Provincial court judge takes aim at misinformed, ‘insulting’ bail reform debate

The ongoing debate over bail reform is “insulting” to judges and chips away at a cornerstone principle of Canadian justice — the presumption of innocence, a Winnipeg judge said last week.

Provincial court Judge Dale Harvey made the comments before denying bail to a man accused of trafficking drugs while in custody.

Specific details of the hearing cannot be disclosed due to a defence-requested publication ban.

“(The accused) is presumed innocent at this stage of proceedings and remains so until proven guilty beyond a reasonable doubt,” Harvey said. “That’s always been a fundamental principle of Canadian law, and yet 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, which would no longer (give) primary consideration to release of the accused at the earliest reasonable opportunity and on the least-onerous restrictions.”

The Liberal federal government tabled legislation Thursday proposing sweeping changes to Canada’s Criminal Code that would make it harder for people accused of certain crimes to get bail. The new legislation also proposes longer sentences for some violent and repeat offenders.

“The whole hubbub about the existing state of 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 ignorance of them.”

“The whole hubbub about the existing state of 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 ignorance of them,” Harvey said.

Harvey, noting the accused man’s criminal history and personal circumstances, denied him bail on what is referred to as the “tertiary ground” — that his release would reduce public confidence in the administration of justice.

“That refers to a reasonable member of the public, not one prone to quick decisions based on skeletal information, who is prone to writing letters to the editor saying the justice system sucks, not realizing that they themselves are part of the justice system,” he said.

The presumption of innocence “is always at the forefront of a judge’s mind,” said a Winnipeg defence lawyer after being told of Harvey’s comments.

“Bail reform makes it almost a presumption of guilt, that people should not be released because they are presumed guilty — that’s not the way the system works,” said the lawyer, speaking on condition of anonymity.

Members of the public make assumptions about an accused person’s guilt or innocence and their risk to the community without knowing all the facts that go into deciding whether they should be released on bail, the lawyer said.

“People hear that someone is accused, and they think that means guilt, and that is not the case,” she said. “I know bail reform is a very popular platform to run under or to advocate for as a politician, but I don’t know that it can make a practical change in the courtroom because of the presumption of innocence.”

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Harvey’s comments represent “just one perspective,” said a longtime prosecutor who did not want to be identified.

“There are citizens, victims, business owners, politicians, lawyers and taxpayers who also have valid perspectives on bail,” the prosecutor said. “We all owe it to each other and the public as lawyers and judges to help improve and elevate the discussion around the public’s understanding of the legal system.”

Manitoba Justice Minister Matt Wiebe’s office did not respond to a Monday-afternoon Free Press request for comment on Harvey’s remarks.

Last week, Wiebe called the federal government’s bail reform plan “a good first step” and has been vocal about supporting changes to Canada’s justice laws. He will join federal Justice Minister Sean Fraser at a news conference in Winnipeg Tuesday to announce supports for first responders related to the proposed federal legislation.

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Dean Pritchard is courts reporter for the Free Press. He has covered the justice system since 1999, working for the Brandon Sun and Winnipeg Sun before joining the Free Press in 2019. Read more about Dean.

Every piece of reporting Dean produces is reviewed by an editing team before it is posted online or published in print — part of the Free Press‘s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.