A Bail Reform Discussion with Wendy Martin White K.C.

Public debate about bail reform is often driven by the most sensational cases. In this episode of the Robson Hall Criminal Law Podcast, criminal defence lawyer Wendy Martin-White brings a grounded, front-line perspective to what bail looks like day-to-day in Manitoba—and where the real pressure points are. The discussion shows a system that is not “broken,” but strained: shaped by limited resources, unrealistic conditions that can funnel people back into custody, and the destabilizing effects of remand on an accused person’s ability to defend themselves. The episode also examines proposed reforms (including expanded reverse-onus provisions) and asks a central question: will tougher rules improve public safety without parallel investments in housing, treatment, and community supports? The takeaway is clear—effective reform depends on differentiation and evidence, not fear or headlines.

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Summary of the Podcast

Bail Reform Beyond the Headlines: A Defence Lawyer’s Perspective

Five key takeaways from a conversation with Wendy Martin-White on bail, public perception, and proposed reform

Many discussions about bail reform highlight sensational stories and high-profile cases in the headlines. In this episode of the Robson Hall Criminal Law Podcast, criminal defence lawyer Wendy Martin-White offers a practical, real-world perspective on how bail functions in Manitoba and discusses what potential legislative changes could mean for accused individuals, the court system, and public safety.

What becomes clear is that we're not looking at a fundamentally broken system, but rather one that is under significant pressure. It’s a system influenced by scarce resources, skewed public perceptions, and policy actions that may favour appearances over effective results.

Below are five key insights from the conversation.

1. Bail Decisions Are Complex and Case-Specific

A common misconception in public discussions is that bail is a straightforward or lenient process. In reality, bail determinations are highly case-specific and guided by a detailed legal framework grounded in the Criminal Code, the Charter, and the Supreme Court of Canada’s jurisprudence.

As explained in the episode, there are several ways a person can be released: police release, consent bail, or contested hearings, the latter two requiring judicial oversight. Judges and Judicial Justices of the Peace consider various grounds for detention (primary, secondary, and tertiary) while carefully weighing factors such as court attendance, public safety, and public confidence, all within the principle of innocence until proven guilty.

In essence, bail is not a one-size-fits-all solution. It’s a discretionary process shaped by law, evidence, and the specific circumstances of each case.

2. Conditions Can Become Pathways Back into Custody

A recurring discussion point is how strict or poorly suited bail conditions, especially abstinence requirements, can actually undermine the goals bail is intended to achieve. For people struggling with addiction, conditions that demand complete abstinence without offering adequate treatment or support often set them up to fail. When they do, these breaches often result in remand, even when their behaviour poses little threat to public safety.

This creates a paradox: individuals who are presumed innocent may face more restrictions at the bail stage than they would after being convicted. As Martin-White notes, these circumstances contribute to a cycle where custody is driven not by new crimes, but by predictable non-compliance with unrealistic conditions.

3. Remand Undermines the Ability to Defend Oneself

The conversation also highlights how pre-trial detention can significantly affect fairness and trial outcomes. Individuals held on remand often face serious challenges in effectively instructing their lawyers, collecting evidence, and engaging in their defence. Conditions such as deteriorating mental health, lack of access to medication, and the stresses of custody can weaken an accused person’s ability to testify effectively or make well-informed strategic decisions.

As a result, remand can subtly but powerfully push accused persons toward early case resolutions, often by pleading guilty, simply to regain their freedom, even when legitimate defences exist. This reality challenges the common notion that detention is merely a neutral holding period before trial.

4. Reverse Onus Expands Risk Without Addressing Root Causes

The episode turns to proposed bail reforms under Bill C-14, with a focus on expanding reverse onus provisions that place the burden on the accused to justify their release. While reverse onus already applies to some serious offenses, the proposed expansion raises concerns about further increasing detention rates in an already overcrowded system. Martin-White warns that these changes could disproportionately impact individuals facing mental health challenges, addiction, housing instability, and systemic disadvantages. Importantly, the legislation doesn’t address the deeper causes of offending or breaches leading to detention. Without simultaneous investments in treatment, housing, and community support, stricter bail rules risk worsening overcrowding and inequality, while providing uncertain benefits for public safety.

5. Public Perception, Not Data, Often Drives Reform

A final critical insight from the discussion is the influence of media narratives on criminal justice policy. High-profile violent crimes grab the headlines, while the routine, everyday work of bail courts, where most cases are ordinary and non-sensational, remains largely unseen.

This creates a false perception that crime is always rising and that accused individuals are released without consideration for the public, even though the data shows otherwise. Without consistent, in-depth reporting on court proceedings and accessible public education, legislative responses tend to be reactive rather than evidence-based. As Martin-White points out, real reform requires leaders to engage with data, frontline experience, and long-term results, rather than jumping to conclusions based on public outrage.

