R v PN, 2019 ONSC 2858  

The Issue

When examining a potential surety during a bail hearing, should the Crown be allowed to question this individual about conversations that s/he had with the accused related to the accused’s charges? 

The Answer

The court found that yes – asking a potential surety whether the charges had been discussed with them by the accused is acceptable. Justice O’Marra reasoned that such questioning was not improper here as 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 cases and potentially the protection of the public.

The Fine Print

The Defence objected to the questioning of the prospective surety, citing R v KK, 2019 ONSC 1578 which prohibited questioning in the following situations:

  1. The question is an attempt to unfairly exploit the bail hearing to discover the defence’s position and elicit evidence of the accused’s admissions;

  2. The bail hearing cannot be used for the ulterior purpose of augmenting the Crown’s case, but only to determine whether and on what conditions the accused should be held on.

Justice O’Marra did not find that these situations applied to the case at hand for three reasons:

  1. The questions asked would not violate the accused’s right to a fair trial.

  2. A justice overseeing the bail hearing is not restricted to evidence that would be admissible at trial but to a broad scope of evidence as classified under section 518 of the Code. The Justice has the authority to control questioning that is irrelevant.

  3. Section 518(1) (d.2) of the Code provides that the Court shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim or of a witness to an offence. Questions to prospective sureties related to information received from the accused since arrest may be very relevant to the protection of the public.