R. v. Bryan, 2016 ONSC 7585
Court File No.: 15-50000239
Date: 2016-07-07
Ontario Superior Court of Justice
Between:
Her Majesty the Queen
– and –
Rogar Bryan
Counsel:
Tom Lissaman and Danielle Scott, for the Crown
David G. Bayliss, for Rogar Bryan
Heard: June 17 and 28, 2016
Reasons for Decision
F.L. Myers J. (Orally)
The Application
[1] The issues on this application are:
a. Is the Crown entitled to cross-examine an accused person on the affidavit that he or she is compelled to deliver in support of a bail application on a murder charge? and
b. If so, should this accused be granted leave to continue the bail application if he withdraws his affidavit expressly to avoid being cross-examined?
Background
[2] On April 23, 2014, the police arrested Rogar Bryan and charged him with second degree murder in connection with the brutal stabbing and beating death of John MacLean. Forensic investigators found Mr. Bryan’s DNA under the victim’s fingernails. Apparently, the likelihood that by random chance an unrelated person shares the same DNA with Mr. Bryan is in the order of a one in 15 quadrillion.
[3] Mr. Bryan has remained in jail for the 26 months since he was arrested. His trial is scheduled to commence two months from now.
[4] Under ss. 469 and 522(1) of the Criminal Code, only a judge of the Superior Court may preside over a bail hearing where the accused is charged with murder. Mr. Bryan brought an application for bail in this court under s. 522. Subsection 522(2) provides that the burden is on Mr. Bryan to show cause why his detention is not justified within the meaning of s. 515(10) of the Criminal Code.
The Applicable Rules of the Court
[5] Under s. 482 of the Criminal Code, the court may make rules governing the proceedings before it provided that the rules do not conflict with the Criminal Code or any other statute. The Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, became effective March 1, 2012. Rule 20.01 of those Rules governs applications for bail before this court under s. 522 of the Criminal Code.
[6] Rule 6.01 (1) requires applications to this court to be commenced by notice of application in the approved form. Rule 20.05(1) requires that a bail application must be accompanied by an affidavit of the accused. This rule is mandatory and positively compels an accused person who seeks bail under s. 522 of the Criminal Code to deliver sworn evidence.
[7] Rule 20.05(2) provides that the affidavit of an accused person who seeks bail shall disclose several things, including: particulars of the charge on which release is sought, the accused’s place of abode for the three years preceding the charge, his proposed place of residence while on bail, details of his employment for the three years preceding the charge, where he expects to be employed upon release, the form of order that is proposed, and the terms and conditions of any undertaking and recognizance sought (with names of each proposed surety and the amount for which each proposed surety is to be liable).
[8] The Rules require Mr. Bryan to adduce a baseline factual matrix in support of his burden of proof under ss. 522(2) and 515(10) of the Criminal Code. An applicant for bail is not required to provide any evidence in his or her affidavit concerning the substance of the charges that are before the court. In fact, s. 522(5) of the Criminal Code incorporates s. 518(1)(b) into the rules governing bail hearings in this court. Subsection 518(1)(b) expressly prohibits cross-examination of an accused person respecting the offence itself at a bail hearing unless he has testified respecting the offence. That is, if an accused person voluntarily chooses to give evidence concerning the merits of the charges before the court, then s.518(1)(b) does not prohibit cross-examination of the accused on the merits.
[9] Rule 6.07(4) provides that subject to the Criminal Code and any other applicable law, witnesses on applications may be cross-examined on their affidavits in advance of the hearing. Rule 6.08 provides that parties may cross-examine witnesses in court on an application with leave of the court. These rules provide a presumptive right to cross-examine all witnesses who file affidavits subject to the Criminal Code and any other applicable law. Here, s. 518(1)(b) is an example of a section of the Criminal Code that modifies the presumptive right of cross-examination.
