Ontario’s ‘atrocious’ plan for cash bail may be unconstitutional

Members of the legal community are panning Ontario’s attempt to toughen up bail conditions. They say what’s proposed will further disadvantage marginalized individuals and may be unconstitutional.

Among the measures included in The Keeping Criminals Behind Bars Act is a requirement for an accused person or their surety to pay upfront for their release by providing “a cash security deposit in the full amount ordered by the court.”

Ontario Senator Kim Pate, a former executive director of the Canadian Association of Elizabeth Fry Societies, calls the plan “atrocious.”

“It’s already clear that we have a tiered system that privileges those who have the most resources. This is signalling a very clear move to a type of approach where, if you have cash or resources, there’s a better chance that you will be released into the community. That is nowhere articulated in our Charter.”

She says it can’t be that people believe this will make anyone safer, and if they do, the government needs to produce the evidence to prove it.

In her view, the likely outcome is that some of the most economically deprived people will be the most impacted by this, those who are struggling for all kinds of reasons, whether it’s women trying to escape violence who use violence in trying to escape, or those who are homeless.

“It’s a reflex that looks like it’s designed to gain public support by encouraging slogans like people need to pay up front.”

Jessyca Greenwood, principal lawyer at Greenwood Law in Toronto and vice-president of the Criminal Lawyers Association, says this move by Ontario flies in the face of the presumption of innocence and the Charter right to a reasonable bail. She pointed to Antic, the 2017 Supreme Court of Canada case, which addressed the issue of cash bail. 

“The Court said that cash bail and sureties pledging amounts of money are both equally effective, but cash bail can really reduce someone’s ability to make use of the bail that they’ve been granted.”

Melanie Webb, a criminal defence lawyer in Toronto and chair of the CBA’s criminal justice section, says it’s well-established that cash bail is only supposed to be relied upon in exceptional circumstances, such as when the accused doesn’t live in the province or within 200 km of it. 

Bill 75 states that a cash deposit will be required in every bail case, which she finds very concerning.

“They’re not asking for 10 per cent—they are asking for the full amount to be paid,” Webb says. 

“If you’re talking about $1000, that’s a significant amount for a lot of people. Some people might be able to get that from their next paycheque, but it’s going to take time for that to be deposited. People are already living paycheque to paycheque.”

Requiring a cash bail means lawyers will have to call around to their clients’ contacts to see who can front them the money, which imposes extra logistical issues on the parties.

'No one is going to want to be a surety anymore'

For sureties, more substantial bails, such as $10,000, will also be challenging to meet. While many people have equity tied up in their homes, they can’t just withdraw it the next day. 

“No one is going to want to be a surety anymore,” Greenwood says.

“(Who) is going to want to have to pay money up front? We’re disincentivizing people who might otherwise be good supervisors of someone on bail from coming forward.”

She says this is an attempt to fix something that’s not broken, as there’s already a mechanism in place for when an accused breaches their bail conditions. Estreatment of recognizance is the process by which a court orders a surety to pay the money they promised to the court, which may involve the forfeiture of money or property.

“I would say it’s underused in Ontario,” Greenwood says. 

“If a surety performs poorly and they’re not effective, the government can go after them and take the money they’ve pledged.”

Given the over-representation of people who are racialized or who have mental health issues, she says requiring them to come up with cash to be granted bail is misguided.

“If what you’re trying to do is keep dangerous people in custody, that’s not what this is going to do. It’s going to over-impact those who can’t afford a cash bail.”

Webb agrees and says there will be numerous downstream consequences: “I just don’t understand the logic behind this proposal."

No constitutional authority

Ultimately, the province lacks the constitutional authority to enact this legislation, according to Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association.

“Criminal procedure is designated under the Constitution Act as a federal power, and all of the governing legislation about whether it’s a promise to pay or a deposit is found in Section 515(2) of the Criminal Code,” he says. 

