- Kiera Fisher
- 3 hours ago
- 11 min read
In this expert Q&A, 2026 CCS Summer Student Kiera Fischer talks to Professor Nicole Myers (Queen's University, Department of Sociology) about recent efforts at bail reform in Canada, including the recently enacted Bail and Sentencing Reform Act.
Q. Bill C-14, the Bail and Sentencing Reform Act, has recently made some considerable changes to bail laws in Canada. Can you describe what key changes have been made?
A. I would say that there are two components that we really want to be paying attention to. The first is the creation of a variety of new “reverse onus” situations, where the accused individual must demonstrate why they ought to be released, rather than the Crown bearing the onus of demonstrating why someone ought to be detained.
The second is that the Act starts to water down the principle of restraint, a principle that was initially recognized by the Supreme Court of Canada in R v St-Cloud, reiterated in R v Antic, and then legislated through Bill C-75 in 2019.[1] The newest bill makes a variety of changes that start to move us away from the principle of restraint when it comes to the bail decision.
Q. How do you view the federal government’s rationale for these changes? Is this rationale consistent with what the evidence reveals about bail’s relationship with crime and community safety?
A. I think that the government's current approach to bail reform has been utterly misguided and is completely and totally divorced from all the empirical evidence that we have about the bail system specifically, but also what we know more generally about criminal behaviour and our ability to predict who is likely or not likely to engage in crime in the future.
In some ways, we see both consistency and inconsistency between the government’s approach and the empirical evidence. If we go back to the government under Justin Trudeau and Bill C-75, we saw a codification of a variety of the important and essential bail principles that the Supreme Court of Canada articulated in R v Antic. And yet, since then, there have been other pieces that seem to be moving us in the opposite direction.
In my view, these are politically motivated law reforms. I think that the current Liberal government under Mark Carney is being strategic on this front. Seeing that this has been an enduring issue raised by police services, by Pierre Poilievre, the leader of the opposition, and in the media, it makes sense politically that the government would tighten bail laws.
Where I become particularly discouraged is that this is another example of a government legislating or making policy based on relatively rare and somewhat sensational events, that are nonetheless incredibly tragic and worthy of our attention. These events are being used to support the idea that we need to change our bail system for every person that’s accused of an offence in this country.
Q. It seems to be a trend over the past few years that Parliament has been adopting stricter bail policies while the courts keep reiterating the importance of upholding Charter rights. Do you see a way to reconcile these two different approaches?
A. I’m deeply concerned about the government stepping on the toes of the courts. We see that happening with efforts at legislation that are designed to tighten the exercise of discretion and to force a particular kind of decision-making.
My concern is that there seems to be a broader effort to undermine the legitimacy, independence, and decision-making of the courts. An example is the case of Umar Zameer, who was accused of killing a police officer in a traffic incident, but the details of the circumstances are more complicated.
At the point of Zameer’s arrest, prior to anything coming before the court, there were a variety of political leaders who condemned the decision to release him. I think this speaks to the impropriety of these kinds of comments and the ways that politicians seem to be getting more comfortable criticizing the court’s decisions.
I am concerned about the direction that this is going and the ways this serves to undermine the legitimacy of, and plant doubt in the public’s mind about, our ability to trust our judicial officials and those who work in the courts to make the best decisions they can with the available information, according to what the law requires, not according to what politicians want the decisions to be.
Q. If we step back from how bail is operating in practice, what does the legal framework surrounding bail reveal about how it is intended to function and the values that it is intended to uphold?
A. Bail has a long history, and it’s taken its core values and principles from practices in Britain hundreds of years ago that were then imported into Canada.
There’s a variety of elements at the core of what bail has been about. Initially, the only reason we developed practices around bail was because, at that time, the court traveled around. If someone was accused of an offence, they’d be held in these horrifyingly awful conditions in jails for extended periods of time. There were risks of escape and illness, and nobody liked this situation. So, we established this process to allow people to be released on bail, perhaps with a family member or someone else vouching for them.
But the only concern the early bail system was trying to address was making sure the accused person came back to court to face the charges. Because bail was initially only about making sure somebody came back to court, it was meant to be a relatively quick decision, a summary procedure. Over time, it has become more protracted, and we’ve developed the secondary grounds that consider whether there is a substantial likelihood of committing an offence, and tertiary grounds that consider whether the release of the accused would bring the administration of justice into disrepute.
