Ontario’s recent changes that mandate a cash deposit for bail infringe on federal authority and will complicate the process for individuals seeking release before trial, two legal groups argued Thursday as they asked the court to overturn the new regulations.
The Canadian Civil Liberties Association and the Criminal Lawyers’ Association are contesting the legality of Ontario’s updated cash bail system and requesting an injunction to pause these rules until a decision is made in court.
The new regulations, which began earlier this month, require individuals accused of crimes who receive bail to pay a cash security deposit within two days of their release. Those who fail to do so will face charges under provincial law, according to court proceedings.
In the past, they only had to forfeit their money if they violated release conditions and a judge ordered payment.
The organizations leading this legal challenge argued Thursday that this change conflicts with the Criminal Code, which they claim clearly instructs courts to prefer a promise to pay rather than requiring cash upfront.
“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 both associations.
‘Bail will be harder to obtain’: lawyer
That’s a direct conflict. The federal law has to prevail in that circumstance, so the provincial law is inoperable.”
This shift towards requiring cash deposits will discourage people from acting as sureties and effectively keep more individuals accused of crimes behind bars, particularly those who have low or fixed incomes and can’t afford such payments, 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 its approach to bail, Gourlay said.
“The predictable effect of these provisions is that bail will be harder to obtain,” he stated.
Holding cells in an Ontario jail are shown here. The province’s 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. ( )
Groups overstating impact, province’s lawyers say
Lawyers representing the province argued that these groups are exaggerating how much influence these new rules will have, stating that they don’t cause anyone to be detained or reverse any release order made by justices of peace.
They claimed that this legal challenge is based on “speculation” regarding what kind of effects might arise from implementing the new cash bail system.
The province’s lawyers also pointed out that the applicants haven’t provided specific instances where individuals in Ontario were kept behind bars due solely to these new regulations. Ontario Superior Court Justice William Chalmers noted during proceedings that these rules have only been effective since last week.
There’s no violation of federal powers since bail involves both federal and provincial elements; thus attaching regulatory conditions doesn’t interfere with pre-trial release falls under provincial jurisdiction, they maintained.
Chalmers mentioned there could be unintended consequences stemming from these new rules-such as prompting justices of peace to release individuals without monetary commitments required.
He anticipates issuing his ruling on whether an injunction should be granted early next week but plans on taking additional time before making decisions regarding constitutional challenges.
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