Bill C-14 And What Bail Can Not Fix

Bail has become the go-to explanation for everything people hate about crime and disorder, but the law is more stubborn than the politics. We sit down with Michael Mulligan to sort out what Bill C-14 actually does, what it cannot do because of the Charter, and why the presumption of innocence and section 11(e) still drive the core rules of judicial interim release. If you have ever wondered why “just hold them until trial” is not a simple switch, this conversation puts real legal guardrails around the debate. 

We also talk about the part that rarely makes headlines: the system’s capacity. When courts are overloaded and under-resourced, cases spill over, trials get adjourned, and everyone pays the price in time and public confidence. We explore the Supreme Court’s principle of restraint, why bail conditions must be tied to specific risks, and why legislative “reminders” may sound tough while changing little on the ground. 

Then we pivot to two practical cases. First, a mistrial application after a witness under cross-examination violates a common order not to discuss evidence. We unpack the “fair trial” north star and the remedies a judge can use short of scrapping the trial. Second, we dig into privacy law and modern surveillance: police obtain a neighbour’s security video of an accused person’s front door without a warrant, and the court finds no reasonable expectation of privacy, raising big questions for anyone living around cameras. 

If this helped you think more clearly about Canadian bail law, mistrials, and privacy rights, subscribe, share the episode, and leave us a review so more people can find the show. What part of this debate do you think is most misunderstood?

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

Transcript

Bill C-14 And The Bail Debate

Adam Stirling 0:32

What's the story?

Michael Mulligan 0:34

So first of all, this piece of legislation, Bill C fourteen, uh just came into effect last week, and it makes a number of changes to uh provisions dealing with largely bail. Um and as I spoke about before in some general terms, uh the issue of bail or judicial interim release has gotten sort of politically focused on uh as uh somehow an explanation for legitimate concerns about social disorder and crime, right? Yeah. Um and the the thing to understand about bail uh is that it it is really a function of the fact that we presume people to be innocent, right? Most people would agree that's kind of the foundation of our justice system. And when you presume people to be innocent, one of the consequences of that is that you can't just start punishing people uh that might have committed a crime, because you'll wind up punishing a bunch of people that didn't commit crimes. Not everyone accused of a crime, of course, is is guilty, right? Yeah. And that basic principle is constitutionally enshrined along with the presumption of innocence. And in 11E of the Charter, it guarantees the right to reasonable bail absent just cause. And that's been interpreted, keeping in mind that just general principle I've just spoken about. Well, um, there are, I should say, legitimate issues with the criminal justice system and things that could be done to improve it. Um, you know, for example, one of the reasons why we're having this show at a special time today uh is because of uh just how busy it is in court. Um I that's where I was uh at the regular time, court running uh over when it would usually run, and that's largely a function of things like uh an inadequ inadequate number of judges, for example. Right? We've got communities that grow quickly, and if you don't add uh resources, which means not just judges, but you also need court clerks and sheriffs and crown, and uh in fact, in many cases you also need to have legal aid funding. If you don't have those things, you wind up with uh courts unable to manage things and cases take longer and longer, all of which is unsatisfactory. And that's just one example of how there are legitimate issues, many of which involve resourcing, both on the judicial end, uh on the police end. There are real and pressing things that could be done to help. Uh but yeah, somebody who's in the system and sees it every day, one of the underlying problems is not generally how the bail system has been functioning. Uh and so this piece of legislation that came in uh appears to be intended to politically address the critique that really that's somehow the problem. If we could just start jailing people before their trial, somehow that would solve the problem. Uh and the extent to which that those basic principles could be modified by legislative change is of course, not of course, but it is modest, because of course we have a constitutional right to be presumed innocent, not to deny uh bail without just cause. Uh and so even if uh somebody thought it was wise legislatively to just say, well, we're just gonna forget about those, you know, messy trials that take so much time and just start holding people in jail, you know, for a year, whatever it takes now to get to trial, somehow that'll solve our problem. That's not even constitutionally permissible. So what we instead have is this piece of legislation which lists a bunch of things that I think the best analogy to the uh medical state of affairs would be like a bunch of admonitions directing doctors that they shall carefully wash their hands before performing surgery. And if they don't wash them very carefully, they're to consider whether they should wash them carefully or maybe even wash them twice. So, for example, when you look at this piece of legislation, it uh includes things like, for example, a direction that the judge or justice uh when determining whether to uh when conducting a bail hearing for somebody uh who has uh committed acts of random and unprovoked violence, uh is to consider whether the accused uh should be detained, taking that into account. Now, can you imagine many judges that are not taking that into account uh already without the admonition? Uh or for example, uh when uh you have, for example, a person who is repeatedly committed convicted has previously been convicted of serious offenses involving, you know, break and enter, for example, to take that into account when sentencing the person for a subsequent breaking and entering. So really, was that a problem? Were they failing to do that? Um, or for example, uh admonitions to require the court to consider the uh denunciation and deterrence of repeat motor vehicle theft offenses, or offenses committed for criminal uh organizations. Is that really a problem? Was there a failure to take that into account? Uh other uh exam uh and it just goes on and on in that way. Other things like, for example, uh it includes a requirement for a judge to uh impose a firearms prohibition unless the judge concludes that it's not in the interest of justice for various offenses, including terrorism offenses or extortion or intimidation of justice system participants. Was it really a raging problem that judges who are dealing with people for a bail hearings charge with terrorism were not considering whether it would be a desirable condition to impose on the ought to have firearms? Was that something we needed to correct? And on and on it goes. And there have been a number of those for a long time in the criminal code, like for example, for serious offenses like murder, um, it would be the accused who would have the burden of establishing that they should be released rather than the reverse. The constitutional principle that you're presumed to be innocent and as well that you are not to be denied bail absent just cause is unaffected. It's a matter of who would have the sort of evidentiary and persuasive burden, bearing in mind those unshifting principles, like we don't just presume people who are charged with a serious offense to be guilty of the offense because the allegation is a serious one. We maintain the presumption of innocence and maintain the principles that uh inform the you know how that principle informs uh bail. Uh and so uh there are uh a number of other serious offenses where that uh would be the case, but uh really uh bearing in mind first of all that isn't really the outstanding core of any particular problem in the criminal justice system, and bearing in mind those basic principles that are not and cannot be modified by legislation, it is very unlikely that those things are going to have a meaningful impact.

