Ontario’s new rules requiring a cash deposit for bail encroach on federal jurisdiction and will make it harder for people to be released as they await trial, two legal organizations argued Thursday as they asked the court to scrap the regulations.
The Canadian Civil Liberties Association and the Criminal Lawyers’ Association are challenging the constitutionality of Ontario’s new cash bail system and seeking an injunction to suspend the rules until the case is decided.
The new rules, which took effect earlier this month, require people accused of a crime and granted bail to provide a cash security deposit within two days of their release. Those who don’t comply will be charged with a provincial offence, court heard.
Previously, they only had to forfeit the money if release conditions were breached and the court ordered payment.
The organizations leading the court challenge argued Thursday the change contradicts the Criminal Code, which they say explicitly directs courts to favour a promise to pay over a cash payment.
“Ontario’s new regime reverses that approach by requiring a cash deposit every time a court orders a promise to pay,” said Matthew Gourlay, one of the lawyers representing the two associations.
“That’s a direct conflict. The federal law has to prevail in that circumstance, so the provincial law is inoperable.”
The switch to a cash deposit will deter people from acting as sureties and effectively keep more people accused of a crime behind bars, particularly those with low or fixed incomes who can’t afford to put down money, he added.
“This is a sea change in how bail works in Ontario on the ground in hundreds or thousands of cases every day,” and makes the province a “radical outlier” in how it handles bail, Gourlay said.
“The predictable effect of these provisions is that bail will be harder to obtain,” he said.
Legal challenge based on ‘speculation’: province’s lawyers
Lawyers for the province argued the groups are overstating the impact of the new rules, which they say don’t call for anyone to be detained or undo any release order issued by a justice of the peace.
They argued the legal challenge is based on “speculation” about what kind of impact the new cash bail system will have.
The province’s lawyers also said the applicants haven’t cited any specific examples of people in Ontario who were kept in jail because of the new rules. Ontario Superior Court Justice William Chalmers, who is hearing the case, pointed out in response that the rules have only been in effect since last week.
There is no infringement on federal powers since bail has both federal and provincial aspects, the lawyers further argued. A law that attaches regulatory conditions to bail but doesn’t affect pre-trial release falls under provincial jurisdiction, they said.
Chalmers raised the possibility that the new rules may have unintended consequences, such as leading justices of the peace to release people without a monetary pledge.
He said he expects to issue his decision on the requested injunction early next week, and will take more time to rule on the constitutional challenge.
This report by The Canadian Press was first published Aug. 27, 2026.
Paola Loriggio, The Canadian Press