“It’s unclear how the province sees this falling under its jurisdiction."

No one he’s spoken to in the justice system was consulted on this proposal. 

Webb says that while the Ontario Bar Association was consulted on a number of potential measures, cash bail was not one of them.

Federal Justice Minister Sean Fraser would not say if the federal government believes the bill to be outside of Ontario’s jurisdiction.

“We are following Ontario’s proposed changes closely,” Fraser’s spokesperson, Lola Dandybaeva, said in an email. 

“The right to reasonable bail is protected by the Charter, and we expect any legislative reforms to comply with the Charter and the Constitution. We look forward to continuing to work with Ontario to support the proper functioning of the criminal justice system.”

Rahim notes that Ontario has been criticized for an over-reliance on surety release. He also questions where the additional number of remanded accuseds are supposed to go, given the ongoing crisis in Ontario jails. Currently, some 80 per cent of the prison population is made up of people awaiting trial.

In a report earlier this year, Ontario Ombudsman Paul Dubé said Ontario’s jails are in a “growing crisis,” rife with overcrowding and growing tensions between inmates and staff. Currently, some of the province’s jails are operating at 150 per cent capacity.

At the Maplehurst Correctional Complex in Toronto, there have been ongoing concerns about violent retribution inflicted upon inmates by guards, and a subsequent attempted cover-up, which one Ontario judge declared was “akin to torture,” and threw out a murder charge as a result of abuse suffered in pre-trial detention.

Dubé said issues in the province’s jails have ripple effects across the justice system. 

“Violations of inmate rights are not just internal matters — they are undermining the administration of justice itself,” he wrote in his report. 

“Courts have reduced sentences and granted early parole due to unlawful treatment behind bars. Some inmates have applied to have their charges – even murder charges – stayed.”

Jail instead of bail can negatively impact case

Greenwood says a cash bail system would compound existing problems with the overcrowded remand system and warehouse more people who are already marginalized.

Pate doesn't think the provincial government is looking too closely into the abuses of power or discrimination within these structures, or the fact that they’re overloaded. Yet, if there was more available housing and supports for people with mental health and addictions, fewer people would end up in the criminal justice system.

“Those kinds of approaches require some investment; they take a little longer than it takes to swipe a pen and claim to be fixing a problem by implementing regressive law reform like this,” she says.

Ultimately, problems with the bail system stem from issues with resourcing the system properly, which is the responsibility of the provincial government.

“We need more judges, we need fewer delays, fewer court backlogs,” Greenwood says. 

“If the government wanted a solution here, they could increase bail compliance. That would mean dedicated police officers who engage in police work to determine if individuals are complying with their bail.”

There are also services, such as the John Howard Society, the Elizabeth Fry Society, and the Toronto Bail Program, all of which offer beds and support for individuals experiencing homelessness or mental illness.

Greenwood says if those programs were adequately funded, they could offer more intensive support for people, rather than what the province has proposed for bail.

Pate recounts a recent trip to Pikangikum in Northern Ontario. The day she was there, everyone was flown in for court, including accused persons who had been held in Toronto, Thunder Bay and Kenora. Meanwhile, a 16-bed bail house in town sat empty, primarily due to a lack of sufficient staffing.

“To me, that screamed of the hypocrisy of these kinds of approaches,” she says.

“Instead of providing better support within the community, the staff, the support people on site, it was costing hundreds of thousands of dollars just for that day alone, to fly everyone in. Then a certain number of the accused, because of the conditions they’d been held in, were then released with time served.”

Ultimately, keeping people in jail rather than allowing them to be out on bail puts them at a disadvantage.

“We all know as defence lawyers that being granted bail means that your client has a much greater chance of winning their case,” Greenwood says. 

“They can actively participate in their defence, which is an important part of being able to be ready for trial. If you’re out on bail, it makes a huge difference in the case. To think that we would impose this type of condition just seems like it would have a disproportionate effect on those marginalized individuals.”