But even as we’ve developed these other grounds for granting bail, we haven’t moved away from the foundational legal principles in the Charter, including the right to be presumed innocent until proven guilty and the right to reasonable bail, which extends to quantum and any supervision or condition requirements. The courts have been repeatedly reminding us of the incredible importance of these foundational principles, and that we must uphold them, when making bail decisions.
Q. A trend I’ve pulled from your scholarship is that you readily admit that our bail system is mired by significant flaws. For instance, you’ve specifically critiqued how the use of sureties exploits an accused’s close personal relationships and the extensive use of pretrial detention in Canada.[2] When our system is undoubtedly flawed, why is it that these reforms don’t seem to be heading in the right direction?
A. This is a point that confounds me because, as you’ve identified, so much of my work has been exploring or trying to understand the problems with our bail system. I would be the first to admit it’s replete with difficulties, and yet none of these difficulties are the target of any of our legislative efforts. It’s not new information that we incarcerate more legally innocent people today than we ever have in our history. The empirical evidence demonstrates that we do not have difficulty holding people in detention. And yet, legislation and commentary by politicians and police don’t seem to represent those actual real problems.
I am concerned about this because, on the one hand, I can understand how people are upset when really tragic things happen, and it turns out that the individual was on bail at the time for another alleged offence. I absolutely understand that, and I think in those circumstances, there are opportunities for us to look more closely at the decision-making process and determine if there was a mistake or if something was overlooked. We can also ask if this was the best decision made by human beings with the information that was readily available to them.
The part that confuses me is this desire or push to be more punitive, to hold more people in pretrial detention, and to pump more money into building more jail beds, given the incredible cost of these types of policies.
If people were very seriously interested in effectively reducing crime, locking more people up is precisely the wrong way to go about doing it. Not only is it incredibly expensive, but time in custody is criminogenic. Even short periods of time make it more, not less, likely that people will commit offences. We are investing a whole lot of money into solutions that will make us less, not more, safe.
Q. The advocacy for stricter bail often relies on these tragic criminal acts, which you’ve identified as quite rare. These narratives are very powerful and effective, and they can make opposing arguments difficult to advance. However, in your work, you’ve discussed your concerns around bail operating as both a trial and as the punishment.[3] Can you explain why ordinary citizens should be concerned about stricter bail laws, especially in terms of state surveillance and punishment?
A. If we go back to those first principles, we remember that the presumption of innocence requires us to be very mindful that laying allegations against somebody, even potentially very serious allegations, doesn’t make them guilty.
The difficulty is that we often get it right, but we also get it wrong. If we look across Canada, more than half of the time, cases end with all charges being withdrawn. Here, I’m talking about the situation where the individual faces one or more changes and every charge ends up being withdrawn.
Now, there are a variety of reasons why charges are withdrawn. Some are withdrawn because there is not sufficient evidence to be able to prove the individual guilty. It may also be because the individual completed a diversionary measure or has gone through a specialized court. It can also be because, after close examination of the evidence, we see that mistakes have been made, and that it is not in society’s best interests for us to go forward.
There’s a whole host of reasons, but in my view, regardless of the reason, something happened. An individual was arrested, they spent time in detention, and they moved through the bail process. Maybe they were denied bail and spent a great deal of time in custody, disrupting all their connections outside to the community, and effectively altering the course of their life. Or they’ve been in the community with sureties or conditions that are really difficult to comply with for an extended period of time. Further, if you fail to comply, that’s a new criminal offence, and a new criminal charge that can bring you back through the system again.
With all those pieces occurring simultaneously, what’s happening is that a lot of people are being brought into the system with all these associated punitive elements that arise at the point of accusation, rather than at the point of conviction. Indeed, we don’t actually have to ever get to the point of conviction to intervene in incredibly restrictive ways in people’s lives.
This creates two different kinds of problems. One is the problem of the individual whose encounter with the system ends with all their charges being withdrawn and they are free to go, but there’s no compensation. There’s nothing done to right any wrongs that have flown from these accusations against them.
The other possibility is the individual is convicted of something, but on account of how much time they spent in pre-trial detention, we are rightly crediting that time, thereby reducing any eventual sentence, and potentially eliminating any further custodial time. While I think that is the proper thing to do, it nonetheless starts to diminish any opportunities to hold somebody accountable or to engage in any kind of rehabilitative programming after conviction, because we can’t do these things on the front end.
