ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 912/15
DATE: 20151110

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON BURROWS

D. Scapinello, for the Crown

H. Thompson, for the Jason Burrows

HEARD: November 10, 2015

reasons for decision on bail review application

Justice C.J. Conlan

I. INTRODUCTION

[1] In Canada, a person charged with a criminal offence has a Constitutional right to reasonable bail. That right is one of the hallmarks of our criminal justice system. Without it, the presumption of innocence becomes illusory as there would be scores of accused persons behind bars without being found guilty. The importance of bail cannot be overstated. Whether an accused person is granted bail often determines the plea, for example.

[2] Not everyone, however, is released on bail. There are occasions where the Crown meets its onus to show why the accused should be detained on the primary, secondary and/or tertiary grounds pursuant to section 515(10) of the Criminal Code, and there are instances where the accused bears the onus to show on balance why s/he should be released on bail but fails to meet that onus.

[3] Mr. Jason Burrows failed to meet his onus in the Court below. After a contested bail hearing before Her Worship Justice of the Peace Charyna on September 15, 2015, Mr. Burrows was detained on the secondary ground alone – section 515(10)(b). Her Worship concluded that the bail plan being offered by the accused was insufficient in that it provided inadequate supervision of Mr. Burrows and would not ensure the safety of the public or the complainant. Further, the Justice was concerned that the accused would not follow the Court’s terms of release. Finally, the Justice was concerned about Mr. Burrows’ prior convictions for violence and breaching Court Orders (page 60 of the transcript of the bail hearing, at lines 19 to 29). The Crown had sought detention on the primary and secondary grounds.

[4] Mr. Burrows is awaiting his trial which is set for December 22, 2015 in the Ontario Court of Justice. He has applied to this Court for a review of the bail detention Order made by the lower Court.

[5] The filing of a Bail Review Application does not automatically give an accused person a fresh bail hearing. There is a threshold issue to determine as to whether there has been a material change in circumstances and/or an error in the Court at first instance. The Applicant bears the onus to demonstrate one or both of those on a balance of probabilities.

[6] I find that Mr. Burrows has indeed established a material change in circumstances; in fact, the Crown did not argue otherwise. Clearly, the much stricter bail plan being proposed now, with two sureties (one of which is different than what was presented in the Court below), is materially different from the plan that was presented to Her Worship Charyna. In the Court below, it was proposed that the accused live with his grandmother, who would be one of his sureties. The other surety was to be Mr. Burrows’ mother. Strangely, at the time of the original bail hearing, the complainant, Donnel Andrews, was living with Mr. Burrows’ parents. Ms. Andrews and the accused were partners at the time of the alleged offences. Thus, in the Court below, a unique bail plan was offered whereby one of the sureties for Mr. Burrows, his mother, would be living with the complainant. In other words, Ms. Andrews, herself on release on a criminal charge, would be living with her surety, Mr. Burrows’ father, and Mr. Burrows’ mother, while at the same time Mr. Burrows would be living with his grandmother/surety and also be under the supervision of his mother, also a surety.

[7] Mr. Burrows’ grandmother is no longer being tendered as a surety. Instead, it is proposed that the accused live with his parents, both of whom are offering themselves as sureties. Further, the situation has changed materially in that the complainant, Ms. Andrews, no longer lives with Mr. Burrows’ parents. Mr. Burrows’ father has revoked his surety status for Ms. Andrews.

[8] The charges facing Mr. Burrows are one count of aggravated assault (section 268 of the Criminal Code of Canada) and one count of mischief under $5000.00 (subsection 430(4) of the Criminal Code of Canada). It is alleged that, on or about September 6, 2015, Mr. Burrows maimed his girlfriend, Ms. Andrews, and damaged her clothing and sunglasses. It is alleged that Ms. Andrews was seriously injured as a result of the assault, specifically, her jaw was broken, her teeth were damaged, she was bleeding and she lost some degree of consciousness (page 5 of the transcript of the bail hearing, at lines 17 to 22). At the time of those alleged offences, Mr. Burrows and Ms. Andrews were living with Mr. Burrows’ parents in Kincardine, although the alleged incident did not take place in that home.

[9] Mr. Burrows is thirty years old. He has a lengthy criminal record spanning from 2006 through to 2014, including several prior convictions for property crimes, multiple convictions for breach of recognizance, one prior conviction for breach of probation plus a finding of guilt (awaiting sentence) for the breach stemming from March 2015, multiple convictions for crimes of violence (sexual assault, assault causing bodily harm and assault). Some of those prior convictions were domestic in nature, although not involving the current complainant. Mr. Burrows is a suspended driver. He has an employment opportunity at his father’s business, Presto-Crest Limited, in Kincardine, Ontario. Mr. Burrows’ father owns, operates and works at that business. The parents/proposed sureties live in Kincardine.

[10] According to the Application materials, the current whereabouts of Ms. Andrews are unknown. According to the Crown, when Mr. Burrows’ father revoked as the surety for Ms. Andrews, the latter surrendered herself into custody and was subsequently released into the care and custody of another surety, where she remains today.

[11] Having established on balance a material change in circumstances, the Application in the Superior Court of Justice proceeded as a hearing de novo (a fresh bail hearing). There was an Order excluding witnesses with no exceptions. I heard testimony from the two proposed sureties, the accused man’s parents. The Application Record was filed as Exhibit 1; the sworn Affidavit of Mr. Burrows as Exhibit 2; the criminal record of the accused as Exhibit 3; and the driving record of Mr. Burrows as Exhibit 4.