The First Return of the Application
[10] Mr. Bryan delivered an affidavit sworn April 19, 2016 in support of his bail application. At the outset of the hearing, Mr. Lissaman indicated his desire to cross-examine Mr. Bryan on his affidavit. Mr. Bryan’s counsel Mr. Bayliss objected. As Mr. Bayliss said he was taken by surprise by the Crown’s request, the bail hearing was adjourned until June 28, 2016 to allow the parties to brief the issue of whether the Crown is entitled to cross-examine Mr. Bryan on his affidavit.
The Hearing Resumed on June 28, 2016
[11] Each party provided additional case law at the return of the application. However, despite an initial indication that Mr. Bryan might bring an application under the Canadian Charter of Rights and Freedoms to strike down the testimonial compulsion set out in rule 20.05, he made no such application. Rather, Mr. Bayliss argued that the Rules should be interpreted consistent with applicable Charter provisions and this, in his submission, means that Mr. Bryan cannot be cross-examined on his affidavit. Alternatively, Mr. Bryan seeks to withdraw his affidavit to avoid cross-examination. In that circumstance, he asks that the hearing continue so that he can try to put the mandated baseline factual matrix into evidence through other witnesses.
The Position of Mr. Bryan
[12] The principal argument advanced and stressed repeatedly by Mr. Bayliss is that in all of his many, many years at the bar, he has never seen a Crown Attorney cross-examine an accused person on his or her evidence in support of a bail application in this court. He refers to two cases in which cross-examination of an accused person did not occur and to his own experiences as indicative of the state of the practice and therefore of the law. He also argues that since judges are deemed to know the law, surely the authors of the Rules of this court could not have intended to subject an accused person to cross-examination on compelled testimony at a bail hearing.
[13] In addition to applying Shirley’s Fallacy and providing unsworn evidence of his lengthy professional experiences, Mr. Bayliss did refer to one precedent decision in particular.[^1] He relies heavily upon the opinion of Mr. Justice LeBel in R. v. Nedelcu, 2012 SCC 59. In that case, the Supreme Court of Canada considered the position of an accused person who was also sued civilly. Mr. Justice LeBel held that evidence compelled from an accused person in a related civil examination for discovery could not be used at the criminal trial in light of section 13 of the Charter.
[14] Section 13 of the Charter provides as follows:
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
[15] In Nedelcu, the Crown argued that there is a distinction between evidence that may be incriminating on the substance of the charges and evidence that goes to the accused person’s credibility as a witness with the latter being admissible at trial. Justice LeBel rejected that argument. He relied upon the decision of the Supreme Court of Canada in R. v. Henry, 2005 SCC 76, and, in particular, the reference with approval by Binnie J. in that case to a decision of G. Arthur Martin J.A. in the Ontario Court of Appeal in R v. Kuldip, 1990 SCC 64, [1990] 3 S.C.R. 618, that argues strongly against the validity of a distinction between substantively incriminatory evidence and evidence that goes to credibility. Martin J.A. argued that a negative conclusion against an accused on the question of his or her credibility could well give rise to an inference of substantive guilt. On that basis LeBel J. found that there is no difference between compelled evidence that is substantively incriminating and compelled evidence that goes to credibility and neither is admissible in a subsequent criminal trial.
[16] This court is not in a position to disagree with the views of Mr. Justice Martin or Mr. Justice LeBel. However, the majority of the Supreme Court of Canada is entitled to do so and, in Nedelcu, they did just that. The majority of six judges disagreed with the dissenting opinion authored by LeBel J. The majority held that non-incriminating evidence given by an accused person in related, compelled examinations for discovery may be used for the purpose of impeachment at a subsequent criminal trial without violating s. 13 of the Charter.
[17] At paragraph 16 of the majority decision, Moldaver J. wrote:
The law is clear and I accepted it to be so, that the time for determining whether the evidence given at the prior proceeding may properly be characterized as “incriminating evidence” is the time when the Crown seeks to use it at the subsequent hearing. (See Dubois v. The Queen, [1985] to S.C.R. 350, at pp.363-64). That however, does not detract from my contention that the evidence to which s. 13 is directed is not “any evidence” the witness may have been compelled to give at the prior proceeding, but evidence that the Crown could use at the subsequent proceeding, if permitted to do so, to prove the witness’s guilt on the charge for which he or she is being tried.