Conclusion: Reform Requires Differentiation, Not Fear

The bottom line: bail reform should be about fair distribution, clear differentiation, and responsibility, not about being “soft” or “tough.”

An effective bail system must distinguish between those who genuinely threaten public safety and those whose involvement stems from social, medical, or economic challenges. Addressing these underlying needs through specialized courts, housing initiatives, and social services isn’t “soft on crime,” but essential for reducing repeat offences and keeping communities safe.

For bail reform to work, it must be guided by the insights of those working within the system and driven by facts, not fear.

TL; DR

Manitoba's bail system isn’t just a “catch-and-release” process; it's a carefully structured, discretionary procedure rooted in the Charter and Supreme Court decisions. Moreover, in practice, unrealistic bail conditions and prolonged remands frequently compromise fairness. They often lead accused individuals to plead guilty and result in mental health deterioration, all without improving public safety. Proposed changes that shift the onus to accused persons to justify their release could lead to increased detention in an already overcrowded system, unless paired with real investments in housing, treatment, and community support. True bail reform must be grounded in solid evidence, not fear-mongering stories.

Bail Reform

Additional Information for Podcast

Podcast Link Recommendations

1.     Bill C-14 (first reading, Parliament of Canada)

a.     House of Commons, Bill C-14, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 1st Sess, 45th Parl, 2025 (first reading), online: Parliament of Canada https://www.parl.ca/DocumentViewer/en/45-1/bill/C-14/first-reading.

b.     Introduces proposed amendments to federal bail and sentencing provisions, forming the legislative backdrop for the episode’s discussion on bail reform and public safety.

2.     Department of Justice – Bail and Sentencing Reform Act (overview page)

a.     Department of Justice Canada, Bail and Sentencing Reform Act: Proposed legislation to make bail laws stricter and toughen sentencing laws (2025), online: Government of Canada https://www.justice.gc.ca/eng/csj-sjc/pl/c14/index.html.

b.     Provides the federal government’s policy rationale and plain-language summary of the proposed bail and sentencing reforms referenced throughout the episode.

3.     Manitoba Justice – Remand Statistics

a.     Manitoba Justice, Remand in Manitoba (2024), online: Government of Manitoba https://www.gov.mb.ca/justice/cjsm/remand.html.

b.     Sets out Manitoba-specific remand data relied upon in the episode to contextualize the province’s reliance on pre-trial detention.

4.     Høidal & Hanssen, The Norwegian Prison System: Halden Prison and Beyond

a.     Are Høidal & Nina Hanssen, The Norwegian Prison System: Halden Prison and Beyond (New York: Routledge, 2023).

b.     Suggested Supplementary Reading: Høidal and Hanssen examine Norway’s correctional model through an in-depth study of Halden Prison, emphasizing normalization, dignity, and reintegration. The text offers a comparative lens for Canadian debates on detention, bail, and public safety by illustrating how correctional systems can manage risk while prioritizing long-term social outcomes and reduced recidivism.

Transcript of Podcast ft. W Martin-White

"Speaker Name", "Start Time", "End Time", "Text"

“Host: T Romaniw”,"00:00:11:02","00:01:25:11","Hello everyone, and welcome to this episode of the Robson Hall Criminal Law Podcast. I'm your host, Tesia. Today I'm very pleased to be joined by Wendy Martin-White, a criminal defense lawyer practicing in Manitoba with over 30 years of experience. So today we're really going to focus on bail. How recent proposed legislative amendments will affect our bail laws and also how it may impact marginalized individuals, specifically those individuals who struggle with their mental health or with addictions or with housing insecurity. So a lot of times, public perception is shaped by a small number of high profile cases that make their way into mainstream media. But those cases don't necessarily reflect the everyday realities of bail and of the individuals that are involved in the system. So before we get into the legal framework, it's important to ask whether public reaction and political pressure always reflects how the system actually functions or... whether something more nuanced is missed."

“Guest: W Martin-White”,"00:01:25:14","00:01:43:10","It's easy to get the public riled up when it comes to these things, but it's not necessarily an indicator that the system is broken. It's easy to say it's broken, but it's not necessarily broken."

“Host: T Romaniw”,"00:01:43:12","00:04:54:25","So before jumping into the discussion, I think it's important that we clarify what we mean when we say bail or release. A large part of this conversation depends on understanding those terms, and it's important to understand that bail is not a one size fits all. Whether someone is released depends on a variety of factors and every decision is highly case specific and ultimately up to the Judge or Judicial Justice of the Peace to determine.

