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Ontario Premier Doug Ford speaks at a construction site in Hamilton, Ont., on Tuesday. The province instituted the widespread use of cash bail last week. Mr. Ford’s government said the new system will improve public safety.Carlos Osorio/Reuters
Two legal groups are challenging Ontario’s new cash bail rules in court on Thursday, arguing that the system violates the Constitution and the Charter of Rights and Freedoms.
The province instituted the widespread use of cash bail last week, and it sparked confusion in bail courts over how to administer the rules. Premier Doug Ford’s government said the new system, which was first announced last November, will improve public safety.
Cash bail in Canada was mostly eliminated in the early 1970s and the Supreme Court of Canada has said judges should impose it only in exceptional circumstances.
The Canadian Civil Liberties Association and the Criminal Lawyers’ Association argue that Mr. Ford overstepped Ontario’s constitutional powers and are calling on the Ontario Superior Court to strike down the province’s new rules.
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The case is scheduled in Toronto on Thursday morning, to be heard by Justice William Chalmers. If a ruling is not rendered that day, the two legal groups plan to ask for an injunction from the judge to put cash bail on pause until a judgment is released.
The legal groups, in their court filing, assert that Ontario’s cash bail rules “unconstitutionally rewrite the law of bail by eliminating the promise to pay.” The groups argue cash bail encroaches on exclusive federal jurisdiction over criminal law, as outlined in the Constitution. They further state that the federal Criminal Code specifically requires a court to favour a promise to pay rather than have actual cash handed over.
The groups also contend the cash bail rules violate the Charter of Rights’ provision that reasonable bail not be denied without just cause.
Cash bail is an anomaly in Canada, unlike in the United States. In 1972, the federal government ended the system of paying cash to be freed from prison ahead of a trial, because it was deemed overly harsh for lower-income people.
In the Canadian system, when a person accused of a crime is required to provide a financial component as part of their release ahead of trial, it is generally a pledge of assets.
Ontario, under Mr. Ford’s tough-on-crime ethos, has sought to make it harder to get bail by reviving the common use of cash bail. New regulations in mid-August, enacted after legislative changes became official in early June, demand that any financial component in a bail release order be “paid in cash or by money order or bank draft” within two business days of release.
This makes Ontario an outlier in Canada, the only province to pursue such a strategy. Ottawa recently toughened federal bail laws, to make it harder for accused people to gain release from jail ahead of trial, but the question of cash bail hadn’t been raised until Ontario surprised everyone in the justice system with its plan last November.
Nicole Myers, a criminology professor at Queen’s University, said Ontario’s move is an obvious violation of the Constitution and an egregious attack on accused people who are presumed innocent ahead of trial, especially those with lesser financial means. Cash bail, she said, creates a two-tier justice system in which wealthier people buy their freedom before trial and the poor are incarcerated.
In the United States, research from the Prison Policy Initiative advocacy group showed that several hundred thousand people were jailed in 2023 ahead of trial, presumed innocent, because they couldn’t afford cash bail.
“It’s a disaster of a law,” said Prof. Myers of cash bail in Ontario. “The only motivation behind this is politics.”
Ontario Attorney-General Doug Downey last November said the province would craft regulations that abide by the Constitution. In mid-August, when Mr. Downey announced the system was ready to go, he cited the need to keep violent and repeat offenders behind bars.
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Shakir Rahim, a director at the Canadian Civil Liberties Association, said such rhetoric does not jibe with the system Ontario introduced. Any accused person, whether a first-time offender or someone charged with a serious crime, must produce cash if there’s a financial component in their bail release order.
Last Friday, a spokeswoman for Mr. Downey, Julia Facca, said in a statement: “Our government will never apologize for the actions we are taking to strengthen the bail system.”
Adam Weisberg, president of the Criminal Lawyers’ Association, said the division of powers between the federal and provincial governments in the Constitution is clear. Criminal law, including how bail works, belongs to Ottawa.
“We have a strong argument,” said Mr. Weisberg. “The province doesn’t have the power to do what it’s done.”
The legal groups’ case against Ontario is being argued in court by Matthew Gourlay of Henein Hutchison Robitaille LLP.
The Supreme Court of Canada in 2017, in a major ruling known as Antic on how bail laws should work, spoke strongly against cash bail. The top court instructed judges to order cash bail only in exceptional circumstances and, if levied, to choose a figure the accused could afford to pay.
Richard Wagner, who wrote the unanimous Antic judgment a few months before he became Chief Justice, highlighted the history of bail and cited Ottawa’s reforms in the early 1970s that effectively ended cash bail.
“Parliament limited cash bail for good reason,” he wrote in the judgment.