R. v. Mallory, 2007 ONCA 46 (CanLII)
[174] Where an accused testifies at his bail hearing, he generally may be questioned with respect to the issues as defined by s. 515(10) of theCriminal Code. In this case, the Crown placed specific reliance on the secondary grounds set out in s. 515(10)(b), that Mallory’s detention was “necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”.
[175] Even if inquiries are relevant under s. 515(10), s. 518 (1)(b) prohibits questions of the accused “respecting the offence”. The purpose of the prohibition is to provide the accused with protection against self-incrimination. Where the prohibition is transgressed, the resulting testimony cannot be used to cross-examine the accused at trial: see Re Deom et al. and The Queen 1981 CanLII 383 (BC SC), (1981), 64 C.C.C. (2d) 222 (B.C.S.C.); R. v. Paonessa and Paquette 1982 CanLII 66 (ON CA), (1982), 66 C.C.C. (2d) 300 (Ont. C.A.), aff’d reflex, (1983), 3 C.C.C. (3d) 384 (S.C.C.).
[177] Here, the bail judge was alive to the issue and ruled specifically that “cross-examination of the accused ought not to be allowed as it relates to the offence itself”. Thereafter, the Crown restricted its questions at the bail hearing to Mallory’s enforcement activities that were unrelated to the murders.
[178] In our view, Mallory raised the issue of his pre-charge employment in examination-in-chief, thereby opening the door to the questions in his cross-examination. When considered in context, his answers to the questions asked by his counsel were to the effect that, if released, he anticipated employment in his previous law abiding occupation as a bouncer.
[179] Moreover, Mallory’s own counsel questioned Mallory about his potential to intimidate witnesses. In response, Mallory said that “there should be no fear of that actually” because “witnesses intimidate themselves”. Implicit in this response is a denial of any role as an intimidator.
[180] In addition, Mallory denied any likelihood that if released he would commit further offences when he said he intended to leave behind his criminal ways. By these responses, Mallory left himself open to cross-examination both about his livelihood and his history as an enforcer, provided the questions did not extend to questions about the murders. We believe they did not for four reasons.
[182] Second, the questions, which were relevant to the Crown’s s. 515(10) concern that Mallory’s release would provide him with the opportunity to intimidate potential witnesses, were not posed for any oblique or impermissible purpose. They had no self-incrimination component to them and nor was any incriminating evidence relevant to the murders elicited, even incidentally.
[185] For these reasons, we conclude that the trial judge did not err in allowing the trial Crown to cross-examine Mallory about his bail testimony on the issue of his credibility. Accordingly, we would not give effect to this ground of appeal.
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