 So there are different pathways to release from custody. In some cases, police can release someone directly from custody after they've arrested and charged someone by way of an appearance notice or an undertaking. Other cases may require a bail hearing or a form of judicial interim release, which is our Canadian legal term for bail. So a bail hearing would take place before a Judge or a Judicial Justice of the Peace in Manitoba.

 Sometimes the Crown and defense agree on a release plan, and in that case, it would be considered a consent release where the conditions have previously been discussed in advance. And they put a joint proposal before the court where if the judge is satisfied that the conditions are appropriate, the individual is typically released. We also see contested bails. And this can happen because maybe the Crown and defense can't agree on conditions or perhaps the Crown is opposed to release altogether.

 Bail conditions must be reasonable and justified and consistent with the Charter of Rights and Freedoms and previous case law. In practice, for minor or first time offenses, conditions may be very basic. You may see conditions like requiring that the accused attend court for any appearances, or that they should reside at a specific address. But for more serious cases, or for individuals with a longer criminal record of convictions, the conditions can be much more restrictive.

 So, some examples of some more onerous conditions include curfews. For example, 11 p.m. to 7 a.m. Or an accused can also be subject to an absolute curfew. So that's where they would be required to be at their residence 24/7 with limited exceptions, usually relating to a medical emergency or if they have a court appearance. You might also see a GPS ankle monitoring condition, and those are often imposed when there are concerns about court attendance or if the accused would be considered a “flight risk.”

 Oftentimes, it seems that bail is misunderstood or oversimplified in public discourse. When it is a much more complex portion of the criminal justice system. And so this is where real world experience is essential. Wendy sees how the justice system operates day to day, not just in theory, and she has experience with clients who have a wide range of needs and circumstances. And so bearing that in mind, Wendy can you discuss the three statutory grounds for bail?"

“Guest: W Martin-White”,"00:04:54:27","00:06:02:08","The state cannot deprive you of your liberty, your freedom to go about your business. You know, unless there is reasonable basis for doing that. And so as a result of that, we know that there are a number of grounds that the courts look at when they consider whether somebody is bailable or not. And we tend to look at the primary ground, which is whether or not they can be trusted to come to court and to comply with the conditions of a court and to not interfere with the administration of justice. The secondary grounds, which is that the court have confidence that there's not going to be every offending or substantial re-offending, a substantial likelihood of re-offending. And then thirdly, a tertiary ground which often looks at sort of the type of sentence they might be looking at down the road, the strength of the Crown's case and whether or not there would be a loss of confidence by the public. And that's not sort of an unreasonable public, but one that's well-informed about the bail system and the rights of individuals to be presumed innocent until proven guilty."

“Host: T Romaniw”,"00:06:02:11","00:06:16:08","So how do you explain that presumption of innocence to your clients when they've been denied bail and are being detained in custody while they await their trial or disposition?"

“Guest: W Martin-White”,"00:06:16:10","00:07:37:20","Well, that presumption is always there. But the courts, you know, don't always consider the fact that they're awaiting a trial. They look at their history, which typically is if they have a criminal record, they look at if they keep coming back into custody on breaches or substantive new offenses, and those sometimes end up being the sort of death knell, if you want to call it that, that the courts say “you're going to get your day in court, but you're going to be in custody while you await it, because either you can't satisfy me any longer that you're going to comply with conditions or you're going to, if I release you, not commit new offenses.”

 So they try to give meaning and reasonable meaning to what that means, which is generally you should be released awaiting trial. But if your track record is such that, you know, you're not complying with conditions or you can't come up with a plan where you're going to address maybe, perhaps, addictions issues or things like that in a meaningful way that will, address either breaches or the offending behavior, then the only options left to a court sometimes is to just keep the person in custody while they wait for trial."

“Host: T Romaniw”,"00:07:37:22","00:07:57:24","So bearing in mind that despite the presumption of innocence, detention is still a possibility when someone is charged and therefore a potential outcome of a bail hearing; can you walk us through the practical realities of a bail hearing?"

“Guest: W Martin-White”,"00:07:57:26","00:10:01:23","So I would say it, it's a perennial question or answer to a question you get, which is it depends, but it really does depend on what the charges are and where the person is located and what kind of plan they can come up with. So sometimes, for example, if there's a situation where there's been offending behavior against a particular person, you might be able to craft a plan where the person no longer lives in the same community or lives in the same vicinity or city as that person, and that will be enough for a court to say, “okay, that satisfies me, that we've done what we can to put some boundaries of protection around the complainants or other witnesses,” for example. So sometimes that's the easy answer.

