This week, the government of Ontario introduced a new set of rules to Ontario’s bail system, requiring a mandatory deposit to be paid up front by a detainee or their surety (an individual willing to pay on behalf of a detainee, who is usually a friend or family member) before they can be released.
Before the changes, a detainee or their surety was only required to show that they had the ability to pay, and would only pay money if bail conditions were violated.
The cash bail changes are intended to ensure violent and repeat offenders stay behind bars, and to make it easier for the justice system to collect bail payments.
“We want to make sure there’s a consequence when people don’t do what they’ve promised to do,” says Attorney General of Ontario Doug Downey. “And we want to strengthen the tools to make sure that we’re getting better information on the sureties who are often the people putting up bail, so that we can collect if there’s a default, and we’re creating other technology behind it as well.”
The cash bail changes have stirred up a conversation on their merits, and produced criticisms from within the legal community: Last year the Ontario Bar Association (OBA) penned a letter to Ontario’s Ministry of the Solicitor General in opposition to the changes.
“Respectfully, the proposed reform should not be pursued. The introduction of a cash bail system carries substantial unintended consequences that run counter to the Ministry’s policy objectives which include enhancing public safety and improving court efficiency,” reads the letter.
Among the OBA’s criticisms is a concern that gathering more information on sureties, and maintaining databases with surety information, might disincentivize people from choosing to become sureties in the first place.
But Downey rejects that framing, saying that the goal “isn’t so much to disincentivize somebody. It’s to make sure that the judges and JPs (Justices of the Peace) have accurate information in front of them about the track record of the surety, and about other people that the surety may be standing for and how that’s going as well.”
The new cash bail system is already facing a court challenge from the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association, which was filed on Monday, the same day the new system was introduced.
Both the CCLA and the OBA have raised concerns that cash bail will effectively create a tiered justice system, where the length of one’s stay in jail will be dependent on one’s ability (or the ability of one’s loved ones) to pay, and where individuals from marginalized or impoverished communities, such as many of Canada’s Indigenous communities, will be disproportionately affected by the changes.
“The alternative is that somebody promises that they will put up money and they don’t, if they’re in a situation where they can’t,” says Downey, dismissing the concerns. “And the judges, and the system, quite frankly, isn’t holding them to account on it. And that’s part of the challenge.”
“Ultimately, I don’t think that people should be giving promises to the courts if they can’t follow through on them,” he adds. “And that’s largely what was happening.”
In its criticisms, the OBA also draws attention to Ontario’s jail population, which is significantly larger than the number of available beds in the province, and has resulted in overcrowding.
Notably, the OBA suggests that cash bail could exacerbate the issue by increasing the number of detainees unable to make bail, which could have the effect of reducing sentences for criminals; they point to a series of cases in which a guilty party had their sentence reduced due to harsh conditions in pre-trial detention.
In one particularly extreme case, that of R. v. K.P., which was decided last year, an attempted murderer had their 21-year sentence reduced to 16 years due to “excessively harsh presentence conditions of confinement”.
Downey denies that cash bail will “have any effect in that regard,” and also points to Ontario’s new effort to expand its jail spaces to combat overcrowding.
Despite concerns, Downey says he is hearing a positive response to the changes.
“I can tell you it’s been very well received with the public. People were happy to see that we’re coming forward with things to keep community safer.”
