Front Burner - The bail backlash

Episode Date: March 20, 2026

As Ottawa prepares to tighten bail laws across the country, we take a documentary look at how the issue has become a focal point of Canadian anxiety around crime and ask what might change with Bill C-14, legislation the Prime Minister has called “arguably the most aggressive tightening of the criminal code seen in decades.”For transcripts of Front Burner, please visit: https://www.cbc.ca/radio/frontburner/transcripts

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This is a CBC podcast. What else is an issue in Canada that you would like to fix? Hi, everyone. I'm Jamie Plesson. Jamie, toss me to those napkins. We have to... I got an allergy I'm dealing with. We got to toughen up our justice system. It got way too soft.

That is Joe Rogan, talking to conservative leader, Pierre Pollyev, on yesterday's episode of Rogan's massively popular podcast. What's wrong in your justice system? Basically bail. I mean, we all believe in the basic principle that you're innocent till have proven guilty. But if someone's convicted, have like 150 prior convictions and they're newly arrested on their latest crime, I don't think we should be releasing them onto the streets. At a time where political consensus can feel kind of hard to come by, the liberals and conservatives have worked together to fast-track a piece of proposed legislation to crack down on an issue that's made some shock. shocking headlines in recent years.

Court records show 26-year-old Tyrone Samard was out on bail. Was out on bail. Was out on bail at the time. Justin Bone was charged with second-degree murder. Bone was out on bail at the time. The implication of our charge is that a convicted murderer committed another murder while on bail. Plover was convicted in a separate domestic violence case that same day, freed on bail hours before McCourt's death.

Today on Front Burner, how bail has become the focal point of Canadians' anxiety about crime. And what might change now that Prime Minister Mark Carney is pushing legislation that is part of what he's calling, the most aggressive tightening of the criminal code seen in decades? Just, it's important for everybody to imagine when you arrive at a crash scene and see the vehicle absolutely obliterated and say, boy, my girl, was. in there. Last fall, Ron and Michelle Best traveled from Manitoba to Ottawa

to appear before the Parliamentary Justice Committee. They were there to talk about their daughter Kelly. We are here today as grieving parents. Kelly was killed in a three-car pile up just outside Portage La Prairie. She was 28 years old. The man

allegedly responsible for her daughter's death. Had an active warrant for his arrest issued at the time of the incident. He had breached bail conditions for previous crimes involving drugs and theft. After the crash, the driver allegedly kicked out the stolen truck's window and escaped. When caught, he was charged with impaired driving and dangerous driving causing death. He was taken into custody, appeared before a judge, and unbelievably was later granted bail again.

The system decided to give him yet another chance. He was sent to an unsecured rehab facility in Winnipeg to await trial. But shortly after getting there, he walked out. When we found this out, my stomach sank with the same sick feeling I had the day Kelly was killed. My greatest fear was that he would hurt someone else or flee. And why wouldn't he? That behavior was entirely predictable. The judge had assured us that if he breached bail, again, a warrant would be issued immediately.

What good are these reassurances? They mean nothing. Three times he was given bail. Three times he walked away. Why does someone who shows no respect for the law, the police, the judges, or for society, keep getting another chance? This case is still before the courts. But this question is one that's been asked a lot lately. There's now this widespread public perception that the bail system in Canada is just too lenient. According to an abacus data poll from last fall, 79%, nearly 8 in 10 of those polled, say that it is too easy for people accused of serious crimes to be released. It's this feeling that politicians across a country, of all different stripes, have been seizing on and perhaps also stoking, with high-profile calls for stricter bail laws. Last summer, NDP Premier David Eby

hand delivered a letter to Mark Carney from the family of Bailey McCourt who was killed just hours after her ex was convicted of assault and released on bail awaiting sentencing. They are a family that has seen the impact of a failure in our criminal law in the most dramatic and awful way imaginable.

I share their impatience entirely. Winnipeg Mayor Scott Gillingham also called on Carney to bring forward bail reform. Due to recent judicial precedents and national legal changes, courts are releasing many repeat offenders on an order or promise to reappear, as if chronic criminals are likely to be on their best behavior while awaiting trial for yet another charge.