[18] That is, the Supreme Court of Canada has held that there is no breach of the Charter where an accused person is compelled to give evidence before his or her trial and that evidence is used at the trial as long as it goes to credibility rather than to substantive guilt or innocence.
[19] Mr. Bayliss argues that requiring Mr. Bryan to undergo cross-examination on his compelled affidavit would be requiring him to give up his right to bail in order to preserve the fairness of his trial. Much is wrong in that argument:
a. First, s. 518(1)(b) protects Mr. Bryan from being cross-examined about the substance of the offence. However, the Supreme Court of Canada recognized that it is not always simple to tell whether evidence being given in one hearing will be incriminatory at a later criminal trial. Therefore, it held that the time for the assessment of s. 13 rights is at trial when the Crown attempts to use the evidence. It is not open to an accused person to argue that his right to a fair trial is undermined by implementation of a decision of the Supreme Court of Canada. As it is that Court which decides the scope and applicability of the rights and freedoms set out in the Charter, by definition, it cannot violate the accused’s rights to follow the Supreme Court of Canada’s prescription by leaving the determination of the appropriate use of the evidence to the trial judge.
b. Second, Mr. Bayliss argues that Mr. Bryan is being put in the invidious position of having to choose one Charter right over the other. He cites the decision of Hill J. of this court in R. v. Gordon, 1998 ONSC 14952, [1998] O.J. No. 4043. In that case, Hill J. prevented the police from using testimony that the accused was compelled to provide, in a s.11(b) application under the Charter, to provide a voice sample that could be used to incriminate the accused at trial. Hill J. held, at para. 120, that the Crown was using the open court principle to effectively convert the courtroom into a lineup and to conscript the accused into providing substantively incriminating evidence against himself while he was in the course of vindicating another important Charter right. That is not what is proposed here. In this case, the accused is being required to give evidence to support his application for bail. Subsection 518(1)(b) of the Criminal Code and s. 13 of the Charter protect him against the use of substantively incriminating evidence at trial. The legality of the use of compelled evidence to impeach an accused person’s credibility at trial was expressly acknowledged by Hill J. and even by the moving accused in Gordon. See Gordon, at para. 63. Mr. Bryan’s Charter rights are fully protected at a bail hearing and at trial. He faces no choice as between Charter rights.
c. Third, Mr. Bryan does not have a “right to bail” as argued by Mr. Bayliss. He has a right under s. 11(e) of the Charter, “not to be denied reasonable bail without just cause.” Section 522 of the Criminal Code puts the burden of proof on the accused who seeks bail in a murder case. Rule 20.05 requires that for an accused person to meet his or her burden, at minimum, he or she must testify to the matters listed in the section that all relate to the grounds for bail set out in s. 515(10) of the Criminal Code. Mr. Bryan has not brought an application to strike down either provision for inconsistency with the Charter. In my view, the law currently requires Mr. Bryan to establish just cause to enable him to obtain reasonable bail by, among other things, filing an affidavit. If he does not do so, he is not denied the “right to bail.” Rather, if he chooses not to testify and thereby fails to meet the burden upon him to show cause why he should be entitled to bail, he chooses not to fulfill the minimum conditions under which he might vindicate his right. In that case, there will be “just cause” to deny bail within the meaning of the right as actually set out in s. 11(e) of the Charter.
