By Jane Hayes
B
ill C-14, the Bail and Sentencing Reform Act, reached the Senate on February 24. The Bill will amend the Canadian bail system to address concerns about the efficiency and safety of the existing system by making it more difficult for accused people to receive bail. Criminologists believe the Bill will prove ineffective and possibly make existing bail issues worse. Amy Fitzgerald, a criminology professor at the University of Windsor, wrote in The Conversation that Bill C-14 “would reduce, not enhance, safety and justice.”
In recent years, bail has been a political flashpoint. Punitive, tough on crime legislation has been an easy way to generate political support. According to Abacus Data, many Canadians are deeply concerned about crime, and many view it as the result of a weak justice system and the failures of the federal government. Abacus Data notes that a tough on crime approach has been convincing and influential to Canadian voters, namely for the Conservative Party, and the Liberals have adopted the same posture to avoid being seen as soft on crime. As Anthony Dobb, a professor at the University of Toronto’s Centre for Criminology and Sociolegal studies, shared to CTV News, “tough on crime” bail policy is bad policy but easy politics.
“Clearly, the Canadian bail system is broken, but not for the reasons politicians claim it is.”
However, the criminal justice system has been experiencing strain under record levels of pre-trial detention, despite recent reform. According to the Canadian Civil Liberties Association (CCLA)’s 2024 report, Still Failing, the rate of pre-trial detention has more than doubled in the last 40 years and the number of people held in remand – the detention of an accused person awaiting a future court appearance – has quadrupled.
Under the current Canadian bail system, there are more people in detention awaiting trial or a bail hearing than there are convicted people serving time. The data from CCLA shows approximately 70 per cent of people in provincial and territorial jails were awaiting bail or trial. According to Statistics Canada, 16,193 adults were held in detention awaiting trial or a bail hearing in 2023, compared to a total custodial population of 22,318. Even as Canada’s crime rate has decreased, the amount of adults held in custody has increased.
The CCLA also reports that the rate of pre-trial detention has put considerable strain on provincial and territorial jails, increasing the levels of overcrowding and ensuing harms. According to analysis from CBC News, Ontario jails are approaching a record for overcrowding, remand populations, and lockdowns. The same CBC analysis found that as of 2024, 82 per cent of those held in Ontario jails were held on remand – meaning they were held before the trial when they were legally innocent.
“Our provincial institutions are operating far over capacity, struggling with staffing issues and routine lock downs. We are unable to properly operate institutions as they are. Increasing the number of people in detention will lead to greater tension and violence, creating safety issues for both those held in custody and those who work there,” Professor Nicole Myers of Queens University told CBC News.
The Ontario Ombudsman Paul Dubé recently stated that Ontario jails are in a “growing state of crisis.” Dr. Jeffrey Bradley, on behalf of the Criminalization and Punishment Education Project (CPEP), told The Leveller that provincial and territorial jails are “busting at the seams” with many being triple bunked. CBC News reported that some inmates have been housed in broom closets and former pantries to manage the overcrowding.
In most jails, Dr. Bradley says inmates have almost no time outside of their cells due to considerable staffing shortages. A criminal defence lawyer who spoke to CBC News said her clients often lack access to key resources like showers, phone calls, and medications, which can easily increase inmates’ stress. Increased tensions and stress among inmates has led to a corresponding rise in violence among inmates, according to the experience of defence counsel.
In R v Myers, the Supreme Court of Canada stated that we must not lose sight of the fact that “pre-trial detention is a measure of last resort.” The research cited in the Myers decision showed that increasing pre-trial detention had a significant cost to the accused person in their loss of liberty, a significant impact on their mental and physical well-being, and an impact on their ability to mount a defence, among other things.
Provincial and territorial jails are serving as “human warehouses” where those held in pre-trial detention are being “tortured” under the current conditions, Dr. Bradley said. Dr. Bradley explained that in Ontario, there is no oversight of provincial corrections, and even when a complaint is made with the Ombudsman, they have no power to actually make changes, only recommendations.