And of course, conservative leader, Pierre Pollyov, made a slogan of jail, not bail. Scrap liberal bail, and let's bring in jail, not bail, lock up the repeat offenders. And has campaigned on ending liberal catch-in-rele-rele-rele. We cannot go on with another four years of liberal catch and release. We need a change to bring safety back to our streets. Yeah, I guess let me tell you a little bit about generally how bail works.

That's Mike Murray. He was a crown attorney for almost 30 years in Newfoundland. He retired about two years ago. So when somebody gets arrested by the police, I mean, they have the first call on whether the person is safe to release or not. If the police decide not to release someone, then the case goes to the crown. Then they get to make a call too. And if the crown decides the person needs to be held, then the third step would be a bail hearing in front of the judge. At a bail hearing, the accused in their defense get to put forward what's called a bail plan.

And that would basically be things like the accused person would promise to behave and not commit further offenses. if they're already out on bail or depending on the seriousness of the offense, there could be a surety involved. Assurity is somebody who comes forward to the court and either puts up money or, in most cases, promises to put up money to secure the accused person's good behavior. If the person can line up any kind of work, if drugs are a factor which they frequently are, you know, any kind of treatment or counseling plans that the accused person can put forward. And then based on that, then the judge would make a decision.

The judge, or Justice of the Peace, weighs all that against the facts of the case, the person's record, if they've complied or violated their bail conditions before, and can decide to detain someone for three possible reasons, to ensure that they show up in court, to protect, the public safety, and to maintain the public's confidence in the justice system itself. Ultimately, bail in Canada is a constitutional right, the right to not be denied reasonable bail without just cause. And it's a right that's been emphasized quite a bit by the Supreme Court in recent years. The Supreme Court of Canada released a sort of a trilogy of bail cases, say from 2015 to

2020. These cases that we're about to talk about, they all turn on fairly narrow questions about the law. Too narrow for me to get into here, but they're significant for our purposes because in each one, the Supreme Court took the opportunity to drive home bigger statements about our bail system. So there were three big Supreme Court of Canada cases. First one is Antic. This case from 2017 reaffirmed what's called the latter principle. And that's the idea that before you detain, somebody, you should really try every available step on the way up, like stricter and stricter and stricter bail until they run on a road and there's nowhere stricter to go. And only then should you think about detaining them. Justice Richard Wagner, who'd go on to become

chief justice of the court, wrote in the unanimous decision, release is favored at the earliest reasonable opportunity and on the least onerous grounds. Then, in 2019, there was a case called Myers, and it too was an opportunity for the court to stress that, quote, the release of accused persons is the cardinal rule and detention, the exception. And then there was a case called Zora. The Zora decision was about bail conditions, including... The classic bail condition, and it used to be the only bail condition in many cases, was keep the peace and be a good behavior, which sounds complicated, but it basically means

don't break the law. So if you break the law while you're out on bail, then you're automatically breaching your bail. The court stated in Zora that the imposition of restrictive bail conditions creates a cycle of incarceration. So the Supreme Court of Canada said that was discriminatory against marginalized people, and they said it should only be used in the rarest of cases. These three decisions combined present a clear instruction from the highest court that when it comes to bail, restraint is the law of the land. And in the midst of these rulings in 2019, the government weighs into. Then the Trudeau government passed a bill called C-75. I mean, sometimes when in bail discussions, you'll hear a lot of talk about that bill. But it really didn't change anything.

It was just they sort of put what the Supreme Court of Canada had been saying about restraint and the ladder principle and all these other things. They basically just codified what Supreme Court Canada had been saying. First of all, why do we even have restraint? That's Shakir Rahim. He's a lawyer and the director of the Criminal Justice Program for the Canadian Civil Liberties Association. The reason is that, you know, any restriction on a person's liberty is based on what's been alleged at this point, not what's been proven in court. And so our starting point should be that we're not going to lock you up. There might be cases where we have to because of the various grounds that we've discussed, but it's important that that's not where we jump to first.

Rahim says it's not like this principle of restraint means everyone gets out on bail every time with no restrictions. People can still be detained. There can still be conditions on your release, like an ankle monitor or house arrest. I think restraint has gotten this sort of rap as this open season that, you know, everybody is now released on bail because this particular principle was codified into legislation. But the reality is that it's more of a framework that's been part of how we understand why bail even exists since the beginning. Constable Northrop was struck by a vehicle.

