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| Patrick Ducharme |
An order of non-publication of the evidence, protects against the premature disclosure of information. This includes the submissions of counsel and the reasons for the court’s decision. An order of non- publication is mandatory if requested by the defence.1 It is discretionary if requested by the prosecution.
The accused cannot be questioned by the presiding Justice or the prosecutor concerning the circumstances underlying the charge or charges that he faces at the bail hearing unless the accused opens himself up to such questioning by broaching the subject himself. No other witness enjoys the same protection.2 Counsel for the accused therefore should consider carefully who will testify on behalf of the accused at a bail hearing. Witnesses who testify on behalf of the accused at the bail hearing are not protected from questioning about the circumstances of the offences that are at that time before the court in the same manner that the accused is protected.
The mother of the accused, for example, may serve effectively as a surety for the accused. If, however, the mother will be an important witness at her son’s trial, calling her as a witness as a proposed surety makes her vulnerable to a carefully planned cross-examination of her whereabouts and knowledge of the activities of her son at the time of the events leading to the charge. Her testimony could provide the prosecutor with disclosure of some evidence in support of her son’s defence, or evidence contrary to an intended defence.
This is evidence that otherwise need not be provided to the prosecutor in advance of the trial.
Consequently, calling the mother as a witness at the bail hearing may amount to relinquishing a tactical advantage belonging to the defence at trial. Section 518 of the Code only prohibits examination of the accused concerning the circumstances surrounding the alleged offence. His mother is not similarly protected.
Section 518 (1) (b) of the Code provides:
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.
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.
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