[20] Mr. Bayliss argues that, as noted by Martin J.A. in Kuldip, credibility can go to substance. An accused person who lies during the bail hearing may later be held more likely to have committed the offence. However, in Nedelcu the majority did not accept that preserving the flexibility of an accused to lie at a pre-trial application was a valid argument. Mr Bayliss argues that an unsophisticated accused like Mr. Bryan who is subjected to skillful cross-examination during a bail hearing may simply forget, slip, or just make a mistake in his testimony. He asks the court to bear in mind that not everyone has gone to Harvard and can be expected to have the intellectual wherewithal to withstand a Crown attorney’s artful cross-examination. Mr. Bayliss fears that if Mr. Bryan is cross-examined at the bail hearing, he is bound to create credibility issues for himself at trial. Of course, this all assumes that Mr. Bryan is intending to testify at his trial and there can be no assurance of that at this point in any event. Moreover, short of lying, if Mr. Bryan is unsophisticated and forgets, slips, or makes a mistake in his evidence at the bail hearing, he can just say so at trial. No witness’s evidence is perfect or expected to be so. Short of advancing a right to lie, the fear that an unsophisticated witness might make a very human slip or error does not immediately or necessarily mean that his or her credibility will be so impacted as to bring his or her guilt or innocence into play at all.
[21] Mr. Bayliss argues that as a general principle it is risky for an accused to testify before trial if the testimony can be used later for credibility. That leads him, as an experienced counsel, to be nervous about recommending to his client that he exercise his right to seek bail.
[22] Mr. Bayliss asks the court to refuse to allow cross-examination by applying s.24(1) of the Charter as was done by Hill J. in Gordon. Absent a Charter breach however, s.24(1) has no application in my view.
[23] Finally, Mr. Bayliss argues that the evidence of the accused in his affidavit concerning his employment history and his lack of a stable residence is already so weak so as to render cross-examination unnecessary. He asks the court to deny the Crown leave to cross-examine at the hearing under Rule 6.08.
The Position of the Crown
[24] The Crown relies on the decision of the Court of Appeal in R. v. West, 1972 ONCA 547. In that pre-Charter bail case, the Court of Appeal held that unless facts are agreed for a bail application, they should be proven by sworn affidavit. At para. 17, Gale C.J.O., writing for the unanimous Court, held,
It should also be mentioned here that, subject to s. 457(1)(b), both sides should have the right to cross-examine with respect to any evidence adduced by the other.
[25] This decision was relied upon in 2006, by D.S. Ferguson J. of this court in R. v. Stephenson, 2006 ONSC 42260. At paras 15 and 16, he wrote:
[15]…The Criminal Proceedings Rules specifically contemplate the accused and the Crown filing affidavit evidence: Rule 20.05(1) and (3).
[16] If either party files an affidavit as evidence then I believe the opposite party is entitled to have the deponent attend for cross-examination.
[26] In R. v. Darrach, 2000 SCC 46, the Supreme Court of Canada considered the constitutionality of the requirement in s. 276 of the Criminal Code that an accused person file an affidavit for a voir dire if he or she wants to adduce evidence of the sexual history of the complainant in defence of sexual assault charges. The Supreme Court of Canada dealt with some of the very same arguments that have been put forward on behalf of Mr. Bryan in this case as follows:
The accused challenges the constitutionality of the voir dire on the grounds that being required to submit to cross-examination on his affidavit violates his s. 7 and s.11(c) rights not to be compelled to testify at his own trial. He also complains that he is “compelled” to testify because there are usually no witnesses to sexual assaults other than the accused and the complainant, and the complainant is not compellable at the voir dire according to s. 276.2(2). Again, the accused mischaracterizes his predicament. He does not face a legal compulsion to testify for the reasons given above, and the tactical pressure he describes is not unfair. Having produced his affidavit, the basic Rules of evidence require the accused to submit to cross-examination because the right to cross-examine is essential to give any weight to an affidavit.
The accused’s refusal to submit to cross-examination on his sworn affidavit in effect reduces its weight to that of an unsworn statement. Yet, it has long been decided that an accused cannot make an unsworn statement because it
would lead to many dangerous results, the most obvious of which are, the escape from cross-examination; the safe introduction of a concocted defence; the securing of all the benefits of sworn evidence in accused’s favour without incurring the consequences of perjury by refraining from going into the witness box; and also depriving the jury of the benefit of appraising his credibility in general from his demeanour therein.
