The Ontario Court of Appeal in Toronto in 2019. The Ontario government under Premier Doug Ford has long called for stricter bail laws.Colin Perkel/The Canadian Press
Ontario wants to reinstitute the widespread use of cash bail, more than a half century after the practice was mostly abandoned in Canada because of concern it unfairly harmed lower-income people.
The move follows federal efforts to toughen bail and sentencing laws with changes to the Criminal Code. Both are responses to political and public pressure tied to violent crime and public safety.
Bail is governed by the federal Criminal Code, yet the Ontario government plans to table legislation on Tuesday that would require an accused person, or a person who has pledged responsibility for the accused, to put up a full cash deposit if bail conditions ordered by a judge include a financial component.
The requirement would indicate a serious obligation to abide by bail conditions, said Doug Downey, Ontario Attorney-General. It would also be easier for the province to collect the money if there were violations.
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But legal experts, as well as British Columbia’s Ministry of the Attorney-General, questioned whether it would violate the Constitution’s federal-provincial separation of powers and the Charter of Rights and Freedoms.
Ontario under Premier Doug Ford has long called for stricter bail laws and the provincial government has described the bail system as broken. Ontario said it is the first province to move toward greater use of cash bail.
“We’re designing the system so that it will work within the boundaries of the Constitution,” Mr. Downey told reporters at Queen’s Park on Monday.
Unlike in the United States, cash bail in Canada is rare. When a financial condition is part of pretrial release, it is generally fulfilled by a pledge of assets rather than actual money. The Supreme Court of Canada in 2017, in a ruling that detailed how existing bail laws should work, instructed judges in the lower courts to rely on cash bail only in exceptional circumstances.
Polls show a large majority of the public backs tougher bail laws, but data indicate a record number of people across the country are already being denied bail, an increase led by a surge in Ontario.
The issue of cash bail has not been in question in recent years and, until this week, had garnered little to no debate.
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Cash bail was the norm in Canada for a century after Confederation, but in the 1960s it became clear the practice was problematic. A study at the time showed a majority of people who were ordered to pay cash bail couldn’t do it because they didn’t have the money and thus were jailed ahead of trial for their inability to buy their release.
In 1971, as the federal Liberals readied the Bail Reform Act – a framework of rules that remains in place today – then-justice minister John Turner told the House of Commons that cash bail was a tool that acted “harshly against poor people” and declared it should be a last resort when judges consider bail conditions.
It is unclear how Ontario will enact its goal of cash bail, said Nicole Myers, a bail expert and an associate professor of criminology at Queen’s University. She said judges would be unlikely to rely on the provincial guidance, given that the bail rules are detailed in the federal Criminal Code.
“It’s a wrong-headed move,” Prof. Myers said.
One unanswered question is how the provincial plan would accord with the federal law on bail, said Melanie Webb, a Toronto lawyer and chair of the criminal justice section of the Canadian Bar Association. It’s also uncertain whether Ontario’s plan would overstep the Charter right not to be denied bail without just cause.
If Ontario requires cash bail in every case, Ms. Webb said, “this would be completely contrary to the law of bail.”
B.C. has supported tougher federal bail laws. But on Monday, a statement from the province’s Attorney-General said it had initial concerns about the constitutionality of Ontario’s plan and “how it can fairly apply to people with a wide range of incomes.”
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A unanimous Supreme Court, in the 2017 Antic decision, spoke strongly against cash bail.
It said if there are exceptional circumstances in which cash bail is levied, the amount must be set at a reasonable level so it doesn’t effectively jail someone because they can’t pay. The court also said judges have to ask an accused person, when setting a financial component to bail, what they can afford.
Richard Wagner, five months before he became Chief Justice, wrote the Antic decision. He highlighted the history of bail in Canada and pointed to the federal legislative changes in the early 1970s.
“Parliament limited cash bail for good reason,” he wrote.
The section on bail in Ontario’s Crown Prosecution Manual reflects Supreme Court guidance. Prosecutors should not request a cash deposit if a surety – a person who promises to oversee an accused – can pledge assets. Prosecutors should not ask a judge for cash or pledges that are unattainable because “that has the same effect as a detention order.”
Critics of Ontario’s plan say it fails to address real problems, such as better supervision of people who are granted bail and the strengthening of day-to-day operations of overloaded bail courts.
“If we truly care about community safety, we have to look at solutions that actually work,” said Michael Spratt, a criminal defence lawyer in Ottawa.
Ontario NDP Leader Marit Stiles said, “Something [the government] could do right now is actually properly fund our court system so we don’t have this huge backlog and so victims get justice sooner.”