The situation in Ontario challenges the claims of federal and provincial politicians that the existing bail system is too lenient, including Ontario Premier Doug Ford who has criticized the bail system for being soft on crime and called provincial judges “bleeding hearts.” Dr. Bradley said that the Canadian bail system must uphold the Mandela Rules on the humane treatment of prisoners and the Canadian Charter of Rights and Freedoms, as we cannot be warehousing people and not providing access to rehabilitative resources.
Bill C-14’s punitive, “tough on crime” focus may also prove entirely ineffective and irrelevant, as a growing number of judges have stayed cases or provided shorter sentences to address the overcrowding crisis in Ontario jails and the ensuing human rights violations. Professor Fitzgerald wrote that Bill C-14 and its provisions will inevitably result in a rapid increase in incarcerated populations, as Bill C-14 has not been introduced with any corresponding investment in corrections systems. This means that the near default result will be to exacerbate crises in jail and prison populations.
In an attempt to increase public safety, Bill C-14 expands reverse onus provisions, which fundamentally infringe on the rights of accused people. As described by Isabella Zavarise of CTV News, reverse onus provisions force accused people to demonstrate why they should be released on bail, instead of prosecutors proving why the accused should remain in custody. The right to reasonable bail under section 11(d) of the Charter recognizes that the state must establish the guilt of an accused person before unjustly denying their liberty, especially in reaction to short-term public outcry. While the federal government has argued that reverse onus provisions are justified because they would be limited to the most violent offences, as explained by the Canadian Bar Association, there is no offence where an accused’s Charter rights do not apply.
“Bill C-14 fits into a larger history of the Canadian criminal justice system disproportionally impacting marginalized people.”
There is no evidence to suggest that the reverse onus provisions outlined in Bill C-14 will be effective. Instead, reverse onus provisions encourage accused people to automatically be seen as guilty, both publicly and within the criminal justice system. This perception is not aligned with reality, since only half of the criminal cases in Canada result in a conviction, as CCLA’s Shakir Rahim told CTV News. Reverse onus provisions make it so accused people are sentenced without a trial, Dr. Bradley said.
In R v. White, the Ontario Superior Court of Justice explained that public confidence in the administration of justice, namely the bail system, would be substantially harmed by the pre-trial detention of presumptively innocent people, at times for the same length or beyond what they would have served if convicted. Bill C-14 and its reverse onus provisions risk harming the public confidence in the bail system by almost automatically increasing the amount of presumptively innocent people that will be held in pre-trial detention.
Dr. Bradley told The Leveller that the most vulnerable people on the margins – those who find themselves before the court most often – will be most vulnerable to the reverse onus provisions. Bill C-14 fits into a larger history of the Canadian criminal justice system disproportionally impacting marginalized people.
In the increasingly rare cases where accused people are released on bail, they are often subject to unreasonable conditions that seek to entrap them in a “revolving door of justice,” as highlighted by Carolyn Yule and Laura MacDiarmid, professors at the University of Guelph.
Yule and MacDiarmid say that bail conditions have routinely criminalized social issues, which almost inevitably causes accused people to breach their conditions. Drug addicts are ordered to not do drugs, alcoholics are ordered not to drink, homeless people are given residency conditions, and working people are given curfews that prevent them from working, argued the Globe and Mail Editorial Board. Even when accused people are given bail, the challenge of raising enough money keeps low-income people behind bars – punishing them for the crime of being poor. In Current Issues in Criminal Justice, Yule and MacDiarmid emphasized that onerous bail conditions contribute to precarious housing, fractured relationships, aggravate mental health issues, and further entrench poverty and social dislocation.
Ella Peterson of Dalhousie University notes that reverse onus provisions will result in a system where people of a higher socioeconomic status will be able to meet the reverse onus burden by employing competent legal counsel or proposing bail conditions that they can fund themselves, accused people of lower socioeconomic statuses will be unable to afford a lawyer and have to accept overly strict conditions for release on bail or be held in pre-trial detention.
“It is the most marginalized in our communities who face the most difficult, restrictive and punitive aspects of the system. This is already the case. Any effort to make the bail system tighter or more difficult will have disproportionate impacts on marginalized communities, aggravating the over-representation of Indigenous Peoples, Black people and other racialized folks, those living in poverty, with mental health issues or who use criminalized substances,” Professor Myers said.
