Ontario launching cash bail system Monday, critics plan legal challenge

Ontario launching cash bail system Monday, critics plan legal challenge

'Cash bail creates two tiers of justice,' says groups opposed to changes

Ontario is making a big change to its bail system starting Monday, but two groups are planning a legal challenge, saying requiring a cash security deposit up front as part of bail upon release from custody is unconstitutional.

The Canadian Civil Liberties Association (CCLA) and Criminal Lawyers’ Association (CLA) said in a news release Friday that the introduction of "mandatory cash bail" is unjust. They said they would file a constitutional challenge next week.

"Cash bail creates two tiers of justice: one for the rich, and the other for the rest of us. Innocent, but cannot afford to pay? You face penalties, or may not be released if a surety is unwilling to step forward," the associations said in the release.

"Mandatory cash bail applies to people presumed innocent. It applies to first-time accused persons and non-violent allegations. And will increase the population of overcrowded Ontario prisons with inhumane conditions."

According to the CCLA and CLA, a justice has discretion on whether to order a security deposit under the Criminal Code and the province cannot rewrite federal law. The Ontario government also cannot violate the section 11(e) right guaranteed in the Canadian Charter of Rights and Freedoms to not be denied reasonable bail, they said.

Under Ontario legislation that takes effect Monday, in order for an accused to be freed from custody, "mandatory cash bail" — a cash security deposit — will have to be paid in full within two business days of release by either the accused or their surety.

The requirement affects people who have been granted bail after being charged with crimes in Ontario. A surety is a person who has agreed to ensure that an accused person follows their bail conditions.

If the accused person follows the terms of their release and the cash deposit is paid, it would be returned when the case concludes or the surety’s obligations end, the Ontario government said in a news release Friday.

If bail conditions are not met, the money would be automatically recovered upon being ordered forfeited by the court, the government added.

Previously, if the court ordered a release on a promise to pay, no cash deposit was required. This meant that a surety or the accused person did not have to pay the amount pledged unless the accused person did not follow the terms of their release and the court ordered payment.

Failure to pay cash bail may result in charge: province

Under other changes to the bail system, sureties will be required to provide up-to-date contact and identification information, the government said.

"Keeping this information up to date will allow the province to collect forfeited bail money more effectively if no security deposit is on file. Failing to comply with these requirements may result in a provincial offence charge," the government said.

The government said it is also strengthening collection tools for bail debts, such as wage and bank account garnishment, property liens, and the seizure and sale of property.

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On Friday, Ontario's Attorney General Doug Downey said at a news conference that changes to the bail system are part of the government's work to protect communities and to strengthen public safety.

The province promised to reform the broken bail system and the "bold, decisive" measures mean it is living up to its promise, Downey said.

"We cannot accept a revolving door bail system that puts innocent people, families and communities at risk. People expect a justice system that protects them, they expect bail conditions to mean something and they expect consequences when those conditions are ignored," Downey said.

The government is also working to strengthen digital tools to track repeat offenders and those have not complied with bail conditions, Downey said. The tools include the creation of a surety database to help streamline checks, he said.

"Together these measures will strengthen compliance, they will strengthen accountability and enforcement."