Bail and Sentencing Reform Bill

Honourable senators, I rise this evening to speak to Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing). It is in relation to bail that I speak tonight — to the principle of bail itself — as I remand you here for another 15 minutes.

Bill C-14, among many other things, creates additional offences for which a reverse onus would apply when people are applying for bail. Those offences include human trafficking; violent and organized-crime-related auto theft; breaking and entering a dwelling house; extortion involving violence; and assault or sexual assault involving choking, suffocation or strangulation. As well, the existing reverse onus for an accused with a relevant prior conviction within the last 5 years would be expanded to the last 10 years.

The concept of bail itself, it must be said, flummoxes and even enrages a lot of people. After all, if a person is arrested and charged with a crime, the police and the Crown must believe that there is enough evidence to convict them. Then, we just let them out, usually asking for money in return. It’s kind of a reverse ransom demand. The Crown says, in effect, “You give us some kind of financial guarantee that you’ll be back for trial, and if you don’t show up, we keep the cash.”

Often, we don’t just ask for money, though; we impose all kinds of conditions about how the person charged has to behave when they are back in the community. We might ask them not to drink, use drugs or go to certain places or be with certain people. We tell them that if they break those conditions, they can be charged again and remanded.

Now, a very narrowly logical person — a visitor from Vulcan, say — might ask, “Well, if you think this person committed a crime, why let them out at all? Shouldn’t we invoke a precautionary principle and just lock everybody up until trial?”

There are, in fact, two very different answers to that question. The first is philosophical and ethical. In our criminal justice system, every person arrested and charged with a crime is considered innocent until proven guilty. If the Crown wishes to take away a person’s liberty, it is up to the Crown, with all the massive resources it possesses, to make its case. The onus is on the state to justify why it is imprisoning you, not on you to justify why you should be free.

That is, in the words of Lord Sankey, “the golden thread” that runs through our justice system. It is a legal principle as old as the Magna Carta and as contemporary as our latter-day Charter of Rights and Freedoms. Indeed, section 11(e) of the Charter guarantees that a “person charged with an offence has the right . . . not to be denied reasonable bail without just cause.” Section 11(e) enshrines a basic entitlement to pre-trial release for accused persons, rooted in the presumption of innocence and the right to liberty. Being arrested doesn’t mean you’re guilty. You can’t take away that most fundamental of civil liberties — personal freedom — until trial, not without just cause.

Bail can be denied if there is a reasonable concern that the accused might try to flee. Bail can be denied for reasons of public safety, and bail can be denied if a court feels that granting bail in a specific case would undermine public confidence in the administration of justice.

Now, that’s a tricky condition, since it can lead to bail being denied just because of public outrage and outcry, and we surely don’t want judges making decisions about whether to grant bail on the basis of public opinion without regard to the facts. Nonetheless, Canadian judges and justices of the peace can and do calculate that calculus all the time. Those are the moral and metaphysical reasons we provide bail.

There is another more pragmatic reason why bail is essential to our criminal justice system. We simply don’t have the remand space or the correctional resources to lock up every single person who’s been arrested, pending trial. This is not a new phenomenon. Our common-law history of bail dates back to before the Magna Carta, to before the Norman Conquest, to the time of the Anglo-Saxons. The Anglo-Saxons found incarcerating people to be both “costly and troublesome,” so they evolved a system to stop people from fleeing before trial without the bother and expense of imprisoning them. An accused could be released if he or she could find someone in the community to pledge a surety, guaranteeing both the appearance of the accused in court and payment of any fine upon conviction.

The amount or substantive worth of that pledge, called “bail,” was identical to the amount or substantive worth of the penalty. Thus, if an accused were to flee, the responsible person would pay the entire amount.

In 2026, locking people up before trial is still costly and troublesome. Our remand centres are full. Our courts are backlogged. Provincial and federal governments simply haven’t invested the resources to maintain huge numbers of people safely and securely in remand. Nor have they funded the necessary Crown prosecutors, legal aid duty counsels, judges or justices of the peace.

In the meantime, the number of people being denied bail is on the rise. According to the Canadian Civil Liberties Association, 72% of provincial and territorial prisoners were denied bail last year, compared to 59% in 2015. Our remand centres bear the brunt of that reality.

According to a recent investigation by the CBC, in Ontario, during the first six months of 2025, the jail population averaged 10,800 prisoners, while maximum capacity in the province’s jails was 8,500 beds. Of those 10,800 prisoners, 82% were on remand, awaiting trial and legally innocent. That percentage had jumped from 74% in 2019. In other words, there simply aren’t enough beds in Ontario’s jails to hold all the people already remanded there.

