Our own AGP LLP criminal defence lawyer Michael Spratt joined Global News to unpack the politics and law of bail reform—what’s real, what’s rhetoric, and what the Charter actually permits.
Across Canada, calls to “fix bail” are getting louder. High-profile incidents and political campaigns have focused attention on accused persons who reoffend while on release. Parliament responded in 2024 with targeted changes; some advocates now push to for even tougher measures, including “three-strikes” style proposals. The problem: Canada’s Charter of Rights and Freedoms sets hard guardrails around both pre-trial liberty and proportional sentencing. Understanding those guardrails is the key to meaningful, lawful reform.
The Law Today: Presumption of Innocence and Reasonable Bail
Two Charter guarantees frame every bail decision:
- Presumption of innocence—you are innocent until proven guilty. (Charter s.11(d))
- Right not to be denied reasonable bail without just cause—courts must start from release unless the Crown can justify detention or stricter terms. (Charter s.11(e))
These aren’t technicalities: they protect liberty before trial and ensure bail isn’t used as punishment in advance of a verdict.
How Bail Is Supposed to Work (The “Ladder Principle”)
The Supreme Court in R. v. Antic (2017) reaffirmed the ladder principle: judges must impose the least restrictive release that will manage the real risks in a case—moving up the “ladder” to tighter conditions only if a lower rung won’t work. In other words, unconditional release is the default; cash, sureties, and strict curfews come later and only if needed. Parliament also codifies that approach in the Criminal Code s. 515.
When the Crown argues for detention, it must point to one (or more) of the three statutory grounds: (1) attendance in court (primary), (2) public safety/risk of re-offence (secondary), and (3) confidence in the administration of justice (tertiary). All three can justify detention if proven on the facts.
What Changed in 2024: Bill C-48 and Expanded Reverse Onus
In response to concerns about repeat violent offending, Parliament passed bail reforms (formerly Bill C-48) that expand “reverse-onus” situations. Normally, the Crown must show why someone should be detained; in reverse-onus cases, the accused must show why they should be released. C-48 adds new reverse-onus triggers (e.g., certain weapons/firearms offences and repeat violent offending, with broadened provisions for intimate partner violence) and directs courts to consider an accused’s history of violence when deciding bail. The amendments received Royal Assent on December 5, 2023 and came into force on January 4, 2024.
What it means in practice: In more categories, the defence must come prepared with a concrete plan (address, supervision, treatment, technology conditions, etc.) to satisfy the court that release will manage the risks. The Crown still carries the burden in non-reverse-onus cases, and the ladder principle still applies—least restrictive measures first.
The Constitutional Guardrails: Why “Automatic” Penalties Struggle
Some proposals making headlines—such as automatic 10-year terms after three serious convictions (“three strikes”)—raise a separate constitutional problem. Canada’s Supreme Court has consistently struck down one-size-fits-all mandatory minimum sentences that produce grossly disproportionate results in reasonably foreseeable cases. In R. v. Nur (2015) and R. v. Lloyd (2016), the Court found those mandatory minima violated Charter s. 12 (cruel and unusual punishment). Any “automatic 10 years after three strikes” model would be tested against that same logic and is therefore on thin constitutional ice.
The Remand Reality: Many Are Detained Before Trial
A key piece of context that rarely makes headlines: Canada already detains a large number of legally innocent people. In 2018/19, there were about 70% more adults in remand on an average day than in sentenced custody. Remand has significant human and fiscal costs and, when unnecessary, can actually increase longer-term risk by disrupting jobs, housing, and family stability. Read more.
What Actually Improves Safety
Bail is about managing risk, not delivering pre-trial punishment. Evidence-based improvements tend to look like:
- Timely hearings and resources so decisions are based on full, current information—delays can keep lower-risk people detained longer than necessary.
- Clear, targeted conditions tied to the actual risks in the case (not broad, hard-to-follow lists that set people up to fail). That is exactly what the ladder principle demands.
- Monitoring and enforcement of genuinely risk-relevant conditions, rather than symbolic ones. (The Department of Justice stresses least-restrictive, risk-matched conditions.)
- Support to succeed on release—treatment access, housing referrals, supervision plans—because stable people breach less and offend less. (The Criminal Code framework expects courts to tailor conditions to actual safety needs.)
Where Proposed Crackdowns Run Aground
Slogans like “jail, not bail” suggest bail is a loophole. Our law already permits detention wherever the Crown shows a real flight risk, a substantial likelihood of re-offending, or that detention is needed to maintain public confidence. Expanding the reverse onus further may sound decisive, but it doesn’t change how judges must still apply the Charter and the ladder principle. Over-broad rules that ignore individual circumstances risk being struck down—or simply shifting the problem into overcrowded remand, with the unintended consequence of worse long-term outcomes.
Practical Takeaways If You’re Facing a Bail Hearing
- Plan early. Whether or not your case is reverse-onus, success usually hinges on a credible release plan: verified address, surety (if truly needed), supervision, treatment or counselling commitments, and any appropriate technology (e.g., no-contact and area restrictions can be geo-enforced).
- Match conditions to risks. Courts should not stack conditions “just in case.” The Supreme Court requires the least restrictive terms needed to address identified risks.
- Know the grounds. The Crown must justify detention on one or more of the three statutory grounds; the defence should be ready to answer each with concrete safeguards.
Related Article: How Many Bail Hearings Do You Get in Canada?
A Brief Word on Politics, Perception, and Data
Public concern about crime is real—and victims’ experiences matter. But policy must be evidence-based and Charter-compliant. The last decade shows Canada can both address serious violence (for example, through targeted reverse-onus categories now in force) and uphold constitutional protections that prevent pre-trial punishment of the presumptively innocent. The challenge isn’t choosing between safety and rights; it’s crafting bail practices that deliver both.
Need advice about a bail hearing?
Every case is different. If you’re navigating a bail hearing—or a review in a reverse-onus category—speak with counsel who understands both the Charter and the practical steps that move a judge from “detain” to “release.” To discuss a plan tailored to your circumstances, contact AGP LLP and ask to speak with a member of our bail team.