 Sometimes it's, you know, if the person has addictions issues, we get them into a treatment program and that's enough to satisfy the usually primary and secondary ground concerns for a judge. Sometimes it's just having someone that the court can depend on in the community to watch the person. And so we call those persons sureties. They can be named, which means that they're simply not putting up a financial or qualifying financially. There's still a monetary amount that's usually associated, but they will sort of say, “I'm going to be the jailer in the community,” or “I'm going to be watching them in the community, and if they don't follow their conditions or they don't get to court, then I'll report them, or I’ll revoke my surety.”

 So sometimes it just depends on what the record is and what you can anticipate that the Crown is going to raise, or the concerns the court might have. And you try to fit a plan that will best address those needs. And so in the practical sense, you're really trying to work through with the client what resources do they themselves have, or what can we draw upon in the community so that we can actually get them bail?"

“Host: T Romaniw”,"00:10:01:25","00:10:28:25","One thing that I'm really struggling with, with what you were discussing, is the issue with the courts imposing a condition that would require your client to abstain from using a substance, if your client is actively struggling with addiction, with that substance. And how do you balance that with your client's right to exercise bail, while also ensuring that you set them up best to not fail to comply with their conditions?"

“Guest: W Martin-White”,"00:10:28:28","00:12:03:17","Yeah, I mean, what I always find interesting is that when they're presumed innocent, the courts will impose those kinds of restrictions on them, more so than if they pled guilty to an offense, and those were substantive issues that the court wouldn't want to set them up for breaching. So it's kind of this funny paradox. But I think the court’s sort of rationale is, you know, “I want to be able to trust this person in the community, and I don't think I can trust them in the community if they are, not going to promise to abstain.”

 Some judges will be more, I think, reflective on the nature of the breaches or the substantive offending. And they may just say, “I'll release you. I don't want you to be intoxicated in a public place.” So in other words, you can, if you have a significant addictions issue and you're going to stay in your home and not go out, “I'm not going to, you know, impose that kind of a condition,” but more so if it's a serious offense, you're going to see an abstain clause.

 So it's problematic because they may want to, abstain. They may honestly believe that they can abstain. But there's no question that we see clients coming in on a regular basis with breaches of their abstain conditions. And it's usually because they are addicted. And it's a difficult condition to comply with."

“Host: T Romaniw”,"00:12:03:20","00:13:32:01","It's disappointing and unfortunate that in some cases, an abstinence condition might be the only condition with which the Crown or the court would agree to release, when it's very clear that a lot of individuals involved in the system are struggling with addiction and imposing a condition such as that alone, without treatment and meaningful reform, isn't necessarily the best solution. I think that it is a step in the right direction, though, that the courts and that the Manitoba Court of Appeal has recognized that it would be unrealistic in some circumstances, to impose an abstinence condition when sentencing an individual to a probation order, for example, because it wouldn't be in the best interest of either the individual or the public to set them up to breach from the outset. I suppose that there's not necessarily that understanding yet when it comes to bail. And so I imagine that a lot of individuals are remanded into custody, either because they were denied bail from the outset or because they have failed to comply with a condition. And so how does being remanded into custody affect your client's ability to understand their options and instruct you, and make informed decisions about their defense?"

“Guest: W Martin-White”,"00:13:32:04","00:16:36:17","I mean, there's no question that once they're in custody, your client's ability to mount a more meaningful defense is compromised. Especially if they don't have people in the community who can access the kinds of things that you might need from their home or their computers or their bank accounts, or whatever it is that's going to matter for the defense. If they don't have those kinds of resources, it makes it really difficult to put in that kind of fulsome defense for them.

And those are the kinds of independent types of evidence that can make or break the credibility. You know, as I like to call it, the sort of meter that a judge considers because they'll often times, you know, maybe have second or third thoughts about whether to believe your client. But if you've got some, you know, sort of corroborating documentary evidence or other witnesses or things like that, that can make a difference in your client's case. And so it makes a big difference.

And just also the environment is not always the best for their mental health. So they're not at their best in terms of performing., if you want to use that word. And I don't like to use that word. But we have to remember that usually trials take place in a day, or at least your client or the witnesses that you might even cross-examine are only there for a day. And whether they're at their best, you know, in terms of sleep and mental health; have they been given their medications? All of those things play into how well they will do on the stand.

And I've had to sort of, you know, in consultation with clients, make the decision that, you know, “I don't think you are in the best state to testify. I don't think that you'll come across well.” And it could be for a number of different reasons. I mean, it's not always just their personality. It can very much be, you know, they're highly anxious and they haven't been able to get their medications in custody or things like that. And those are difficult things to explain to a judge who's got to assess their credibility in kind of like a window, a fraction of time. And that doesn't always bode well for clients who are in custody.