[12] This is a reverse onus situation as agreed by counsel. At the time of his arrest on the aggravated assault and mischief charges, Mr. Burrows was at large on a Recognizance of Bail for an assault charge in Alberta with an alleged offence date of sometime in October 2013. There was also an arrest warrant out of Alberta for a charge of fail to comply with probation and possibly a further charge of fail to attend Court (the record is unclear as to the latter item). In addition, on March 17, 2015, in Kincardine, Mr. Burrows was arrested by the police for fail to comply with probation by being under the influence of alcohol. He was released on a promise to appear. He pleaded guilty to that offence in July 2015 and currently awaits sentencing. The Alberta charges and the breach of probation for alcohol consumption out of Kincardine were all outstanding at the time that the accused was arrested in September 2015 as a result of the alleged domestic incident between Mr. Burrows and Ms. Andrews.

II. THE ISSUE

[13] Has Mr. Burrows established on a balance of probabilities cause as to why he should be released from custody?

III. THE GROUNDS FOR BAIL DETENTION

[14] In Canada, accused persons cannot be detained at the whim of the Court. Parliament has directed that there are only three grounds upon which a detention order may be made. Those grounds are found in section 515(10) of the Criminal Code. There is no authority to deny bail to someone charged with a criminal offence for some discretionary reason outside the parameters of section 515(10).

[15] The primary ground in paragraph (a) is where detention is necessary to ensure the attendance of the accused in Court. It is meant to address flight risk and the absconding accused.

[16] The secondary ground in paragraph (b) is where detention is necessary to protect members of the public, whether connected to the charges as a victim or witness or not. All of the circumstances must be considered, but the focus is whether there is a substantial likelihood that the accused will on release commit a crime or interfere with the administration of justice.

[17] The tertiary ground in paragraph (c) is where detention is necessary to maintain confidence in the administration of justice. Again, the Court shall consider all of the circumstances, but Parliament has delineated some specific factors: the strength of the Crown’s case, the seriousness of the offence, the nature of the offence such as whether a firearm was used, and the potential punishment if the accused is found guilty including the possibility of lengthy prison time or a minimum custodial sentence for a firearms offence.

IV. THE POSITIONS OF THE APPLICANT AND THE CROWN

The Applicant

[18] Mr. Cowan argues that the bail plan being offered now is much better than what was presented in the Court below and satisfies any concerns that the Court may have (and which the Justice of the Peace had) regarding the secondary ground. The other grounds for detention are not relevant, submits the Defence.

The Crown

[19] Ms. Scapinello relies on the secondary ground only. It is submitted that Mr. Burrows is simply unwilling or incapable of adhering to any bail conditions. His track record is the best predictor of what will happen if he is released from custody pending trial.

V. ANALYSIS

[20] I need only be concerned with the secondary ground.

[21] Mr. Burrows has met his onus on that ground. I conclude as such for the following reasons.

[22] First, although it can safely be said that Mr. Burrows is a recidivist who has shown little regard for Court Orders in the past, it is also true that he has never been released on bail before with the type of plan being proposed here. His father was a surety on two previous occasions when the accused was convicted of breaching his recognizance, however, neither instance involved house arrest coupled with Mr. Burrows’ mother being an additional surety and also with Mr. Burrows having employment at his father’s business, with the father being within a close distance of the accused at all times. I accept the evidence of Mr. Burrows’ parents in that regard.

[23] This is, undoubtedly, the closest thing to a “fail-safe” bail plan that could be imagined. It will, in my view, eliminate any substantial risk that Mr. Burrows will, on release, commit another offence or interfere with the administration of justice or endanger the safety of Ms. Andrews or the public at large.

[24] Second, not only will Mr. Burrows be under very strict and constant supervision while on release, but Ms. Andrews is also the subject of a judicial interim release order which includes surety supervision. That only further reduces any risk that Mr. Burrows may pose to her.

[25] Third, not only will Mr. Burrows be under very strict and constant supervision while on release, but he will be living and working in environments free of the temptations of alcohol and drugs and without any firearms. I accept the evidence of Mr. Burrows’ parents in that regard. That only further reduces any risk that Mr. Burrows may pose to the public at large, Ms. Andrews or the administration of justice generally.

[26] Fourth, not only will Mr. Burrows be under very strict and constant supervision while on release, but he will also be the beneficiary of his parents taking him to counselling for substance abuse and mental health issues. I accept the evidence of Mr. Burrows’ parents in that regard. That only further reduces any risk that Mr. Burrows may pose to the public at large, Ms. Andrews or the administration of justice generally.

[27] Finally, I was impressed with the presentations of Mr. Burrows’ parents. I have no doubt that they will act swiftly and unequivocally to address any waywardness on the part of their son. They will not hesitate to turn him in to the authorities and remove themselves as sureties if the accused violates any term of his bail. That further minimizes any risk that Mr. Burrows will ignore the Court’s Order.

[28] I take no issue with the decision of the Court below. Faced with the same bail plan, I likely would have made the same decision. What confronts this Court, however, is materially different and much more reasonable.

CONCLUSION

[29] At the conclusion of the hearing of the Bail Review Application at Court in Walkerton on November 10, 2015, I indicated that the Application is allowed and Mr. Burrows shall be released on a Recognizance of Bail with two sureties, his parents, with a pledge amount of $10,000.00 and with very strict conditions including 24/7 house arrest except while in the company of one or both sureties. Counsel were directed to work out the precise details of the terms with the Justice of the Peace. I promised written reasons for my decision. The above are those reasons.

[30] I thank both counsel for their assistance.

Released: November 10, 2015

Mr. Justice C.J. Conlan

R V BURROWS

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
JASON BURROWS

REASONS FOR JUDGMENT

Mr. Justice C.J. Conlan

Released: November 10, 2015