The Decibel - Why bail reform is hard to get right

Episode Date: October 21, 2025

On Thursday, Ottawa announced incoming legislation to reform the bail system. It comes after months of pressure both in Parliament and across the country, as a surge of Canadians say they feel crime is worsening, and that the bail system is too lenient. But with overall crime down, will making our bail system stricter really make Canadians safer?The Globe’s justice reporter, David Ebner, joins the show. He’ll explain what we know about the reforms the Liberals and Conservatives have been calling for, what the data tells us about how the system is currently operating, and the tensions in reforming bail.Questions? Comments? Ideas? Email us at [e-mail] Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

You work hard. Maybe you buy a car to get your kid to a job. You buy your first home, perhaps in a neighborhood a little further from work than you had wanted, but you're starting out in what seems to be an affordable, safe community where you can raise a young family. But then you hear about a car just like yours that was stolen in your neighborhood, or a home in your city that was broken into, or a neighbor whose grandparent was out of their hard-earned retirement savings because they opened the wrong email. And it's even worse when you hear that the person who stole that car broke into that home or defrauded a loved one has done it many times before and just got released on bail.

Prime Minister Mark Carney announced last week that Canada's bail system is going to be reformed. It follows up on a campaign promise where he vowed to make bail harder to get. getting violent criminals and repeat offenders off the streets, full stop. This is something opposition leader Pierre Poliyev has been talking about for years. Mark Carney, it is time for you to do the right thing and reverse liberal bail laws that are unleashing terror in our communities. And if you won't do it, we will. That's why conservatives are here today to announce ARPEN Canada's bill, the Jail Not Bail Act, to strengthen public safety and rebalance our justice system to put law-abiding citizens first.

News coverage of people doing crimes while out on bail or the concern that they could has contributed to many Canadians feeling less safe. And even though crime is down overall in the past year, a recent poll says Canadians want Ottawa to get tough on crime. So today, we're going to talk about how bail fits into this conversation. David Ebner, the Globe's Justice Reporter, is our guest. He'll explain how our system currently works, what changes Ottawa is proposing,

and whether focusing on bail will really make things safer. I'm Cheryl Sutherland, and this is the decibel from the Globe and Mail. Dave, thanks so much for joining us today. Thank you. So bail reform is a big political issue right now. And before we get into why, let's just get into some of the basics. what exactly is bail and where does it fall in our criminal justice process? I think the first place to start is with the Charter of Rights and Freedoms,

which as everyone knows outlines things like freedom of expression, freedom of religion. But there are also legal rights, which is the right to have a lawyer and the right to have bail. And the way the charter puts it is no one should be denied the right to bail without just cause. And so if you're arrested, the police can detain you. Generally, most people are released for more serious. crimes, you end up in bail court where a judge will rule whether you should be detained, held on remand, or released on conditions. And so when it comes to the Charter of Rights and Freedoms, when we say we don't want

to hold someone without just cause, it's kind of this idea around you're innocent until proven guilty. And so that's part of it. Yeah, the fundamental of, you know, put it in one way, Western democracies, the idea that when you're charged by the state for a crime, you are alleged to have committed that crime. You are presumed to be innocent, and so the entire legal system works off of that. And, of course, these days we see spectacular crimes in the news of violence. And I think the natural tendency is to that person is guilty.

But the foundation of our entire legal system is you are presumed innocent until proven guilty. And so just for the process of it, you kind of went through it, but let's go through quickly. So you get arrested, you're charged, you have a bail hearing, and then you can be granted bail with conditions or denied bail and stay detained. and then you're held in detention until trial, and then you're convicted or you're exonerated. Exactly. Do we have a cash bail system like in the U.S.? Yeah, and that's an important difference. It's a big issue in the United States.

Cash bail, we see it in the moves and stuff like that, bail bondsmen. You're arrested. You don't have the $1,000 that the court is ordering you to put up. So you go to bail bondsmen, and it's actually negatively affected many, many people's lives, especially poor Americans, people of color. and people can't afford cash bail in the state so they end up in jail simply because they can't put up the bail. In Canada, cash bail is quite rare. It's generally a pledge of assets rather than actual cash money. Okay. And what are the reasons someone could be denied bail in Canada?

And so with the idea that too many people are getting out on bail, which, you know, with all the stories in the news, it's not totally unreasonable for Canadians to feel this way. But the Criminal Code does have very specific wording about why someone would be denied bail. The first one is that they show up in court. The whole point of the legal process is for a person charged with a crime to be in court on the appointed day to face those charges and have that evidence weighed, guilty or innocent. The second point where a judge can detain someone is for public safety, very specifically if a judge sees a risk in the evidence presented of risk to a witness, a risk to a victim,

or just any general public safety risks, they can deny bail. And on the third ground, the view of Canadians view, it's a little general. The view that justice is being done, that the administration of justice is occurring in a right and proper way. And it's an individual ground that the Supreme Court has highlighted that judges can also use to deny bail. What do we know about the experience of being denied bail? I don't want to be flippant here, but jail is not a pleasant place.

