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November
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burden of proof
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Bail
in Bail, burden of proof
BAIL
The Primary Ground
Strength of the Crown’s Case
“The expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown”.
R. v. St Cloud 2015 SCJ NO 27 at paras 57-9
“In considering all of the relevant circumstances, the hearing judge must not become so focused on the gravity of the offence and the strength of the Crown’s case as to overlook that there are no categories of offences for which bail is not a possibility. There are few crimes of violence or of murder where one could not say that the gravity of the offence, considered on its own, without regard for the purpose of bail, justifies detention. There are also many cases where the strength of the Crown’s case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such. Giving undue weight to this factor becomes a means to start punishment before conviction.”
R. v. Blind (1999), 139 CCC (3d) (Sask C.A).
‘… there may be some danger in Placing too much emphasis on this factor … [t]his is why the courts have been willing to acknowledge the relevance of this factor, but have emphasized that a strong (even a overwhelming Crown case) is not determinative of bail”. [1]
The Accused is an Australian Citizen (not a Chinese citizen)
In R. v. Aldrich [1976] BCJ No 421the accused was charged with murder. At para 6:
The Crown forcefully submitted that as a pilot he could move at any time and work anywhere in the world. The Crown further submitted, amongst other things, that there did not appear to be any motive for the killing and if such was the case — such a killer was the most dangerous type of person to be on the loose in the community. A further forceful argument was that in addition to the murder charge the police had found five restricted weapons in the applicant’s possession at the residence which he shared with the victim and he has been charged with offences relating to these weapons.
At para 12:
… [t]he Crown’s submission that being a pilot gives him special advantages does not impress me, as in this day and age one can just as easily flee by commercial airline or other modes of transportation. The applicant’s background as disclosed in his affidavit and testimonial letters submitted on his behalf indicate to me that up to the present time he has been a responsible citizen. I am accordingly satisfied that the applicant’s detention is not necessary to ensure his attendance at his trial.
· This is true of virtually any person released from custody, resident or not “in this day and age” can flee;
· Globalization;
· Extradition Treaties;
Standard of Proof – Balance of probabilities
It seems to me that the burden should be the minimum burden of proof known to the law, not the maximum burden or proof beyond reasonable doubt, as upon the Crown on criminal trials. It seems completely unreasonable that, in such applications which come, ordinarily, in the very early stages of criminal investigations, the burden upon the Crown should be more than that minimum burden that I have indicated.
R. v. Julian 1972 NSJ No. 189 at para 5
Onus of Proof and the presumption of innocence
Parliament has established a clear reverse onus burden on Mr. Alde: pursuant to the provisions of s. 515(6) of the Criminal Code, a judge considering bail must detain him in custody until his trial unless Mr. Alde can “show cause why [his] detention is not justified”. In this case, the reasons of the bail judge make it clear that the bail judge would not consider Mr. Alde’s release unless Mr. Alde could prove his innocence. That standard of proof is more onerous than the burden of proof to establish an accused’s guilt: proof beyond a reasonable doubt. It would be illogical for an accused to have to prove that he is innocent when he is still presumed to be innocent and in circumstances where, at trial, the Crown will only have to prove that he is guilty beyond a reasonable doubt. Not only is it illogical, it is also contrary to the provisions of the Charter: sub-paras 11(d) and (e). Therefore, while the burden on an accused in a reverse onus in a bail situation is a heavy one, he does not have to prove that he is innocent.
R. v. Alde [2008] A.J. No 1585 (Alta Q.B.) at para 15 (J. Veit)
[1][1] The Law of Bail in Canada (3rd edition) Gary T. Trotter, Carswell, 3-7
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Hearsay and Reliability in Sexual Assault Cases
R. v. B.P. [2016] O.J. No. 3550 2016 ONSC 4244: Reliability
This is a case which addresses addresses issues of hearsay and reliability in a sexual assault scenario.
Background
In this case the 9 year victim suffered from a “number of disabilities, including autism, anxiety disorder, seizure disorder and a syndrome known as Prader-Willi, which affects his hypothalamus.” The victim did not recall the incident in question, and his mother lead hearsay evidence against the accused, testifying that her son had told him of the alleged incident.
Analysis
The Ontario Superior Court of Justice found that the Trial Judge improperly admitted hearsay evidence in this case. There were problems with both procedural reliability and substantive reliability. The victim was not available for cross-examination, and the statement was not recorded in any way. As well, the surrounding circumstances indicated that there was a degree of unreliability about the statement.
The victim was suggestible and unreliable. As well, the victim’s mother was unreliable and her lack of credibility affected the reliability of the hearsay statement. The trial judge did not consider these important aspects regarding the hearsay statement, and improperly admitted it.
The Court also finds that the trial judge improperly accepted the evidence of the complainant and rejected that of the accused, shifting the burden of proof, and committing a basic error.