Ontario judge snubs province’s new bail rules by releasing woman without cash deposit

An Ontario Superior Court judge has released a woman charged with human trafficking on bail but without requiring a cash deposit, despite new provincial rules that demand payment in full within 48 hours.

Justice Scott Cowan released the woman in Milton on Wednesday after she and her sureties pledged $11,000 and made a promise to pay.

Under changes made to the bail system by the province this week, people accused of a crime and granted bail are required to provide a cash security deposit upon release. Previously, they or their sureties only had to forfeit the money if the accused breached their release conditions and the court ordered payment.

The changes, announced by Ontario’s Attorney General Doug Downey on Aug. 14, took effect on Monday.

Two legal organizations, Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association (CLA), have filed a constitutional challenge of the new rules, saying “mandatory cash bail” is unjust.

Jessyca Greenwood, vice president of the CLA, said if there is a conflict between the federal Criminal Code and provincial laws, the federal law takes precedent. The Criminal Code gives judges the discretion to grant bail with strict conditions, she said.

The challenge by the CCLA and CLA will be heard in court next week.

“We are saying that it’s unconstitutional to require people to pay because, if there are those who that do not have the means and don’t have the money, they won’t be released and that is unfair,” Greenwood said.

Defence lawyer Leora Shemesh, who represents the woman in this case, said in email on Friday that her client was released on strict conditions and the judge made the right decision.

“My client is presumed innocent of all of the charges currently before the court. She and all Canadians are entitled to bail in circumstances where the court deems it appropriate. In this case, my client has no criminal record and we offered a very restrictive plan of release in accordance with the principles of fundamental justice,” Shemesh said.

“My client was released on a strict bail with a promise to pay,” she said. “Should she violate her bail, the government may choose to estreat those monies. That specific mechanism has always been part of our bail system.”

Changes designed to ‘make bail more real’: province

In a statement on Friday, Hannah Jensen, spokesperson for Ontario Premier Doug Ford’s office, responded to the judge’s decision, saying the new rules are in place to protect the public.

“It is unacceptable to put violent offenders out on our streets days, or even hours, after they commit a crime,” Jensen said. “The justice system has a responsibility to keep human traffickers behind bars.”

“Our changes are designed to make bail more real and consequential, to ensure the justice system has the tools it needs to protect victims and communities.”

‘Province cannot rewrite federal law,’ groups say

The CCLA and CLA said in a news release that the new cash bail system violates the Constitution. They said criminal procedure is a federal power under the Constitution and the Criminal Code, a federal law,  sets out that a justice has discretion on whether to order a security deposit or cash bail.

“The province cannot rewrite federal law. Neither can the province violate the s.11(e)  Charter right to not be denied reasonable bail,” the release said.

“The province already has tools at its disposal to address major violations of bail conditions by seeking forfeiture of an amount pledged when a bail condition is violated,” it said. “Enacting clearly unconstitutional laws is a haphazard way to administer the criminal justice system.”