And so you're denied bail, you end up in Toronto South, you might not get a daily shower, you might not get your right to your daily phone call. And think about, you know, the simple things of, like, not simple things, but the biggest thing on your mind, you know, dealing with the charges against you, if you're in jail, you know, can't Connecting with your lawyer, working with your lawyer, things like that are difficult. You know, you can get depressed. You can become despondent. You might just plead guilty for a lesser sentence.

It can be really rough. And all this time, again, presumed innocent lawyers and judges have all commented. These conditions are quite harsh and often go unseen. And so, again, while the public, and it can be quite reasonable, you know, amid the feelings of varied public safety. But as the public says, more people should be jailed, the conditions in the jails and the people who are put there, it can be quite rough. Let's talk about two stories that will give us a sense of why bail reform is getting attention and why it's complicated. Let's start with the story of James Plover. James Plover is a man in his early 30s.

He lives in Colonna about a year ago. He was charged with assault choking and a number of counts. of uttering death threats. The day after that happened, he was granted bail, $500 cash bail, and a number of restrictive conditions. He abided by those conditions and then come April this year, he was at a two-day trial where all the evidence was heard on those charges. And then on July 4th, he was back at the courthouse in Colonna for the hearing at which he was convicted. It was an 18-minute hearing. He was convicted on all charges. And then once again, he was able to leave court. He would be sentenced two months later and he left court under his previous bail

conditions. However, later that day, several hours, he went looking for his estranged wife, Bailey McCourt, and allegedly murdered her with a hammer. How did her family feel about this? Reeling, I've spent some time with Debbie Henderson, her aunt, and as anyone could imagine, How does it feel, you know, you can't hardly believe it happened to your family, gutting. And also, you know, one thing that really stirred me, Debbie, I was having a coffee there here in Vancouver where I am a couple weeks ago. And she was describing the hospital a couple hours later. So Bailey McCourt allegedly beaten with a hammer. So the family is there at Bailey's deathbed and she's in, you know, terrible shape.

And for Debbie and the family, it's hard to kind of get those images out of your mind. You know, you see something and it's hard to unsee it, especially when it's a loved one. And in the array of feeling sadness, anger, despondency, helplessness, they've really coalesced on a political mission. They'd like to see Canada's bail laws to become more strict, specifically on questions of intimate partner violence. Yeah. Why was Plover released? Clover didn't have a record. He had bided by his bail conditions for over a year. He may not have been sentenced to jail time, potentially, in this case. And his sentencing was two months later. And so fairly standard in such a situation, you know, we've seen the outcome.

So we're like, how could you possibly not see the risks? But at the time, you know, by the book, as it were, there wasn't. any particular indication of risk and he abided by his conditions and again might not have even faced jail time in the end with sentencing and so he was released on his bail conditions so hearing a story like that it makes sense that some people will want to see stricter access to bail but there's also the story of umar zamir can you tell me about him umar zamir was a 31 year old in 2021 when he and his heavily pregnant wife and their young child were enjoying a Canada day in Toronto. They were about to go home. It was just a little after midnight. They were in a parking garage, city hall underground, and about to drive away. There was banging on the window.

They got scared. Ended up clipping a person and then running them over. And the tragedy in this situation was it was plain-closed police officers. Umar Zamir was charged with first-degree murder. and then held for a bail hearing into September, so a few months in jail before his bail hearing. He was granted bail at that hearing. Generally, if you're charged with first-degree murder, it is very rare to be granted bail. The decision was something like 30,000 words long as like a short novella

written by one of Ontario's senior justices. She viewed the evidence that the Crown had produced to that point as weak. She went through the grounds for detention that he shows up to trial. Is there a risk to public safety? Would the administration of justice be put in disrepute if he was granted bail? She leaned towards granting him bail, granted it to him with heavy conditions such as the ankle monitor and home arrest and $400,000 of assets, the family assets were pledged. And then a couple of years later, 2024, he's found innocent by a jury.

And this is after Doug Ford and others were really pounding at the table. How could this man be granted bail? He should just stay in jail. He's guilty. You know, he was convicted by the leader of the province before the trial. And then a couple years later, he's found innocent at trial. So not only is he found innocent at trial. So if he had been denied bail, just to underline it, he would have been in jail for more than two years for a crime that eventually he was innocent of.

