Bail Reform Should Be Approached with Caution

In the Middlesex Law Association's February 2023 newsletter, Nicola Circelli wrote on the debate over bail reform in Canada — in particular, the call by some Premiers to create a "reverse onus" for offences under Section 95 of the Criminal Code, which covers possession of a loaded prohibited or restricted firearm.

A reverse onus would require the accused to demonstrate why they should be released, rather than the Crown showing why they should be detained. Circelli's piece cautions that such a shift could increase pre-trial detention and disproportionately affect marginalized communities, who often have fewer of the resources and supports a more restrictive hearing demands.

The article situates the proposal against two leading Supreme Court of Canada decisions on bail — R v Zora and R v Antic — which emphasize the presumption of innocence, restraint in detention, and the careful balancing of an accused's rights against the public interest. Her conclusion: while addressing gun crime is a legitimate goal, reverse-onus proposals should be approached with caution and evaluated carefully in light of that jurisprudence.