A Toronto judge has agreed to issue an injunction suspending Ontario’s new cash‑bail system, halting the regime just two weeks after it took effect and in the wake of a constitutional challenge.
“The effect of the impugned legislation may result in persons who would have otherwise been released, having their release denied or delayed,” Superior Court Justice William Chalmers wrote in a decision released Monday.
Last week in a Toronto court hearing, lawyers for the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers Association (CLA) asked the court to find that the provincial bail act amendments encroach on the federal government’s jurisdiction over criminal law and violate sections of the Charter that guarantee rights to reasonable bail, liberty and presumption of innocence. They also asked the judge to impose an injunction while he decides the case.
Ontario enacted Bill 75 earlier this year, and the section requiring an accused person — or the sureties supervising them — to post upfront cash bail took effect Aug. 17. Under it, anyone released on a promise to pay, or their sureties, must deposit the full amount within two business days or face provincial prosecution under the Provincial Offences Act. A conviction could result in a fine up to $5,000. The government said the legislation is aimed at ensuring money pledged during bail hearings is collected if an accused breaches the terms of release.
The injunction “ensures that people presumed innocent are not unjustly jailed simply because they or their potential sureties do not have rapid access to cash for bail,” Shakir Rahim, director of the Canadian CLA’s Criminal Justice Program, wrote in an email.
At the hearing, Crown attorneys argued the Bail Act amendments do not conflict with the Criminal Code because they have no impact on whether a justice of the peace or judge determine whether to grant bail and under what terms.
Nor is the Charter breached, the government lawyers argued, because the obligation to pay comes after an accused is released, and any failure to pay could result in a fine that doesn’t affect the detention of the accused. However, the judge said he accepted the evidence of a defence lawyer that the requirement that sureties pay a cash deposit within two business days of release will make it more difficult to identify willing and suitable sureties.
“If persons are not prepared to come forward as sureties because of the security deposite requirement, or if there is a delay in release because the accused or surety has to raise the cash security deposit, persons who would otherwise be released will remain in custody, or their release will be delayed,” Chalmers wrote.
The two legal groups had asked the judge to impose the injunction at the conclusion of arguments at the downtown courthouse last week. Before granting an injunction, a judge must accept “there will be harm that cannot be quantified in monetary terms or cannot be cured.” The judge found this is one of those cases.
The government opposed the injunction.
Chalmers also quoted another Supreme Court of Canada decision that noted bail provisions must be “applied consistently and fairly. The stakes are too high for anything less.” He stated that pre-trial custody, “affects the mental, social and physical life of the accused and his family” and may have a “substantial impact on the result of the trial itself.”
The judge said he is also satisfied that “there is no harm to the province if the injunction is granted. The bail procedure set out in the Code will continue to apply. 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.”
Chalmers has not said when he will rule on the constitutionality of the regime.
In an emailed statement, Julia Facca, press secretary for Attorney General Doug Downey, said: “Our government will never apologize for the actions we are taking to strengthen the bail system. We are using every tool available to make bail more consequential to protect victims and communities.”
With files from Robert Benzie
