Court File and Parties
Court File No.: YC-19-1417 Date: 2019 03 11 Superior Court of Justice - Ontario
Re: Her Majesty the Queen v. K.(K.)
Before: D. E. Harris J.
Counsel: D. S. Allison for the Crown Respondent R. Vijan for the Applicant K.
Addendum to Bail Review Endorsement
[R. v. K.(K.), 2019 ONSC 704]
[1] This is an addendum to a bail review decision reported at R. v. K.(K.), 2019 ONSC 704. As is often the case in this jurisdiction, the bail review was premised on new and better sureties to supersede those tendered on the original hearing. This was argued to constitute a material change of circumstances permitting a review of the original detention order: see R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 122-139.
[2] 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.
[3] There is nothing in the Criminal Code, R.S.C., 1985, c. C-46 or the Charter of Rights and Freedoms which expressly prohibits this type of questioning. Nonetheless, in my opinion, questions seeking this type of evidence should not be allowed. They are an attempt to unfairly exploit the bail hearing to discover the defence position and elicit evidence from the surety of the accused’s admissions. For this reason and for others discussed below, they are improper.
[4] 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.
[5] Based on how common the practice is here in Central West Region, this advice has been taken to heart. There are a number of objections to it canvassed in McWilliams’ Canadian Criminal Evidence and by Justice Trotter in his leading textbook on bail (Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017), at Section 5.5(g). The principal objection is the most fundamental: a bail hearing is for the purpose of determining whether and on what conditions the accused ought to be released from custody. It ought not to be used for the ulterior purpose of augmenting the Crown’s case or as a means to discover the defence position.
[6] The examination of this issue begins with the basics. The importance of bail to an accused person is obvious. The value placed on liberty is paramount in the criminal law. Pre-trial custody collides with the bedrock principle of our law, the presumption of innocence. To deprive an accused of liberty before proof beyond a reasonable doubt of his or her guilt is not a step to be taken lightly: R. c. Pearson, [1992] 3 S.C.R. 665; and R. v. Morales, [1992] 3 S.C.R. 711.
[7] The Chief Justice explained the importance of bail to an accused person in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 66:
66 … Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself": Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law... . [that] confirms our faith in humankind": R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119- 20.
[8] Bail is of monumental importance not only to the accused’s immediate liberty interests but for his eventual fate with regard to the criminal allegations themselves. Other than the trial itself, the bail stage is the most important part of the process to an accused person. An accused has a compelling interest in securing his release on bail.
[9] The purpose of a bail hearing, as apparent from Section 515(10) of the Criminal Code, is to address whether release ought to be ordered in view of the need to ensure the accused’s presence in court, to ensure the safety and protection of the public or to maintain confidence in the system of justice.
[10] 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.
[11] If these questions are proper, it may put defence counsel into an impossible situation. Sureties do not always have to be proffered or to testify on a bail hearing: R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221, at paras. 30-38. On the other hand, in situations where a bail review is sought, new sureties are often put forward, as in this case, to demonstrate a material change in circumstances. The defence is required to file affidavits from the sureties and present them for cross-examination. There is no practical choice in the matter.
[12] In the worst case scenario, the defence may be stuck between a rock and a hard place. Although defence counsel is well advised to inform the accused not to talk about the allegations, it might be too late or the advice may not be heeded. This could thrust the accused onto the horns of a dilemma. In some situations, like that in this case, the accused cannot be released without the surety giving evidence and being cross-examined by the Crown. But the surety may, if answering truthfully, supply additional evidence against the accused or provide valuable insight into the defence position. In the decision whether to call the surety as a witness, the accused is in a classic Catch-22 situation.
[13] In other situations, the defence may not be required as a practical matter to put forward evidence from the sureties. Rather, tactical considerations may lead counsel to this decision. But the concern with the proposed Crown cross-examination remains the same, albeit without the same degree of compulsion.
[14] 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.
[15] While the court was addressing the constitutional validity of several aspects of the bail regime, there is no reason why the conduct of a bail hearing ought not to be subject to the same strictures. Questioning the surety about the accused’s admissions is largely extraneous to the purpose of a bail hearing.
[16] Justice Trotter says in his book at 5.5(g),
…there is a fine line between eliciting relevant information on the one hand, and using the opportunity to question sureties as a discovery mechanism. To the extent that a prosecutor asks questions about admissions for this purpose, it is not a legitimate basis for pursuing this line of inquiry. It is irrelevant to the task at hand. Moreover, it contributes to unnecessary time spent on in-court examinations of sureties.