We believe this was an intentional and deliberate out. The presumption of innocence is at the heart of our bail system for a reason. Mr. Zemir was accused of first-degree murder for the killing of Jeffrey Northrop, who was an on-duty police officer. This is Nader Hassan. He was a lawyer for Umar Zemir, who was accused of intentionally killing a police officer by running him over in Toronto City Hall's parking garage in 2021. Murder and first-degree murder in particular is the most serious offense on the books in Canadian criminal law. And as such, Mr. Zamir was detained. And most people who are charged with murder and in particular first-degree murder have very little chance of getting bail. Mr. Zamir has always maintained his innocence, that he was with his pregnant wife and two-year-old son when strangers approached his car

in the dimly lit parking garage, that the plainclothes officers did not identify themselves as police, that they banged on the car's windows, and that fearing for his family's safety, he reversed and drove off. He didn't get a proper bail hearing until a couple of months after he was charged. So he missed the birth of his daughter because he was in custody.

When he finally got his hearing, it lasted three days. Evidence was called. Witnesses were examined and cross-examined. examined and there was lengthy oral argument. It was a mini trial before the trial. I was able to show a number of weaknesses in the Crown's case, including that this did not look like a murder to any objective person looking at the case with any degree of scrutiny. So that was one piece of what we needed to do in order to have a chance to get bail in a case as serious as murder. The other part of it was that we had to put together a pretty aggressive bail plan.

Mr. Zemir's sister moved from her home abroad to Canada to live with him and act as his surety. She pledged her life savings to the court. The combination of showing that the case was weak, combined with this substantial bail plan and substantial financial pledge was what was able to persuade the court that this was an appropriate case for granting bail. But it was no easy feat.

Mr. Zemir was released on bail to await trial, and there was serious backlash. Some of the most senior politicians in Ontario, Doug Ford, Premier of Ontario, John Torrey, who was then Mayor of Toronto, Patrick Brown, Mayor Brampton. They all criticized the decision to grant Mr. Zamir bail.

They were outraged. And they said this publicly. They put it on their social media. They were outraged. They declared it was an abomination that the person responsible for killing a police officer was out on bail. Doug Ford, a vocal proponent of stricter bail laws, tweeted it is completely unacceptable that this person charged, for this heinous crime is now out on bail.

Our justice system needs to get its act together and start putting victims and their families ahead of criminals. It took nearly three years for Mr. Zemir's case to go to trial. And when it did, the Crown's case fell apart. During the trial, three Toronto police officers testified that back on July 2nd, 2021, Constable Jeffrey Northrop was standing in the laneway with his hands up when Zemir ran him over with his car. But two crash reconstruction experts testified Northrop was knocked down when Zamir reversed out of the parking spot and was already on the ground when he was run over.

Video presented at trial supported that version of events too. The jury found Zamir not guilty on all charges. The judge was critical of what she called the crown's morphing narrative and after the verdict apologized to Zamir for what he's been through. Just this week, an Ontario provincial police report into the Toronto Police. testimony, reports to have found no evidence that the officers lied or colluded. If Mr. Zemir had been denied bail, he would have remained at Toronto South Detention Center where he was held when his daughter was born for nearly three years, awaiting trial. The Toronto South Detention Center is notorious. To say it's notorious is putting it mildly.

And this is not, these are not the words of just, you know, defense counsel. judge after judge in Toronto, Brampton, elsewhere, have lambasted the conditions at Toronto South Detention Center. This is a jail notorious for violence, inmate on inmate violence, and notorious also for lockdowns, which means that people in those facilities are confined to their cells nearly 24 hours a day in conditions that oftentimes, involve double or triple bunking, meaning that these cells already tiny as they are, are overcrowded. And it would involve him staying. It also puts pressure on people to plead guilty to things that possibly they shouldn't

or that couldn't be proved against them or that they didn't do. That's Hillary Dedding. She's a criminal defense lawyer too. Because if you're faced with a year-long or more wait for a trial, but the prosecutor says, well, why don't you plead guilty to a 30-day jail sentence? If you get out today or you can get out in two weeks or in a month, who would wait a year just to avoid that conviction? Who could give up that much of their life living in the terrible conditions at a provincial jail?

