What does the position of Conservative Party of Canada’s leader Pierre Poilievre on the law of bail in Canada mean for the upcoming Canadian election?
Canadians are set to head to the polls on April 28, 2025 in the upcoming Federal Election. It seems exceedingly likely that the government will be formed by either Prime Minister Mark Carney’s Liberal Party or Pierre Poilievre’s Conservatives.
This article will examine what Poilievre’s recent comments about the law of bail might mean for Canadians, should he become the next Prime Minister.
“Jail not Bail”: Poilievre Position on Bail Reform in Canada
Poilievre has been quoted in recent years as stating that he believes fewer Canadians accused with crime should be granted bail pending their trials.
In 2023, he stated: “A repeat violent offender, newly arrested for another serious violent offence, will have to serve their entire period in jail … not bail, and not early parole. That’s common sense.”
He reduced his position to a slogan: “Jail, not bail”.
In 2024, he then strongly suggested that he would use the notwithstanding clause to pass criminal law reforms that would otherwise not comply with the Canadian Charter of Rights and Freedoms, if he were elected.
He had previously incorrectly described the status of the law under the current government, saying: “Trudeau and the NDP have brought in automatic bail for repeat, violent offenders.” Poilievre seemed to be attempting to describe the sort of bail laws that he would change if elected.
Of course, there is no such thing as “automatic bail” for any offences under the current law. So it is useful at this point to review the basics of how bail works in Canada
Bail in Canada
Very basically:
- Every person who is charged with a criminal offence is presumed innocent.
- It can take months or years before a court can determine whether that person is innocent or guilty.
- Although they are presumed innocent, it is usually in the public interest to subject that person to some restrictions on their liberty. Usually through “conditions” about what they can and cannot do while awaiting trial. Some very basic examples include: to attend court as required, not to contact the alleged victim of the crime and not to possess any weapons.
- In some cases, it is determined that a person – though presumed innocent – must remain in custody while awaiting their trial (or the determination of their criminal charged through some other means, like a guilty plea or a withdrawal of the charge).
There are three grounds on which the court will determine what condition – if any – are necessary, or whether a person actually needs to be jailed while waiting for their case to be heard”
- One, (the “primary ground”) if they are a sufficient risk to flee or not show up to court;
- Two, (the “secondary ground”) if they are a risk to public safety, or;
- Three, (the “tertiary ground”) if they are neither of the first two, but the public would lose its faith in the judicial system if the person were released pending trail.
Bail and the Charter
Everyone in Canada has a constitutional right not to be unreasonably denied bail. Section 11(e) of the Charter states:
Any person charged with an offence has the right not to be denied reasonable bail without just cause.
This does not mean everybody has a right to bail in every case, of course. It simply means they have a right to the process by which a court will determine whether or not they get bail. And that the denial of bail must be reasonable. And with just cause.
Crown Onus vs. Reverse Onus
One of the laws about bail that Poilievre seems to envision changing concerns the question of who bears the “onus” at a bail hearing. In certain circumstances, there is a Crown Onus to convince a bail court that an accused person must be detained. In other circumstances there is a Reverse Onus, meaning the accused person mut convince the court that they ought not be detained.
The bearer of the onus is determined based on the rules set out in the Criminal Code at section 515(6). It is mostly determined by the nature of the offence alleged, but can also be affected by a person’s past criminal history, whether they were out on bail at the time of the present allegation, and whether they are normally a resident of Canada.
“Automatic Bail” is Not a Thing, Mr. Poilievre
To the extent that Poilievre wants to add more circumstances in which the reverse onus will apply, this seem like an appropriate tool to legislate the proper way bail should be approached by the courts is various situations. When the reverse onus should and should not apply is fairly up for political debate and is for Canadian voters to determine.
But as a starting point it is a complete misrepresentation to refer to Crown onus situations as “automatic bail”. As Poilievre did as the leader of the opposition in 2023. This is akin to saying the fact that a person has a right to trial where the Crown must prove their guilt is “automatic acquittal” or “automatic immunity from all crimes”.
On the reverse side of the same coin, while it may be appropriate to expand the circumstances in which a reverse onus will apply, it would be abhorrent to implement “automatic jail, not bail” for any offence. That is, automatic detention in lieu of a just determination on the merits as to whether a person should be kept in jail or not.
Is Poilievre Right that Bail is Too Easy in Canada?
Whether or not Poilievre is right that bail is too easy to obtain in Canada depends on a subjective value judgment about how easy or difficult it should be to obtain.
If somebody is relatively more concerned about the risk of accused persons committing crimes while on bail, then they might say bail is being granted too easily.
If somebody is relatively more bothered by the prospect of an innocent person spending 2.5 years in jail for a crime that they did not commit – and which a judge or maybe even a prosecutor will eventually agree they did not commit, by the time it is examined at trial – they may say bail is not being granted easily enough.
For supporters of Poilievre’s view, generally, there are example of violent crimes committed by accused persons who are out on bail.
Opponents of Poilievre’s view that Canadian courts too easily grant bail might point to the following:
The Status of Remand Jails in Ontario
- Ontario’s provincial jails are dangerously overcrowded. The system as a whole is 22-percent over capacity. This means triple-bunking which is where three people are forced to live in a cell deigned for two, for which there are only two beds. (Jail is obviously an unpleasant experience by design: living confined in a cramped cell with another person. Putting a third person in a two-man cell is punishment beyond what even jail is meant to be).
- Overcrowding has led to conditions that judges have described as “inhumane, unhygienic and intolerable”.
Some supporters of tough-on-crime measure may not wish disease or death on criminals, but may feel “don’t do the crime if you can’t do the crime”. But they might be concerned to learn that:
- 75% – 81% of inmates in Ontario’s provincial jails are legally innocent, have not been found guilty of anything, and are just awaiting trial.
Aside from the conditions in the jails themselves, there are other extremely serious consequences to being denied bail. It can take up to 2.5 years for an accused person to be given their trial rights. Being detained in jail for even a few days or a week causes people to lose jobs, lose housing, lose custody of their children.
Jail where Appropriate, Bail when Appropriate
There will be cases where a person was released on bail who should not have been. This may become apparent when they breach their bail and especially when they commit a violent crime while on release.
There will be cases where a person was detained when they could have been safely released into the community. But there is no tragic headline associated with these cases. You will not read in the news every time a person was detained for months or years, only to be found not guilty at trial. To quote Bob Dylan, lost time is not found again.
Whatever one’s personal feelings about whether our provincial jails are crying out for more or fewer people to been detained awaiting trial, the right for each person’s case to be determined on the merits should be considered sacrosanct.
If “bail not jail” – to the extent there is a thought-out policy underlying the slogan – means that s. 515(6) of the Criminal Code should be expanded to create a reverse-onus for more accused people … that is something Canadians can help determine.
If “bail not jail” means that for certain allegation a person will be jailed for years without the right to a bail hearing – just because the allegation was made – that is something that no Canadian should abide.