Toronto Criminal Lawyer

Bail Reform Has Been a Moving Target

Bail law in Canada has undergone significant changes in recent years, driven by competing concerns. On one side, there is a recognition that too many people, particularly Indigenous persons and members of other marginalized communities, spend excessive time in pretrial custody for relatively minor offences. On the other side, high-profile violent offences committed by individuals on bail have generated public pressure for stricter release conditions and detention standards.

The result has been a series of legislative changes at the federal level that attempt to balance these concerns. Understanding these changes is important for anyone facing criminal charges in Ontario, because the bail framework directly determines whether you will be released pending trial and under what conditions.

For a foundational understanding of the bail process, see our overview of how bail works in Ontario.

Bill C-75 and the Ladder Principle

Bill C-75, which came into force in 2019, was the most significant overhaul of Canada's bail provisions in decades. Among its key reforms was the codification of the "ladder principle" in section 515(2.01) of the Criminal Code. This principle requires that the least restrictive form of release be imposed unless the prosecution demonstrates that a more restrictive form is necessary.

The ladder runs from the least restrictive to the most restrictive form of release:

• Release on an undertaking without conditions
• Release on an undertaking with conditions
• Release on a recognizance without surety and without deposit
• Release on a recognizance without surety but with deposit
• Release on a recognizance with surety
• Detention

Before Bill C-75, this principle existed in case law but was not consistently applied in practice. Police and courts frequently imposed conditions that were more restrictive than necessary, and cash bail deposits were routinely required even for minor offences. The codification of the ladder principle was intended to address this by requiring justices to start at the least restrictive option and move up only when justified.

Bill C-75 also directed police officers and justices to give "particular attention to the circumstances of Aboriginal accused persons and accused persons who belong to a vulnerable population." This provision acknowledged the disproportionate impact that the bail system has had on these groups and was designed to encourage more thoughtful release decisions.

Bill C-48: Tightening Bail for Serious Offences

In response to public concern about violent offences committed by individuals on bail, Parliament passed Bill C-48, which received Royal Assent in December 2023. This legislation introduced amendments that tighten bail provisions for certain categories of offences, particularly those involving firearms and intimate partner violence.

Key changes under Bill C-48 include:

• Reverse onus for firearms offences — For certain serious firearms offences, the accused now bears the onus of showing why their detention is not justified. This is a significant shift, as the default in Canadian bail law is that the Crown bears the burden of justifying detention.
• Reverse onus for repeat intimate partner violence — Where an accused is charged with an offence involving intimate partner violence and has a previous conviction for violence against an intimate partner, the onus shifts to the accused to show cause for release.
• Consideration of community safety — The amendments direct justices to consider whether the accused's release would undermine confidence in the administration of justice, with particular attention to the safety of the community.

What Reverse Onus Means in Practice

In a standard bail hearing, the Crown must show cause why the accused should be detained. The accused is presumed to be entitled to release unless the Crown can justify detention on one of the statutory grounds: risk of flight, danger to the public, or the need to maintain confidence in the administration of justice.

When the reverse onus applies, the accused must demonstrate why their detention is not justified. This means the accused must present a release plan that addresses the court's concerns. Typically, this involves identifying a suitable surety, proposing meaningful conditions, and presenting evidence that the accused will comply with those conditions and not pose a risk to public safety.

The reverse onus applies in several situations, including charges for certain firearms offences, charges involving alleged intimate partner violence where the accused has a prior conviction, charges committed while already on release for another offence, and charges under the Controlled Drugs and Substances Act for certain serious drug trafficking offences.

If you are facing a bail hearing where the reverse onus applies, preparation is essential. Your lawyer will need to develop a detailed release plan, identify potential sureties, and prepare to address the court's concerns directly.

The Ongoing Tension in Bail Policy

Bail reform in Canada reflects an ongoing tension between two valid concerns. The over-incarceration of pretrial detainees, many of whom are ultimately acquitted or receive non-custodial sentences, is a well-documented problem. The conditions in Ontario's remand centres are often worse than those in sentenced institutions, and the time spent in pretrial custody can devastate a person's employment, housing, and family relationships.

At the same time, there are legitimate public safety concerns when individuals with a history of violence or access to firearms are released pending trial. The challenge for lawmakers and courts is to distinguish between cases where release is appropriate and cases where detention is necessary, without painting all accused persons with the same brush.

The current framework, with its combination of the ladder principle from Bill C-75 and the targeted restrictions from Bill C-48, attempts to thread this needle. Whether it succeeds will depend on how courts apply these provisions in practice and whether the legal system has the resources to conduct thorough bail hearings rather than relying on overly cautious detention orders.

What This Means for You

If you are facing criminal charges in Ontario, the bail reforms affect you in practical ways. The emphasis on the ladder principle should mean that minor charges are more likely to result in release with minimal conditions. However, if you are facing serious charges, particularly those involving firearms or allegations of domestic assault, the reverse onus provisions mean that your bail hearing requires thorough preparation and strong advocacy.

The most important thing you can do is ensure that you have experienced legal representation at the bail stage. The conditions of your release, or whether you are released at all, will shape your experience for the duration of your case. A lawyer who understands the current bail framework and knows how to present a compelling release plan can make the difference between being released and being detained.

If you have questions about your bail situation or are preparing for an upcoming hearing, contact a criminal defence lawyer who can assess your circumstances and advise you on the best approach.

For the legislative text of the bail provisions in the Criminal Code, including the recent amendments, visit the Department of Justice website.