And so, you know that that is another aspect to always consider when your client is denied bail is how do we best prepare them if they do need to testify? And then I suppose, you know, sometimes when there's offers being made, the client is just more wanting to take a deal because the amount of time that they would get under the deal is shorter than if they went to trial. And that's an unfortunate reality that probably influences a lot of clients who may have viable defenses or may want to go to trial, but just feel that a deal gets them out of custody quicker."

“Host: T Romaniw”,"00:16:36:19","00:18:23:20","Right and if you have a client charged with a relatively minor offense, one where upon conviction, they may only be looking at being sentenced to 30 days, but they've already spent months or upwards of two years on remand awaiting a trial, it's easy to see how the system itself can pressure someone into accepting a plea bargain, or pleading guilty simply to get out of custody sooner.

And we know that custody is inherently destabilizing. We look at psychological research, like Gresham Sykes “The Society of Captives,” which shows that incarceration involves significant losses of autonomy, identity and certainty, all of which can have serious mental health consequences. And there's no reason to think that those effects don't apply equally, if not more so, to individuals on remand. And I think that really exemplifies why reasonable bail and meaningful access to bail matters, especially in Manitoba, where about 75% of incarcerated individuals in provincial jails are actually on remand. Detention isn’t a remote possibility at that point. It's very real and a very common outcome, it seems. And many of those individuals are held in overcrowded facilities and lack the resources needed to adequately address those mental health concerns and other needs. And so I wonder if you could speak to how the conditions of being held in a remand center or being on remand impact your client's mental health?"

“Guest: W Martin-White”,"00:18:23:23","00:19:31:10","I mean, we do know that confining spaces and segregation and other sorts of restrictions on people's liberties have impacts on their ability to make sound decisions, process information, you know, engage in meaningful ways that are in their best interests. You know, we know that segregation over a certain amount of time can lead to mental health decompensation. And for many of these people who already have mental health issues or are struggling with detoxing in custody, all of these things play into, you know, their decision making and maybe not, you know, not in a way where we would say it's in their best interest. Unfortunately, you know, the Supreme Court has recently said that the standard is such that it's not necessarily geared towards the best interests of the client. The client can make decisions that are not in their best interests, and that will still mean that they've had a just process."

“Host: T Romaniw”,"00:19:31:12","00:20:08:07","I understand in theory why the Supreme Court has taken that approach. But in practice, as you've described, many people in custody are simply not in a position to make clear long-term decisions about their defense. Their mental health and the stress of detention and the conditions of custody all affect their capacity to give meaningful instructions. And I think that places defense counsel in a very difficult position where a client's instructions conflict with what may actually be in their best interest."

“Host: T Romaniw”,"00:20:08:09","00:20:36:25","I think that tension really sets the stage for the recent introduction of Bill C-14, which, among other things, is proposing changes to our bail and sentencing laws, and of course, introducing more reverse onus offenses for bail. So I'm curious to hear your thoughts on Bill C-14 and what you expect its practical impact to be."

“Guest: W Martin-White”,"00:20:36:27","00:23:34:11","I mean, it's going to be a wait and see, I suppose. You know, we don't really know, you know, practically how the affects will be immediately or long term. But it is no question the intention is to deprive more people of the opportunity to exercise bail and get bail. So, I mean, the concern there is that more people are going to be, kept in custody. And we already have an overburdened system as it is.

So, I mean, I think practically, we're going to see more overcrowding and we are going to see more people being detained. And I don't think that the legislation is really sort of getting at ways that, might be better achieved at public safety, like more facilities to deal with addictions, or more resources for housing or more resources for, you know, mental health supports and things like that, that could be done in the community with added support. I think that that would have cheaper and better outcomes in the long term, for public safety.

So it's disappointing, I think, that a lot of the concerns are often based on maybe, local cases that gain a little bit of, you know, notoriety or reaction from the public. But I don't think that it fairly is representative of how the Canadian justice system is working, which it's working under a lot of constraints with supports, resources- and including within the court system, but fundamentally adhering to the Charter principles that are in play.

And so it's unfortunate because I think it was more of a knee jerk reaction and a political sort of response as criminal law often tends to be viewed by, politicians as an ability to sort of exacerbate fears in the community when they should be, yes, addressing concerns that the public generally has, but in a way that shows real leadership and deference to, you know, statistics and, you know, practical realities that exist within the system. And I think it's easy to get the public riled up when it comes to these things. But it's not necessarily an indicator that the system is broken. It's easy to say it's broken, but it's not necessarily broken."

