Bail Myths, Real Fixes

Think “bail reform” will clean up street disorder? We take a hard look at what Bill C‑14 really changes and why it targets the wrong problem. From the presumption of innocence to the right to remain silent, we trace how symbolic tweaks and reverse onus proposals collide with Charter protections while doing little to speed justice or improve safety. If the true bottleneck is time to trial, then the fixes live in courtrooms, staffing, treatment, and housing—not in performative reminders to judges about conditions they already use.

We map the actual bail framework: primary grounds to ensure appearance in court, secondary grounds to protect the public, and tertiary grounds to maintain confidence when the case is overwhelming. Then we examine the principle of restraint, a constitutional guardrail that forbids using bail as punishment or a shortcut to rehabilitation. Along the way, we challenge the idea that adding factors like “outstanding charges” will move the needle when judges already account for risk and record. Tough talk can’t replace trial capacity, and piling on conditions cannot stand in for a system that’s too slow to deliver verdicts.

The conversation shifts to life‑or‑death stakes with the Good Samaritan Drug Overdose Act and the Supreme Court of Canada’s ruling in Wilson. Parliament’s aim was direct: remove the fear of possession charges when someone calls 911 and stays to help, so more people survive overdoses. The Court agreed that immunity from being charged or convicted necessarily blocks arrests for possession in that context, preventing end‑runs that chill emergency calls. Police still have tools for other offences when grounds exist, but they can’t use possession as a pretext at overdose scenes. It’s a decision that aligns law with public health and trust.

If you want a justice system that is fair and effective, this episode offers a clear roadmap: defend core rights, invest in speed and capacity, and design laws that solve real problems. Listen, share with a friend who cares about public safety and civil liberties, and leave a review to keep these conversations moving forward.

Follow this link for a transcript of the show and links to the cases discussed.

Episode Transcript

Michael Mulligan (00:27):
Well who who can be against something called
a reform?
It can only be good, right?

Adam Stirling (00:31):
I guess.

Michael Mulligan (00:32):
So first of all, you know, this piece of
legislation is really a responseto political pressure largely
from some of the provinces.
And when you read it, uh youyou can see where some of that's
coming from.
Um in British Columbia, you'vehad the provincial government uh
suggesting that bail reform isuh somehow uh an answer to the

(00:56):
legitimate uh public safety andpublic disorder uh that we have
seen over the past few years inBritish Columbia.
And first of all, I should saythat there are real reasons for
that concern.
Uh but at least in myassessment, diagnosing the
problem as being one thatrelates to how the bail system
works is a complete misdiagnosisof the problem.

(01:18):
Um it's easy to see why that'sa popular thing to point to if
you're a provincial uhgovernment in the political
circumstances that we are, uh,because it allows for uh blame
at public unhappiness to bepointed at uh the federal
government rather than perhapsuh some of the uh provincial

(01:39):
decisions that have been made interms of uh uh substance use
and uh policing and uh resourcesfor courts and so on.
Um and so this is what we have.
We have this piece oflegislation that's been
introduced, Bill C 14, uh, whichuh is uh the government
released along with a sort ofexplanation for what these sort

(01:59):
of 18 pages of variousamendments might achieve.
Now, first thing to rememberabout bail, this is, I think,
just really at the core of it,and and it goes to whether the
changes here are going to bemeaningful and whether they will
in fact address a real problemuh or just a political problem.
Um and the starting pointreally with bail is this.

(02:21):
Bail is a corollary of the factthat we have the presumption of
innocence, right?

Speaker 1 (02:28):
Yeah.

Michael Mulligan (02:28):
If we knew that everyone charged with an
offense was guilty of theoffense, we could just skip
right on to beginning to punishthem, right?
We start imposing conditions,put them in prison, whatever it
might be.
We don't do that.
Uh happily that you know, notonly is that I think a pretty
core value in society, the factthat we presume people to be
innocent, not guilty, um that isalso reflected in as a

(02:53):
constitutional protection,happily in Canada.
Uh otherwise, you know, some ofthose things that you might
take to be fundamental can windup getting eroded.
Um and so in Canada we haveboth that, the you know, section
11 of the Charter, 11D is theuh constitutional right to be
presumed innocent until provenguilty, right, in accordance
with the fair public uh hearingand so on.

