The Importance of Judicial Interim Release (Bail)
The Importance of Judicial Interim Release (Bail)
The Calgary Herald reported that a man -- Kane Anignostis Burrows – who was on judicial interim release (bail) for a 2024 charge of impaired driving causing death was recently accused of fleeing a traffic stop and damaging several vehicles. This accused now faces new charges – allegations that arose while he was on judicial interim release.
Mr. Burrows’ lawyer, Alain Hepner appeared in court and “…told Justice Clarissa Pearce he has been given notice by the Crown [that] it will apply to have Burrows’ bail revoked in connection with a deadly crash last Dec. 23, as a result of his latest charges”.
The purpose of this post is not to comment specifically on Mr. Burrow’s case; rather, the aim of this post is to address some principles with respect to judicial interim release (bail) and to apply those principles to the basic set of facts understood from reading this news report.
Bail and the Presumption of Innocence
Judicial interim release (or bail) is a legal process in criminal law that essentially authorizes the release from custody of an accused who is charged with a criminal offence. In Canada, our criminal law recognizes the “presumption of innocence”. This means that all accused who are charged with a crime are presumed innocent until the Prosecution proves the case beyond a reasonable doubt. This means that Mr. Burrows is presumed innocent of all charges.
While the charges reported in the news media might certainly stir some negative public sentiment, it is important for everybody who reads a news report about a criminal case where a person is accused of crime, to remember that until the case is proven, the accused is presumed innocent.
As reported by the Calgary Herald:
Burrows was charged in March in connection with a crash on Glenmore Trail S.W. last Dec. 23, and later released on bail.
According to a police news release, the driver of a 2018 BMW M240i lost control on a bend in the road and entered the right shoulder of the eastbound lanes and struck a stationary crane.
There were two passengers in the car, an 18-year-old male and a 21-year-old male, police said.
“The driver of the BMW sustained serious injuries, the 18-year-old passenger was transferred to hospital in life-threatening condition where he later succumbed to his injuries, the 21-year-old passenger had minor injuries and the crane operator was uninjured.”
Burrows faces charges including impaired driving causing the death of Zachary Legault, and impaired driving causing bodily harm to Kristjan Kuqali.
Among his bail conditions were that he not consume alcohol or drive.
When this case was first reported some friends of mine angrily expressed that this accused should not have been granted bail in the first place. I had to gently remind them that unchallenged accusations reported by the news media, though not necessarily untrue or falsely reported, have not been tested and therefore, it is important for all of us to keep an open mind. After all, it is possible that Mr. Burrows is not guilty (possibly even innocent) of these allegations.
The purpose of bail is to recognize that it would be a great insult to a properly functioning criminal justice system to deprive presumptively innocent people of their freedom. The insult is far worse if the person is actually innocent. An underlying principle of our criminal law is that the accused's guilt must be proven.
While merely being "accused" of a crime is not enough to prove the crime, our justice system recognizes that it still must properly react in the interim between being charged and being convicted. At this in-between stage of the case, our bail system operates. Of course, depending on the nature and seriousness of the charge, judicial interim release (or bail) often comes with some conditions.
Conditions of Release
Conditions of release are designed to impose a measure of control over the accused. The conditions of release are often crafted to address concerns that arise from the charges. For example, when Mr. Burrows was released in relation to the 2024 allegations, he was ordered to refrain from using, possessing or consuming alcohol or drugs. He was also ordered not to drive.
This makes sense, because alcohol (or drugs) and driving is a primary element of an impaired driving offence. Our criminal justice system recognizes that bail should be granted if the judge properly concludes that the accused can be controlled by reasonable conditions of release.
Grounds for Bail
When contemplating release for an accused, the Court assesses the primary, secondary and tertiary grounds of bail.
The primary ground addresses risk of flight. The secondary ground concerns whether the accused, if released, would be a substantial likelihood to commit new offences that would endanger the public. The third ground (or tertiary ground) focusses on public confidence in the administration of justice. It is noteworthy, that public confidence is not measure against the irrational citizen (such as my friends mentioned above); rather, it is analyzed against the backdrop of the objective member of the public who understands the principles underlying our criminal justice system – including the presumption of innocence.
Bail as the Default
For person’s charged for the first time, without a criminal record, it is the opinion of this Calgary criminal lawyer that release from jail must generally be the default position. I say this because in the absence of a criminal record, there is no past behaviour to reflect future behaviour. When there is no past behaviour to consider, conditions can usually be constructed to address the primary and secondary grounds of bail. In my opinion, public confidence in the administration of justice would be eroded if persons who have never been charged previously were to be jailed behind bars while their case slowly winds through court. Indeed, most first time accused should be granted bail.
Of course, there are no hard and fast rules. For instance, serious cases such as murder, terrorism, aggravated sexual assault or charges involving the use of firearms in the commission of a serious offence attract different considerations under the tertiary ground (even when the primary and secondary ground may not be a concern).
Not surprisingly, when a person is released on bail, reasonable people expect that the conditions of release be followed. When bail conditions are breached, the Prosecutor can charge the accused with breaching release and apply to revoke their existing bail. When conditions are breached and new substantive offences are alleged, the accused’s peril increases (sometimes exponentially).
Public Tolerance of our Bail System
The public’s tolerance for re-releasing accused persons who have breached bail appears to be seriously declining. Again, however, it is important to remember that there are no hard and fast rules. Every case must be analyzed on its own merits. For example, an accused might be charged with new offences that result in his or her prior bail being revoked, but if the evidence supporting the new allegations is thin, a judge might quite properly grant bail a second time (or even a third). In these cases, it might be unreasonable to decline an accused bail.
Mr. Burrows is alleged to have committed new driving offences while on release. Perhaps his most significant jeopardy comes from the fact that he is accused of “driving” when he was not permitted to be behind the wheel of the vehicle. However, while this appears – on the surface – to be a potentially case-closed prosecution, it is important for all of us to keep in mind that the evidence might not be that strong. If the evidence is frail, perhaps Mr. Burrows will properly be granted bail a second time. If this occurs, there will no doubt be some upset members of the public. However, it is my view that the reasonable and informed member of the public, while upset, could still rationally support the accused’s release on bail.
Conclusion
This Calgary defence lawyer has noticed that our criminal justice system is often politicized – used as low hanging fruit by politicians seeking public support for tough on crime measures. While every law-abiding member of the public is reasonably entitled to expect that our justice system handle alleged criminals properly, the politicized attack on our bail system by broad brush strokes is arguably misplaced. In my nearly two-and-half decades practicing in criminal law, I can confidently say that I have born witness to many paper-thin cases.
My point is, while I understand concerns surrounding accused persons such as Mr. Burrows’, it is important for all of us not to be too quick to judge. It may be that Mr. Burrows’ detention is completely justified; but until we know the facts, let us not forget that he is presently presumed innocent. Just because a person is charged, does not mean they are guilty. Also, should Mr. Burrows be granted release a second time, let’s not immediately pass judgment on the Court; for just because an accused is released a second time, or even a third, does not meant the Court is soft on crime.
Remember, our judges are citizens too. They live amongst us in our communities. They are not involved in some soft-touch program designed to plague our streets with villainy. Rather, most judges who release accused persons on bail have carefully considered the evidence and applied the principles. These principles are important; for they are designed to protect the innocent (including the presumptively innocent).
These are my thoughts, not yours.
David Chow
Calgary criminal defence lawyer
www.calgary-law.ca
If you have been charged with a criminal offence, David Chow is an experienced Calgary bail lawyer who has secured judicial interim release for accused charged with the most serious offences (including multi-kilo drug trafficking, driving offences causing death, manslaughter and murder).