Frustrated judge clears air of foul-smelling political pandering wafting under courtroom door

Provincial court Judge Dale Harvey made some unusually pointed comments in court last week about Canada’s ongoing bail reform debate.

And they deserve more attention than they’re getting.

Judges in this country rarely speak publicly about political issues. When they do, it’s usually a chief judge speaking on behalf of the judiciary. But even then, they typically exercise extreme caution when communicating their message.

The Canadian Judicial Council, which oversees federally appointed judges, explicitly warns judges not to engage publicly on political matters, except in cases that directly affect the operations of the courts. (The Canadian Judicial Council does not have jurisdiction over provincially appointed judges, but the same principles apply).

Bail reform is most certainly a political issue, but it does affect the operation of the courts and the independence of the judiciary. So it’s appropriate for judges to weigh in, at least within a courtroom setting.

Harvey — during a bail hearing for a man accused of trafficking drugs while already in custody — expressed frustration with certain public leaders, or “so-called leaders,” as he put it.

He said the ongoing debate over bail reform was “insulting” to judges and he pushed back on the idea that releasing accused persons on bail, in most cases, is some kind of judicial indulgence, rather than a requirement of Canadian law and the Charter of Rights and Freedoms.

He’s right, of course. And while it’s unusual for a judge to speak out like that, Harvey’s frustration is understandable.

The political rhetoric around bail reform has become so divorced from legal reality that even judges, who usually stay above the fray, are probably losing patience.

Most politicians who rail against Canada’s bail laws — especially federal Conservative Leader Pierre Poilievre — paint them as a “catch and release” system that automatically lets dangerous criminals roam the streets.

Poilievre’s talking point is that the Liberals’ “soft-on-crime” laws have turned bail into a “get-out-of-jail-free card.” It’s catchy and emotionally charged. But it’s completely false.

Bail is not a game of Monopoly.

In law, the “principle of restraint” — that an accused person should be released at the earliest opportunity unless there is just cause to detain them — has existed for decades in Canada. It’s in the Criminal Code and it’s entrenched in the Charter.

It’s been upheld time and again by the Supreme Court of Canada. Why? Because an accused person is presumed innocent until proven guilty. That principle doesn’t just apply at trial, it’s part of the foundation of how bail works.

There are times when accused persons must be detained, if they are a danger to the public, a flight risk or if releasing them would undermine public confidence in the justice system. But those decisions are based on evidence before the court.

People may not always agree with a judge’s ruling on bail (although the public rarely, if ever, has all the information that goes into a bail decision). But there are rules and constitutional principles that guide how the system works.

It’s unclear exactly which “leaders” Harvey was referring to in his comments. He didn’t name names, and he shouldn’t.

But given the Conservative party’s unsubstantiated claims that federal bail laws are to blame for rising crime, it’s not hard to guess who might have been on the judge’s mind.

Poilievre says he would eliminate bail entirely for certain repeat violent offenders. It sounds tough. It polls well. But it’s unconstitutional. The Supreme Court has already ruled that blanket denial of bail would violate the Charter.

It’s doubtful Harvey was referring to the Liberal government’s latest proposed changes to bail laws.

The proposed amendments have been touted as “sweeping changes.” In reality, they barely move the needle.

For the most part, they merely expand existing “reverse onus” provisions in the Criminal Code. Reverse onus means the accused must show why they should be released, rather than the Crown showing why they should be detained.

But reverse onus doesn’t guarantee detention. Far from it.

That provision has existed for years for certain serious offences, and its expansion doesn’t alter the basic constitutional framework. It’s hardly a sweeping change. It’s more of a nibbling around the edges.

Some of the amendments in the Liberal bill will likely have no effect at all on bail. For example, the bill “clarifies” that the principle of restraint does not “mandate” the release of an accused.

It never did. And it’s never been interpreted in the courts as such. It’s a benign amendment that’s more of a political reaction to Poilievre’s mischaracterization of the law than a meaningful legislative change.

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Judges should be cautious about wading into political waters, and Harvey surely knows that. But his comments were made in the course of a bail hearing, not at a press conference.

He didn’t advocate for any particular policy and he wasn’t partisan. He simply reminded those who hold power — and the public who elect them — that there are constitutionally protected principles and rules that courts must follow.

And when politicians start misleading people about how those rules work, someone inside the system has to speak up.

Harvey did. And on this one, he was right to do so.

tom.brodbeck@freepress.mb.ca

Tom Brodbeck
Columnist

Tom Brodbeck is an award-winning author and columnist with over 30 years experience in print media. He joined the Free Press in 2019. Born and raised in Montreal, Tom graduated from the University of Manitoba in 1993 with a Bachelor of Arts degree in economics and commerce. Read more about Tom.

Tom provides commentary and analysis on political and related issues at the municipal, provincial and federal level. His columns are built on research and coverage of local events. The Free Press’s editing team reviews Tom’s columns before they are 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.