(03:15):
Uh and E, right after that,because it follows on that
principle of the presumption ofinnocence, 11E is not to be
denied reasonable bail withoutjust cause.
Uh and without that, thepresumption of innocence is
pretty meaningless.
Because if I tell you I presumeyou to be innocent, but you
will need to wait in this prisoncell here for the next 11

(03:35):
months while we organize yourtrial, you're gonna be
scratching your head about whaton earth does the presumption of
innocence mean.
So that's why we have boththat's why we have um that
constitutional protection andbail at all.
People that are accused ofcrimes are not always guilty of
the crime that they are accusedwith.
That's hard to perhaps accept,but it's just true, right?

(03:58):
Uh and so if we adopt a systemwhere we immediately skip to
punishing people and holdingthem in jail without a trial, um
that uh would be a uh uh veryunfortunate and uh happily in
Canada, unconstitutional and andunjust way to proceed.
Uh but uh we have these changesproposed that would make some

(04:22):
uh attempt to make some changespolitical or otherwise to how
the that system would work.
Now, I should say there are along laundry list of changes in
this piece of legislation, it'scomplicated.
Um some of the changes are s tomy reading of it purely for
political effect.
They can be really uh describedin no other way uh unless you

(04:46):
are to assume that uh judges andpolice are imbeciles uh and uh
are not considering the mostbasic uh of things.
Like, for example, provisionsthat would, quote, require
courts to consider imposing uhcertain conditions such as
geographical limitations or notto have communication with

(05:07):
people when they are decidingbail for cases involving
extortion and organized crime.
Now, just think about that fora moment.
Okay, you're the judge decidingif you're going to release
somebody on bail and whatconditions you're going to
impose on a charge of extortion.
Do you need to be reminded uhthat you should consider a
condition to prohibit theaccused person from contacting

(05:27):
the complainant?
Probably not.

Speaker 1 (05:29):
No.

Michael Mulligan (05:30):
But we will have that express warning if
this piece of legislationpasses.
Uh and the legislation isfilled with other uh examples of
that where it admonishes uh thjudges to consider uh various
things, like to considerconsecutive sentences for repeat
violent offenders.
So, you know, really, does ajudge need that reminder?

(05:53):
I don't think that's going tobe helpful.
It's sort of like theadmonition suggesting that
doctors should consider washingtheir hands before performing
surgery.
Should they wash their hands?
Absolutely.
Do we need a reminder that theyshould consider that?
Probably not.
And so there is a category ofthings here which are that.
There are a number of otherthings that are referred to in

(06:13):
here.
One of the uh pieces ofterminology you may have heard
is this concept of a reverseonus.
Yes.
Uh and there are some offensesalready in the criminal code,
like murder, for example, someother offenses, where there is
that.
What the reverse onus means isthat the accused person would
have the burden of establishingwhy they should be released on
bail.
Now, bear in mind that'ssubject to and that's rather

(06:37):
than the crown having to showwhy the person should be
retained, detained.
All of that, of course, is inthe context of what I read to
you, Levin E, not to be deniedreasonable bail without just
cause, and of course, theimmediately preceding, we are
presuming you to be innocent.
Okay?
And so certainly that soundslike so that's kind of a get
tough measure, and uh certainlythere may be some political

(06:59):
resonance to it, and maybe insome cases it would have an
effect, you know, if you hadsomebody who was sort of
incapable of you know expressingwhat their uh intentions were,
it didn't have counsel, youknow, somebody who couldn't
present uh a cogent um answer tothe legitimate considerations
on on bail.
So that could have some impacton the margins.
But again, just think aboutthat for a moment, right?

(07:21):
I mean, some of those thingslike presuming people to be
innocent, right?
We sort of that I think mostpeople would agree that's a good
that's a good policy, right?
Um you know, not all countrieshave that.
I'm sure in China you're notpresumed to be innocent, they
just take you into a privateroom, into a little room, and
ten minutes later you're hangingout the back or something,
right?
So that's not everywhere.
We're fortunate to have thepresumption of innocence.

(07:43):
Some other things that uh are,I think, pretty core to our
criminal justice system, I thinkmost people would agree are
appropriate.
You know, things like aperson's right to remain silent,
and and the idea that you don'tneed to prove your innocence.
It's for the crown to provethat you're guilty, right?
That's kind of tied up to thatpresumption of innocence.
The idea that you have theburden of showing why you should

(08:04):
be released is really notconsistent with that, right?

Adam Stirling (08:08):
Uh if you have a right to be silent, you can't be
expected to demonstrate.
Okay, that makes sense, yeah.