Yeah, and that shows us that this is not a straightforward situation, even when it seems like it is based on what we hear in the news. You know, when we talk about bail, it often gets tied up in our sense of safety. How do Canadians currently feel about crime right now? We are in, and I can say we are, because the numbers are quite astounding. We are in a tough on-crime mood. And I was thinking about why are things the way they are right now. I think we still have to think about the pandemic. It's a long, long hangover from the pandemic.

Maybe it's, quote, over in some ways, but it's not over. And as we know, issues from civic disorder to public drug use, to homelessness, to precarious housing, all those issues intensified during the pandemic. All of those issues are still with us in cities big and small, whether it's Windsor or Vancouver or Toronto or Calgary, smaller cities like Colonna, you know, things are a little bit tough everywhere. Nonviolent crime is relatively low, but violent crime is definitely up in recent years. And so Canadians in general are feeling agitated, public safety isn't what it could be. An Abacus poll in September, again, really striking numbers. About 80% of Canadians feel that too many people are getting out on bail. And to see that number of support for anything is quite extraordinary.

That is a shocking number, yeah. Exactly. Yeah, and also there's some more information here about how 44% of Canadian say crime in Canada has gotten worse over past year, even though perhaps this data doesn't show us that, 62% think stricter bail and more enforcement would most reduce violent crime long term. So this is very interesting to see that this is how Canadians feel right now. Yeah, and it's across the board too. You know, sometimes you can say, oh, liberals think this or conservatives think that or younger people believe this or older people think that. But in this case, it really is across the board.

You know, maybe older people feel a little stricter or maybe conservatives feel a little stricter. But ND peers and young people are all in there. Everybody has this feeling that more must be done. The punishment should be stricter. The criminal justice system should be sharper. You know, you think about root causes of crime. People acknowledge that. People acknowledge mental illness and the challenges of homelessness and things like that. But the emphasis right now seems to be particularly on punishment. We'll be right back. Let's talk about how Ottawa is responding to this tough-on-crime mood.

What did Prime Minister Mark Carney say he'd be changing about bail? So on Thursday, as well as during the spring election campaign, the Liberals promised stricter bail laws. As we know, Polyev Conservatives have banged this drum for quite a long time. The liberals, to an extent, are responding to that And responding to what's clear in the public, again, we have a wide amount of support for stricter laws. The Liberals are proposing a thousand new RCMP officers. That'll be upwards of $2 billion.

And then specifically on bail laws, they're just going to make it more difficult to get bail. So a number of crimes, they're going to change some of the rules to make it more difficult to get bail. Do we know what crimes are referencing? Some of the specifics would look at. It will be interesting to see the specific. this week in terms of how they itemize it in the criminal code, the legislation is table at some point this week. But the focus is violent repeat offenders and other issues like intimate partner violence,

car thefts, and the main tool that they're after is what's called reverse onus. So generally, except for the most series of crimes like murder, if you've been charged and you end up in bail court, it's the onus of the prosecutors to show why you should be detained. rather than the onus on you to prove why you should be released. The Liberals would like to place a reverse onus on a wider range of crimes. So again, usually the reverse onus is on murder, that the person accused of murder has to prove why they should be released rather than the crown having to prove it.

And so expanding the reverse onus on, again, more crimes, in theory would make it more difficult for more people to get bail. Okay, right. And so reverse onus, just so I'm clear, So it means a person accused must convince the court they deserve bail under the current system. Onus is generally on the prosecution to prove release isn't justified. Yeah. And going back to the fundamental of the system, the system is the person is going to be granted bail.

And then you work backwards from there rather than the person is going to be denied bail and then work forwards from there. So in this situation, you would be almost leaning towards a denial of bail and then working backwards to potential freedom. Interesting. Okay. And you mentioned Pierre Pauliev, who has been talking about bail reform for a while. What has he said on the issue? He's been focused on this for a long time. We can all remember the Stephen Harper tough on crime conservatives.

Polyev was a younger member of that government. But tough on crime has been part of the conservative's DNA for years and years and years. I think it's almost like if singularly definitional almost, you know, you could perhaps put low taxes in there and small government. But tough on crime. It's part of the brand, and Polyev is emblematic of the brand. And this specifically, they have a private members bill tabled in the House of Commons right now. It's entitled Jail, not Bail, if anyone wonders what the goal of the bill is. But on some of the specifics, jumping in again, what are the grounds to detain someone?

