Ontario: Cash Bail Law Suspended Amid Constitutional Challenge

• Ontario's requirement for upfront cash bail deposits, part of the `Keeping Criminals Behind Bars Act`, has been suspended by Justice Robert Chalmers.
• The provincial law, effective August 17, mandated cash deposits within two business days, differing from federal law which allows financial pledges without immediate cash.
• The Canadian Civil Liberties Association and Criminal Lawyers' Association launched a constitutional challenge, arguing criminal procedure is federal jurisdiction.
• The Supreme Court's `R. v. Antic` ruling established that cash bail should be exceptional, a principle Ontario's law was seen to contradict.
• Ontario argued its law was an administrative measure, not cash bail, but critics maintain its practical effect was to demand cash in advance for release.

Justice Robert Chalmers issued an order on Monday, suspending the provincial law while a constitutional challenge proceeds.

A recent judicial decision has temporarily halted the implementation of Ontario's controversial cash bail requirements. Justice Robert Chalmers issued an order on Monday, suspending the provincial law while a constitutional challenge proceeds. This means that the regulations, which had come into force on August 17 as part of the `Keeping Criminals Behind Bars Act`, are currently inoperative.

The now-suspended provincial legislation mandated that individuals or their sureties, when promising a financial amount as part of a bail order, must deposit the full sum with the government within two business days. Failure to provide this upfront cash would result in the denial of bail. This approach starkly contrasted with the federal Criminal Code's provisions, which permit financial pledges without requiring an immediate cash deposit.

The suspension follows a legal challenge brought by the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers' Association. These organizations sought to have Ontario's law struck down entirely, arguing its unconstitutionality. Justice Chalmers reserved his final judgment on the constitutional challenge but deemed it necessary to suspend the law in the interim, acknowledging the serious questions it raised.

The core of the legal dispute centers on the division of powers between federal and provincial governments in Canada. Criminal procedure, including bail, falls under federal jurisdiction. While provinces are responsible for administering justice, including operating courts and jails, they cannot unilaterally rewrite federal criminal law. Critics argue that Ontario's `Keeping Criminals Behind Bars Act` overstepped this boundary by imposing new conditions on bail that directly conflict with the federal framework.

This jurisdictional conflict is not new. Parliament deliberately moved away from a system heavily reliant on cash bail with the 1972 Bail Reform Act, recognizing that access to liberty should not be disproportionately tied to an individual's wealth. The Supreme Court of Canada reinforced this principle in `R. v. Antic`, emphasizing that cash bail should be considered an exceptional measure, not a standard practice. Prior to the recent suspension, Superior Court Justice Scott Cowan had already indicated in a human trafficking case that Ontario lacked the authority to convert financial pledges into mandatory cash deposits, underscoring the supremacy of federal law in this area.

In response to the constitutional challenge, the Ontario government contended that its requirement for upfront deposits was not, in fact, cash bail. Instead, it characterized the measure as an administrative tool designed to ensure the effective and efficient management of financial promises made in release orders. However, this argument has been met with skepticism by legal observers and the challenging parties, who point out that the practical effect of the law was undeniably to demand cash in advance as a condition for release.

The fundamental difference remains clear: under federal law, a surety can pledge a substantial amount, such as $20,000, which becomes payable only if the accused breaches their bail conditions. Ontario's law, conversely, demanded that this $20,000 be handed over upfront. The ongoing `Ontario bail constitutional challenge` highlights a significant tension between provincial policy objectives and established federal legal principles concerning criminal justice. The definitive outcome of this challenge will have lasting implications for bail practices across the province and potentially set precedents for the interpretation of federal versus provincial bail law in Canada.

Lawyers and compliance officers in Ontario must note that the provincial requirement for upfront cash bail deposits has been suspended. Bail applications should proceed under the federal Criminal Code's provisions, which allow for pledges without immediate cash deposits, and they should monitor the ongoing constitutional challenge for its definitive impact on future bail practices.

Source: Original reporting via The Star