Michael Mulligan (08:13):
Right.
I presume you to be innocent,and you have a right to remain
silent, but now you betterpersuade me why we shouldn't
just hold you in jail for thenext 11 months while we're
waiting for your trial.
Go.
I see.
But what about my silence?
Well, I thought I was presumedinnocent.
What are you talking about?
Now, we do that in some cases,uh like uh murder, for example,
right?
And you know, sometimes uh wethink uh, you know, maybe the

(08:36):
practical has to override theprincipled.
Uh but think about that.
That is not really consistentwith those ideas that we're
presuming you to be innocent andyou have a right to remain
silent, and you don't have toprove you didn't commit the
crime, right?
This is saying prove why youshould not be denied reasonable
bail without just cause, youinnocent person remaining silent

(08:56):
over there.
Remaining silent, you theresult may be you're just going
to be held in prison.
So again, that's a kind of ahollow right when I tell you
that's the implication of it,just like if I tell you you're
presumed innocent, but you'reremaining in this uh tiny cell
uh for a long period of time.
The uh other changes in here,for example, there's sort of uh

(09:17):
maybe a minor uh change, maybeit's just an odd admonition, you
know.
Um there is a basis whereby youcan have somebody detained.
The the grain the grounds youcan be detained on, they haven't
changed.
Uh they wouldn't change, right?
The the primary ground theycall it is if uh there's a
concern that you wouldn't showup in court if you're released,
right?
That's a primary bailconsideration.
Like, and that would apply, forexample, let's say you had a

(09:40):
person who had no ties to thecommunity, they could have a
drifter blowing through town,right?
Uh they're a you know, maybethey're a uh you know, a
high-level Chinese uh executiveuh who's got a private jet lined
up on the runway, right?
Or that could apply if, forexample, um you uh had a
previous history of failing toshow up in court, right?

(10:01):
That's uh the kind of thingthat can be implied, right?
You can also have somebodywhere neither of those apply uh
where detention is necessary inorder to maintain confidence in
the administration of justice,which would apply most commonly
where you had like anoverwhelmingly strong case with
somebody, let's say you knowyou've got the mayor on
videotape murdering somebody,right?
Well, uh, you know, is shetaking off?

(10:22):
No, not really.
Is she likely to murder anyoneagain?
Do we need to detain her toprevent that from happening?
Probably not.
You know, let's say it was someyou know particular personal
circumstance that caused that tohappen.
But you might say this is justan overwhelmingly strong case,
it's necessary, you'reinevitably being convicted.
Look, here's the videotape ofthe crime occurring.
And one of the admin one of thechanges here would uh extend

(10:43):
that consideration to whetherit's necessary to detain
somebody to maintain confidencein the administration of
justice.
One of the considerations wouldbecome uh the number and
seriousness of any otheroutstanding charges.
So that is a change on themargin, right?
And even see why that makessome sense.
But you can also, of course, bedetained if it's necessary to

(11:06):
sort of to protect the public,prevent further offenses being
committed.
And if you have a long list ofoutstanding serious charges,
that's likely to occur anyways,right?
It that change is unlikely tohave a practical effect.
Again, judges are pretty smart.
They're going to be taking intoaccount you have a long list of
serious outstanding charges.
You know, I don't know whetherthat additional change is going

(11:27):
to change it.
Also, here they they speakabout, and this has become maybe
a bit of a watch, a bit of abuzzword.
The Supreme Court of Canada hasused this concept called the
principle of restraint, which isboth reflected in the
legislation, but it's also aconstitutional requirement.
Uh and the principle ofrestraint, the Supreme Court of
Canada describes it this way.

(11:48):
They said that is always at thecore of the law governing the
setting of bail conditions.
And the idea there, and it'sbeen expressed repeatedly, and
it's a constitutionalrequirement, and it's not
subject to being changed by theParliament for political
reasons.
The concept, the really thecore of that is that only
conditions that are going to benecessary to uh achieve the

(12:11):
legitimate considerations onbail, like making sure that
you're going to show up incourt, right?
Making sure that people arekept safe while you're on bail
is not necessary to you know uhdetain somebody to protect
somebody, for example, right?
Only those conditions thataddress the bail considerations
are permissible.
You can't add considerations onbail like desire to really

(12:32):
quickly start punishing thisperson who may or may not have
done it, or to immediatelytrying to force a person to be
rehabilitated who may or may nothave done it.
That's not constitutionallypermissible.
And that should be obvious tosomebody who thinks about this
for even a few minutes.
You're presumed to be innocent.
How can we be adding conditionsto punish you on bail?
That is not what bail's about.

(12:52):
If you want to get on withdealing with uh if your concern
is people are being released ornot sentenced or they're
accumulating a bunch of charges,really the underlying issue
there is a resource issue, whichis right at the feet of the
provincial government, which iswhy that's not pointed to.
The fact that it might takeeleven or twelve months to get
somebody to trial is a functionof the fact there aren't enough

(13:13):
judges, courtrooms, courtclerks, sheriffs, crown counsel,
or defense counsel.
That is why it takes thatperiod of time.
But that takes money.
And so rather than puttingmoney into it to actually have
trials that maybe are serious orthere's lots of outstanding
charges, how can there be lotsof outstanding charges?
Why is it taking so long?
Well, that's kind of at yourfeet, provincial government.
But if you're able to point toit as a bail problem, that

(13:38):
absolves you of responsibility.
And so these things will havesome changes on the margin, they
may have some proceduralchanges in terms of who's got
the burden to do what.
But fundamentally, pointing tobail as the source of the
problem, and there are problemswith uh you know public order
and public safety, is amisdiagnosis of the problem.

(13:59):
And if you misdiagnose theproblem, which is what they've
done with this, probably forpolitical reasons, the solution
or the remedy is not going tocure your disease.
And so the province saying weneed bail reform as the answer
to street disorder, randomstranger attacks, or uh things
of that sort, is completelymissing the target.

(14:22):
Uh and so if you think this isgoing to solve those problems,
you're wrong.
Uh and so this might bepolitically expedient, uh, but
uh it is unlikely to uh addresswhat are legitimate concerns,
and in so doing, for politicalreasons, it erodes the
presumption of innocence.
That's what it does.

(14:43):
You must all people must alwaysremember that.
When you speak about bailconditions, you're imposing
conditions on people or holdingthem in prison who are presumed
to be innocent and who have hadno trial.
That's what you're doing.
It may feel viscerally great,but that's uh really a recipe
for disaster from a justicesystem perspective.
If you want to have trials thatare speedy, you want to make

(15:05):
sure that people don'taccumulate numerous, serious,
outstanding charges, have asystem that allows them to have
a trial.
If they're convicted, they canbe sentenced appropriately.
Don't try to sentence them onbail.
So that's the latest from theuh Bill C 14 to amend the
criminal code to deal with theprovince blaming bail as the

(15:26):
outstanding uh or cause of uhpublic disorder.

Adam Stirling (15:29):
Legally speaking on CFAC Antivity, Michael
Mulligan with Mulligan DefenseLawyers will continue right
after that.
Michael, what is next on ouragenda today?

Michael Mulligan (15:44):
Next on our agenda is a fascinating case out
of the Supreme Court of Canadauh that interprets uh a piece of
legislation that came in in2017, again, well named, called
the Good Samaritan Drug OverdoseAct amendments.
Who could be against good bothGood Samaritans, you know,
preventing drug overdoses?
So this piece of legislationthat came in in 2017 amended uh

(16:07):
the Controlled Drugs andSubstances Act, and it added uh
a under Section 4.1 uh basicallyuh provisions that provide
immunity from being charged orconvicted, that's important, uh
for drug possession uh offenses,uh where there is a uh call

(16:28):
placed for a medical emergencyand the uh person or others
stay, either the person with themedical emergency or somebody
calling or waiting with theperson who's having a medical
emergency are uh grantedimmunity uh from being charged
or convicted of drug possession.

(16:49):
So the concept behind thoughthat legislation was you don't
want a circumstance wheresomebody says, gee whiz, my
friend's having an overdosehere.
I better not phone the policefor fear that, or if I don't
want to phone 911, because thepolice might show up and just
arrest him for possessing drugs,because look, he's still got
the needle sticking out of hischest or something, right?
Yeah.
It uh you know, calls to minduh Quinton Tarantino movie.

(17:13):
And so uh the uh this wasimplemented and say, well,
number one, we've got to savepeople, right?
And also provides that immunityfor other people that are
staying with them with the ideathat you know don't have to find
phone 911 and then run away sothat nobody's doing, you know,
CPR or whatever on the personwho's busily overdosing on the
sidewalk.
So uh that was introduced in2017, and there it is, it's in

(17:36):
the in the act.
And so here's the fact patternin this particular case.
And it's a case out of uhSaskatchewan, uh, where
possessing drugs was at the timeunlawful.
Um and the uh phone call wasplaced for an overdose.
The police show up, uh, andthey're sure enough, person
overdosing, uh, and there'sseveral people all standing

(17:56):
around there helping him,including I think the person who
made the phone call.
The police show up, and theirfirst order of business to state
all the people standing aroundthe person having a drug
overdose is you're all underarrest for possessing drugs.
And so they arrest them all, uhand then they search the
people, including the accused,uh, and when they search the
accused, they find a firearm andidentity documents that could

(18:19):
be used for identity fraud.
And so he's charged with thosethings.
Not drug possession, but thegun and the identity documents.
And so he has a trial.
And the judge at the trialconvicts him.
And the judge says, Well, youweren't charged with drug
possession, just the gun and thedocuments, you know.
This section doesn't apply.

(18:40):
That went to the Court ofAppeal there, and then just
recently to the Supreme Court ofCanada.
And the Supreme Court of Canadaanalyzed the section, and
indeed it prohibits a personfrom being either charged or
convicted uh of drug possessionoffenses.
Well, the legal analysis reallyturns on does that protect you

(19:01):
from being arrested?

unknown (19:03):
Yeah.

Michael Mulligan (19:03):
Can they still arrest you for possession of
drugs because they've gotreasonable grounds to believe
you possess drugs because you'restanding with some person who's
overdo overdosing on, you know,drugs?

Adam Stirling (19:12):
Yeah.

Michael Mulligan (19:13):
How does that work?
How does that work and theSupreme Court of Canada had to
interpret what did Parliamentmean by that?
And that that's one of the sortof the principles of
interpretation.
So the idea is that legislationshould try to be interpreted to
try to implement the intentionof the legislation rather than,
you know, the the wording of it,right?

(19:34):
You know, another culturalreference.
It's not like when the cardsays moops is the correct answer
to the uh trivia questions.
Sorry, it says moops, that'sthe way it's gonna be.
Not the Moors.
Um, you know, we're trying tointerpret it in an intentional
way, right?
You got it's gotta be sort ofharmonious, it's gotta be
consistent with the legislation,but it's to get at the
intention.
And the intention here, the theSupreme Court of Canada looked

(19:56):
at like the parliamentarydebates where the Good Samaritan
Drug Overdose Act amendmentswere introduced, right?
Why do we have these things?
Um and they correctly identifythis was to prevent people from
being afraid to call 911 out offear that people could get
charged so that they wouldinstead die.
Um and so the Supreme Court ofCanada, I think happily here,

(20:19):
and in a fashion harmonious withthe intention of that
well-named piece of legislation,found that the uh immunity from
being charged and convictednecessarily includes the fact
you can't just be arrested forthe thing that you could be
neither charged nor convictedof, that is to say, drug
possession.
And so the implication here forthis man was that he was just

(20:41):
arrested for being in possessionof drugs.
They didn't believe he had agun, they had no reason to
believe he had a gun ordocuments or anything else.
Uh, and so they found that hisarrest was arbitrary,
unconstitutional, unlawful, andthe result is that uh the uh gun
and the identity documents werenot admissible, and so he's
been found not guilty.

(21:01):
Now, the Supreme Court ofCanada did point out that the
police still do have a varietyof other reasons they can arrest
somebody, right?
Like if they had a reason to ifthe police had reasonable
grounds to believe you had agun, they can still arrest you,
right?
You know, if the person yelledout, I've got a gun, or somebody
said that man shot somebody orsomething.
You can still be arrested forthat.

(21:21):
But it's just that if you don'thave any reason to think that
happened, and you're justarresting them because you think
they're in possession of drugsat the drug overdose, that's not
on.
And so that's the latest fromthe Supreme Court of Canada.
It doesn't mean the police arepowerless to arrest you.
It just means they can't arrestyou for the offense for which
you could be neither charged norconvicted, and then just
happily come across uh orunhappily come across a gun and

(21:44):
wind up charging you with that.
So that's the latest from theuh Supreme Court of Canada in a
case called uh Wilson uh thatjust came out.

Adam Stirling (21:50):
Michael Mulgan with Mulligan Defense Lord,
legally speaking, during thesecond half of our second hour
every Thursday.
Thanks so much.
Thanks so much.
It's always great to be here.
All right.
Quick break news is next.