“Host: T Romaniw”,"00:23:34:14","00:24:45:01","There really does seem to be a growing perception that the system is broken, but I think it's really more accurate to say that the system requires reform, not that it's fundamentally broken. And also, I believe that that reform should be informed by people who understand how the system actually operates day to day. Of course, we have our core criminal justice principles grounded in the Criminal Code and the Charter of Rights and Freedoms and long standing jurisprudence, but it seems that these fear based narratives are increasingly shaping legislative responses from the government. To me, that raises questions about how this new bail legislation will interact with the Charter. And I understand that legislation is designed to be Charter compliant in theory. But I'm curious with how section 11(d) and that presumption of innocence and section 11(e), the right not to be denied reasonable bail will actually play out in practice."

“Guest: W Martin-White”,"00:24:45:04","00:25:12:11","Well, it's going to be interesting to see what happens with the reverse onus provisions. And you know, what the courts will do in terms of the step principles and the ladder principles that they have had to, you know, sort of comply with, as interpreted by the Supreme Court. So whether or not those are viewed as unreasonable limits. We'll see. But I think there's risk there."

“Host: T Romaniw”,"00:25:12:13","00:25:30:18","If or when these changes are implemented, do you see them altering how judges weigh risk at bail, especially when balancing public safety and the presumption of release? Or do you think the day to day approach to bail will stay relatively consistent?"

“Guest: W Martin-White”,"00:25:30:20","00:26:52:08","I mean, I think judges, for the most part, understand and have a very difficult job to do, balancing all of the, you know, guiding principles, the Charter, the Criminal Code- we haven't even talked about the Youth Criminal Justice Act, but these amendments, if they come through, will also affect youth. And they, you know, have a tough job. And it's been often said it's more an art than a science and then very much so practically when you have to consider the facts at each case and the sentences that or the convictions that, that prior criminal record that people have, what the sentence might be upon conviction. And all of these things judges take into account and, you know, and they have to consider the specific bail plan being proffered. And so, you know, I'd like to think that judges will continue to be guided by all of the relevant principles. But, you know, I expect that, you know, they're not going to ignore new legislation. So that's why it's difficult to know how much of an impact it's going to have, going down the road. You know, we'll just have to see."

“Host: T Romaniw”,"00:26:52:11","00:27:13:19","So we already know that individuals who struggle with mental health or addiction, or who are dealing with housing instability, or individuals who are racialized, tend to face more barriers when it comes to bail. Do you think this proposed legislation could deepen those challenges?"

“Guest: W Martin-White”,"00:27:13:22","00:28:44:26","Yeah. I mean, I think the area where it will be most noticeable is going to be with the reverse onus and what will happen there, particularly because as we've talked about those individuals with addictions issues, you know, who want to or intend to or plan to comply with conditions of abstinence and then, you know, don't follow through. Are they now going to be held in custody, when, you know, maybe the conditions in the first place maybe shouldn't have been put in place? Or we may have to really think about those conditions, how we're going to craft those conditions so that, you know, it's actually conditions that balance both mental health concerns with public safety. We will have to be more creative, I think, around those conditions. But, you know, I think that's where we'll see the most impact is on those. You know, I think it's just going to mean that we have to be, very vigilant about the kinds of conditions that our clients are agreeing to and that the Crowns are seeking in the first place, and really arguing and advocating more in line with the Supreme Court of Canada's directions to us about only having conditions that are absolutely necessary."

“Host: T Romaniw”,"00:28:44:28","00:30:14:19","So reverse onus has come up a few times in our conversation, and I think this might be a good moment to briefly clarify what that means in the bail context. So generally, when someone is charged and applies for bail, the burden is on the crown to show why that person should be detained. Reverse onus flips that framework, and in those cases, detention is presumed and the accused must demonstrate why they should be released.

So the Criminal Code already includes certain reverse onus situations, for example, serious violent offenses or firearms related offenses, or where someone has a recent conviction for a similar offense. But the proposed amendments would expand those provisions, and under the new framework, a person with a prior conviction for violence or a weapons offense within the last ten years would face a reverse onus at bail.

The legislation would also introduce a new reverse onus following a finding of guilt. So essentially, an accused who has been convicted but is awaiting sentencing could be detained unless they can justify continued release.

So I know we've focused a lot so far on Bill C-14, but I'd like to switch gears a bit and ask you what you think and equitable bail system would look like."

“Guest: W Martin-White”,"00:30:14:21","00:33:31:19","And again, you know, it seems like, I'm saying the same thing over and over. But I do believe that when there are instances where individuals, whether they're on bail or not, commit crimes, and we understand that, then as we get to know that offender, what's happening with that offender, we find out that they might be schizophrenic and they were not on their medication or they had other mental health issues. We start to see that there's, you know, either gaps in the medical system or certainly gaps between the two systems.

