Should reverse onus bail hearings run backwards? In other words, should the accused argue first in any judicial interim release hearing in which section 515(6) of the Canadian Criminal Code operates? In this article, I suggest that when an accused is put in the position of having to show cause why he should be released, he should be given the opportunity to take control of the hearing and do just that: show cause.
What is a reverse onus bail hearing?
A reverse onus bail hearing is one in which, by operation of law, the accused is required to show cause why he or she should be released. Normally, the Crown carries the onus of proof in a bail hearing in Canada. In other words, if the Crown seeks to detain an accused before trial they must, using credible or trustworthy evidence, show cause that the accused poses a substantial risk of dangerousness that cannot be addressed through the imposition of any combination of conditions on any available form of release.
In a reverse onus bail hearing, however, 515(6) of the Criminal Code of Canada operates to require that the accused show cause that he does not pose a substantial risk of dangerousness.
When do the reverse onus bail provisions apply?
Most commonly, the reverse onus bail provisions apply when an accused is charged with:
- Breach of recognizance
- Failing to appear in court
- Committing any other indictable offence while on release for another indictable offence
- Committing one of several specifically listed offences under the Controlled Drugs and Substances Act, the Security of Information Act
- Committing one of several specifically listed firearms, terrorism, or criminal organization offences
- Committing a domestic violence offence when the accused has a record of domestic violence offences
515(6) is a lengthy provision and I don’t think I’ve exhaustively listed all the potential instances in which it would apply. Suffice to say that most accused look down the barrel of the reverse onus bail provisions when they’ve been charged with a new offence while on release for a previous charge.
Typical Judicial Interim Release Procedure
In my experience (which is limited to bail hearings in Manitoba and Alberta), the procedure on opposed judicial interim release hearings goes roughly as follows:
- The accused makes an application for judicial interim release
- The Crown reads in the allegations facing the accused
- The Crown tenders the criminal record of the accused
- The Crown delivers argument on why the accused should be denied bail
- The accused, in reply, argues why he should be released, on conditions or otherwise
- The court renders judgment on release
Now, I understand why the Crown argues first when they’re required to show cause. After all, they carry the onus. What I’ve never understood is why, when the accused must show cause, the Crown still gets to go first.
The Accused Should Argue First in Reverse Onus Bails
The order of argument in both criminal and civil matters typically follows the onus of proof. The party who has a case to make must go first. If that party presents a case that requires an answer, the defendant, the accused, or the respondent, as the case may be, responds to that case. I am not aware of any rule in substantive law that requires or allows a party to whom an onus of proof does not apply to argue first.
I suggest that, the custom allowing the Crown to argue first prejudices the Crown, the defence, and most importantly, the court in their attempt to justly dispose of a reverse onus bail hearing.
First, the Crown, not having heard the defence’s argument for why they should be released, is shooting in the dark. All the Crown has is a police report and a criminal record. They do not necessarily know the accused’s explanation for the alleged misconduct. Is the misconduct admitted but a mitigating circumstance alleged? Is the alleged misconduct flatly denied?
These explanations make a difference in reverse onus bail hearings and the Crown is frequently forced to rely on rebuttal arguments in order to fully argue a position. This wastes time, especially since it frequently descends into a never-ending back and forth between Crown and defence each trying to get the last word.
Second, when the Crown argues first in a reverse onus judicial interim release hearing, the defence has to deal with having the well poisoned by the Crown’s recitation of the police report. Were the defence allowed to go first, it could put forward its version of the allegations before the Crown got a word in edgewise.
The defence has access to both the police report and their client’s version of events. They could quite easily put forward a fulsome account of the impugned conduct while keeping the focus on the presumption of innocence and the presence of viable defences. For once in a bail hearing, the defence could go on offense, setting the stage for the bail hearing without allowing the Crown to read from police reports of varying levels of cogency and credibility.
Of course, the Crown would almost certainly “correct” the defence’s account of the incident with what I’m sure they would term as “the facts,” but that could happen only after the defence put its best foot forward in attempting to show cause during the reverse onus hearing.
Finally, the court is equally underserved by the reversal of the usual order of argument in a criminal proceeding. It’s forced to adjudicate over a hearing that is, at best, confused and disjointed. It’s also bound to have difficulty maintaining sight of the appropriate allocation of the burdens and onuses of proof, as well as the standards of the admissibility of evidence.
The Benefits of Arguing First in a Judicial Interim Release Hearing
Above all else, arguing first in a reverse onus show cause hearing would allow defence counsel to set the stage for the hearing and take control of argument. At the outset, the onus and burden of proof would be clear and the standard for admissibility of evidence could be clarified. Further, defence counsel could outline a more balanced and nuanced version of the allegations facing the accused.
Of course, while the defence might choose to gloss over particularly damaging aspects of the police report, such a strategy would be unlikely to succeed. The Crown could simply bring them up during its response. Instead, strategic defence counsel could take the opportunity to speak first to soften the blow of the more problematic elements of the police report by pointing out where they relied on less credible or less trustworthy evidence.
For those who remain unconvinced, I have but one question: If you were to ask a Crown if they would prefer to go first or last at a reverse onus bail hearing, what would they say?
I suggest that 9 out of 10 Crowns would prefer to go first. The ability to “set the table” for the bail hearing far outweighs any tactical advantage that might exist in going last, particularly when its combined with the Crown’s right of rebuttal.
And if I’m right in assuming that most Crowns would rather argue first, why should defence counsel acquiesce to what amounts to a strategic advantage for an opponent?
As far as I know, reverse onus bail hearings follow the same procedural rules as Crown onus bail hearings across the country. (If I’m wrong about that, I’d love to hear about your experiences in the comments below.) I can’t think of a single good reason why that’s the case.
But I’ve certainly been known to be slow on the uptake before. Drop me a line in the comments or tweet me @steventoews if you think this is a terrible or nonsensical idea.
And before you go, be sure to check out my homepage if you’d like to grab a spot on the waiting list for a new boutique law firm marketing service I’m launching in January of 2021.