“[Bill C-14 is] a political ploy to advance a tough on crime appearance.”
Bill C-14 responds to the sense the rights of the accused are being prioritized over the public’s safety. In reality, the bail system has proven to be one where accused persons are set up to fail. The current bail system, shaped by similar “tough on crime” reforms, has sidelined true, individual liability and guilt in the Canadian bail system, instead choosing to place emphasis on a quick social response to a crime by choosing “a scapegoat who will bear the burden of guaranteed and expedited punishment,” reported in a 2019 study published in Les cahiers des droit. Bill C-14 is primed to repeat and exacerbate this trend.
Legislation that focuses on quickly responding to public concern, like Bill C-14, often fails to consider the consequences. Yule and MacDiarmid have argued that the ultimate achievement of punitive, “tough” on crime bail reform has proven to be more bail trials, more accused people being held in pre-trial detention, and increased involvement of the criminal justice system in the lives of accused people. Peterson noted that no evidence has ever been offered to demonstrate the effectiveness of reverse onus provisions or punitive bail reform generally.
Future bail reform should be rooted in evidence-based approaches that directly respond to the issues facing the bail system rather than short-term public concerns. As the Supreme Court of Canada highlighted in 2014’s R v Antic, evidence-based bail reform is a pressing need for the bail system as “the stakes are too high for anything less.”
Evidence-based reforms would focus on striking the right balance between ensuring public safety and protecting the rights of accused people by relying on research, empirical evidence, and thoughtful policy making, as defined by the CCLA’s 2024 report. The John Howard Society’s 2025 report, Finding Common Ground, found that investments in social programs and services, as well as resources for legal aid, and community alternatives to custody would help address the systemic issues that currently contribute to the high remand population in Ontario and Canada generally. There is a need for social services and provincial and territorial jails are not the place for that, Dr. Bradley said.
Another study, published in the Journal of Criminal Justice found that the more time spent in pre-trial detention could contribute to an increased risk of recidivism upon release. As UOttawa’s Professor Dr. Irvin Waller and Dr. Bradley suggest in The Conversation, evidence-based reform would recognize the existing research and instead focus investment towards addressing the root causes of crime, like poverty, lack of education, and limited economic opportunities. Dr. Waller and Dr. Bradley argue that this type of evidence-based reform with a focus on the underlying causes of crime would not only help reduce recidivism for those released following pre-trial detention but help reduce violent crime altogether. Glasgow, Scotland implemented such programs and saw a 50 percent reduction in violence within three years. In these cases, it is not about appearing “tough on crime to the public,” rather it is about being smart on crime.
A Canadian Psychology exploratory study found that not only do evidence-based policies better address the issues facing the bail system, they can also generate public support when the evidence and benefits are clearly explained to the public. As the CCLA noted in their 2024 report, it is a difficult task to develop bail reform that promotes public safety and protects the fundamental rights of accused people, but it is certainly possible.
The Canadian bail system is broken, but not for the reasons politicians claim it is. There are certainly cases where people have been released on bail and gone on to commit further offences, and Bill C-14 may introduce some positive changes in this regard, Dr. Bradley said.
However, Dr. Bradley shared that these occurrences, including gender-based violence and femicide, demonstrate the lack of supports in place to protect and aid victims as well as the lack of accountability mechanisms for offenders that are not solely punitive but also rehabilitative. The CCLA argues that no bail reform can be expected to eliminate all future risks, and attempts to do so would require the mass incarceration of a boundless number of innocent people.
Overall, Bill C-14 will make the Canadian bail system worse. “There are many issues with the bail system in Canada, none of which will be addressed by Bill C-14. The Bill does nothing to improve the operation of the bail system and will likely result in further delays, inefficiencies, increasing the overcrowding in our provincial jail, and incarcerating more legally innocent people,” Professor Myers said. As the CCLA’s 2024 report states, the existing evidence demonstrates that the Canadian bail system is facing a crisis, but it is a crisis of over-detention and over-criminalization, not leniency.
According to Dr. Bradley, Bill C-14 is simply “a political ploy to advance a tough on crime appearance” and it will do more harm than good.