And, and I think ways that we could better address that is, like we're trying to do with mental health courts, with therapeutic courts, with drug treatment courts, where we're trying to address the issues that brought that person into conflict with the law. And we do that by engaging with them, by providing wraparound services, by meeting their needs where they're at and we know that those kinds of interventions lead to less recidivism. So when we think about bail reform and being soft on crime, I think as a society, we just have to look at, well, are we going to just keep saying that for the next 50 years like we did for the last 50 years?

Or are we going to actually put in resources that will address those conditions that if they were sort of remedied or, you know, if a person was supported, would divert them out of the criminal justice system. It doesn't mean they're not always going to have mental health issues, but they may have a stable home. They may not be living in bus shelters where they're ranting and raving at at people going by, who, of course, might be afraid. If they're in a stable home and they have workers who can bring their medications to them on a regular basis, you know, they're more likely to be addressing the symptoms of their mental illness and having a better quality of life for themselves and not, when they are in public, acting on psychosis or symptoms of their mental illness.

I mean, that's just one example. I mean, there's so many examples like that that we could give that I think would, with enough time, show a dramatic reduction in the, you know, sort of criminal rate among certain people and demographics. And we can just look to certain countries that have put in those kinds of resources, like Nordic and Scandinavian countries in Europe, where there are some countries that don't even have jails any longer. And, you know, I think in Canada, people would wonder how that's possible. And yet it is. It's happened in other places. And I think we have models that we could be following, and that would be more effective than short term responses, like what we're seeing with this Bill [C-14] or what kind of stokes the fear and fury of, the public sometimes. We would see less of that and more substantive strides to meaningfully addressing the things that get people into trouble with the law."

“Host: T Romaniw”,"00:33:31:21","00:34:49:08","Yeah. And I think that the public narrative really influences how the government and how legislators respond to concerns about our criminal justice system. And it's interesting that you point to the Scandinavian countries, because we do see rehabilitative efforts exemplified in those countries. And you can look at Norwegian systems such as the Halden Prison, which emphasizes humane care in custody, as opposed to rehabilitation efforts in Canada, which we do have programs in our correctional facilities, but unfortunately they are hindered by our lack of resources and high caseloads and frequent changes in correctional programing. And so, absolutely, we could be doing better. But I'm not sure how aware of that the public is. And it's very clear that mainstream media and social media influence how the public views the criminal justice system. And I'm wondering if you see those impacts in your practice of how the news and how the media form opinions about bail and the justice system more generally."

“Guest: W Martin-White”,"00:34:49:10","00:37:15:11","I mean, I am a strong believer that we need a strong, robust media to report. I think the more informed the public is, the better they will understand what the justice system is about, the principles it relies on, the gaps that we all are dealing with, the limitations. I think the media, like so many other institutions, has its own difficulties financially and resource wise.

When I first started out, there were assigned court beat reporters that we saw all the time in court who got to know the players and understood the system and were well versed in reporting in a fair way, and not from the court's perspective, but for the public. And now you very rarely see those kinds of beat reporters that the media outlets dedicate to follow the courts. And it's had an impact, because I think it has not allowed for the kind of public service that the media has typically provided.

Are there certain outlets that are better than others? Yes, but I suppose my view would be that more is better and unfortunately, if they're only hearing certain stories and not a fuller picture, you know, the “good stories,” the ones that we all know, but that a lot of people never hear about because usually it's the sensational trials- and they're not always necessarily reported sensationally- but those are the ones that people care about, that they really want to know what happened.

And so you can get a bit of a skewed perspective when it comes to is crime going up or down? But, you know, I think my bigger concern would be that we need more journalists that are qualified and are reporting in a dedicated fashion. I think that would go a long ways to instilling more confidence in the system."

“Host: T Romaniw”,"00:37:15:14","00:39:00:21","Yeah, it's really quite interesting that when I watch the news or when I read the news, coverage tends to highlight and focus on the most violent and extreme cases. And of course, the public's reaction is going to be anger and fear, because those cases are fear inducing and would anger the public. But in the same breath, that repeated exposure really creates a distorted picture of crime and of what the day to day cases look like. I think it also creates this assumption that individuals that commit crime are irredeemable and cannot be rehabilitated, when that isn't the case for a lot of individuals.

I think it also feeds into the idea of confirmation bias, where media coverage tends to focus on extreme violence cases not necessarily because they're representative, but because they generate the most attention and engagement. And meanwhile, everyday low level offenses or cases with context as to why an individual may have committed an offense rarely receive the same coverage. So then that imbalance reinforces the belief that crime is universally violent and only getting worse. Now, I'm not suggesting that serious crimes shouldn't be reported because they do matter and they deserve public attention. But I think that a more balanced narrative would go a long way toward improving public understanding of how the criminal justice system actually functions."