On the public safety grounds, when a judge looks at it, the wording of the criminal code, and this is going to be a judgment from the judge, but is there a substantial likelihood if a crime, crime might be committed while a person's out on bail. And so that, in theory, is quite a high bar. What Polyev would like to change that wording to is if there's a reasonable likelihood of a person committing another crime. And so that's a much lower bar. Like a judge could look at a repeat offender. And is there a reasonable likelihood of that person committing another crime? You know, again, that's a very wide ambit. So in a bit of simple wording change, Pauliev would effectively see the criminal code loosened quite a bit to detain, in theory, again, many

more people. It's judicial discretion every case, but it would give a number of judges a lot more leeway to detain people. Okay. So definitely a stricter vision of bail from Pierre Poliov. Dave, do we have any data about how the bail system in Canada is currently working? Like, do we know who is and who isn't getting granted bail? We have the most basic information possible it would seem we just don't have enough data about everything in Canada and bail is specifically one of them the number I would start with is how many people are being denied bail so we have this widespread sentiment politically and in the public that more people than ever are getting out on bail what we know for sure is more people than ever are being denied bail more than 19 so the

opposite here exactly exactly it sounds totally counterintuitive but yeah at the heart of what we're talking about what we're debating here is that we need to jail more people as we are jailing more people than ever. And I don't mean jail forever, but not granting bail. And again, record level of people denied bail last year, more than 19,000. And that's up sharply from the year before, which itself was a record. So the number of people being denied bail is shooting up and up. The problem is we don't know what happens. Is the system really working? Perhaps, you know, yes, there's a record number of people being denied bail, but maybe more people should be denied bail.

Maybe the public sentiment, political sentiment is totally right. Maybe it should be double the number of people. But what we should know and we don't is what happens when people are out on bail. You know, it seems that most people abide by their conditions. Obviously, a few don't. And we need to really better understand what's going on. And Ottawa and the provinces have talked about trying to better. understand the system, but I asked a number of provincial governments, the federal government,

and no one has any sort of specific plan, even as everyone's certain, okay, we're going to tighten the bail laws, but to have a specific plan to understand, well, to look how that'll turn out over the next few years, that's not in place. Without data, we see these various negative stories. We hear our political leaders saying more people should be denied bail. And the Canadian Civil Liberties Association says, quote, it's led to a deeply misinformed perception that the bail system is lenient. And again, this goes back to that contradiction. You know, everybody thinks too many people are getting out, but more people than ever are not getting out. And we just simply need to know a lot more about how our system works.

And with that in mind, do we have any sense of the rate of conviction across a country? Over the last few years, only about half of charges, this is according to Statistics Canada, Only about half of charges lead to a guilty verdict. And again, to me, that's one of the striking things about the system these days. You think, okay, obviously not 100% of charges are going to lead to convictions, but it's only about half. And so, you know, that can't be directly correlated to people who are denied bail. But if half of all convictions lead to a guilty verdict, thus the other half, you know, are effectively innocent, people denied bail, you know, a number of people denied bail are going to be. effectively innocent while serving time and then eventually granted release.

Dave, there's a key tension in this conversation around reform. For people that are impacted by someone reoffending while out on bail, of course, they want to see changes. But on the other side of this, if you or someone you know has been denied bail while innocent, I mean, that could also really turn their lives upside down. What do you make of this tension? You know, it's a fundamental physical puzzle of living together. we want public safety above all else, that we live together, we can trust each other,

that we can love, we can play, we can laugh, we can compete, we can work, and we can do all those things, you know, free of the threats of violence. But a lot of people these days, those threats, even if semi-imagined, conjured out of bad news stories, they're still feeling uneasy in the cities we live in. But then what's the solution? Do stricter punishments lead to a safer society? Maybe we don't know that for sure and often stricter punishments lead to more crime. In some cases, academic research has shown.

And so as we make bail stricter, some innocent people will be caught in, as it were, the legal crossfire. Nicole Myers jumps to mind. She's a bail expert at Queens. He's a criminology professor. She has studied bail for a long time. She had a study last year and quote, the bail process is both the trial and the punishment. In theory, bail is ahead of a trial, ahead of a potential sentence. But once you're already in the bail process, you know, it might be completely just.

You know, there's no question that in many cases, you know, denial of bail makes sense. And many thousands are denied bail. But then we have to think also, and I don't want to say amid bloodlust, but as, you know, as people are hungry, in almost pounding the table for stricter and stricter punishments, we have to think of do we become a more punitive society? And then what happens, if we do become a more punitive society, will we achieve the goals we're trying to achieve of public safety? We can look south to the United States.

We know in the United States that they have capital punishment, yet they have rampant murder. So strict punishments don't necessarily lead to public safety. And in bail, well, there's probably definitely circumstances, where the criminal code can be adjusted, where bail could be made stricter. Punishment, again, might not necessarily lead us to where we want to go. Dave, thank you so much for coming on the show. It's been really interesting.

Excellent. I appreciate it. Thanks very much. That was David Ebner, the Globe's Justice Reporter. That's it for today. I'm Cheryl Sutherland. Our producers are Madeline White, Michal Stein, and Ali Graham. David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening, and I'll talk to you soon.