The Underlined Crown Bail Template

Michael Mulligan 7:18

Uh the other thing about all of this, as you mentioned in the uh opening there, yeah, um, is that you know, and again, all of these things are of course at their core political. Um, and so one of the things which the Attorney General's office has done is they've drafted up a preform submission, which they then ordered all Crown Counsel to file in every case where they're are having a bail hearing. Uh and it it uh it's amusing on several respects. First of all, it uh is probably the uh uh most use of underlining I think I've ever seen in a uh recently at least in a uh a submission in court. And it includes various things like, for example, I mentioned to you what that section of the charter requires, like section 11E says the charter guarantees the right to reasonable bail absent just cause. And so what they've done is they've underlined absent just cause, uh, or various other things uh that they've uh sort of emphasized by various underlines, uh, pointing out uh that uh you know some of the uh uh captain obvious things like the hand washing for doctors, they've also taken care to point out things like uh it is significant to clarify the principle of restraint does not require the accused to be released with an underline. That's an interesting thing. You may have heard that commented on that principle of restraint. Uh and that's uh a principle that the Supreme Court of Canada uh has uh outlined in interpreting what uh it's meant by uh not denying bail absent just cause. Uh and that principle of restraint essentially means that uh when you're the starting point would be you don't detain an innocent person unless there's a reason to do that relating to bail. Uh and then as well uh when you're imposing conditions of release on somebody who is being is being released by a judge, the judge is required to only impose conditions that would be necessary to address whatever the particular concern is on bail. Like, for example, if there was a concern that somebody needed to be protected, you could impose whatever conditions that would be necessary to make sure that a person is kept safe. Or if there was a concern uh that if a person was released they wouldn't attend court. You could impose conditions in order to address that uh concern. That's what it really amounts to. Uh and uh it does not allow conditions to be imposed for other reasons. Like, for example, a judge at a bail hearing could not impose conditions intending to punish the accused before they've had a trial. Or indeed, you couldn't impose conditions even if you thought they may be rehabilitative, right? If they weren't being imposed to protect public or make sure somebody's gonna show up, you know, the other things that are part of bail. Uh and that's what's meant by the principle of restraint. Uh and there is no one uh in the criminal justice system who would have believed that the principle of restraint required accused people to be released. That would be nonsensical. And so you've got now this document that they are ordering Crown Council to file that has things like underlining, the principle of restraint underlined, does not require the accused to be released. Um again, it's uh uh a bit much. Uh and so uh that's what has come into effect, um, and that's one of the ways in which the uh the AG provincial is dealing with it, is to uh order Crown to file this uh submission with a bunch of underlines uh with all the judges every time they're conducting a bail hearing. Uh and so uh that's sort of where we've landed. Uh I I don't uh have any doubt if the uh members of the public had concerns about things which are in fact legitimate concerns, for example, about you know social disorder that people have seen uh in downtown Victoria. That is real. If people uh don't think that's real, they are simply mistake it. It it's real. Uh but uh if there was somehow uh an expectation that uh this bill or bunch of underlining is going to address the you know underlying serious issues we have with drug addiction and mental illness and um lack of uh police and uh court resources and all of the things that uh might legitimately have an impact on those serious problems, uh I think they're going to be uh seriously disappointed uh because the underlying problem was not one with bail. Uh and so uh things like this, uh which are uh intended to sort of sound tough by pointing out uh that judges should consider things like whether you should prohibit a terror alleged terrorist from having a firearm, uh, or whether you should consider it an aggravating circumstance that the person's been repeatedly committed, convicted in the past of serious offenses, uh, I think are going to be quite disappointed to learn that we have a judiciary that is perfectly capable of assessing uh those things already. They were assessing them already, and there wasn't some uh complete failure to take into account uh the uh obvious in terms of uh what would be important considerations on bail. Uh and so that's what's happened uh as a result of uh those political machinations. We've got Bill C 14, uh, and we've got uh the uh Crown Council uh being ordered to uh hand up uh a uh submission pointing these various things out with a bunch of underlines, uh, as if somehow uh that's going to address the uh the legitimate concerns people have uh about uh the criminal justice system. So that's latest on Bill C 14. Uh and uh what came into effect last week?