“Guest: W Martin-White”,"00:39:00:23","00:40:33:24","Well. And it's interesting too, because I think you see less investigative pieces now, too, because those demands a lot of time and, and money and resources. But, you know, it would be interesting to see a great piece on “why does the public always feel that crime is getting worse when the statistics tell us something different?” Right? I mean, that would be a great piece. I'd love to read that, but that takes time and dedication from, you know, the papers to assign a journalist to cover that. And that's not always easy to do. Or you know, “how are therapeutic courts, working?” “What could be better? What are the concerns about them from a defense perspective?”

 Or you know what I mean? Like, there could be so many other stories that could get, you know, that balance of what we see in the courts all the time, the success stories. Or “what more could we be doing to make things better?” And as opposed to just focusing on the high profile cases? But again, I think that's why I go back to if we had the kind of dedicated reporting that we we used to have. And, and I know that the outlets are doing the best they can and such and I’m not trying to be critical, but I think that would go a long ways to better informing the public and, and instilling that confidence that I think we should all be concerned about."

“Host: T Romaniw”,"00:40:33:26","00:41:09:17","Absolutely. And I do see reporters in the courtrooms for some of those more high profile cases, but I imagine that they have responsibilities that extend beyond just reporting on court proceedings. So it would be interesting to see if they could implement a reporter focused entirely on the courts again. And so I know we have covered a lot in our conversation today, but is there anything that you'd like to add about bail or about media or just about the justice system more generally?"

“Guest: W Martin-White”,"00:41:09:19","00:44:13:28","Yeah. So what's interesting is it feels like we're, with very limited resources, trying to treat and address everybody the same. And I think if we stepped back and we looked at what cases should demand our attention and give those cases the resources and time and attention and look at cases where we could meaningfully divert people and put in resources in different ways to those. So I'm talking about youth. I'm talking about individuals with mental health concerns. I'm talking about homeless people. I'm talking about individuals who have addictions. If we put more resources into those and diverted those people out, we would in theory, but I also think in reality, see less resources with police having to go out and find individuals on the streets, breaching or being substantially involved because they're off their medications or, you know, they've fallen off the wagon or whatever it is and really have those kinds of cases in a separate stream and focus more on their underlying needs.

So it would need a greater overlap with, you know, social services, the medical professions, other sort of, psychological and counseling professions and community resources. But if we separate them out, imagine the reduction in the stream, which means then we could really focus on the cases that really matter to the public, where there is sincere and genuine public safety issues as well as, you know, making sure that those individuals are, you know, properly defended. Right?

That would be the better use of the resources. We probably would be able to better address Jordan concerns. We'd be able to better publicly fund defense lawyers and that kind of thing. Do you see what I'm saying? I think often times we're trying to address the sort of problems, if you want to call it that, with a one size fits all. And we're not really bearing down and studying what we can do in different ways for people, that would better use the resources and the limited resources and funds that we have. So I suppose if I were to reflect on that, that would be, you know, my, my biggest call, or request. That we deal with things a little differently that way. And I think that would have a better outcome for public safety, and in general."

“Host: T Romaniw”,"00:44:14:01","00:45:03:18","What I'm hearing is less a call for leniency and more a call for differentiation, where the justice system would respond to people based on the factors that actually bring them into contact with the law. So that would mean recognizing social, economic, and health related conditions and how they shape behavior, and designing responses that reduce future harm, rather than simply just defaulting to custody or having a retributive perspective on how we should treat those individuals. And framed that way, this becomes a question not just about criminal law, but about how responsibility for reform is allocated across different institutions. So who do you think is ultimately responsible for driving those changes?"

“Guest: W Martin-White”,"00:45:03:21","00:46:03:29","Well, I think the federal government and provincial governments have to work better. They have to change their approach to crime as a weapon, in the political discourse, and treat it in a way that... Shows leadership... Does protect the public. But also, you know, that they have the courage to stand by what the evidence and statistics tell them. And that does take true leadership. And I think they need to reach out to different stakeholders and start to have a collaborative approach. And there is collaboration happening. So it's not like they'd be reinventing the wheel. I think there's a lot of models that are working and that they should be continuing to study and, where it makes sense, adapt them in different areas."

“Host: T Romaniw”,"00:46:04:01","00:46:31:06","Wendy, thank you so much for joining me today and for providing your perspective on not just bail, but the criminal justice system more generally. I know we started with a bit of a discussion on bail, but I really appreciate how you were able to provide some insight on how news and media shape public perception. And ultimately, what we could change to improve our criminal justice system."

“Host: T Romaniw”,"00:46:31:08","00:46:41:11","And so thank you again for joining us. And thank you to our listeners for tuning in. Please stay connected for future episodes from the Robson Hall Criminal Law Community."