Debbie Henderson, the aunt of Bailey McCourt, wears a t-shirt honouring Ms. McCourt and her two daughters. Ms. McCourt was allegedly killed by her estranged husband James Plover. He was out on bail after being convicted of assault.Aaron Hemens/The Globe and Mail
James Plover walked out of the courthouse in Kelowna on July 4 after being convicted of assault by choking and uttering threats to cause death. His hearing had lasted 18 minutes.
Sentencing was set for September, back at the courthouse in the British Columbia Interior. Since Mr. Plover’s arrest a year earlier, and through a trial in the spring, he had abided by bail conditions that restricted contact with the person he had assaulted, whose identity is protected by publication ban.
There was no discussion of immediate detention.
In the hours after he left court, Mr. Plover went looking for Bailey McCourt, his estranged wife, according to her family. They said he found her in the early afternoon, when she and a colleague were coming back from lunch.
RCMP have described what happened next as a motor vehicle incident and assault with a weapon. According to Ms. McCourt’s family, in a parking lot outside her office, Mr. Plover allegedly rammed her car with his own before he got out and bludgeoned her with a hammer. The mother of two later died in hospital. She was 32.
Mr. Plover was arrested and, the next day, charged with murder. The allegations have yet to be tested in court.
Earlier: Ottawa to proceed with promised bail reform legislation
The case shocked the province and sparked questions about why Mr. Plover was free on bail even after his conviction for assault and uttering death threats.
It also led Ms. McCourt’s family on a mission to change Canada’s bail laws, especially around intimate partner violence, at a time when politicians across the country – from every major party – have called for reforms to keep violent offenders in jail more often. That this change is necessary is an opinion widely held among Canadians.
Prime Minister Mark Carney has promised stricter bail rules and, on Thursday, his Liberal government is expected to table legislation in Parliament to make it harder to get bail for an array of violent crimes, and for repeat offenders. The most significant change would apply a reverse-onus on bail – already in place for offences such as murder and robbery to steal a firearm – to a wider array of major crimes.
It would be the Liberals’ third swing at bail reform in seven years and follows multiple Supreme Court of Canada rulings that have emphasized the priority of granting bail, not denying it.
It’s unclear whether the proposed changes will be enough to satisfy the many people advocating for change – including politicians such as Ontario Premier Doug Ford, who has argued for much stronger measures – or if the legislation could set off a new round of court challenges. There has also been talk among some politicians of using the notwithstanding clause in the Charter of Rights and Freedoms to override the right to bail in some cases.
Yet despite the apparent political consensus that bail is too lenient, data show a record number of people are not getting out on bail. There was an increase of almost 20 per cent last year. Roughly half the people imprisoned on an average day in Canada have not been convicted of the crime of which they are accused.
The public, political and personal debate on bail reform swirls around two seemingly contradictory poles: the feeling too many people are granted bail while more people than ever are denied it.
For Bailey McCourt’s family, the justice system did not deliver on a fundamental promise of public safety. Her aunt, Debbie Henderson, can’t understand how detention wasn’t considered after Mr. Plover’s conviction in July.
“Nobody said anything,” said Ms. Henderson. “There’s people in positions of power and nobody said or did anything.”
Overcrowding and a lack of access to basics like a daily shower have been chronicled as parts of remand at the Toronto South Detention Centre among others.Mark Blinch/The Globe and Mail
The law
The laws that govern bail across Canada are long-standing but have been shaped and sharpened in recent years by Liberal legislative changes and Supreme Court rulings.
The top court, in a series of unanimous decisions from 2015 through 2020 on aspects of bail, has literally underlined the Charter right to not be denied reasonable bail without just cause. In the 2019 Myers decision, Chief Justice Richard Wagner wrote: “the release of accused persons is the cardinal rule and detention, the exception.”
Another key ruling came in 2017, called Antic, written by Justice Wagner before he led the court. In Antic, he spoke of bail at the earliest opportunity on the least onerous grounds possible.
This focus on leniency is the general – but incomplete – impression of the Supreme Court’s thinking on bail.