Adam Stirling 12:44

Michael Mulligan with Mulligan Defense. Legally speaking, we'll continue right after this. Legally speaking, fact Michael Mulligan with Mulligan Defense, Michael, before the break we were talking about latest in terms of bail provision. Moving on to the next topic that you and I have on our agenda today. A missed trial application is uh here of witnesses violating court orders to not discuss evidence. What happened?

Mistrial Request After Order Breach

Michael Mulligan 13:10

Well, the this case involved uh a very commonly made order in criminal cases, and it's an order which uh would uh uh require witnesses who are under cross-examination not to discuss their evidence uh with anyone uh until the cross-examination is finished. Uh and it's one of those sort of routine orders that's uh made along with uh another common order in a criminal case, which would require witnesses to remain outside of the courtroom until after they've had a chance to testify. And both of those common orders are intended to uh uh assist in getting the best evidence we can from witnesses, right? You don't want, in terms of witnesses sitting in the courtroom, somebody to just sit there, listen to what the last three people had to say and then say in you know, consciously or subconsciously the same thing, right? That's how it would work. And also, when a witness is being cross-examined and questioned about what they had to say, you don't want them going off and talking to others to get some tips on how they might uh solve whatever uh problem there might be with their evidence, right? And this was a case uh in uh the provincial court in BC, uh and it was an impaired driving case, it wasn't anything particularly remarkable, but it was a circumstance where a police officer was testifying, uh, and as sometimes happens, because we generally have a lack of uh judicial resources, court time, uh it didn't finish. The case didn't finish. The officer had testified in chief, like the crown had called him to ask what happened and then what did you do? And then he was being cross-examined by the defense, and they ran out of time for the day. And so the case had to be adjourned, and the judge gave that common direction to the police officer that you're not to discuss your evidence with anyone uh because you're under cross-examination. Case had adjourned, they came back, uh, and defense counsel uh asked her to ask a few questions about well, did you talk to anyone uh uh over the uh you know past few days after the case was adjourned? And the officer, oh yes, uh the officer agreed he spoke to various people at his detachment and spoke to a recruit that was there and discussed various things about his evidence, including some central parts of it. Uh and in breach of that court order. And the application then came from the defense for a mistrial, arguing that, hey, the officer breached this obligation, he discussed evidence uh that was uh central uh in the cross-examination with uh others uh before coming back to continue being asked questions about those things. And so it led to the judge needing to assess is that an appropriate case where you need to declare a mistrial? Um and that brings us to that law surrounding mistrials. Uh and the the basic uh principle of that is that a judge should declare a mistrial, like canceling it, so go do over, right? Uh, but should do that only if there's no other remedy that would adequately preserve the right to a fair trial. That's really the the North Star, right? Yes. Uh and when deciding whether some kind of a problem like this one, the uh police officer speaking to others during cross-examination, contrary to a court order, should result in a mistrial. One of the judge things the judge has to think about is is there anything else that could save this? Because uh you don't want to declare a mistrial if that can be avoided, because it means doing the whole thing over again, and other things can result from that. The trial might not be done in a reasonable period of time, or you know, it uh require twice as much court time, gotta do it all over again. Um and here the judge found on this particular fact pattern, because of exactly what was discussed and so on, that it wasn't necessary to declare a mistrial because other potential remedies were available, including, the judge suggested, there could be a request by the defense to uh come to the conclusion with respect to this officer's testimony that it lacked credibility, that it was unreliable, uh, that little weight should be attached to it, or even potentially that the evidence was so tainted by the discussions had with others during the cross-examination that the court should accept none of the officer's evidence. And so rather than declaring the mistrial, the judge pointed out those are a potential ways it could be dealt with, and so the mistrial was avoided. The case will continue, but there will be a real question about whether uh the uh court accepts what the officer had to say, given that they failed to follow that common direction in terms of uh what's to be done when you're under cross-examination. So I thought it was a worthwhile case, both for that general principle that when you're being asked questions in court, if there's an adjournment, be it the lunch break or over to another day, if you're in the process of being cross-examined, you can't just go and discuss your evidence with others to get a bunch of tips on how you might better answer the uh awkward questions you're being asked in cross-examination, and when that doesn't happen, how a judge is uh required to deal with the uh with the fallout.

