Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
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.
Well who who can be against something called a reform? It can only be good, right?
Adam Stirling:I guess.
Michael Mulligan: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, uh you you can see where some of that's coming from. Um in British Columbia, you've had the provincial government uh suggesting that bail reform is uh somehow uh an answer to the legitimate uh public safety and public disorder uh that we have seen over the past few years in British Columbia. And first of all, I should say that there are real reasons for that concern. Uh 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. Um it's easy to see why that's a popular thing to point to if you're a provincial uh government in the political circumstances that we are, uh, because it allows for uh blame at public unhappiness to be pointed at uh the federal government rather than perhaps uh some of the uh provincial decisions that have been made in terms of uh uh substance use and uh policing and uh resources for courts and so on. Um and so this is what we have. We have this piece of legislation that's been introduced, Bill C 14, uh, which uh is uh 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 and it goes to whether the changes here are going to be meaningful and whether they will in fact address a real problem uh or just a political problem. Um and the starting point really with bail is this. Bail is a corollary of the fact that we have the presumption of innocence, right?
Speaker 1:Yeah.
Michael Mulligan:If we knew that everyone charged with an offense was guilty of the offense, we could just skip right on to beginning to punish them, right? We start imposing conditions, put them in prison, whatever it might be. We don't do that. Uh happily that you know, not only is that I think a pretty core value in society, the fact that we presume people to be innocent, not guilty, um that is also reflected in as a constitutional protection, happily in Canada. Uh otherwise, you know, some of those things that you might take to be fundamental can wind up getting eroded. Um and so in Canada we have both that, the you know, section 11 of the Charter, 11D is the uh constitutional right to be presumed innocent until proven guilty, right, in accordance with the fair public uh hearing and so on. Uh and E, right after that, because it follows on that principle of the presumption of innocence, 11E is not to be denied reasonable bail without just cause. Uh and without that, the presumption 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 organize your trial, you're gonna be scratching your head about what on earth does the presumption of innocence mean. So that's why we have both that's why we have um that constitutional protection and bail at 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 just true, right? Uh and so if we adopt a system where we immediately skip to punishing people and holding them in jail without a trial, um that uh would be a uh uh very unfortunate and uh happily in Canada, unconstitutional and and unjust way to proceed. Uh but uh we have these changes proposed that would make some uh attempt to make some changes political or otherwise to how the that system would work. Now, I should say there are a long laundry list of changes in this piece of legislation, it's complicated. Um some of the changes are s to my reading of it purely for political effect. They can be really uh described in no other way uh unless you are to assume that uh judges and police are imbeciles uh and uh are not considering the most basic uh of things. Like, for example, provisions that would, quote, require courts to consider imposing uh certain conditions such as geographical limitations or not to have communication with people when they are deciding bail for cases involving extortion and organized 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 going to impose on a charge of extortion. Do you need to be reminded uh that you should consider a condition to prohibit the accused person from contacting the complainant? Probably not.
Speaker 1:No.
Michael Mulligan:But we will have that express warning if this piece of legislation passes. Uh and the legislation is filled with other uh examples of that where it admonishes uh th judges to consider uh various things, like to consider consecutive sentences for repeat violent offenders. So, you know, 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. And so there is a category of things here which are that. There are a number of other things that are referred to in here. One of the uh pieces of terminology you may have heard is this concept of a reverse onus. Yes. Uh and there are some offenses already in the criminal code, like murder, for example, some other offenses, 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's subject to and that's rather than the crown having to show why the person should be retained, detained. All of that, of course, is in the context of what I read to you, Levin 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 uh 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 uh intentions were, it didn't have counsel, you know, somebody who couldn't present uh a cogent um answer to the legitimate considerations on on bail. So that could have some impact on the margins. But again, just think about that for a moment, right? I mean, some of those things like presuming people to be innocent, right? We sort of that I think most people would agree that's a good that's a good policy, right? Um 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 ten minutes later you're hanging out the back or something, right? So that's not everywhere. We're fortunate to have the presumption of innocence. Some other things that uh 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 and the idea that you don't need to prove your innocence. It's for the crown to prove that you're guilty, right? That's kind of tied up to that presumption of innocence. The idea that you have the burden of showing why you should be released is really not consistent with that, right?
Adam Stirling:Uh if you have a right to be silent, you can't be expected to demonstrate. Okay, that makes sense, yeah.
