Law360 Canada (August 17, 2026, 4:14 PM EDT) -- A coalition of legal and civil rights groups has launched a constitutional challenge to Ontario’s new cash bail requirements, arguing the rules create a “two-tier” justice system that favours people who can afford to pay for their release.

Changes to the bail system came into effect on Aug. 17, and among other things require a cash security deposit in the full amount pledged to be paid once an accused person is released into custody, with payment due within two business days of release. Ontario Attorney General Doug Downey said gaps in the bail system have allowed violent and repeat offenders back into the community “for too long.”

“Enough is enough,” he said. “People deserve to feel safe in their neighbourhoods and confident that those who pose a serious risk will not be released only to reoffend. That’s why our government is taking bold, decisive action to deliver on our promise and fix the broken bail system, keep dangerous, repeat offenders off our streets, and put public safety first.”

But the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association (CLA) have launched a constitutional challenge of the cash requirement, saying it creates a two-tier justice system — one for the rich, and another for everyone else.

Matthew Gourlay, a partner at Henein Hutchison Robitaille LLP and CLA member, said that under the Criminal Code and Supreme Court jurisprudence, cash deposits for bail are a last resort if other forms of release aren’t enough to ensure an accused person shows up in court.

“We typically require a pledge of a certain amount of money from a surety and sometimes from the accused themselves,” he said. “But the problem we’re going to face is that sureties will be unable or unwilling to come forward in circumstances where they’re going to be forced to make a cash deposit almost immediately upon a person’s release — so the accused does not have a surety or their release will be delayed while the surety arranges assets to free up the amount of cash that’s required.”

The two groups are arguing the changes are unconstitutional because criminal procedure is a federal power and the Criminal Code says a judge has discretion on whether to order a security deposit — and provinces cannot rewrite federal law. The challenge also says the cash requirements violate the s. 11(e) Charter right to not be denied reasonable bail.

Gourlay said the CCLA and the CLA are also seeking an injunction to put the cash bail system on hold while the legal process unfolds.

“Whatever the merits of the province’s policy differences with the federal government, it doesn’t expand their jurisdiction to legislate in criminal law — their recourse is to go lobby the federal government to change the law,” he said. “And I don’t agree there is a revolving-door system here — the provisions in the Criminal Code set up a rational and appropriate framework for determining who gets released and what conditions are applied on release. And if there are mistakes made in any given case, there are appeal rights that are available on both sides.”

Downey’s press secretary, Julia Facca, said in an email that the changes will improve bail compliance and make it easier for the province to collect forfeited bail payments when bail conditions are violated.

“Our government is also working to enhance digital tools to track repeat offenders and those who fail to comply with bail conditions, including the creation of a surety database to help streamline and strengthen surety checks,” she said. “Together, these new measures are closing the gaps in the bail system, strengthening accountability and ensuring the justice system has the tools it needs to protect our communities by keeping criminals off our streets.”

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