(R. v. Frederick (1931), 1931 BCCA 495, 57 C.C.C. 340 (B.C.C.A.), at p. 342)
63 As Cory J. put it more recently in Osolin, supra, cross-examination “is of essential importance in determining whether a witness is credible” (p. 663). This applies to all witnesses who offer testimony, whether for the Crown or for the defence. The Crown’s right to cross-examine on the affidavit under s. 276 is essential to protect the fairness of the trial. Cross-examination is required to enable the trial judge to decide relevance by assessing the affiant’s credibility and the use to which he intends to put the evidence. The trial judge correctly found that the legislation itself requires “some weighing and some assessing of the evidence” before it can be admitted ([1994] O.J. No. 3160 (QL), at para. 20). Without cross-examination, “the court can not attribute much, if any, weight to such evidence” because it is impossible to assess its probative value and prejudicial effect as the legislation requires.
[27] Mr. Bayliss argues that Mr. Bryan has to choose between maximizing his chances to obtain bail and maximizing his chances to make full answer and defence to the charges. But that is just the “tactical pressure” discussed by the Supreme Court in para. 61 of Darrach.
[28] The Crown says that it will be opposing the release of Mr. Bryan pending trial on all three of the grounds set out in s. 515(10) of the Criminal Code. As such, it wishes to expose what it says are material omissions in Mr. Bryan’s affidavit evidence. It wishes to probe areas of vagueness concerning his residential history and his relationships with his proposed sureties. In his affidavit, for example, Mr. Bryan testifies that while he was in grade nine, he “decided to move back to Jamaica to be closer to my mother.” His father, who is one of the proposed sureties, testifies that, “In 2005 Rogar decided to go to return Jamaica [sic] and be with his mother.” Mr. Lissaman says that he intends to adduce evidence that Mr. Bryan’s return to Jamaica had more to do with a problem between Mr. Bryan and his father than disclosed in their respective affidavits. Mr. Bayliss submitted that the issue is addressed in the affidavits. Perhaps I misunderstood the submission as I could not find any evidence in the affidavits filed on behalf of Mr. Bryan concerning his relationship with his father in relation to his decision to return to Jamaica. Or perhaps, cross-examination might shed light on the fairness of the presentation of the evidence concerning this issue by the accused and his father in their respective sworn testimony.
[29] Mr. Bayliss concedes that there is some relevancy to the proposed cross-examination of Mr. Bryan. He says there is some, but little relevancy. I am not convinced that I should be making a determination of the degree of relevancy once I accept, as I do, that the Crown has a good faith basis to conduct a cross-examination and knowing that the scope and content of the examination will controlled to protect the accused’s rights including those set out in s. 518(1)(b) of the Crminal Code.
[30] Moreover, Mr. Lissaman argues that it is premature to determine at this stage whether there will even be any credibility issues raised at the trial using evidence from Mr. Bryan’s cross-examination. As noted above, it is not known yet if Mr. Bryan will testify. Mr. Bayliss says that he “may” testify. I would not and should not ask for any greater degree of commitment. Now is not the time for Mr. Bryan to make that decision. Similarly, in the event that the Crown seeks to use evidence from the bail hearing at the trial, then Mr. Bayliss will have the opportunity to make his objections and the trial judge will have a complete evidentiary picture before him or her as to what was said at the bail hearing, what has been said at trial, and what use is proposed to be made of the evidence from the former at the latter proceeding. Before me argument was based on hypothetical “what if” scenarios. The trial judge will have all the evidence required to make a proper determination on the facts to protect Mr. Bryan’s right to a fair trial and his s.13 rights.
