The Ontario government is preparing to table legislation that would dramatically reshape Canada's bail system by requiring cash deposits in many pretrial release cases. This move represents a significant departure from practices that have been in place for more than half a century.
Breaking With Historical Precedent
Attorney-General Doug Downey announced the province's intention to require accused individuals or their sureties to provide full cash deposits when bail conditions include a financial component. This would mark the first major provincial push toward cash bail since the 1960s, when studies revealed the practice disproportionately jailed poor people who couldn't afford their release.
Mr. Downey argues that cash requirements would demonstrate serious commitment to following bail conditions and make it easier for the province to collect money when violations occur. The legislation is scheduled for introduction on Tuesday at Queen's Park.
Constitutional Questions Arise
Legal experts and British Columbia's Ministry of the Attorney-General have raised immediate concerns about whether Ontario's plan oversteps constitutional boundaries. Bail is governed by federal Criminal Code, creating potential conflicts with the Constitution's division of powers and Charter of Rights and Freedoms protections.
Melanie Webb, a Toronto lawyer and chair of the Canadian Bar Association's criminal justice section, noted the provincial plan appears to contradict established bail law. "If Ontario requires cash bail in every case, this would be completely contrary to the law of bail," she stated.
British Columbia's Attorney-General office expressed "initial concerns about the constitutionality of Ontario's plan and how it can fairly apply to people with a wide range of incomes."
Supreme Court Precedent and Practical Concerns
The move comes despite clear guidance from the Supreme Court of Canada. In the landmark 2017 Antic decision, Chief Justice Richard Wagner wrote that "Parliament limited cash bail for good reason" and emphasized that financial conditions must be set at reasonable levels that don't effectively jail people due to poverty.
Nicole Myers, a Queen's University criminology professor and bail expert, called the plan "wrong-headed" and suggested judges would be unlikely to follow provincial guidance that conflicts with federal law.
Critics argue the proposal fails to address systemic issues like better supervision of released individuals and strengthening overwhelmed bail courts. Ontario NDP Leader Marit Stiles noted the government could immediately improve the system by properly funding courts to reduce backlogs and deliver justice more quickly to victims.
The debate emerges amid public pressure around violent crime and safety concerns, though data shows a record number of people are already being denied bail across Canada, with Ontario leading this increase.
