Court File and Parties

COURT FILE NO.: CR-17-70000051-00BR DATE: 20190515

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

P.N. Applicant

COUNSEL: Cidalia Faria, for the Respondent Michael Strathman, for the Applicant

HEARD: April 29 and 30, 2019

RULING ON A QUESTION AT A BAIL HEARING

B. P. O’MARRA, J.

[1] Should the Crown be permitted to ask a prospective surety about conversations with the accused related to the allegations against him?

[2] The applicant was charged with second degree murder. He applied for bail and filed affidavits from several proposed sureties in support. The first surety was cross-examined by the Crown. Counsel for the applicant objected to questions related to whether the surety had discussed the alleged offence with the applicant after his arrest and detention. In support of his objection, counsel referred to the decision of R. v. K.K., 2019 ONSC 1578. After hearing submissions, I ruled that the questions could be asked. These are my reasons.

[3] The Court in K.K. would prohibit all such questions for the following reasons:

(1) They are an attempt to unfairly exploit the bail hearing to discover the defence’s position and elicit evidence from the surety of the accused’s admissions; and

(2) 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’s position.

[4] In his authoritative text, The Law of Bail in Canada (Toronto: Carswell, 2010, looseleaf), Justice Trotter expressed some concerns but did not declare an absolute ban against such questions being asked of sureties by the Crown. At part 5.5(g), he referred to the following:

(1) While s. 518 (1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 places limits on the questioning of an accused person, no similar protection is given to sureties.

(2) Such questions may be relevant to the strength of the Crown’s case which is relevant at the bail stage on the secondary and tertiary grounds set out in s. 515(10) (b) and (c) of the Criminal Code.

(3) 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 that purpose. It is not a legitimate basis for pursuing this line of inquiry. It is irrelevant to the task at hand and contributes to unnecessary time spent in court on such questions.

(4) The argument that the practice offends s. 7 of the Charter related to self-incrimination is not compelling.

(5) Notwithstanding there may be no Charter infringement, it can result in unfairness to the accused and the prospective sureties. It may render a future accused-surety relationship untenable. There may be adverse comment by the Crown against a surety who does not discuss the allegations with the accused before the bail hearing.

(6) Cross-examination is not an all or nothing proposition. The presiding justice may (and sometimes must) limit or terminate a cross-examination that becomes unduly protracted, irrelevant or abusive.

[5] I respectfully disagree with the broad statement in K.K. that any such questions of a proposed surety are improper and should be prohibited for three reasons: (1) such questions do not imperil the fair trial interest of the accused; (2) the presiding justice has an overriding discretion to limit such questions to prevent abusive or protracted proceedings; and (3) such questions may be relevant to the strength of the Crown’s case and in some cases to the protection of the public.

[6] First, the questions at issue here do not violate the accused’s right to a fair trial. For example, in R. v. Badgerow, 2010 ONSC 932, the accused faced a charge of first degree murder. The offence allegedly occurred in 1981. At the first trial, the accused testified about a particular vehicle that he claimed he had sexual intercourse in with the victim. At his bail hearing in advance of the retrial, his sureties were asked questions about the vehicle or vehicles available to the accused in June 1981. At the retrial, the defence objected when a witness was asked about vehicles owned by the grandparents of the accused. The trial judge overruled the objection. He indicated that he was unable to see how the accused’s right to a fair trial was violated if subsequent to the bail hearing, and based on the evidence at the bail hearing, further investigation is undertaken which might call into question the accuracy of the accused’s testimony at his first trial about the