The two-Tiered Debate - Same Day Bail for Police Officer
The two-Tiered Debate - Same Day Bail for Police Officer
The two-Tiered Debate
On July 17th, 2025 CBC’s Meghan Grant reported an interesting article titled: "Lawyer’s question fairness of same-day bail for Calgary cop charged with murder".
The issue that has triggered some public debate revolves around the timing of the bail hearing (and possibly the quick release from custody) for a Calgary Police officer – Cst. Craig Stothard – who was charged with second-degree murder in relation to a May 29th police shooting incident.
As reported:
Some members of Alberta's legal community are calling into question the treatment of a Calgary police officer charged with murder earlier this week who was able to get released on bail the same day he was charged.
"It's very difficult to get before a King's Bench judge on short notice and on the same day is absolutely unheard of," said Paul Moreau, the past president of the Criminal Trial Lawyers Association and a former prosecutor.
WELL FOUNDED CONCERNS
I found this article interesting because it caused me to think about the bail system – what it is, how it operates and how it should operate. It also caused me to thought experiment (or as some might say “speculate”) about what might have occurred to trigger such an abnormally quick bail hearing before a usually unavailable court. On the subject of thought experimenting (and questioning), there is nothing wrong with this, especially in circumstances where we, as outsiders are fixed with knowledge that something appears out-of-the-ordinary and do not have all of the information to resolve the abnormality.
After reading Ms. Grant's article, it struck me that almost every person speaking to this situation was correct.
Mr. Moreau was absolutely correct that it is “very difficult” to muscle a case before a Superior Court judge on such “short notice”.
Defence lawyer Jim Lutz was also absolutely correct when he stated: "It's frankly amazing to see an individual charged and being put in front of the Court of King's Bench in reverse onus, double homicide within literally hours".
As a criminal defence lawyer with decades of experience, who has in the past handled many homicides, I can say that I have never seen a murder case appear before a Superior Court judge on day-one or within hours. Of course, that’s not to say it can’t happen; rather, it is to say that the process has the appearance of being categorically unusual.
Criminal lawyer Kelsey Sitar was absolutely correct in her estimation that it usually takes “…about two-to-four weeks but sometimes longer” for a Court of King’s Bench bail hearing in homicide cases.
This Calgary criminal lawyer’s knee-jerk reaction was to share in concerns by some members of Alberta’s legal community calling into question what Mr. Lutz aptly described as a potentially “two-tiered system of justice”. As he stated:
"I'm not sure how we can justify two tiers of justice in this particular instance."
Now, to be clear, Mr. Lutz doesn’t say it can’t be justified, only that he’s "not sure" it can. Mr. Lutz was careful not to speak in absolutes.
On reflection, and with the understanding that I certainly do not have access to the same information that Mr. Stothard’s lawyer is privy, I can thought experiment a justification for this accused’s quick bail hearing. A “thought experiment” is essentially the imagining of scenarios for the purpose of exploring concepts or outcomes.
PRESUMPTION OF INNOCENCE
Now, before I thought experiment Cst. Stothard’s case, I think it’s important to remember that all accused seeking bail prior to conviction are presumed innocent. This means that every accused detained in custody is presumptively innocent and therefore, is effectively, at the stage of his or her detention awaiting bail, an innocent person whose freedom is denied.
If we seriously respect the presumption of innocence, it is my opinion that we must seriously honour the right to a timely judicial interim release hearing. Accordingly, rather than accepting a criminal law culture that arguably dishonours the presumption of innocence by holding people in jail to accommodate judicial schedules, counsel diaries, investigative delays and the provisioning of disclosure, perhaps we should champion a more efficient system of justice that’s prepared to act expeditiously when presumptively innocent people are detained awaiting show cause regardless of the onus.
Unlike most criminal offences, murder is a reverse onus crime that requires the accused to show cause why he or she should be released. Notwithstanding that an accused charged with murder has the onus to show cause why he or she should be released, in no way diminishes the responsibility for all parties involved (police, Crown, defence, judiciary and the administration of justice) to make every reasonable effort to have the accused’s release status determined as soon as possible. While I appreciate that the standard in Alberta is more closely aligned with “as soon as practicable”, I am not convinced that this rather loose guideline properly respects the presumption of innocence. In theory, we should all be intensely concerned about presumptively innocent people being held behind bars. That Stothard is a police officer accused of a serious crime doesn’t change the fact that he, like every other accused, deserved to have his release determined expeditiously. Holding presumptively innocent people in jail – including police – is, in the opinion of this Calgary criminal lawyer, an affront to the dignity of the Canadian Charter of Rights and Freedoms.