And what that can mean is that somebody may be getting a criminal record that's permanent and makes it difficult for them to get employment just because they're trying to avoid losing a year of their life in a jail. She makes the point that the police don't need to have proof beyond a reasonable doubt just to lay charges. That's not how the system works. You can charge somebody on a much, much lower standard. A great example of that would be that many crimes, especially against vulnerable people, happen in private where there's only one witness, the victim. Think, for example, sexual assaults or intimate partner violence.

But what that means as a corollary is that you can be charged with a crime. crime on the basis of one person's word with really no other corroborating evidence. In theory, there's nothing wrong with that. Her point is that if you're denied bail, you might be locked up, basically on someone else's word alone. So, you know, the courts do stand as a place where the rights of individuals have to be balanced carefully against the rights of the group. And upholding the charter of rights and freedoms is about that.

this is why the right to bail is a constitutional right. This idea of balance came up over and over in our conversations with people who get up close and personal with the bail system. You don't want to talk in the abstract, so let's not talk in the abstract. When you say someone's bail is denied, what that means is you are throwing them in a prison with horrific conditions for what may be three years until they can get to actual. actual trial. You are punishing them in the most serious, lawful way we have in our system, throwing them in jail in squalid conditions at a time when they're still presumed innocent. So there has to be the appropriate balance in the system. And even if you construct a system that is functional and works well and gets you the right,

result most of the time, there are still going to be people who go through the cracks. People denied bail who shouldn't have been denied bail, and people who get bail who probably shouldn't have gotten bail. It's a reality of the system that can't be constructed perfectly. But what's fueling so much of the rhetoric around bail now is a sense, among some, that the balance is thrown off? I think the balance has been lost. I think, I mean, there's no doubt The Supreme Court of Canada has valid points to make about the justice system. And, I mean, there's not a correctional facility in the country. I don't think that's not overcrowded and bursting at the seams.

But, I mean, is the cure for that to let dangerous people out on the street? I'm not so sure. Retired Crown Prosecutor Mike Murray again. The administration of justice in the view, I think, of a broad swath of the general public, has really fallen into disrepute. This ascent isn't for everyone. You need grit to climb this high this often. You've got to be an underdog that always overdelivers.

You've got to be 6,500 hospital staff, 1,000 doctors, all doing so much with so little. You've got to be Scarborough. Defined by our uphill battle and always striving towards new heights. And you can help us keep climbing. Donate at Lovescarborough.ca.com. At Desjardin, we speak business. We speak startup funding and comprehensive game plans.

We've mastered made-to-measure growth and expansion advice, and we can talk your ear-off about transferring your business when the time comes. Because at Desjardin business, we speak the same language you do. Business. So join the more than 400,000 Canadian entrepreneurs who already count on us and contact Desjardin today. We'd love to talk. Some of the most persistent and outspoken critics of the bail system in recent years are cops.

And the opioid crisis, it's gotten to the point now where non-indigenous folks from the GTA come to Six Nations to sell fentanyl and drugs that kill our people. Darren Montour is the chief of Six Nations Police Service on the Six Nations of the Grand River Territory. Our drug unit does their due deal. Investigates the crimes, arrest, charges, they go for bail, they're released. Then just recently, individuals again from Toronto, back down here selling drugs again, who are on release conditions, not to attend the Six Nations territory. So it's like a revolving door of accused people being charged with the same things,

getting bail over and over. He says that he sees the same thing with intimate partner violence cases too. It takes a victim of domestic violence, probably several times where they're assaulted before they actually report it to the police. But then again, the severity of those incidents, you want to make sure to ensure the safety and security of the victim and their family. But yet sometimes that person is released. As you're making your way back from the courthouse, that person's already went through bail and out or the bail hearing happening here at the police station. And it's frustrating for police to hear the complaints and the lack of justice that's being administered because people see it's not a, say it's not a justice system, it's just a legal system. For Chief Montor, the principle of restraint underlined by the Supreme Court, codified by Trudeau, is part of the problem.