In 2019, when Chief Justice Wagner underlined the cardinal rule of bail, he was quoting himself, from a 2015 ruling that tightened, not loosened, bail laws. That case, called St-Cloud and often forgotten in public debate, involved bail granted after a violent assault. The top court ruled bail should have been denied.
There are three justifications for detention while awaiting trial in Section 515(10) of the Criminal Code. The first is to ensure attendance in court; the second is if detention is necessary for the protection or safety of the public, including victims, witnesses or children; the third is a provision about maintaining public confidence in the justice system, particularly in serious cases.
Justice Wagner and a unanimous Supreme Court in the 2015 St-Cloud decision bolstered leeway to detain an accused in serious cases on the singular ground of public confidence in seeing justice rendered. He specifically instructed judges behind the bench in the lower courts that this ground for detention was “not limited to exceptional circumstances” and should not be applied sparingly.
Chief Justice Richard Wagner, in a 2019 court decision, says that the release of an accused person is the cardinal rule and detention is the exception.Justin Tang/The Canadian Press
The politics
In 2019, the federal Liberals passed the first comprehensive changes to bail provisions in close to half a century. Among the main moves was giving police more power to impose conditions on an accused person, easing strain on overburdened courts by sending fewer cases to a bail hearing.
But the legislation is best known for its inclusion of the principle of restraint, Section 493.1, in the Criminal Code. Rooted in the Charter, it responded to the Supreme Court 2017’s Antic decision and a years-long trend of overly punitive bail conditions, or denial of bail, imposed on people too frequently.
The principle states courts “shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate.”
These days, this principle is a central political target for change, after a second round of reform was perceived by many as inadequate.
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People take part in a protest against intimate-partner violence in Montreal in April, 2021.CHRISTINNE MUSCHI/Reuters
In early 2024, after several years of provincial pressure, the Liberals passed a set of changes to tighten bail. This included a reverse onus on some repeat violent offenders. Normally, when a person is detained and seeks bail, the onus is on prosecutors to prove why detention is necessary. In the reverse, the accused must prove why they should be released. Such rules on repeat offenders of intimate-partner violence were broadened. And courts were required to consider a person’s previous convictions for violence when deciding bail.
Calls for an ever-stricter system did not abate.
The latest Liberal bill once again eyes repeat offenders. Mr. Carney in September spoke of people who “commit a crime one day and they’re arrested and then out of jail, out on bail the next.” Last week, he said of the pending legislation: “It toughens the rules, punishes criminals. It will help keep us safe, but also is consistent with the Charter of Rights and Freedoms.”
Pierre Poilievre’s Conservatives, if they had won the spring election, likely would have forged new legal territory on bail. Mr. Poilievre said he’d be the first prime minister to use the Charter’s notwithstanding clause and was ready to take aim at bail – but never detailed how.
Deploying the notwithstanding clause has come to the fore in the debate about stricter bail, as well as in the push for harsher sentences for violent crimes. Ontario’s Doug Ford, for one example, has proposed denying bail to anyone accused of a list of crimes that includes murder, intimate partner violence and drug trafficking. Such a change would require the notwithstanding clause to override the right not to be denied bail without just cause.
Andrew Coyne: It’s not about the notwithstanding clause – it’s about the Charter
“I don’t think the Liberals are prepared to do that, which means they won’t be able to go far enough to fix the problem,” said Howard Anglin, a top adviser to former prime minister Stephen Harper.
“There should be no bail, period, for repeat violent offenders and an overwhelming presumption against bail for any repeat offender.”
In September, in a House of Commons private member’s bill, the Conservatives didn’t broach that step but still tabled proposals that are more aggressive than what the Liberals have outlined.
The Conservatives proposed scrapping the principle of restraint and replacing it with a principle of protection of the public. The bill would also expand grounds for detention. Key wording around public safety would ease from a “substantial likelihood” of bail violations to whether such outcomes are “reasonably foreseeable.”
B.C. Attorney General Niki Sharma says bail conditions should be reviewed in situations similar to that of Bailey McCourt’s.DARRYL DYCK/The Canadian Press
Mr. Poilievre has a perhaps unlikely ally, at least in part, in the B.C. NDP. The provincial government wants the principle of restraint repealed for some repeat offenders, or overhauled to make public safety the main goal. In a May letter to Ottawa, Deputy Premier and Attorney-General Niki Sharma evoked cases of alleged violent crimes by people with long criminal histories getting bail. “Something more must be done,” she concluded.