A further difficulty then arises in terms of what the public sees. The public observes what looks to be an artificially low or lenient sentence; however, that sentence doesn’t properly capture the punishing experience that somebody has gone through on the front end of the system.
Q. As the stricter bail reforms have received Royal Assent and will soon come into force, where do you see this all heading? Can we anticipate the Supreme Court striking down one of these reverse onus provisions, perhaps via the Charter, or do you see bail laws continuing to get stricter?
A. I think the first consequence that we’re going to see is more people in pre-trial detention. If the intention of the legislation is to make bail more difficult, that will be the consequence. I say that because in Ontario, where we do have some data available, we’ve seen an almost 20% increase in the number of people being denied bail in the past year. In the short term, that’s what I imagine is going to happen.
Will this find itself before the Supreme Court? I would imagine so. However, I certainly can’t speak to which element is most likely to garner their attention or predict if they will strike a particular provision down as being unconstitutional.
Q. In the Bill C-75 legislative hearings, you proposed that a potential line of bail reform could be to focus our attention on the seriousness of the offence. Do you still see that as a possible reform that's not an overhaul of the system?
A: I think so. As we know, all these things are deeply complicated, and I think it would still be imperfect, but it would be a very helpful starting place if we were to establish, for example, a particular threshold that must be met before detention is possible. Additionally, we might want to think about not detaining people on the front end if the offence they are accused of is not violent or they are unlikely to face a custodial sentence of five years, for example. If an accused is facing the kind of charge that’s unlikely to end up with a custodial sentence, why are we detaining them on the front end? If we could establish some very thoughtful, principled, empirically supported thresholds or elements to help guide decision-makers, it wouldn’t capture everything, but it would help reduce the incredible volume coming into our courts. Part of the problem is that there is so much paperwork, and while there are so many people trying to make decisions and move things forward, there are still capacity issues. Only so much can happen in a day, and if we are able to reduce that volume, I think we create the time, the resources, and the ability to pay attention to what’s necessary. That way, we could very carefully look at the circumstances of the allegations and of the individual accused and make the very best decision. It’s not going to be perfect, but I do think clearing out some of the clutter would allow for a more meaningful engagement with some of those files.
Q. Do you have any final comments on Bill C-14 and bail reform?
A. I’ve been studying this for a long time (about 20 years or so), and I am confounded by the direction of bail law reform in light of the empirical evidence on pre-trial detention. 2004–2005 was the very first year in Canada where we had more people in pretrial detention than we did in sentenced custody in our provincial/territorial jails. Crossing over the 50% mark was alarming and sparked my interest in trying to understand bail. Never in my wildest dreams did I think that we would get to this point where 76% of people across the country are in pre-trial detention.
I am dismayed that despite having ample evidence that demonstrates punitive law reform is not the way to go, we continue to move in this direction.
We ought to be deeply concerned about any effort to make it easier to lock up legally innocent people, because that is what we are actively doing right now. This effort puts our foundational rights and liberties under serious threat, and we should be very cautious, because, in my view, bail is just the beginning.
Bail was an easy entryway into inspiring a return to a more “tough-on-crime” approach. I hope that that’s not where we’re going, but I get apprehensive about the sort of repeated efforts at reform, and the kind of rhetoric that is being put out. It’s disconnected from reality, and yet, is nonetheless becoming the new law of this land.
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Kiera Fisher is a 3L law student at the University of Alberta and worked as a Centre for Constitutional Studies Summer Student in 2026
[1] In R v Zora, 2020 SCC 14 at para 6, the SCC describes the “principle of restraint” as requiring the least onerous bail conditions in the circumstances. This follows from the SCC’s statement in R v St-Cloud, 2015 SCC 27 at para 70, that the “cardinal rule” in bail is the release of an accused whereas detention is the exception. This was re-iterated in re-iteration in R v Antic, 2017 SCC 27, that the default position of the courts should be to release an accused with the least onerous conditions possible in the circumstances.
[2] Nicole M Myers & Joseph Mcdermott, “Breaking Bonds: Rupturing Familial and Social Networks through Supervisory Bail Conditions” (2026) 41:1 Can J L & Soc’y 149; Nicole M Myers, “Eroding the Presumption of Innocence: Pre-Trial Detention and the Use of Conditional Release on Bail” (2017) 57:3 British J Crim 664.
[3] Nicole M Myers, “The Bail Process is Both the Trial and the Punishment: Surveillance and Control Without the Burden of Conviction” (2025) 58:3 J Crim 466.