Cross-Examination of the Accused by the Crown is Appropriate
[31] Mr. Bayliss complains that if evidence from a bail hearing cross-examination is used to impeach at trial, the evidence will be received with no practical likelihood for successful objection by the accused. Yes, in light of the decisions of the Supreme Court of Canada, by which I am bound, I expect that this may indeed be so. I decline to ignore the decisions of the Supreme Court of Canada, today. Moreover, applying Shirley’s Fallacy, were an inference to be drawn as to the intentions of the drafters of the Rules, it would be that the drafters understood full well that the requirement that an accused person be cross-examined on a compelled affidavit in a bail application, while protected by s. 518(1)(b) of the Criminal Code and s. 13 of the Charter, would be a frequent, normal, and entirely appropriate procedural occurrence before this court that does not infringe the constitutional rights of the accused.
[32] In my view, if leave is required, leave ought to be and is hereby granted to the Crown to cross-examine Mr. Bryan on his affidavit. The right to cross-examine is fundamentally important to the truth-finding process in the adversarial system. Although the Crown Attorney functions as a Minster of Justice before the Court, it is generally entitled to cross-examine to assist the court in understanding the facts relevant to the matter before it. The Crown proposes to cross-examine the accused on the truthfulness, completeness, credibility, and reliability of his evidence concerning the baseline factual matrix underpinning his claim to be entitled to bail. This is a fair and proper approach for the Crown to take.
Did the Mr. Bryan put the Merits of the Offence in Issue in his Affidavit?
[33] In para. 12 of his affidavit, Mr. Bryan swore that,
I feel I am not guilty of these charges…
[34] As discussed above, where an accused person voluntarily adduces evidence as to the substance of the offence with which he or she is charged, s. 518(1)(b) does not prevent cross-examination of the accused on the substance of the offence. As Mr. Bryan voluntarily chose to give sworn testimony concerning his view of the merits of the offence charged, the Crown might well have considered cross-examining on the offence. To his credit however, Mr. Lissaman submitted that Mr. Bryan’s feelings as to his guilt or innocence are irrelevant. He undertook not to cross-examine Mr. Bryan on the substance of the offence despite the possibility that para. 12 of the affidavit opened the door for him to do so. I have taken Mr. Lissaman’s undertaking into account in granting him leave to cross-examine.
Withdrawal of Mr. Bryan’s Affidavit
[35] Finally, Mr. Bayliss argues that if I grant leave to the Crown to cross-examine at the hearing, as I have done, he wishes to withdraw Mr. Bryan’s affidavit and to try to prove the baseline factual matrix through other witnesses. The Crown asks me to dismiss the application for bail if Mr. Bryan withdraws his affidavit to avoid cross-examination. In R. v. Trudel, 2006 ONCA 9036 the judge who heard a bail application allowed it to proceed without the accused delivering an affidavit despite being required to do so by the Rules. The Court of Appeal dismissed an appeal by the Crown. In doing so, the Court of Appeal held at para. 6:
…The Criminal Code does not require the affidavit and we were informed that the Rules of several other provinces do not require an affidavit. We agree with the respondent that the requirement for the affidavit is purely procedural in nature and that remedies for failure to comply with the rule are also procedural. The Crown had a procedural remedy. It could have insisted upon an affidavit prior to the hearing of the application so that it could cross-examine the respondent. The Crown did not take that step. The record contained all the information required by the rule. [Emphasis added]
[36] That is, while an affidavit is not required under the Criminal Code itself, the Court of Appeal held that, under the Rules governing proceedings on a bail application in this court, the Crown has a procedural entitlement to insist that the accused give evidence and be subject to cross-examination. I note that those three appellate judges too are deemed to know the law and they too did not seem to have any difficulty with the notion that an accused will be subjected to cross-examination on an affidavit compelled at the Crown’s insistence on a bail application. In the case at bar, the Crown seeks its procedural remedy to insist that the accused deliver an affidavit and be cross-examined on it just as the Court of Appeal says it can when confronted with this situation.