Michael Mulligan: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. I see. But what about my silence? Well, I thought I was presumed innocent. What are you talking about? Now, we do that in some cases, uh like uh murder, for example, right? And you know, sometimes uh we think uh, you know, maybe the practical has to override the principled. Uh 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, right? This is saying prove why you should not be denied reasonable bail without just cause, you innocent person remaining silent over there. Remaining silent, you 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, but you're remaining 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 maybe a minor uh change, maybe it's just an odd admonition, you know. Um there is a basis whereby you can have somebody detained. The the grain the grounds you can be detained on, they haven't changed. Uh they wouldn't change, right? The the primary ground they call it is if uh there's a concern that you wouldn't show up in court if you're released, right? That's a primary bail consideration. Like, and that would apply, for example, let's say you had a person who had no ties to the community, they could have a drifter blowing through town, right? Uh they're a you know, maybe they're a uh you know, a high-level Chinese uh executive uh who's got a private jet lined up on the runway, right? Or that could apply if, for example, um you uh had a previous history of failing to show up in court, right? That's uh the kind of thing that can be implied, right? You can also have somebody where neither of those apply uh 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, uh, you 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. You know, let's say it was some you know 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 admin one of the changes here would uh 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 uh the number and seriousness of any other outstanding charges. So that is a change on the margin, right? And even see why that makes some sense. But you can also, of course, be detained if it's necessary to sort of to protect the public, prevent further offenses being committed. And if you have a long list of outstanding serious charges, that's likely to occur anyways, right? It that change is unlikely to have a practical effect. Again, judges are pretty smart. They're going to be taking into account you have a long list of serious outstanding charges. You know, I don't know whether that additional change is going to change it. Also, here they they speak about, and this has become maybe a bit of a watch, a bit of a buzzword. The Supreme Court of Canada has used this concept called the principle of restraint, which is both reflected in the legislation, but it's also a constitutional requirement. Uh and the principle of 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 it's a constitutional requirement, and it's not subject to being changed by the Parliament for political reasons. The concept, the really the core of that is that only conditions that are going to be necessary to uh achieve the legitimate considerations on bail, like making sure that you're going to show up in court, right? Making sure that people are kept safe while you're on bail is not necessary to you know uh detain somebody to protect somebody, for example, right? 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 trying to force a person to be rehabilitated who may or may not have done it. 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 uh if your concern is 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 eleven or twelve months to get somebody to trial is a function of the fact there aren't enough judges, courtrooms, court clerks, sheriffs, crown counsel, or defense 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 maybe are serious or there's lots of outstanding charges, how can there be lots of outstanding 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 uh you know public order and public safety, is a misdiagnosis of the problem. And if you misdiagnose 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 uh things of that sort, is completely missing the target. Uh and so if you think this is going to solve those problems, you're wrong. Uh and so this might be politically expedient, uh, but uh it is unlikely to uh 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 what you're doing. It may feel viscerally great, but that's uh 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 uh Bill C 14 to amend the criminal code to deal with the province blaming bail as the outstanding uh or cause of uh public disorder.
Adam Stirling:Legally speaking on CFAC Antivity, Michael Mulligan with Mulligan Defense Lawyers will continue right after that. Michael, what is next on our agenda today?
Michael Mulligan:Next on our agenda is a fascinating case out of the Supreme Court of Canada uh that interprets uh a piece of legislation that came in in 2017, again, well named, called the Good Samaritan Drug Overdose Act amendments. Who could be against good both Good Samaritans, you know, preventing drug overdoses? So this piece of legislation that came in in 2017 amended uh the Controlled Drugs and Substances Act, and it added uh a under Section 4.1 uh basically uh provisions that provide immunity from being charged or convicted, that's important, uh for drug possession uh offenses, uh where there is a uh call placed for a medical emergency and the uh 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 uh granted immunity uh from being charged or convicted of drug possession. So the concept behind though 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 his chest or something, right? Yeah. It uh you know, calls to mind uh Quinton Tarantino movie. And so uh the uh 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 know don't have to find phone 911 and then run away so that nobody's doing, you know, CPR or whatever on the person who's busily overdosing on the sidewalk. So uh that was introduced in 2017, and there it is, it's in the in the act. And so here's the fact pattern in this particular case. And it's a case out of uh Saskatchewan, uh, where possessing drugs was at the time unlawful. Um and the uh phone call was placed for an overdose. The police show up, uh, and they're sure enough, person overdosing, uh, and there's 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, uh and then they search the people, including the accused, uh, and when they search the accused, they find a firearm and identity documents that could be used for identity fraud. And so he's charged with those things. Not drug possession, but the gun and the identity documents. And so he has a trial. And the judge at the trial convicts him. And the judge says, Well, you weren't charged with drug possession, just the gun and the documents, you know. This 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 analyzed the section, and indeed it prohibits a person from being either charged or convicted uh of drug possession offenses. Well, the legal analysis really turns on does that protect you from being arrested?
unknown:Yeah.
Michael Mulligan: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 overdo overdosing on, you know, drugs?
Adam Stirling:Yeah.
Michael Mulligan:How does that work? How does that work and the Supreme Court of Canada had to interpret what did Parliament mean by that? And that that's one of the sort of the principles of interpretation. So the idea is that legislation should try to be interpreted to try to implement the intention of the legislation rather than, you know, the the wording of it, right? You know, another cultural reference. It's not like when the card says moops is the correct answer to the uh trivia questions. Sorry, it says moops, that's the way it's gonna be. Not the Moors. Um, you know, we're trying to interpret it in an intentional way, right? You got it's gotta be sort of harmonious, it's gotta be consistent with the legislation, but it's to get at the intention. And the intention here, the the Supreme Court of Canada looked at like the parliamentary debates where the Good Samaritan Drug Overdose Act amendments were introduced, right? Why do we have these things? Um and they correctly identify this was to prevent people from being afraid to call 911 out of fear that people could get charged so that they would instead die. Um 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 uh immunity from being charged and convicted necessarily includes the fact 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 in possession of drugs. They didn't believe he had a gun, they had no reason to believe he had a gun or documents or anything else. Uh, and so they found that his arrest was arbitrary, unconstitutional, unlawful, and the result is that uh the uh 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, right? Like if they had a reason to if the police had reasonable grounds to believe you had a gun, they can still arrest you, right? You know, if the person yelled out, I've got a gun, or somebody said that man shot somebody or something. 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 offense for which you could be neither charged nor convicted, and then just happily come across uh or unhappily come across a gun and wind up charging you with that. So that's the latest from the uh Supreme Court of Canada in a case called uh Wilson uh that just came out.
Adam Stirling:Michael Mulgan with Mulligan Defense Lord, legally speaking, during the second 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.