TORONTO — Ontario Premier Doug Ford’s new cash bail system has been temporarily blocked after a Superior Court judge ruled that allowing the rules to remain in effect while their constitutionality is challenged could cause serious harm to people accused of crimes.
The injunction puts the province’s recently introduced bail changes on hold and restores the system that had operated in Ontario for more than 50 years while the court considers whether the new requirements are constitutional.
Under the Ford government’s new rules, an accused person who is granted bail and ordered to provide financial security must deposit the required cash within two business days of being released.
Previously, the money generally did not have to be paid upfront. Instead, a person or their surety could promise to pay a specified amount, with the money becoming payable if bail conditions were breached and a court ordered forfeiture.
The Canadian Civil Liberties Association and the Criminal Lawyers’ Association challenged the changes, arguing that Ontario has crossed into an area governed by federal criminal law.
They maintain that the Criminal Code favours a promise to pay rather than requiring an immediate cash deposit and argue that Ontario cannot effectively change those federal bail provisions through provincial legislation.
The organizations also warn that requiring cash upfront could create a two-tiered bail system in which an accused person’s ability to secure release depends partly on financial resources.
People with limited incomes could have difficulty finding the required money or locating a surety able and willing to provide it, potentially leaving some accused individuals in custody even though a court has already determined they can be released on bail.
The Ontario government rejects that interpretation.
The province argues that the measure is essentially an administrative change dealing with how financial bail conditions are processed and does not alter the actual conditions under which judges grant or deny bail.
Government lawyers have also argued that predictions about widespread difficulties obtaining bail are speculative because the new system has not been operating long enough to establish its full impact.
Ontario Superior Court Justice William Chalmers, however, concluded that there was enough potential for serious and irreversible harm to justify temporarily stopping the system.
In his decision, Chalmers said the new legislation could result in people who otherwise would have been released remaining in custody or experiencing delays because of difficulties finding a surety with sufficient financial resources.
The judge also concluded that temporarily suspending the new rules would not cause comparable harm to the Ontario government.
Instead, Ontario will simply return to the bail procedures that had been in place for more than five decades until the court delivers its decision on the constitutional challenge.
The civil liberties and criminal lawyers’ organizations welcomed the injunction, while Ontario’s Attorney General’s office did not immediately provide a response.
The case raises a broader question about how far provincial governments can go in attempting to tighten Canada’s bail system.
Bail has become an increasingly prominent political issue, particularly amid public concern about repeat violent offenders and crimes allegedly committed by people already released from custody.
At the same time, Canadian law is built around the presumption of innocence, meaning people awaiting trial have not been convicted of the charges against them. Courts must therefore balance public safety with the constitutional right not to be denied reasonable bail without just cause.
The Ontario case could help clarify where responsibility for that balance lies when federal criminal law intersects with provincial administration of the justice system.
For now, the Ford government’s cash-deposit requirement cannot be enforced.
The next major decision will be considerably more important: whether Ontario’s attempt to require upfront cash for certain bail arrangements is a legitimate administrative reform or an unconstitutional intrusion into federal criminal law.