Bail hearings are often rushed affairs. In most cases, counsel have little information at their disposal prior to attending in bail court the morning after an arrest. Defence counsel often only have a matter of hours (if that) to put together a plan for release and to run a hearing. Crown counsel, armed with little information beyond a synopsis and a criminal record, can be thrust into a hearing with perhaps only vague information regarding the proposed plan for release. In these circumstances, the time needed to research legal issues that often arise in these hearings is at a premium.
The purpose of this paper is, ultimately, to provide practical guidance to counsel regarding issues that may arise with common categories of witnesses at bail hearings. The paper begins with an overview of the legal approach to bail in Canada, including the grounds for detention and the Supreme Court’s recent guidance in Antic. The rules of evidence applicable at bail hearings – sometimes seen as an afterthought – are next reviewed. With these ground rules in place, various categories of witnesses – for both Crown and defence – are discussed, including an analysis of whether the Crown is ever required to call witnesses to support its position. Finally, a brief and cautionary word on adjournments is given. It is hoped that counsel, armed with this knowledge, can be prepared to address these issues as they arise, giving them more time – of the limited quantity available – to focus on their preparation and conduct of bail hearings.
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