Ontario introduced a new set of rules for the province’s bail system on Monday, requiring that a mandatory security deposit be paid by an accused person before their release on bail.
Prior to the new change, those on bail or their sureties (someone offering to pay on behalf of a person in jail, who is usually a friend or family member) would only have to prove that they had the financial capability to pay, and would only have to pay money if they violated their bail conditions.
Now, the money must be paid up front prior to release, with the promise of a refund should all release conditions be met.
The bail change has been introduced through Bill 75, the Keeping Criminals Behind Bars Act, which the Ontario government is presenting as a way to keep violent and repeat offenders off of the streets.
“Enough is enough. People deserve to feel safe in their neighbourhoods and confident that those who pose a serious risk will not be released only to reoffend,” said Ontario Attorney General Doug Downey about the changes.
But the new cash bail changes are already facing resistance from Canada’s legal community: the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association filed a court challenge opposing the changes on Monday, as they took effect.
“It’s our view that the province does not have the jurisdiction under the Constitution to make these new rules, because the law of bail itself is outlined in the federal Criminal Code,” says Shakir Rahim, the Director of Criminal Justice for the CCLA. “It clearly says that a justice has discretion on whether to order cash bail or not.”
Rahim also argues that the bail changes will violate section 11E of the Charter of Rights and Freedoms, which guarantees the right not to be denied reasonable bail.
“The actual result of this policy for people on the ground is it creates two tiers of justice: that is to say, those who have means are still able to put up the necessary amounts, but those that do not end up being imprisoned for longer simply because they don’t have immediate access to funds,” Rahim adds.
He also points to Canada’s legal principle of ‘innocent until proven guilty’ as a cause for concern, pointing out that about half of cases in Ontario do not find the accused parties guilty: “there will be people who will never be found guilty of any offence, but because of these new punitive provisions and because they don’t have the money necessarily, will spend more time behind bars, even though they may have been able to obtain release otherwise.”
The CCLA has requested an urgent injunction in the case, which if granted could put a pause on the new rule changes until the case is fully decided.
It could be a year or more for the full case to go through the courts.
In the meantime, Rahim has harsh words for the province, questioning why they would implement changes which conflict with the federal criminal code.
“It’s a fairly slam dunk argument, so you have to ask, why is the province wasting all of this time and energy on something they know is going to be struck down?” he asks. “I think it really suggests a degree of bad faith and politicization of this issue rather than trying to make good policy.”
The Acadia Newsroom has reached out to the Ministry of the Attorney General for an interview or a comment, but at the time of publication, they have not yet responded.