In my home province of Alberta, the numbers tell a different but still troubling tale. Edmonton’s old remand centre, which stood near the courthouse, had a capacity of just 338 beds and had been constantly overcrowded with double and even triple bunking. In response, the province built the new, state-of-the-art Edmonton Remand Centre, which opened in 2013. The 60,000-square-metre facility, with a capacity of nearly 2,000 beds, is both the largest remand centre in Canada and the largest prison in Canada, and it cost nearly $600 million to build more than a decade ago. It’s not yet at capacity, although we certainly seem to be headed that way.

In 2010-11, approximately 57% of people in Alberta’s provincial correctional system were on remand. In 2018, 64% of Alberta inmates were remanded and awaiting trial. By last year, that number had jumped to 85%. Think about that.

Statistics Canada data showed that last year there was an average of 492 convicted prisoners in Alberta jails but 2,834 awaiting trial. We could debate how many of those remanded people are morally blameless, but, in fact, they are still legally innocent until proven guilty.

Now, Bill C-14 proposes to make it extremely difficult for whole new classes of accused to receive bail at all by applying a reverse onus to many more kinds of criminal offences. That means that the accused will have to prove that they deserve bail instead of asking the Crown to prove that they do not. That turns the principle of fundamental justice that underlies our legal system on its head.

Now, we already have reverse onus provisions for some of the most serious crimes in our Criminal Code, from first-degree murder to treason to piracy, but Bill C-14, as I mentioned, would dramatically expand that list, including for some rather mundane, non-violent offences.

Take break and enter of a dwelling house. That can encompass everything from a terrifying home invasion to a far more petty kind of crime of opportunity, say, if some greedy porch pirate spies a tempting looking parcel in your front foyer and decides to just grab it while you are out.

And, sure, organized crime related to auto theft sounds bad, but should we really want to make it extraordinarily difficult to get bail if you’re a 19-year-old foot soldier who steals cars for a syndicate and not the mob boss?

Given that Statistics Canada records show that charges for car theft and break and enter are declining, not rising, I have to ask: Is the purpose of making the bail process so much harder really to keep Canadians safer, or is it more akin to a pre-trial punishment?

Such reverse onus provisions will clog up our courts and make remand overcrowding worse, and they won’t make us much safer at all. If an accused actually poses a serious risk, a good Crown prosecutor shouldn’t struggle to make the case to deny bail. And if a judge or a justice of the peace has all the necessary information, he or she should be able to make the right call.

If we actually care about making bail work and keeping Canadians safe, we need to make sure that we properly resource our courts and our justice system so that Crown prosecutors, legal aid defenders, judges and justices have the information and the time they need to make the right decisions for the right reasons for the right people. And when we do release people on bail, we need to be sure they have a proper release plan, especially if they are unhoused or dealing with addiction or mental health challenges.

But we are lying to Canadians and to ourselves if we think that whittling away at fundamental civil liberties and that making our justice system a little less just will protect anyone except those who want to pander to populist fears.

Will you allow me to tell you a story from my days as a journalist, one that has always haunted me?

Twenty years ago this month, Edmontonians were enraged when they heard the story of the death of a man named Stefan Conley. Initial news reports made it sound like a scene straight out of A Clockwork Orange: Four young thugs were accused of beating a passenger to death on a bus. Our letters page at the Edmonton Journal was filled with angry mail from Edmontonians demanding justice for Conley. The letters we didn’t print were even angrier — calls to bring back the death penalty, calls to have the four teens tried as adults and jailed for life. Some 20,000 people signed a petition demanding that their bail be revoked.

Politicians and pundits chimed in, denouncing the judge for being so lenient. When the case finally went to court, it turned out that Conley, who had a history of violence, had begun the fight with the four boys. The autopsy found no broken bones and no injuries to Conley’s skull or his internal organs. He had died of a subarachnoid hemorrhage, when a tiny artery at the base of his brain suffered a pinhole tear. Such hemorrhages are rare but far more common in people who are severely intoxicated, as Conley was that day.

The manslaughter charges against the four teens were all dropped, but imagine if they had spent a year or two in youth or adult remand, as the mob had demanded. Imagine what that would have meant to their young lives.

Every time I hear a tough-on-crime politician or pundit talking about so-called bail reform, I think of that case and the lessons it taught my entire city about putting fear before facts and rushing to judgment.

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty he establishes a precedent that will reach to himself.

Thomas Paine wrote those words in 1795, in his Dissertation on the First Principles of Government. Let us guard ourselves against an avidity to punish — especially pre-emptively — before all the facts are in.

Thank you, hiy hiy.