A Manitoba judge is raising concerns that recent discussions around bail reform are whittling away at the presumption of innocence in Canada’s justice system — taking a rare step one legal expert said could help improve public understanding of the issue.
Provincial court Judge Dale Harvey said while that presumption has always been a fundamental principle of Canadian law, “there seems to be a significant movement these days, supported by some leaders, or so-called leaders, of our institutions, to restrict that presumption by calling for significant bail reform.”
“The whole hubbub about the existing state of the bail and its application is, in my view, insulting to any member of the sitting court of any level at present — and comes from, at best, misunderstanding of the applicable laws or, at best, an ignorance of them,” Harvey said during a recent bail hearing in Winnipeg, where he denied release for a man accused of trafficking drugs while in custody.
Harvey’s comments come as the federal Liberal government has proposed changes to the justice system intended to keep some accused people locked up for longer as Ottawa tries to drive down crime rates.
Those changes are designed to make bail more difficult to get, in particular for repeat and violent offenders. They include the creation of so-called “reverse onus” for some offences, which means detention is the default option and it’s up to a bail seeker to demonstrate why they shouldn’t stay behind bars while they await trial.
If passed by Parliament, those new reverse onuses will apply to people charged with violent or organized crime-related car theft, breaking and entering, trafficking in persons or human smuggling, extortion involving violence, assault, and sexual assault that involves choking, strangulation or suffocation.
Judge Harvey’s recent comments also included some remarks related to the tertiary ground for detention, which relates to denying bail in order to maintain public confidence in the administration of justice.
“That refers to a reasonable member of the public,” Harvey said. “Not one prone to quick decisions based on skeletal information, who is prone to write letters to the editor saying the justice system sucks, not realizing that they themselves are part of the justice system.”
That hearing wasn’t the first time Harvey made comments about bail reform from the bench.
In another hearing last month, he noted that while the Criminal Code was previously amended to include the principle of restraint, potentially allowing more people a chance at bail, “there’s now obviously a growing concern that too many people are being released from custody pretrial, a reverse of the former situation.”
In yet another bail hearing last month, Harvey reminded the court that “judges are not fortune tellers.”
“We don’t know what someone is going to do in the future. And there have been many tragedies. But not everyone can be denied bail — otherwise we abandon the presumption of innocence, we abandon certain of the Charter rights which everyone enjoys,” he said.
“And for those who criticize the justice system as being flawed or inadequate … hopefully they do that in an informed way — and yet often we see those who know little of the law, who are focused on outcomes only, and yet are more than willing to offer their uninformed opinion.”
One legal expert said while uncommon, he sees no issue with a judge making comments like Harvey’s — in fact, those kinds of comments can help better inform public debate on the issue of bail reform, said Brandon Trask, an associate professor in the University of Manitoba’s law faculty.
“Just because it was bold doesn’t mean it was problematic,” Trask said, adding he thinks some politicians have “distorted” the debate around the issue of bail.
“Judges are a bit constrained in what they’re able to say outside of a courtroom,” he said.
“Seeing a judge take the opportunity … to inform the public about what the system calls for now is actually, you know, helpful — and I would argue somewhat refreshing to see in the context of a case like this.”
