Ontario’s new rules that require cash up front as part of being released on bail have been hit with a constitutional challenge on the same day they came into force.
The Canadian Civil Liberties Association and the Criminal Lawyers Association argue in a written file that it’s the federal government, not Ontario, that has power over the bail system, and the province’s new rules would create a two-tiered system for the rich and the poor.
“The cash bail provisions present an immediate risk to the rights of accused persons across Ontario to obtain bail, particularly for those who are financially disadvantaged,” the filing says.
Those who can’t afford to pay will spend time in jail while those who can afford to pay will get out of jail more quickly, which is against provisions in Canada’s Charter of Rights to not have bail denied without a valid, just cause.
“The predictable reality that many will be unable to [pay] belies the cash bail provisions for what they are: an improper attempt to place bail out of reach for many accused persons,” the filing says.
On Friday, Ontario Attorney General Doug Downey announced that a provision of the Keeping Criminals Behind Bars Act would come into force on Monday, which requires anyone released to deposit cash within two business days or face prosecution.
“People deserve to feel safe in their homes, at work, and in their daily lives. They deserve to know that when someone is released on bail, the conditions attached to that release are taken seriously,” Downey said at the time.
Before the changes, judges usually required a pledge to pay a bail amount, either from the accused themselves or their sureties, who are people who pledge to pay bail if there is a breach of the bail conditions.
It was possible for a judge to require payment upfront. In the 1970s, however, parliament required the cash up front option to be an exception on the grounds that it discriminated against people without the ability to pay, said one of the lawyers on the constitutional challenge, Brandon Chung.
“The law changes what has been the status quo for over 50 years, where cash bail is very much the exception, not the rule,” Chung said.
Other lawyers pointed out that the rules would likely send many people to Ontario’s overcrowded jails, and create backlogs in court as court staff looked to get payment in every case, rather than those who breached.
“This is solving a problem that doesn’t exist and is going to create an absolute administrative havoc,” said criminal lawyer Alison Craig in an interview.
Meanwhile, the effect on the poor, who are already overrepresented in the justice system, will be striking, she said.
“If you have money, you can get out of jail. If you don’t, you’re stuck,” she said.
Cash bail up front is the law in many American jurisdictions and Ontario should not move in that direction, said Howard Sapers, the Executive Director of the Canadian Civil Liberties Association.
“More of those folks get caught in the criminal justice system than others. All of those disproportionate effects are magnified with this policy,” Sapers said.
CTV News asked Ontario’s ministry of the attorney general for an example of a case where it believed an up-front cash bail would have prevented another crime, but didn’t get an answer.
Downey’s press secretary, Julia Facca, wrote in a statement that the goal of the new law was to strengthen the bail system and keep repeat offenders behind bars.
“The changes that came into effect (Monday) will improve bail compliance and make it easier for the province to collect forfeited bail payments when bail conditions are violated. Our government is also working to enhance digital tools to track repeat offenders and those who fail to comply with bail conditions, including the creation of a surety database to help streamline and strengthen surety checks,” she said.
“Together, these new measures are closing the gaps in the bail system, strengthening accountability, and ensuring the justice system has the tools it needs to protect our communities by keeping criminals off our streets,” she said.
As of Monday, the CCLA did not yet have a date for the challenge, or what’s expected to be a hearing on an injunction to stop the changes from taking place until the full case is heard.
