Ontario’s new cash bail system on hold after judge grants injunction

Ontario’s new cash bail system has been put on hold while a judge weighs a challenge to its constitutionality.

The Canadian Civil Liberties Association and the Criminal Lawyers’ Association were granted an injunction Monday, after their lawyers and those for the province presented their arguments in the case last week.

The new rules kicked in earlier this month and require people accused of a crime and granted bail to provide a cash security deposit within two business days of their release.

Before then, they only had to hand over the money if the release conditions were breached and the court ordered payment.

The two legal organizations argue in their challenge that the rule change infringes on federal jurisdiction and contradicts the Criminal Code, which they say explicitly directs courts to favour a promise to pay over a cash payment.

They argue the switch will effectively make bail harder to obtain, particularly for marginalized people who may not have money for a deposit or be able to find a surety with the required funds.

The province, meanwhile, argues it’s an administrative change that does not affect the conditions of release. The challenge, it argues, relies on “speculation” about the impact the new cash bail system will have.

Harm could be done if injunction not granted: judge

In his ruling Monday, Ontario Superior Court Justice William Chalmers said he is satisfied the legal organizations have established that there may be irreparable harm if an injunction is not granted while he decides on the case.

“The effect of the impugned legislation may result in persons who would have otherwise been released, having their release denied or delayed because of the difficulty … in securing an able and willing surety,” he wrote.

“I am also satisfied that there is no harm to the province if the injunction is granted,” he continued. “The status quo that has been in place for over 50 years will be maintained for the limited period before my ruling on the constitutionality of the legislation is released.”

The groups welcomed the ruling in a statement.

A spokesperson for Attorney General Doug Downey said the provincial government will never apologize for its efforts to reform the bail system.

“We are using every tool available to make bail more consequential to protect victims and communities,” Julia Facca said in an email. “As this matter is before the court, we have no further comment.”