 |
| Patrick Ducharme |
The strict rules of evidence required at a trial are not in place at a bail hearing.1 The Code provisions permit the presiding Justice to make inquiries that the Justice considers desirable. The inquiries do not have to be in the form of evidence under oath. There are not many limitations to the inquiries except that an accused that testifies at a bail hearing may not be questioned about the offence he faces, unless defence counsel poses a question or questions to the accused about that offence.
Provided defence counsel does not pose any questions concerning the offence that the accused faces, neither the prosecutor nor the Justice may ask the accused questions about the offence. If, of course, defence counsel to the accused poses such questions, this opens the door for both the Justice and the prosecutor to question the accused about the circumstances of the offence. This limitation upon the questioning of the Justice and the prosecutor is designed to provide the accused with some protection against self-incrimination at this early stage in the proceedings.
The provisions of the Code further provide that the prosecutor may lead evidence of a criminal record, pending charges, previous convictions under section 145 of the Code, the circumstances of the alleged offence particularly with a view to demonstrating the probability of conviction and evidence demonstrating a need to provide safety or security to an alleged victim or a witness to the offence.3 The Justice is also permitted to hear evidence that is hearsay, provided that evidence is found to be “credible or trustworthy”.
The Justice is also permitted to consider relevant matters agreed upon by the prosecutor and the accused.5 This often leads to an “agreed statement of facts” that the Justice may consider. If the facts, however, are not agreed upon it is not permissible for the prosecutor to provide information to the court by submissions. Instead, the prosecutor must call the evidence and subject that evidence to the scrutiny of cross-examination.
Adjournments
Section 516 of the Code states that 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, during the proceedings remand the accused to custody, but no such adjournment shall be for more than three clear days except with the consent of the accused.
According to subsection 516(2), a Justice who remands an accused may order that the accused not communicate directly or indirectly with any victim witness or other person identified in the order except in accordance with the conditions specified in the order that the Justice considers necessary.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel