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.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Oct 30, 2025
Adam Stirling [00:00:00] It’s time for our regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers. It’s Michael Mulligan with Legally Speaking. Afternoon, Michael. How are we doing?
Michael T. Mulligan [00:00:09] Yeah, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:12] Some interesting items on the agenda today, including something you and I have discussed any number of times in the past. Federal reform, the Bail, and Sentencing Reform Act, it says, what this actually is, and will it address actual public safety issues? Your thoughts.
Michael T. Mulligan [00:00:27] Well, who can be against something called a reform? It can only be good, right?
Adam Stirling [00:00:31] I guess so.
Michael T. Mulligan [00:00:33] Yeah. So first of all, you know, this piece of legislation is really a response to political pressure largely from some of the provinces. And when you read it, you can see where some of that’s coming from. In British Columbia, you’ve had the provincial government suggesting that bail reform is somehow. An answer to the legitimate public safety and public disorder that we have seen over the past few years in British Columbia.
Adam Stirling [00:01:03] hmm.
Michael T. Mulligan [00:01:04] And first of all, I should say that there are real reasons for that concern, but at least in my assessment, diagnosing the problem as being one that relates to how the bail system works is a complete misdiagnosis of the problem. It’s easy to see why that’s a popular thing, to point to, if you’re a provincial, Government in the political circumstances that we are Because it allows for Blame public unhappiness to be pointed at The federal government rather than perhaps Some of the Provincial decisions that have been made in terms of Substance use and Policing and resources for courts and so on. And so this is what we have we have this piece of legislation that’s and introduce Bill C-14. Which is the government released along with a sort of explanation for what these sort of 18 pages of various amendments might achieve. now, first thing to remember about bail, this is I think just really at the core of it and it goes to whether the changes here are going to be Meaningful and whether they will in fact address a real problem or just a political problem.
Adam Stirling [00:02:18] Yeah.
Michael T. Mulligan [00:02:19] And the starting point really with Bail is this, bail is a corollary of the fact that we have the presumption of innocence, right?
Adam Stirling [00:02:28] Yeah.
Michael T. Mulligan [00:02:29] If we knew that everyone charged with an offence was guilty of the offence, we could just skip right on to beginning to punish them, we can impose conditions, put them in prison, whatever it might be. We don’t do that. Happily, not only is that, I think, a pretty core value in society, the fact we presume people to be innocent, not guilty. That is also reflected in as a constitutional protection happily in Canada, Otherwise, you know some of those things that you might take to be fundamental can wind up getting eroded. And so in Canada we have both at the you know section 11 of the Charter. 11(d) is the Constitutional right to be presumed innocent until proven guilty right in accordance with the fair public hearing and so on; And (e), right after that, because it follows on that principle of the presumption of innocence, 11(e) is not to be denied reasonable bail without just cause. And without that, the presumptive of innocence is pretty meaningless. Because if I tell you I presume you to be innocent, but you will need to wait in this prison cell here for the next 11 months while we organise your trial,.
Adam Stirling [00:03:38] yeah.
Michael T. Mulligan [00:03:38] You’re going to be scratching your head about what on earth does the presumptions of innocence mean. So that’s why we have both, that’s why we have that constitutional protection and bail it all. People that are accused of crimes are not always guilty of the crime that they are accused with. That’s hard to perhaps accept but it’s true. And so if we adopt a system where we immediately skip to punishing people and holding them in jail without a trial, that Would be a Very unfortunate and happily in Canada unconstitutional and unjust way to proceed. But we have these changes proposed that would make some attempt to make some changes political or otherwise to how the system would work. Now I should say there are a long laundry list of changes in this piece of legislation. It’s complicated.
Adam Stirling [00:04:34] Yeah.
Michael T. Mulligan [00:04:35] Some of the changes are to my reading of it purely for political effect. They can be really described in no other way unless you are to assume that judges and police are imbeciles and are not considering the most basic of things. Like for example, provisions that would, ” require courts to consider imposing certain conditions such as geographical limitations or not to have communication with people. When they are deciding bail for cases involving extortion and organised crime.” Now, just think about that for a moment, okay? You’re the judge deciding if you’re going to release somebody on bail and what conditions you’re gonna impose in a charge of extortion. Do you need to be reminded that you should consider a condition to prohibit the accused person from contacting the complainant? Probably not.
Adam Stirling [00:05:30] No.
Michael T. Mulligan [00:05:30] But we will have that express warning if this piece of legislation passes. And the legislation is filled with other Examples of that where it admonishes Judges to consider Various things; like to consider consecutive sentences for repeat violent offenders. Really does a judge need that reminder? I don’t think that’s going to be helpful. It’s sort of like the admonition suggesting that doctors should consider washing their hands before performing surgery. Should they wash their hands? Absolutely. Do we need a reminder that they should consider that? Probably not.
Adam Stirling [00:06:08] I see.
Michael T. Mulligan [00:06:08] And so there is a category of things here, which are, are that there are a number of other things that are referred to in here. One of the pieces of terminology you may have heard is this concept of a reverse onus.
Adam Stirling [00:06:22] Yes.
Michael T. Mulligan [00:06:22] And there are some offences already in the criminal code like murder for example some other offences where there is that. What the reverse onus means is that the accused person would have the burden of establishing why they should be released on bail, Now bear in mind that subject to and that’s rather than the crown having to show why the person should be Detained. All of that of course is in the context of what I read to you 11(e) not to be denied reasonable bail without just cause and of course the immediately preceding we are presuming you to be innocent. Okay, and so certainly that sounds like so that’s kind of a get tough measure and certainly there may be some political resonance to it and maybe in some cases it would have an effect, you know if you had somebody who was sort of incapable of you know expressing what their intentions were, didn’t have counsel, you know somebody who couldn’t present a cogent, answer to the legitimate considerations on, on bail. So that could have some impact on the margins. But again, just thinking about that for a moment, right? I mean, some of those things like presuming people to be innocent. We sort of that. I think most people would agree. That’s a good, that’s a good policy, you know, not all countries have that. I’m sure in China, you’re not presumed to be innocent, they just take you into a private room, into a little room. And 10 minutes later you’re hanging out the back or something. So that’s not everywhere. We’re fortunate to have the presumption of innocence. Some other things that are, I think, pretty core to our criminal justice system, I think most people would agree are appropriate. You know, things like a person’s right to remain silent and the idea that you don’t need to prove your innocence. It’s for the crown to prove that you’re guilty. That’s kind of tied up in that presumption of innocence, the idea that you have the burden of showing why you should be released is really not consistent with that.
Adam Stirling [00:08:08] Because if you have a right to be silent, you can’t be expected to demonstrate. Okay, that makes sense. Yeah.
Michael T. Mulligan [00:08:13] Right. I presume you to be innocent and you have a right to remain silent, but now you better persuade me why we shouldn’t just hold you in jail for the next 11 months while we’re waiting for your trial. Go.
Adam Stirling [00:08:22] I see.
Michael T. Mulligan [00:08:23] Well, what about my silence? Well, I thought I was presumed innocent. What are you talking about? Now, we do that in some cases, like murder, for example.
Adam Stirling [00:08:33] Yeah.
Michael T. Mulligan [00:08:33] And you know, sometimes we think, you know, maybe the practical has to override the principled. but think about that, that is not really consistent with those ideas that we’re presuming you to be innocent and you have a right to remain silent and you don’t have to prove you didn’t commit the crime. This is saying prove why you should not be denied reasonable bail without just cause you innocent person remaining silent over there. Remaining silent the result may be, you’re just going to be held in prison. So again, that’s a kind of a hollow, right. When I tell you that’s the implication of it, just like if I tell you you’re presumed innocent, by remaining in this tiny cell for a long period of time. Other changes in here, for example, there’s sort of maybe a minor change, maybe it’s just an admonition, you know. There is a basis whereby you can have somebody detained, the grounds you can be detained on, they haven’t changed. They wouldn’t change. The primary ground, they call it, is if there’s a concern that you wouldn’t show up in court if you’re released, that’s a primary bail consideration. And that would apply, for example, let’s say you had a person who had no ties to the community, you’re going to have a drifter blowing through town. There are, you know, maybe they’re ayou know, a high level Chinese,executive who’s got a private jet lined up on the runway, right, or that could apply, if, for example, um. You had a previous history of failing to show up in court. That’s the kind of thing that can be implied, right. You can also have somebody where neither of those apply, where detention is necessary in order to maintain confidence in the administration of justice, which would apply most commonly where you had like an overwhelmingly strong case with somebody, let’s say, you know, you’ve got the mayor on videotape murdering somebody, right, well, you don’t know, is she taking off? No, not really. Is she likely to murder anyone again? Do we need to detain her to prevent that from happening? Probably not. Let’s say it was some particular personal circumstance that caused that to happen. But you might say, this is just an overwhelmingly strong case. It’s necessary. You’re inevitably being convicted. Look, here’s the videotape of the crime occurring. And one of the changes here would extend that consideration to whether it’s necessary to detain somebody to maintain confidence in the administration of justice, one of the considerations would become, the number and seriousness of any other outstanding charges.
Adam Stirling [00:10:58] Yeah.
Michael T. Mulligan [00:10:58] So that is a change on the margin, and you can see why that makes some sense, but you can also of course, be detained if it’s necessary to sort of protect the public, prevent further offences being committed. And if you have a long list of outstanding, serious charges, that’s likely to occur anyways. That change is unlike they have a practical effect. Again, judges are pretty smart. They’re going to be taking into account the long list of serious outstanding charges.
Adam Stirling [00:11:25] Yeah.
Michael T. Mulligan [00:11:25] You know, I don’t know whether that additional changing and change it also here they speak about and this has become maybe a bit of a watch a bit about Buzzword.
Adam Stirling [00:11:35] yeah.
Michael T. Mulligan [00:11:35] The Supreme Court of Canada has used this concept called the principle of restraint.
Adam Stirling [00:11:38] Yes.
Michael T. Mulligan [00:11:38] Which is both reflected in the legislation, but it’s also a constitutional requirement. And the principle restraint, the Supreme court of Canada describes it this way, they said “that is always at the core of the law governing the setting of bail conditions.” And the idea there, and it’s been expressed repeatedly, and as a constitutional requirement, and it is not subject to being changed by the parliament for political reasons, the concept, really the core, of that is that only conditions that are going to be necessary to achieve the legitimate considerations on bail, like making sure that you’re going show up in court. Making sure that people are kept safe while you’re on bail is not necessary to detain somebody to protect somebody, for example.
Adam Stirling [00:12:25] Yeah.
Michael T. Mulligan [00:12:25] Only those conditions that address the bail considerations are permissible. You can’t add considerations on bail like desire to really quickly start punishing this person who may or may not have done it, or to immediately try to force a person to be rehabilitated who may not or may have done that. That’s not constitutionally permissible and that should be obvious to somebody who thinks about this for even a few minutes. You’re presumed to be innocent. How can we be adding conditions to punish you on bail? That is not what bail’s about. If you want to get on with dealing with, if you’re concerned as people are being released or not sentenced or they’re accumulating a bunch of charges, really the underlying issue there is a resource issue, which is right at the feet of the provincial government, which is why that’s not pointed to. The fact that it might take 11 or 12 months to get somebody to trial is a function of the fact there aren’t enough judges, courtrooms, court clerks, Sheriff’s, Crown counsel or defence counsel. That is why it takes that period of time, but that takes money. And so rather than putting money into it to actually have trials that are serious or there’s lots of outstanding charges, how could there be lots of standing charges? Why is it taking so long? Well, that’s kind of at your feet, provincial government, but if you’re able to point to it as a bail problem that absolves you of responsibility. And so These things will have some changes on the margin. They may have some procedural changes in terms of who’s got the burden to do what, but fundamentally, pointing to bail as the source of the problem, and there are problems, with, you know, public order and public safety, is a misdiagnosis of the problem. And if you misdiagonose the problem, which is what they’ve done with this, probably for political reasons, the solution or the remedy is not going to cure your disease. And so the province saying we need bail reform as the answer to street disorder, random stranger attacks or things of that sort is completely missing the target. And so if you think this is going to solve those problems, you’re wrong. And so this might be politically expedient, but it is unlikely to address what are legitimate concerns and in so doing for political reasons. It erodes the presumption of innocence. That’s what it does. You must all people must always remember that when you speak about bail conditions, you’re imposing conditions on people or holding them in prison who are presumed to be innocent and who have had no trial. That’s why you’re doing, it may feel viscerally great, but that’s really a recipe for disaster from a justice system perspective. If you want to have trials that are speedy, you want to make sure that people don’t accumulate numerous, serious, outstanding charges. Have a system that allows them to have a trial. If they’re convicted, they can be sentenced appropriately. Don’t try to sentence them on bail. So that’s the latest from the Bill C-14 to amend the criminal code to deal with the province blaming bail as the outstanding or cause of public disorder.
Adam Stirling [00:15:29] Legally speaking on CFAX 1070, Michael Mulligan with Mulligan Defence Lawyers will continue right after this.
[00:15:35] COMMERICAL.
Adam Stirling [00:15:35] Legally Speaking continues on CFX 1070 with Michael Mulligen, barrister and solicitor with Mulligen Defence Lawyer. Michael, what is next on our agenda today?
Michael T. Mulligan [00:15:44] Next on our agenda is a fascinating case out of the Supreme Court of Canada that interprets a piece of legislation that came in in 2017, again, well-named, called the Good Samaritan Drug Overdose Act Amendments. Who could be against both good samaritans, you know, preventing drug overdoses? So this piece of legislature that came into 2017 amended the Controlled Drugs and Substances Act. And it added a under section 4.1, basically, provisions that provide immunity from being charged or convicted, that’s important, for drug possession offences, where there is a call place for a medical emergency and the person or others stay, either the person with the medical emergency or somebody calling or waiting with the person who’s having a medical emergency. Are granted immunity from being charged or convicted of drug possession. So the concept behind that legislation was you don’t want a circumstance where somebody says, gee whiz, my friend’s having an overdose here I better not phone the police for fear that or if I don’t want to phone 911 because the police might show up and just arrest him for possessing drugs, because look he’s still got the needle sticking out of chest or something.
Adam Stirling [00:17:10] Yeah.
Michael T. Mulligan [00:17:10] You know, calls to mind, Quentin Tarantino movie. And so, the, this was implemented and say, well, number one, we’ve got to save people. Right. And also provides that immunity for other people that are staying with them with the idea that you don’t have to find phone 911 and then run away so that nobody’s doing, you know CPR or whatever, or the person who’s busy overdosing on the sidewalk. So, that was introduced in 2017 and there it is, it’s in the, in the Act so here’s the fact pattern in this particular case. And it’s a case out of, Saskatchewan, where possessing drugs was at the time unlawful, and the, phone call was placed for an overdose. The police show up, and they’re sure enough person overdosing, and there are several people all standing around there helping him, including, I think the person who made the phone call, the police show up and their first order of business to state all the people standing around the person having a drug overdose is. You’re all under arrest for possessing drugs. And so they arrest them all. And then they search the people, including the accused. And when they search they accused, they find a firearm.
Adam Stirling [00:18:17] ahh.
Michael T. Mulligan [00:18:18] And identity documents that could be used for identity fraud. And so he’s charged with those things, not drug possession, the gun and the identity documents. And so here’s a trial and the judge at the trial convicts him. The judge says, Well, you weren’t charged with drug possession. Just the gun, the documents, you know, the section doesn’t apply. That went to the court of appeal there, and then just recently to the Supreme Court of Canada. And the Supreme Court of Canada analysed the section and indeed, it prohibits a person from being either charged or convicted of drug possession offences. Well, the legal analysis really turns on, does that protect you from being arrested?
Adam Stirling [00:19:04] Yeah.
Michael T. Mulligan [00:19:04] Can they still arrest you for possession of drugs because they’ve got reasonable grounds to believe you possess drugs because you’re standing with some person who’s overdosing on drugs?
Adam Stirling [00:19:14] Yeah.
Michael T. Mulligan [00:19:14] How does that work?
Adam Stirling [00:19:16] How does that work?
Michael T. Mulligan [00:19:16] And the Supreme Court of Canada had to interpret, what does Parliament mean by that? And that’s one of the principles of interpretation. The idea is that legislation should try to be interpreted to try to implement the attention of the legislation rather than, you know the the wording of it. You know another cultural reference, It’s not like when the card says moops is the correct answer to the trivia questions Sorry, it says moops. That’s the way it’s going to be not the moors, you know, we’re trying to interpret it in an intentional way, right? You got, it’s got to be sort of harmonious. It’s got be consistent with the legislation, but it’s to get at the intention. And the intention here, and the, the Supreme Court of Canada looked at like the parliamentary debates with the Good Samaritan Drug Overdose Act amendments were introduced. Why do we have these things?The correctly identified this was to prevent people from being afraid to call 911 out of fear that people would get charged so that they would instead die. And so the Supreme Court of Canada, I think happily here and in a fashion harmonious with the intention of that well-named piece of legislation, found that the immunity from being charged and convicted, necessarily includes the fact that you can’t just be arrested for the thing that you could be neither charged nor convicted of, that is to say drug possession. And so, the implication here for this man was that he was just arrested for being possession of drugs, they didn’t believe he had a gun, they had no reason to believe he had a guns or documents or anything else. And so they found that his arrest was arbitrary, unconstitutional, unlawful, and the result is that the gun and the identity documents were not admissible. And so he’s been found not guilty. Now, the Supreme Court of Canada did point out that the police still do have a variety of other reasons they can arrest somebody. Like if they had a reason to, if the police had reasonable grounds to believe you had a gun, they could still arrest you, right, you know, if a person yelled out, I’ve got a gun or somebody said that man shot somebody or something,.
Adam Stirling [00:21:19] Yeah.
Michael T. Mulligan [00:21:19] You can still be arrested for that. But it’s just that if you don’t have any reason to think that happened and you’re just arresting them because you think they’re in possession of drugs at the drug overdose, that’s not on. And so that’s the latest from the Supreme Court of Canada. It doesn’t mean the police are powerless to arrest you. It just means they can’t arrest you for the offence for which you could be neither charged nor convicted and then just happily come across or unhappily come across a gun and wind up charging you with that. So that’s latest from The Supreme Court of Canada and the case called Wilson that just came out.
Adam Stirling [00:21:50] Michael Mulligan with Mulligan Defence Lawyers, legally speaking, during the second half of our second hour every Thursday. Thanks so much.
Michael T. Mulligan [00:21:56] Thanks so, much. Always great to be here.
Adam Stirling [00:21:58] All right, quick break. News is next.
Automatically Transcribed on November 5, 2025 – MULLIGAN DEFENCE LAWYERS