Minister of Justice’s Bail Reform

(disponible uniquement en anglais)

Via email: mcu@justice.gc.ca

Minister of Justice and Attorney General of Canada
Department of Justice
284 Wellington St.
Ottawa, ON K1A 0H8

Dear Minister Fraser:

Re: Follow up to meetings on August 11 & 12, 2025

We are writing on behalf of the Canadian Bar Association (CBA) Criminal Justice Section (CBA Section) to follow up on our meetings with you on August 11, 2025, and your policy staff on August 12, 2025 - both largely focused on issues in the Canadian bail system.

The Canadian Bar Association represents over 40,000 legal professionals, including lawyers, notaries, law professors, and students across Canada. Our mandate includes promoting the rule of law, improving access to justice, advocating for effective law reform, and providing expertise on how legislation impacts Canadians’ daily lives. Criminal Justice Section members include prosecutors, defense counsel and legal academics specializing in criminal law.

We share the government's commitment to public safety while maintaining Charter-compliant bail processes. Recognizing the importance of maintaining the public’s confidence in the administration of justice, we also acknowledge its concerns about bail decisions in high-profile cases and understand why these have prompted calls for legislative reform.

Given the government's timeline for bail legislation, we offer the following observations to help ensure that any reforms effectively address the system's core challenges. Our experience suggests that while legislative change can play a role in addressing the public’s concerns, the greatest gains in public safety and system efficiency come from targeted reforms that enhance judicial capacity to identify and appropriately manage high-risk individuals, rather than broad restrictions that could paradoxically reduce the system's effectiveness.

We propose that the most effective response would be to prioritize improvements in efficiency, case management, and direct judicial attention and resources to ensure that courts can devote appropriate attention to cases involving genuine public safety risks.

We stand ready to support efforts in responding to calls for bail reform. We are available to provide our expertise and extensive on-the-ground experience to inform the bail reform process.

Reverse onus and ladder provisions

We understand that measures are being contemplated by the government regarding reverse onus provisions for violent offences and auto theft, along with modifications to the ladder principle so that it would not apply in reverse onus situations. These would benefit from careful consideration of how they can be designed and implemented most effectively to achieve their public safety objectives.

The CBA Section has long opposed reverse onus provisions as unnecessary from a practical standpoint and having a disproportionate effect on Indigenous accused and others historically disadvantaged in obtaining release.

We also understand that another proposal is to legislate that the ladder principle does not apply in reverse onus situations.

Our experience suggests that reverse onus provisions and modifications to the ladder principle may not achieve their intended deterrent effect, and we question whether such provisions would be Charter compliant. Rather, our view is that such reforms, without a corresponding investment in court resources and case management systems, risk making the bail system more inefficient by increasing the complexity and length of bail hearings as well as increasing delay within the system overall.

Ultimately, these reforms risk being self-defeating by diverting judicial attention and scarce resources away from focusing on serious matters and repeat violent offenders. Further, since no bail system can eliminate all risk, such reforms would undoubtedly face renewed criticism after the next high-profile incident in which someone on bail commits a serious offence, leading to renewed calls for another round of bail reform.

While we appreciate that bail reform is a top priority for provincial and territorial leaders, any legislative reform in this area entails downstream systemic consequences to the administration of justice that would require substantial investments to address their operational impact on court systems.

Increasing community supervision

In our view, the bail system faces challenges with two distinct categories of offenders. In the first are repeat offenders committing low-level non-violent offences that are often motivated by substance dependence or unaddressed mental health issues and are a source of serious concern to businesses and local communities. In the second are repeat violent offenders.

Persons in this first category often face a revolving door of arrest and release. They are not high risk enough to be detained, so they often rack up multiple charges in short periods.. They are typically released into the community with limited supports to address their underlying addiction and mental health issues.

Our belief is that these persons need much better health and mental health services, along with enhanced case management involving community organizations. While health and social services normally fall into provincial jurisdiction, we must be mindful that legislative reform in bail is not cost neutral and can be costly to provinces with far less certain outcomes than increased community services and supervision would deliver. An inordinate amount of judicial resources is spent on this category of persons who, in the grand scheme, are low risk to the community.

Persons in the second category are repeat offenders who typically have lengthy criminal records for violence, have already spent significant periods in custody, and are subject to weapons prohibitions.

While public concern about this category is entirely justified, there are no easy answers to address this category of person. Section 11(e) of the Charter provides that “any person charged with an offence has the right not to be denied bail without just cause”, and pursuant to section 11(d) of the Charter, all persons charged with an offence are presumed innocent until proven guilty. There is no category of offences to which these Charter-protected rights do not apply.

In our opinion, the best guarantor of success and protection of public safety would be to address efficiency within the bail system, to focus more attention and resources on the most serious of offences.

Improving efficiency

Improving efficiency in the bail process involves better identification of cases and accused individuals requiring focused attention, while streamlining processes and resources to prioritize high-risk matters over lower-risk ones.

We support a greater role for judges in the bail system. In our experience, judges can run significantly more efficient hearings targeting core risk issues, particularly for complex, serious matters with a substantial evidentiary record. While we endorse an expanded role for provincial judges, we would not support a proposal whereby certain non s. 469 offences¹ go before a Superior Court judge.

Additionally, the CBA Section believes further research into improved tools to identify low- versus high-risk cases would benefit the system. Under the current system, courts spend excessive time on repeat low-risk offenders who struggle more with health and social issues than legal issues. Better tools to identify those at higher risk of violence would enable a shift away from inefficiently spending scare judicial resources on this category towards streamlined risk assessments for more serious offences and offenders.

Proposed legislative amendments

The CBA proposes two legislative amendments designed to streamline bail hearings.

First, we propose that the government clarify that all bail hearings —reverse onus or not —can be conducted in a bifurcated manner consistent with R. v. Tunney². As it stands now, many justices insist on conducting a full bail hearing, including testimony from all sureties and submissions on all issues. A clarifying legislative amendment would send a clear message to justices presiding over bail to be more efficient and focus on essential risk assessment issues, shortening hearing times and freeing resources to focus on high-risk individuals.

Second, we propose that the government enact a clear provision requiring leave of the court for cross examination of any persons called by either party at the bail hearing. Current practice, especially in Ontario, inevitably includes oral surety testimony at hearings where sureties are proposed, considerably lengthening proceedings and consuming valuable court time. We acknowledge that there are occasions where cross-examination at a bail hearing may be insightful. However, in our view, in most cases, both Crown and defence counsel are well-equipped to provide meaningful submissions on release or detention armed with the written materials filed on the bail hearing, and justices are well able to consider the primary, secondary, and tertiary grounds, without needing to resort to using valuable court time to formally cross-examine every surety presented before the court. By way of comparison, on bail pending appeal applications (applications for release after a person has been convicted), the materials filed include affidavits from sureties, among other information, but it is extremely rare for a surety on a bail pending appeal application to be cross-examined. Counsel simply argue the application before a single Judge of the Court of Appeal, and the matter is typically heard and decided in under half an hour.

We look forward to collaborating with you and your department to support the strength and effectiveness of Canada's federal court system.

Sincerely,

(original letter signed by Julie Terrien for Melanie Webb and David Parry)

cc. Gibbs, Keiran <Keiran.Gibbs@justice.gc.ca>

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