I don't agree with that because I look at the severity of the crime that the accused people commit. And if they're released out on conditions back in the community, we're the first people to hear about that from the victims and other people in the community. Why is that person back in the community? So this isn't an overnight thing that's happened. It's happened over the last several years. Defense lawyer Hillary Dedding acknowledged that,

anecdotally, in the wake of some of the Supreme Court's big rulings on bail. I do know that when we have decisions like Antic, And Zora, we often go in as lawyers feeling better armed to make the kinds of arguments we want to make for a reduced bail. There have been times that I can think of in the past decade where bail has felt like it was trending in a way that made it a little bit less restrictive and a little bit easier to come by, a little bit more likely to have conditions that your client felt better about living on for 18 months to three years. But now she feels like the tide has turned. I think we have noticed a shift towards a more conservative approach to releasing people on bail in some of the decision makers. And I think it's understandable in a way.

because at the end of the day, we're all human beings and we're all listening to other community members and the public. And when you are hearing and seeing a lot of followed about violent crime, that can't help but impact you, whether it's conscious or subconscious.

So I don't want to make it sound like our judges and justices of the peace are sort of blowing in the winds of public opinion because I really don't mean that. I think it's more complicated than that. But yes, I think in general, we are proposing higher bails. And I think that Crown attorneys are seeking more stringent bails and are in some cases more successful in obtaining detention orders than even 12 months ago, I would say.

Here's Shakir Rahim of the CCLA again. We don't hear about all of the cases where somebody is released and doesn't allegedly reoffend, right? And that's not to excuse the issues that we might have. But it's to say that what doesn't make the headlines is that 1,000 people were on bail in a province in a given month and completely complied with their conditions. And that includes people who might be facing accusations that relate to violent offenses. So one of the challenges is that we don't actually collect any data about the number of people who are released on bail and allegedly reoffend. So if you were to go to the Minister of Justice and say, hey, can you show us over the years, you know, how the situation has gotten worse? More people are reoffending.

You instituted this legislation, what happened. They can't answer that question. The lack of detailed data on bail can make this issue really hard to talk about in a clear-eyed way. Even basic stats can be hard to find. Ontario does have some numbers available. And that data shows that the percentage of people being released on bail has actually, fallen since 2018, from 57% to 50%. So that means that even with all those Supreme Court rulings and even with Trudeau's

codification of the principle of restraint, more people have been locked up before trial, not less. The other statistic that we have comes from Stats Canada, and it's about the proportion of people across Canada in provincial jails on pretrial detention, because they've been denied bail, for example, versus those actually serving out their sentence. And that proportion is pretty staggering. 76%. That's a lot higher than 10 years ago.

Neither of these statistics negate the horrible headlines of people out on bail, committing awful crimes. But they do complicate the idea that it is somehow easier to get out on bail now or that our system has become more permissive in recent years. I think the narratives around what's wrong with the system are available from every different vantage point. What's not available is the hard data to actually say now we can objectively make a conclusion about what's going on or not.

And it's into this landscape that Bill C-14 has landed. In fact, we put forth a number of bills over the course of the last few months in Parliament that is arguably the most aggressive tightening of the criminal code seen in decades. That includes tightening. Amidst all the public interest and all the political pressure from mayors, premiers, the federal conservatives, Prime Minister Mark Kearney has brought forward a piece of legislation called the Bail and Sentencing Reform Act, Bill C-14. His Justice Minister, Sean Frazier, provided some details in a speech to parliament last fall, like how it's going to clarify the principle of restraint.

We are going to move forward with significant changes to the criminal code that will clarify. precisely that the principle of strain is not some get-out-of-jail-free care. In fact, we are going to be more specifically clarifying that the court must be satisfied, that they have the ability to protect public safety before deciding to release someone into the community. And if they do not have the ability to manage a public safety imperative, that they will have grounds to detain that person. Where a person is to be released, the court must be satisfied, they can place conditions on that person's release, that will protect public safety. about safety. The bill does other things to make it tougher to get bail, like requiring judges to consider whether a person is accused of committing random and unprovoked to violence. And it expands

reverse onus bail provisions too. Normally, the crown has to demonstrate why someone should be denied bail and be detained. But when the onus is reversed, the accused has to demonstrate why they should be released instead. This is already the case for some serious offenses. But C-14 adds more offenses to the list, like violent home invasions, violent extortion, auto theft, human trafficking, and sexual assault where there's choking involved. Murray thinks the bill is a positive development. I think that if the legislation is passed and holds up, then it will really assist bail judges in, you know, in evaluating who should be released. who should be held. You know, it's just a more nuanced position.

