Two prominent legal advocacy organisations will file an urgent constitutional challenge next week to block Ontario’s planned introduction of mandatory cash bail, saying the move undermines fundamental rights and intrudes on federal criminal law powers.
Groups say policy will create a two‑tier system
The Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association (CLA) argue the province’s change — slated to take effect on Aug. 17 under Bill 75 — will force people who cannot afford a security deposit to remain in custody despite being presumed innocent.
In a public statement, the groups said mandatory cash bail will be applied to first‑time accused persons and to allegations considered non‑violent, expanding the population of people detained before trial.
"Cash bail creates two tiers of justice: one for the rich, and the other for the rest of us,"
The associations warn the policy will increase the number of people held in provincial jails already grappling with overcrowding and what they describe as inhumane conditions.
Constitutional and jurisdictional grounds
The legal action will contend mandatory cash bail under Bill 75 conflicts with the Constitution in two ways, according to the CCLA and CLA.
- Federal jurisdiction: Criminal procedure falls under federal authority. The groups say the federal Criminal Code currently gives a justice discretion to order a security deposit (cash bail), and Ontario cannot unilaterally rewrite that framework.
- Charter rights: They say the measure violates section 11(e) of the Charter, which protects the right not to be denied reasonable bail without just cause.
The associations also note alternatives already exist to enforce bail conditions, such as seeking forfeiture when a pledged amount is not honoured, and say those measures make mandatory cash deposit requirements unnecessary.
Practical implications for accused and the justice system
If upheld, the change would require an accused person to post cash security in prescribed circumstances before release, shifting the immediate burden of securing freedom onto the accused and potential sureties. The CCLA and CLA say this disproportionately affects people with limited financial means and risks detaining people who are not a public‑safety threat.
Legal critics contend mandatory cash bail can:
- Detain low‑risk accused individuals who cannot afford a deposit;
- Increase remand populations, adding pressure to already strained provincial correctional facilities;
- Produce outcomes driven by wealth rather than individual risk assessment or public safety considerations.
Timeline and next steps
The province’s measure is scheduled to come into force on Aug. 17. The CCLA and CLA say they will launch an "urgent" constitutional challenge next week — a legal step that typically seeks either a declaration of unconstitutionality or a court order staying implementation while the court considers the case.
The statement from the two organisations lays out the principal legal theories they will advance but does not set out the detailed pleadings or the court in which the challenge will be filed. Further procedural details are expected when the application is launched.
| Aspect | Current law | Bill 75 (as described by CCLA/CLA) |
|---|---|---|
| Authority to order cash bail | Federal Criminal Code gives judicial discretion | Province to impose mandatory cash bail in specified cases |
| Scope | Discretionary; case‑by‑case | Includes first‑time accused and non‑violent allegations |
| Primary legal concern | Judicial balancing of liberty vs. risk | Creates potential wealth‑based differential in pre‑trial liberty |
The challenge frames the issue as both a defence of individual liberty and an assertion of federal legislative primacy over criminal procedure. How the courts will weigh those claims is likely to determine whether the province will be able to proceed with the new rule on the announced schedule.
For residents concerned about bail changes — defence counsel, accused persons, and advocates for the justice‑involved — the coming days will clarify whether the policy is implemented or paused pending the outcome of litigation.
Further coverage will follow as the groups file their application and as the province responds to the legal challenge.