[37] Turning then to the procedural Rules, the Crown argues that Mr. Bryan is effectively asking to be excused from Rule 20.05(1)’s mandatory requirement that he deliver an affidavit. Rule 2.01 allows the court to dispense with compliance with Rules as follows:
2.01 A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.
[38] Mr. Lissaman argues that it is neither necessary nor in the interest of justice to dispense with the requirement that Mr. Bryan deliver the mandated evidence to provide the baseline factual matrix to support his burden of proof. He argues that the application should not be heard unless or until Mr. Bryan meets the mandatory conditions of the Rule 25.05.
[39] Mr. Bayliss correctly argues that dismissal of a proceeding for noncompliance with the Rules is governed by rule 34.03, which provides as follows:
34.03 Where an applicant has failed to comply with the Rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:
(a) the nature of the applicant’s non-compliance with these Rules;
(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;
(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;
(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;
(e) the history of the pre-trial applications and the proceedings;
(f) any notice given to other parties about the issues raised in the pre-trial applications;
(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;
(h) any prejudice to any other party in the proceeding;
(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;
(j) any explanation advanced for failure to comply with these Rules; and,
(k) any other factors the judge considers relevant to his or her determination.
[Emphasis added.]
[40] That is, if Mr. Bryan is in breach of the Rules, his application for bail shall not be heard unless he obtains leave in accordance with the factors listed above.
[41] I heard argument on and have considered each of the listed factors. I will comment on the three that struck me as the most applicable in all of the circumstances of this case.
a. As to factor (a), the nature of Mr. Bryan’s non-compliance is that it is both deliberate and strategic. He specifically wishes to avoid being tested on the credibility of his sworn evidence. That argument, while an understandable strategy, holds no sway in equity. It engages tactical considerations rather than legal rights.
b. As to factor (b), mutatis mutandis, the accused has no right to have a bail hearing without filing material to meet his burden of proof. The Court of Appeal made it clear in Trudel that the Crown is entitled to insist on an affidavit and to cross-examine on it.
c. Factor (h) also seems significant to me. Mr. Bayliss argues that only Mr. Bryan will be prejudiced should the application proceed without his firsthand evidence. However, it seems to me that there is also a public interest at play. Mr. Bryan is charged with a very serious offence. It is important, not just for Mr. Bryan’s rights, but for the protection of the public, potential witnesses, and the administration of justice, that the court engage in a full and proper assessment of the mandated, relevant evidence concerning the issues raised under s. 515(10) of the Criminal Code.
[42] In light of the multitude of precedents that consistently hold that an accused person may be cross-examined on an affidavit filed on a bail application in this court and given the legal protections that are available to an accused person who does so as recognized by the Supreme Court of Canada, in my view, the resolution of the issues raised is straightforward. I am quite prepared to grant leave to Mr. Bryan to withdraw his affidavit to avoid cross-examination on his bail application and I do hereby do so. I would not interfere in counsel’s tactical choice as to how to maximize an accused person’s chances for success at trial. However, with no affidavit of the accused, the application does not comply with rule 20.05(1). It is not necessary in the interests of justice to dispense that rule in this case. Mr. Bryan’s legal and constitutional rights are well protected in accordance with the interest of justice should he determine to file an affidavit. In my view, Mr. Bryan has not established grounds under Rule 34.03 to grant him leave to proceed with the application without complying with the Rules by delivering an affidavit and being subject to cross-examination on that testimony. Therefore, as set out in Rule 34.03, the application may not be heard and is hereby dimisssed.
F.L. Myers J.
Released: July 7, 2016
CITATION: R. v. Bryan, 2016 ONSC 4380
COURT FILE NO.:15-50000239
DATE: 20160707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Rogar Bryan
REASONS FOR DECISION
F.L. Myers J.
Released: July 7, 2016
[^1]: Shirley’s Fallacy postulates that where an argument lacks intrinsic and extrinsic support, the words “surely” or “clearly” may be used to suggest that the outcome is obvious when the opposite is true.