Explained differently, if our bail system was functioning properly, in a perfect system, we wouldn’t be comparing Cst. Stothard’s quick hearing against others who had to wait for weeks to have their freedom determined because those others wouldn’t be waiting and this would not be an issue.
THOUGHT EXPERIMENT
On the surface, therefore, while I might wonder about how a police officer managed a lightning appearance before a generally unavailable court, I can also laud the speed in which the presumption of innocence was respected in this case. The question is, was this incredibly expedited appearance the result of a two-tiered justice system, or is there another explanation?
Turning to the specifics of Stothard’s case, it’s important to remember that as a police officer who discharged a weapon in the line of duty, he had the benefit of being aware of the existence of an ongoing ASIRT investigation. Cst. Stothard, therefore, very likely retained the assistance of his defence lawyer, Don MacLeod very early in the process. That means that there is a good possibility that Mr. MacLeod was engaged with ASIRT and Prosecution services well prior to Mr. Stothard’s arrest and therefore, Stothard was better positioned due to the years of apparently necessary investigative delays to motivate a more timely appearance before a Court of King’s Bench judge.
ASIRT more or less confirms my suspicions. As reported:
ASIRT confirmed it worked with both the Crown and defence to "ensure the officer was arrested and brought before the Court in the most efficient manner possible."
"ASIRT is fully supportive of the prosecutor's decision to release the subject officer on bail," said ASIRT Director Mike Ewenson.
Based on this information, I assume that Cst. Stothard is not a risk of flights, that there is no basis to think that he will commit new crimes while released, the conditions can be imposed to alleviate concerns relating to public safety and there are sufficient issues with respect to the strength of the Prosecutor's case such that the public would not lose confidence in the administration of justice if he was granted bail while awaiting trial.
CONCLUSION
While I completely agree with Mr. Lutz, Mr. Moreau, Ms. Sitar and other criminal lawyers who have expressed concerns about double-standard (or two-tiered justice), I think there is some reason to believe that Cst. Stothard’s bail hearing was more a function of the lengthy investigation and steps that were able to be taken in the interim rather than differential treatment based solely on the fact that Stothard is a member of the Calgary Police Service (CPS).
Mr. Lutz is absolutely correct when he says that "[t]he decisions that courts make as to bail have to be such that they preserve and enhance public confidence in the administration of justice”.
Other than to say that I would find it amazing if an ordinary person discharged a firearm into the fuselage of a vehicle killing occupants got bail, I do not know the evidence in Cst. Stothard’s case. When we speak about “public confidence” in the bail process, we are not referring to the emotionally charged member of the public who thinks that all people accused of crime (including police) should be in jail; rather, we are measuring public confidence against the informed and fair-minded member of the public, who understands the principles of our criminal justice system.
When the Crown responded to the concerns of some members of Alberta’s criminal law community by stating that “[s]peculation hinting at unfairness in the handling of this file is without merit”, I am not sure that is absolutely correct. The defence lawyers in this case are not merely speculating about the issue of timing, they are basing their assessment (and opinions) on timing of the bail against the backdrop of their real experiences navigating a legal system that in fact sees their clients often wait weeks or even months for a judicial interim release hearing.
Asking wicked questionable questions is not without merit. To mind, it is by asking these questions that engages positive and fruitful debate. Failing to ask these questions suggests a culture of complacency -- which in a properly functioning legal system, is a culture that should be avoided.
Perhaps the takeaway from this case is that our criminal justice system should start prioritizing bail so that presumptively innocent people can have their release determined, if they so choose, within hours; for we should be concerned about every hour that a presumptively innocent persons spends behind bars, regardless of who holds the onus.
One thing is certain, Mr. Stothard's criminal lawyer did a great job protecting his client in the circumstances of his case.
These are just my thoughts. Your thoughts are your own.
David Chow
Calgary Criminal Defence Lawyer