In October, the Liberal government tabled a bill that would amend the Criminal Code to make it harder to get bail for a list of crimes.supplied
The problem with bail is real, and proposed federal legislation that purports to address it amounts to tinkering. It’s unlikely to have much impact, just as the Liberals’ last attempt, only two years ago, fell predictably flat.
Too many repeat violent offenders, charged anew, are being released on conditions into communities. It has become a big problem for those communities, because some people are being charged with new offences and, then obtaining release on bail yet again. It is also a big problem for the justice system, which is fast losing the public’s respect.
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Some of the cases reported in legal databases are shocking. Such as a man charged when a loaded gun was allegedly found beside him in a car and released on bail; charged again in connection with the sex trafficking of a woman under 18 and granted bail again; and, after finally being detained on sexual assault and domestic violence charges, being released once more in a bail review by a higher court.
In that case, the third release was based on two mature sureties, or supervisors, with video cameras keeping an eye on the accused under house arrest. But it’s time to ask at what point those who accrue charges or convictions on bail have forfeited their right to be trusted to abide by any release plan.
The problem seems ever-present because the right to reasonable bail is inextricable from the presumption of innocence, both of which are protected by the Charter of Rights and Freedoms. The Supreme Court of Canada has ruled that release from detention is the system’s default, though subject to exceptions. Meanwhile, Canada’s crime severity index went up 41 per cent from 2014 to 2024, a measure of increasing violence and danger that explains why so many Canadians say they feel unsafe.
The Liberal government’s answer, in legislation introduced last month, amounts to telling judges to do what they are already doing, while reaching a different conclusion.
They would direct judges on how to apply the “restraint principle.” That principle, at the heart of sentencing in Canada, means resisting a vindictive public mood. The Liberals wrote it into bail law in 2019 and now would clarify that it “does not require the accused to be released.” They would direct judges not to give primary consideration to release when an accused has been charged with a serious offence while on bail for another serious offence. And courts would be told in reverse-onus cases to closely scrutinize the bail plan of the accused for reliability and credibility. This barely qualifies as tinkering.
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They would also add to the number of serious offences covered by a reverse onus, in which the accused needs to show why they should be released. (The opposition Conservatives would do this, too.) In practice, though, not much turns on this onus. What matters is the suitability of the all-mighty release plan. When the Liberals went big on the reverse onus in their bail reform of 2023, they achieved little apparent effect.
The Conservatives call their private member’s bill on the subject “jail not bail.” If it were truly that, it would run afoul of Charter rights. Instead, the Conservatives would try to make it harder – but not impossible – to grant bail to anyone charged with a major offence while on bail for another major offence, if they were convicted of a major offence in the past 10 years. How? By authorizing only superior court judges, and not justices of the peace, to release them on bail. This would slow down releases but recall it was a superior court judge who released the accused rapist, sex trafficker, etc., in the example above.
The Conservatives would also change the risk standard set out in the bail law. Instead of a “substantial likelihood” of a risk to public safety, which can result in a denial of bail, the lower standard of a “reasonably foreseeable” risk would be substituted. This seems a reasonable step, though it is hard to know how effective it would be.
It’s true that the problem with bail includes the presumed innocent who are in the vast majority in provincial detention centres. Some of it is owing to the difficulties that impoverished individuals have in finding a reliable surety to supervise their release.
Reasonable bail means bail is not to be denied without just cause. Yet so many who give such cause are being granted bail. It will take more than what the Liberals have proposed to right the imbalance in the justice system.