[17] 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.
[18] 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).
[19] 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. The state of the relationship is important to the ability of the surety to supervise and with reference to the “pull of bail” on the accused: Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, (2009) 248 C.C.C. (3d) 1, at paras. 40-48.
[20] 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.
[21] The questions are not asked for the purposes of bail. Burrow does not pretend that they are. Given the specificity and restricted nature of the issues on a bail hearing, they are of negligible value. It is quite unlike wide-ranging, searching questions posed at trial. At the same time, there is significant mischief and prejudice caused to the accused and the bail process itself.
[22] 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 SCC 5, [2004] 1 S.C.R. 193, at para. 44.
[23] In the context of evidence outside the scope of the indictment demonstrating bad character, relevant evidence can be inadmissible if the prejudicial effect outweighs the probative value: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 42; and R. v. Morris, [1983] 2 S.C.R. 190.
[24] With respect to expert evidence, probative evidence can also be excluded if not sufficiently reliable and if its costs outweigh the benefits: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 87. The same is true for Mr. Big evidence: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 95-99.
[25] 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.”
[26] This was further elaborated upon by Chief Justice Lamer in R. v. P. (M.B.), [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 his or 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] 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. 151. 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] 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. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.
(Emphasis Added)
[27] Parliament has shown sensitivity to the vulnerability of the accused in the face of Crown efforts to launch a collateral attack to discover the defence case. Section 518(1)(b) protects an accused from being asked about the allegations unless his counsel first opens the area up. It is true that there is nothing in the Code barring a third party being asked about the accused’s admissions about the offence. However, the existence of this provision demonstrates that Parliament saw the potential for misuse of the bail hearing for a discovery purpose. The Criminal Code immunizes the accused from this unfairness.
[28] I agree that an accused’s Section 7 right not to suffer self-incrimination is not directly jeopardized because it is a third party being questioned, not the accused: Trotter, at Section 5.5(g). But an attempt to discover the defence case and to incriminate the accused through his or her surety has an indirect impact on the accused’s self-incrimination right.
[29] There is an important distinction between legitimate criminal investigation and impermissible discovery of the defence case. It might be argued that the Burrow approach at the bail hearing is no different than the police approaching friends and family of the accused out of court and questioning them about whether any admissions have been made to them by the accused. Such police questioning would not implicate any of the accused’s Charter rights or protections.
[30] However, the analogy is flawed. Out of court, an individual has the right not to speak to the police. On the witness stand at a bail hearing, the witness does not have this option. A witness is obligated to answer. Furthermore, he or she is under oath or under affirmation and so the evidence may be invested with a higher degree of reliability. Questioning sureties about possible admissions on a bail hearing or bail review can be a formidable tool in the hands of prosecutors. As Burrows says in the excerpt above, the transcripts of the bail hearing can later be obtained for the trial. In many instances, the defence may be powerless to avoid discovery of their case and to forestall the Crown from gathering evidence against the accused.
[31] 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 common law: see R. v. Rogers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 19 per Charron J.; and R. v. White, [1999] 2 S.C.R. 417, at paras. 40-41. Premised on the broad Charter principle of the right against self-incrimination in Section 7, discovery of the defence case at a bail hearing should be prohibited.
[32] Furthermore, there are other reasons the cross-examination of the surety should be foreclosed to the Crown. The proposed questioning is detrimental to the surety/accused relationship. It could drive a wedge between surety and the accused and sow dissension in their relationship. As Justice Trotter has aptly observed,
… this line of questioning can result in unfairness to the accused and prospective sureties. If the surety has received information from the accused about the offence, passing on this information may undermine the accused's position on bail. If this occurs, realistically, this may make a future accused-surety relationship untenable. On the other hand, if the surety reports that he or she has had made no inquiries of the accused concerning the allegations, it begs the submission that the surety is not taking the matter seriously and is therefore unsuitable. Either way, the surety cannot win. As Rosenberg J.A. said in a different context in Canada (Minister of Justice) v. Mirza ". . .we should avoid an approach that would unduly discourage sureties from coming forward.”
[33] 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.
[34] In summary, Crown attempts at a bail hearing to elicit admissions made by the accused to the proposed sureties should not be permitted. Such questions have marginal value to the purpose and live issues involved in a bail decision. The questioning unfairly exploits the fortuity of having the surety under oath. The value of the questions towards legitimate bail issues, based on speculation, is exceedingly tenuous.
[35] 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.
[36] This is why the Crown questioning of Mr. Butts on this subject was disallowed.