Adam Stirling 17:54

And three minutes left in our segment today. A reasonable pret expectation of privacy for a suspect in a murder trial. What happened?

Front Door Video And Privacy Limits

Michael Mulligan 18:03

Well, this is a case involving a murder trial where there was an issue, I think, about who did it, right? Uh and uh part of the evidence that the crown was relying upon uh was in the form of video, s security video, that the police seized from a neighbor. Uh and a neighbor of the uh residence in which the accused lived um turned over this video to the police, uh, but the police didn't obtain a uh warrant or judicial authorization to get the video. They just got it from the neighbor. Uh and the video included video footage of the front door of the accused house, showing the accused coming and going and other people coming and going from the home. And the accused challenged that on the basis that uh the police didn't get uh judicial authorization to seize the video, and arguing that he had a reasonable expectation of privacy, which would require the police to get a warrant for the thing being seized. That raised to the judge that fundamental issue, which is uh whether you have a reasonable expectation of privacy over video footage of your front door, which I think for many people may be a live issue even if you're not charged with murder. And the arguments on each side of it included uh the accused saying, well, hold on, this isn't somebody just s looking out and seeing me standing at the front door or not seeing me there, it's a fifteen-hour recording of my front door. And you can well imagine how that could be viewed as a different thing in our modern reality, because while it's true that you you know, anyone could potentially see you either not standing at or standing at your front door, it could be a very different thing if you have a camera pointed at your front door such that you could go back and forth and figure out when does this person come and go, who are they coming and going with, uh, and so on. And that might be something in which you would have a reasonable expectation of privacy. At least that was the argument here. Ultimately, the judge agreed with the crown and found that there was no reasonable expectation of privacy in terms of the video of the front door of the accused person, uh, which is you know, on one level that's understandable, right? It's a public place, you can kind of see the front door. But on the other hand, you need to think about well, what are the implications of that? What if, for example, the police decide to just set up a surveillance camera watching you in your front door at all times? Does that interfere with your reason do you have a reasonable expectation of privacy that's being breached there, for example? And so I thought it was just an interesting case for people to be aware of. That was the outcome here, uh, but for people just to think about, you know, whether that is something in the modern world of uh security cameras, whether that should impact on whether you've got uh an expectation of privacy over uh images or video of you over an extended time at your home, and whether that's any different from uh the fact that you could just see the person if you happen to drive by at a particular time.

Final Takeaways And Sign-Off

Adam Stirling 20:47

Michael Mulligan with Mulligan Defense Lawyers, legally speaking, during the second half of our second hour, but it was an hour three today, right here on C Facts and Wells. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break news is next.