Among other changes the B.C. NDP wants is on bail related to intimate partner violence. Ms. Sharma wrote another letter to Ottawa in August. She highlighted Bailey McCourt’s story and called for a review or revocation of bail conditions on conviction in such situations. “When a person is convicted, they should be held,” Ms. Sharma said in the summer.
This spring, Mr. Ford lashed out against what he called a broken bail system and weak-kneed judges. But if bail was completely denied to people accused of crimes such as murder, as Mr. Ford wants, one life that would have been unjustly upended is Umar Zameer.
Umar Zameer and his lawyers leave the courthouse following his not guilty verdict in April, 2024.Christopher Katsarov/The Canadian Press
On Canada Day four years ago, Mr. Zameer, his pregnant wife and young son returned to their car in a downtown Toronto underground parking garage a little after midnight. As the family was about to depart, there was banging on the car windows. Fearful, Mr. Zameer tried to drive away. The car struck and ran over a plainclothes police officer, Detective Constable Jeffrey Northrup. Police charged Mr. Zameer with first-degree murder.
He spent the summer in jail and missed the birth of his daughter. In September, after a three-day bail hearing, a judge at Ontario Superior Court of Justice granted release to the 31-year-old accountant. It included myriad conditions, such as an electronic ankle monitor and family pledges of $385,000.
There was outrage. “This is beyond comprehension,” said Mr. Ford on social media. “It’s completely unacceptable that the person responsible for this heinous crime is now out on bail.”
The bail decision, the length of a novella, carefully weighed the law, from the principle of restraint to justification for detention. More than two years later, in April, 2024, a jury found Mr. Zameer not guilty.
“Getting bail is hard. And getting bail for violent offences is damn hard,” said Nader Hasan, lawyer for Mr. Zameer.
Mr. Hasan argues political leaders who have fired up a fervour for tougher bail have misled Canadians. “It’s not rooted in empirical evidence,” he said. “It’s crass politics.”
Defence lawyers Nader Hasan and Alexandra Heine place their hands on their client Umar Zameer, as his wife looks on in court in April, 2024. Mr. Hasan argues political leaders who have advocated for increased bail restrictions have misled Canadians.Alexandra Newbould/The Canadian Press
The numbers
Amid years of stories of violent crimes committed by people out on bail, and political leaders lambasting a lenient system, public perception of what must be done has coalesced in a striking near-unanimous consensus.
Almost four in five people, 79 per cent, say it is too easy for serious offenders to get bail, according to an Abacus poll in September. (The poll surveyed 2,230 people and is accurate to within about 2 percentage points, 19 times out of 20.)
Canadians across the political spectrum, and of all ages, are in a tough-on-crime frame of mind. Eighty per cent effectively support a partial override of the Charter, favouring automatic denial of bail for people with a history of repeat violent offences if arrested on new serious charges.
To Carolyn Yule, an associate professor at the University of Guelph and an expert in the sociology of crime, there are alarming criminal cases – but she sees a distorted picture, in part because of limited data, and a natural tendency to fixate on bad news. “A single horrifying incident can drive widespread fear and demand for stricter bail laws,” said Prof. Yule.
Detailed bail data, which is supposed to be collected by the provinces, is sparse.
Campbell Clark: Carney’s crime-fighting superpower is not being Trudeau
The Canadian Civil Liberties Association says Ottawa must lead the push and argues the dearth of data has led to a “deeply misinformed perception that the bail system is lenient.”
Basic numbers, such as how many people are out on bail or the number of violations, and what sort, are not readily available.
When the five most populous provinces – Ontario, Quebec, B.C., Alberta and Manitoba – were asked by The Globe about initiatives to produce better bail data, no specific plans were forthcoming.
Little exists right now. Asked for details of people on bail, Quebec said it does not have precise and reliable data; Manitoba said it does not have data; B.C.’s provincial court does not have a report on outcomes from bail proceedings; Alberta’s computer systems can’t link bail hearings with outcomes.
Ontario appears to have the best data, details of bail granted, denied or bail not sought, going back to 2018.
And the data show more people denied bail.
Of cases that involved bail court, the percentage of people released on bail fell to 50 per cent in 2024 from 57 per cent in 2018, according to the Ontario Court of Justice.
This jibes with Statistics Canada data that show the number of people in jail on remand – those not released on bail – has surged.
In 2023-24, there was an average count of 19,335 people in remand across Canada, up 19 per cent from the year before, itself a record level. Mr. Ford’s tough-on-crime Ontario leads the way, with a 26-per-cent spike.
Remand can be rough. Overcrowding and poor conditions, such as at Toronto South Detention Centre, have been long chronicled. Basics, a daily shower or everyday access to a phone to call a lawyer or family, are often unavailable.
“Detention centres are a horror show,” said criminal defence lawyer Leo Russomanno in a social media post this month. “No one cares for the lives destroyed by this mess.”
All people denied bail are still presumed innocent. And as more people have been detained, only about half of criminal charges in recent years ended in a guilty decision.
“The bail process is both the trial and the punishment,” concluded Nicole Myers, a bail expert and an associate professor of criminology at Queen’s University, in a study last year of hundreds of bail hearings. She observed a heavily backlogged justice system, unable to focus on cases that present greater risk to the public.
“It’s politically easy to say you want to be tough on crime,” said Prof. Myers in an interview. “When there is a tragic incident – and I don’t want to minimize them – it’s perfect political fodder. Bail has really grabbed people’s attention.”
Cait Alexander founded activist group End Violence Everywhere to fight for legal reform after assault charges against her then-boyfriend were dropped.Jhovany Quiroz/The Globe and Mail
The personal pain
Cait Alexander became an activist after she was attacked by her boyfriend and the justice system did not render justice.
She had met a man in Toronto in late 2020 and moved in with him several months later. The first flash of violence came soon after and, according to Ms. Alexander, in the summer the man badly beat her. He punched and kicked and attacked her with a wooden rolling pin. She was concussed and suffered brain swelling. After dodging police, the man was arrested four days later and jailed overnight before release on bail.
Charges including assault with a weapon and uttering death threats were eventually dropped because of rules imposed by the Supreme Court on unreasonable trial delays. Ms. Alexander founded the activist group End Violence Everywhere to fight for legal reform.
“Canada doesn’t have a justice system. It just doesn’t,” said an exasperated Ms. Alexander. “Canada has become a graveyard of preventable deaths.”
As political leaders seek to recalibrate a new balance in the bail laws, Bailey McCourt’s family demands that more needs to be done to ensure public safety.
Last year, when James Plover assaulted the person whose name is protected by a publication ban, his relationship with them was in a downward spiral, according to court testimony and recordings. During the assault, he threatened to kill the person, threw them against a wall and gripped their throat with both hands – tight enough the person couldn’t breathe and felt like they were blacking out.
The person made it out of the home. Mr. Plover barricaded himself inside. A dozen police cars crowded a Kelowna street. Mr. Plover sought means to die by suicide but submitted to arrest.
People take part in a vigil at the Women’s Monument in Petawawa, Ont., in June, 2022 after an inquest into the deaths of three women murdered by Basil Bortuski, who had a known history of violence against women.Sean Kilpatrick/The Canadian Press
At the July hearing where he was convicted, a psychiatric report was ordered ahead of sentencing in September. Assault by choking is known to have risk of further offences, but under the current law, Mr. Plover’s release before sentencing was effectively by the book. He had abided by bail conditions for a year and the sentence might not have included jail time. The prosecution would have considered such details. Had there been indicators of risk, defence lawyer Cory Armour said in an interview, “Someone would have stepped up.”
Mr. Plover walked out of the courthouse. The day before was his 33rd birthday. The conviction added to his legal challenges. He also faced family law court proceedings and bank mortgage foreclosure.
Hours later, Bailey McCourt was dead.
Her family had gathered at the hospital. Her aunt Debbie Henderson struggles with the searing memory of her battered niece. “It’s something that keeps flashing,” she said. She wiped away tears.
“You just keep having this image pop back into your mind. If anybody had seen her like that, there would be no one not supporting change. The system failed Bailey. The system needs to change.”
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