Six Nations Police Chief, Darren Montour, is happy to see the expansion of reverse onus provisions, but he isn't satisfied with the mere clarification of the principle of restraint. He wants something stricter. The principle of restraint needs to be changed,

in my opinion. Like, that's why you see so many groups, victims, rights groups, different police associations, police chiefs saying, this needs to change. People need to, realize that these crimes are still being committed and there is a victim involved.

And the last thing we want is for that victim to be revictimized with further serious incidents happening to them. If that means someone has to stay in custody to protect them, so be it. And the last thing we want is people to take the law under their own hands. Nader Hassan, the defense lawyer you heard from earlier, is unimpressed with Bill C-14 for different reasons. And for the politicians, I think it's cheap politics. I think tough on crime sells tried and true across jurisdictions, whether it's Canada, United States, Europe, across eras going back to the 1980s and before. There is bipartisan appeal to being tough on crime. It appeals

to all segments of the voting public. Just because he thinks it's cheap politics, though, doesn't mean he thinks it won't have any real effects. I certainly think it's going to make a difference. I think judges and justices of the peace, no doubt, are going to apply the law. And I think crowns are going to be more aggressive in seeking people's detention on the heels of these reforms.

I think that not just the actual reforms, but this cultural shift against bail may well lead to Crown counsel demanding detention in more cases, meaning you're going to have more bail hearings. And I also think that there's a risk that justice of the peace and judges are going to be more inclined in close cases. to lock people up knowing the political undercurrents of the day. So is this bail reform going to make a difference? Yes, absolutely, I think it will. But it may not be for the specific provisions of the law as much as it is because of this cultural shift that seems to be happening across the country.

The whole point of this bill is to make bail more difficult to obtain. And that will almost certainly mean more people in jail, locked up before they've been found guilty by our justice system. And that could trigger an unintended consequence by leading to the early release of those who are convicted, defense lawyer Hillary Deidding again. The facilities are already incredibly overcrowded. And we're already in a position where people are living in such bad conditions

that judges are giving massive sentence reductions as a way of sending a message to the jails, and the government, which I've May or doesn't... Dudding forwarded along a judgment from late January of this year. It's from a case where a guy pled guilty to firearm offenses. He was on bail at the time of his arrest, and he already had a criminal record.

He was locked up while he waited to be sentenced for 799 days. And because of the conditions in Toronto South Detention Center, the judge knocked more than a year and a half off the man's time. In her reasoning, the judge, the judge wrote that these kind of sentence reductions are becoming the norm rather than the exception, that locking up people who are still presumed innocent in these conditions is not civilized and will likely result in justifiable resentment and outrage against the system. She also wrote, quote,

politicians continue to urge that fewer people be released on bail and stiffer sentences be imposed on those found guilty of offenses. My question is, where are these people meant to go? end quote. We reached out to the federal justice ministry asking if they plan to do anything about the potential downstream effects of Bill C-14 to help address overcrowding in provincial jails and to address court delays. They wrote that the federal government provides funding for programs and services that help to address delays, such as legal aid and diverting less serious offenses away from the criminal justice system. Bill C-14, the Bail and Sentencing Reform Act, is currently, at consideration in committee in the Senate. That is all for today. Front burner was produced this week by Matthew Amha, Joitha Shen Gupta, Shannon Higgins,

Kevin Sexton, Karen Outtshorn, Lauren Donnelly, and Mackenzie Hamren. Our intern is Riley Cunningham. Our YouTube producer is John Lee. Our music is by Joseph Chabison. Our senior producers are Elaine Chow and Imogen Burchard, who produced this episode. Our executive producer is Nick McKay Blokos.

I'm Jamie Poisson. Thanks so much for listening. talk to you on Monday. For more CBC podcasts, go to cBC.ca slash podcasts.