Civil liberties and criminal lawyers’ groups warn new system could keep more low-income accused people behind bars
TORONTO — August 28, 2026
Ontario’s newly introduced cash bail rules are facing a constitutional challenge, with two major legal organizations arguing that the province has overstepped its authority and created a system that could make it harder for accused people to secure their release while awaiting trial.
The Canadian Civil Liberties Association and the Criminal Lawyers’ Association have asked the Ontario Superior Court to strike down the new regulations. They are also seeking an injunction that would temporarily suspend the rules while the constitutional case is being decided.
The new system, which took effect earlier this month, requires people who are granted bail with a financial pledge to provide the required cash security deposit within two days of their release.
Failure to comply can result in a provincial offence.
Under the previous system, money pledged as part of bail generally did not have to be paid upfront. It could instead be forfeited if bail conditions were violated and a court subsequently ordered payment.
Legal groups say Ontario has gone too far
Lawyers challenging the rules argue that bail is primarily governed by Canada’s Criminal Code and that federal law generally favours a promise to pay rather than requiring an immediate cash deposit.
Lawyer Matthew Gourlay, representing the two organizations, argued that Ontario’s regulations effectively reverse that approach by requiring cash whenever a court orders a promise to pay.
He told the court that where provincial and federal laws directly conflict, federal law must prevail.
The groups also warned that requiring upfront cash could discourage friends and family members from acting as sureties and disproportionately affect people with low or fixed incomes.
They argue the practical result could be that more accused people remain in custody while awaiting trial simply because they or their families cannot afford the required deposit.
Gourlay described the changes as a major shift in how bail operates in Ontario and argued that the province has become an outlier in its approach.
Ontario rejects claims of increased detention
The provincial government is defending the regulations and argues that opponents are exaggerating their potential impact.
Lawyers representing Ontario told the court that the rules themselves do not order anyone to remain in custody and do not cancel or override bail decisions made by justices of the peace.
The province also argued that claims about increased detention are largely speculative because there is not yet evidence showing that people have remained jailed specifically because they could not comply with the new cash requirements.
Ontario Superior Court Justice William Chalmers, who is hearing the case, noted that the regulations have only recently taken effect, leaving little time for such examples to emerge.
The province further maintains that it has constitutional authority to regulate certain administrative aspects of bail. Its lawyers argued that bail involves both federal and provincial responsibilities and that attaching regulatory requirements to bail does not necessarily interfere with the federal government’s authority over criminal law.
Could the rules have unintended consequences?
During the hearing, Justice Chalmers raised another possibility: the cash requirement could change how justices of the peace structure bail orders.
If requiring a financial pledge automatically triggers an upfront cash deposit, courts could potentially respond by releasing more accused people without monetary pledges.
That could produce an outcome different from what the provincial government intended when introducing the regulations.
The legal battle comes amid an ongoing national debate over Canada’s bail system, balancing concerns about public safety and repeat violent offenders against the constitutional rights of accused people who have not been convicted and are presumed innocent.
Justice Chalmers is expected to issue a decision early next week on whether to temporarily suspend the cash bail rules.
A ruling on the broader constitutional challenge is expected to take longer.