The Legal Challenge to Ontario’s “Cash Bail” Provisions

On August 31, 2026, Justice Chalmers of the Superior Court of Ontario granted an injunction pausing the effect of the Ontario government’s new law requiring “cash bail”.

An Application was brought jointly by the Criminal Lawyers’ Association and the Civil Liberties Association to strike down s. 8.0.1 of the provincial Bail Act.  They argued last week that Ontario is infringing on the Federal governments’ jurisdiction to legislate with respect to criminal law.  The Criminal Code of Canada clearly holds (and has for decades) that when a person is released on bail, they and/or their sureties will normally not be required to deposit the promised amount (“cash bail”), but if they have reasonable recoverable assets, that they can pledge the amount.

The new Ontario provision, however, requires that the released person and/or their sureties must deposit any pledged amount within 48 hours of release, regardless of whether the judge ordered a deposit or simply a pledge.  If they fail to do so, they are in violation of a provincial act and could be fined to up to $5000.

The Arguments from Each Side

The Applicants argued that this is outside a province’s jurisdiction.  They also argued that even if the province is allowed to legislate with respect to bail in this respect, the new Ontario law directly conflicts with the Criminal Code and that the federal law has supremacy in such a situation.  Lastly, they argued that Ontario law breaches the Charter rights of accused persons.

Ontario countered by saying that their new law does not actually mandate “cash bail” as a precondition to release.  That because the provincial law only requires the deposit 48 hours later and punishes failure to do so as a provincial offence, that this is separate and apart from the judge’s order.  In other words, they argue that a judge is still bound by the Criminal Code only, that a judge may release an accused without requiring a cash deposit, and that the new law does not affect that.

This may prove to be a difficult argument for the Court to accept.  The Applicants drew the Court’s attention to the predictable practical effects of the new law.  Sureties and accused people will not be ignorant of the new law.  Coming up with thousands of dollars in days will be impossible or impractical for many accused and many sureties.  Therefore, the Applicants argued, many sureties will be discouraged from bringing themselves forward.  Even if they are appropriate sureties.  Even if the judge would find that releasing an accused into the care of that surety would be appropriate.  Simply because of the financial burden of liquidating thousands of dollars of cash in days is not possible for many people.  Therefore, some sureties will never step forward.  Others will require days or weeks or months to obtain the cash.  All the while a releasable accused person will be sitting in jail – not because they are not safe to release, but because their family does not have enough cash on hand.

The notion that technically a person may be released, as has been typical, with a promise to appear is irrelevant when the surety and accused know that they must have the cash in hand within 48 hours of release.

The Injunction

While Justice Chalmers has not yet released his decision on whether or not the new law may stand, he did release his decision on whether the new law will remain in effect until a determination is made.  He ruled that the law will be suspended until he can reach a ruling.

The Court’s reasons for the injunction may give some indication where it is leaning on the substantive issues that will help decide the actual case.  Though the standard will be different on the final decision, the Court did find that the prospect of accused people being held in custody due to the deterrent effect of the new provincial law to be a real concern, and not speculative.

Justice Chalmers wrote, in granting the injunction:

[32] I find that the balance of convenience favours granting the injunction. Although I acknowledge the strong presumption that the impugned legislation is for the public good, I also acknowledge that the existing bail provisions in the Code were enacted by Parliament for the public good.

[33] I am satisfied that there is a greater risk of harm if the injunction is not granted. 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 described by Ms. Salih in securing an able and willing surety. Justice Wagner in R. v. Antic set out the effects of pre-trial custody. He noted that the 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”: at para 66.

It remains to be seen whether this Court will strike down the law.  But in the meantime, the new law is not in effect until an ultimate decision is made.