In late October 2025, the Canadian government announced sweeping reforms to bail hearings.

Under the newly proposed Bail and Sentencing Reform Act, the government is seeking to make bail stricter and harder to get for individuals charged with crimes. Included in the proposed changes are several provisions creating new “reverse onuses” for accused individuals, where the burden will be on the accused to show why they should be released from custody before trial.

These new provisions will have a profound impact on the fundamental freedoms of many Canadians, so it is important to know what they are, and how you or a loved one can best prepare for these changes.

reverse onus

Background on the Bail System in Canada

After a person in Canada is arrested and brought into custody, they can be held in custody until their trial takes place. In these situations, the court will typically hold a “bail hearing” within 24 hours to determine whether pre-trial custody is appropriate.

Bail is one of the central steps in the criminal process, as it determines whether a person will secure a “judicial interim release”, or whether they will be held in custody until their trial.

In most cases, the Crown will be required to “show cause” – that is, show justifiable reasons why an accused should be kept in custody.

The Crown can show cause under three different grounds:

  • Primary Ground: the detention of the accused is necessary to ensure the accused’s attendance at court;
  • Secondary Ground: the detention of the accused is necessary for the protection and safety of the public from the risk of further crime and to protect witnesses from interference or intimidation; and
  • Tertiary ground: the continued detention of the accused is necessary to maintain the confidence of the public in the administration of justice.

In some cases, however, a “reverse onus” applies. This means that an accused will have to justify their own release, failing which they will continue to be held in pre-trial custody.

What is Reverse Onus and How Does it Work?

Reverse onus is a legal concept which flips a bail hearing on its head. Instead of requiring the Crown to show why an accused should be detained prior to trial, reverse onus requires an accused to show why they should not be detained prior to trial.

Currently, reverse onus bail applies to cases where an accused has been charged with the most serious of offences (terrorism, organized crime), as well as to repeat violent offenders.

A reverse onus does not mean that the accused will not be able to obtain bail, or that they will be required to prove their innocence. It only means that the onus of proof has shifted to the accused to show that they should be allowed to be in the community as they await trial.

Impact of Reverse Onus on Intimate Partner Violence Cases

Reverse onus provisions for bail hearings are especially relevant in the case of intimate partner violence cases. The government had previously established in 2023 that certain conduct, which is relevant to intimate partner violence, was subject to the reverse onus provisions.

Under these provisions, an accused person charged with an offence involving intimate partner violence, who was previously convicted or received a discharge for an intimate partner violence-related offence, will be subject to a reverse onus bail hearing.

Under the newly proposed 2025 reforms, further types of intimate partner violence allegations will be subject to reverse onus bail hearings at first instance. These include instances of human trafficking, assault and/or sexual assault involving choking, suffocating or strangulation, and extortion involving violence. If an individual is accused of committing any of these acts against their intimate partner, the proposed reforms will shift the onus on that individual to establish that they should be released from custody prior to a trial on their charges.

Policy Concerns and Criticisms of Reverse Onus

Reverse onus bail hearings, where an accused is required to prove why they should be released from pre-trial detention, conflicts with the presumption of innocence. Under section 11(d) of the Charter, an individual has the right to be presumed innocent until proven guilty in a court of law. By shifting the burden from the Crown to the accused on a bail hearing, the court is requiring the accused to make an active effort to establish their suitability for bail, failing which the individual will continue to be detained despite not being proved guilty. These reverse onus bail provisions have been criticized as unconstitutional.

Government Position on Reverse Onus  

In an October 16, 2025 news release, Prime Minister Mark Carney announced the new reverse onus bail provisions, under the guise of keeping violent and repeat offenders out of communities. This announcement reflects the Canadian government’s recent “tough on crime” approach, but fails to differentiate individuals accused of crimes and individuals who have been convicted of crimes.

How Bail Functions Under the Criminal Code

The Burden of Proof or “Onus” in Bail Proceedings

In a bail hearing, the Crown generally holds the “onus” or “burden” to prove why detention is necessary in a particular circumstance. In doing so, the Crown is required to convince the court that an accused individual should continue in custody to ensure court attendance, to ensure public or victim safety, or to ensure public confidence in the criminal justice system is maintained. The Crown is required to establish this burden of proof on a “balance of probabilities”, meaning that the court must be convinced that it is more likely than not that the Crown has established one of the three central grounds for denying bail.

Bail Conditions Upon Release 

Bail hearings are not all-or-nothing. In some circumstances, an accused can be granted bail under strict conditions impacting their fundamental freedoms which do not amount to pre-trial custody. This is aided in the criminal justice system by the “ladder principle”, which provides that an accused individual awaiting trial must be subject to the least onerous terms possible.

Skilled defence lawyers will suggest bail conditions which result in the most minimal restriction to an individual’s fundamental rights and freedoms, while still addressing concerns raised by the court or Crown. This may include conditions relating to contacting certain individuals, undertakings to refrain from alcohol or drug use, and prohibitions on leaving the province.

The newly proposed laws include new types of bail conditions that the court must consider for certain offences (such as car theft or organized crime). These new provisions include the consideration of geographical limits for an accused and court-ordered curfews.

Frequently Asked Questions

In Canada, a bail hearing is used to determine whether an accused can be released from custody while awaiting their trial. Typically the Crown is required to prove that an accused should be detained for reasons rooted in court attendance, public risk or public confidence in the criminal justice system. However, the onus of proof can shift to an accused individual where they are accused of committing serious crimes.

The “reverse onus provision” in the bail system is section 515(6) of the Criminal Code, which outlines several offences where the onus of proof shifts onto the accused to show that they should be released from pre-trial detention. For example, under this provision, if an individual is accused of committing murder they will be required to convince a court that they should be released prior to trial.

In October 2025, the Canadian government proposed new reverse onuses for the following kinds of criminal offences:

  • violent and organized crime-related auto theft
  • break and enter of a home
  • trafficking in persons
  • human smuggling
  • assault and sexual assault involving choking, suffocating or strangulation
  • extortion involving violence

In December 2023, the government added a reverse onus for an accused person charged with an offence involving intimate partner violence, who had been previously convicted or received a discharge for an intimate partner violence-related offence. This means that an accused who has previously been convicted for an intimate partner-violence offence will be required to convince the court that they should be allowed to be released from custody prior to a trial on similar charges.

The main criticism of the proposed reverse onus bail provisions is that they unreasonably infringe on the Charter rights of Canadians. Under section 11(e) of the Charter, an individual charged with a crime has the right to not be denied reasonable bail without just cause. Any provision relating to “reverse onus” bail is subject to this fundamental right.

Reverse onus bail provisions are a potential barrier for accused individuals who do not have proper legal representation. The proposed provisions look to expand the reverse onus provisions from exclusive circumstances, to be available in numerous other circumstances. An accused who is unable to properly advocate for their right to not be denied reasonable bail, is at risk of the erosion of their Charter-protected rights through the new provisions.

The Canadian government justifies the reverse onus provisions by stating that it is important to prevent crime in communities. The reverse onus provisions have been presented by the government as a solution which keeps communities safe by detaining individuals who pose a high risk of re-offending, while also maintaining confidence in the justice system by taking a “tough on crime” approach. With its recently proposed expansion of the reverse onus provision, the government has attempted to extend these justifications beyond the original use of reverse onus bail, which was saved for the most serious and repeat offenders.