it is antithetical to it. It is a cruel irony that the accused’s effort to secure his release from custody is transformed into an opportunity for the Crown to build its case against him." (Para 10)
"Chief Justice Lamer in Pearson and Morales interpreted the Section 11(e) Charter right as justifying the denial of bail if there is “just cause” shown, defined as “… necessary to promote the proper functioning of the bail system and … not … undertaken for any purpose extraneous to the bail system” (emphasis added): Morales, at para. 38." (Para 14)
"The primary purpose of questions eliciting admissions is one fundamentally at odds with the purpose of a bail hearing. As a practical matter, the probative value of the questioning to a legitimate bail issue is marginal." (Para 17)
"I accept that, in the abstract, admissions by the accused and his position with respect to the allegations may have some passing relevance to the bail decision. The strength of the Crown’s case is, depending on the circumstances, an appropriate consideration under all three bail grounds. On the primary ground, a strong case may increase the risk of flight. On the secondary ground, it may demonstrate a stronger propensity to commit further offences. On the tertiary ground, it is an explicit statutory factor and virtually a precondition to detention on this ground: Trotter, at 3.4(f)(i)." (Para 18)
"It could also be said that questioning the surety with respect to admissions of the accused sheds light on the relationship between the accused and the surety." (Para 19)
"But the true weight of the surety cross-examination to the Crown’s bail position is virtually impossible to give positive value. As is implicit in Burrows’ suggestion, the Crown cannot know the answers to its questions. They are opportunistic. It is a fishing expedition in the hopes of stumbling on evidence which can be used against the accused down the road." (Para 20)
"In some circumstances, the criminal law determines that relevant evidence is nonetheless inadmissible. A question in cross-examination must be more probative than it is prejudicial: R. v. Lyttle, , [2004] 1 S.C.R. 193, at para. 44." (Para 22)
"Several types of prejudice are produced here. The major prejudice, as suggested by Justice Trotter, is the forced incursion into the defence case and position. With a few limited exceptions such as expert evidence under Section 657.3 of the Criminal Code and an alibi defence, the Crown has no right to disclosure of the defence case. As Justice Cory said in R. v. Chambers, [1990] 2 S.C.R. 1293, at para. 66, “[a]s a general rule there is no obligation resting upon an accused person to disclose either the defence which will be presented or the details of that defence before the Crown has completed its case.”"(Para 25)
"This was further elaborated upon by Chief Justice Lamer in R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555 several years later when it was firmly established that requiring defence disclosure was contrary to the right against self-incrimination:
37 Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in hisor her own prosecution: M. Hor, “The Privilege Against Self-Incrimination and Fairness to the Accused” [1993] Singapore J. Legal Stud.35, at p. 35, P.K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 1:10100. …
38 The broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Canadian Charter of Rights and Freedoms. As a majority of this court suggested in R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, the presumption of innocence and the power imbalance between the state and the individual are at the root of this principle and the procedural and evidentiary protections to which it gives rise.
39 Before trial, the criminal law seeks to protect an accused from being conscripted against him or herself by the confession rule, the right to remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence: R. v. Hebert, [1990] 2 S.C.R.
With respect to disclosure, the defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence. In obiter, this court suggested in R. v. Stinchcombe,1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 333, that
… the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. Theabsence of a duty to disclose can, therefore, be justified as being consistent with this role.
(Emphasis Added) (Para 26)
"In conclusion, the discovery of the defence case is contrary to basic principle. To protect vital defence interests and the defendant’s right to silence, the impugned questions should not be permitted. In this context, the Charter performs an important function in shaping the commonlaw: see R. v. Rogers, 2006 SCC 15 (CanLII), [2006] 1 S.C.R. 554, at para. 19 per Charron J.; and R. v. White, 1999 CanLII 689 (SCC), [1999] 2S.C.R. 417, at paras. 40-41." (Para 31)
"Lastly, this line of questioning is wasteful of the conservation of judicial resources, a central value invested with new poignancy in the post-Jordan world. As pointed out above, when questions are asked by the Crown seeking admissions made to the surety, almost invariably the Crown has no idea whether the cross-examination will bear fruit. It is a prosecutorial fishing expedition. It veers the hearing off course from the sole question of whether release ought to be ordered. A proceeding as vital to the criminal process as a bail hearing is not the time or the place for questions prompted only by prosecutorial hopes for an evidentiary windfall for use in another proceeding." (Para 33)
"The questioning causes serious prejudice to the accused. The questions are potentially divisive within the accused’s relationship with his or her sureties. There is an unjustifiable expenditure of time and a disruption and distraction from the critical issue of release or detention. Most importantly, the attempt to discover the defence position and uncover admissions of guilt is contrary to the prohibition on Crown discovery of the defence case, an established facet of the right against self-incrimination." (Para 35)
The questioning of the surety was disallowed.
