Law360 Canada (August 19, 2026, 10:46 AM EDT) --

John L. Hill

Ontario’s attempt to make bail “more real and consequential” may instead create a constitutional confrontation over who has the power to decide the terms on which an accused person is released from custody.

The provincial government has enacted legislation requiring accused persons and their sureties, in prescribed circumstances, to provide an upfront cash deposit equal to the amount they have promised to pay if they breach bail conditions. The new provisions are contained in the Keeping Criminals Behind Bars Act, 2026, which amended Ontario’s Bail Act. The provisions have not yet been proclaimed in force.

The government’s objective is straightforward. It says the existing system allows accused persons and sureties to promise money without actually putting it up. If the accused complies with the release order, no money changes hands. If the accused breaches the conditions, the Crown can seek forfeiture and collect the debt.

Under the new provincial scheme, the money would have to be deposited in advance. If the accused complies, the money would ultimately be returned. If the court orders forfeiture following a breach, the province would be able to recover the money.

From a political perspective, the proposal is easy to understand: if bail has a financial consequence, the government reasons, accused persons and sureties will have a greater incentive to comply.

The constitutional difficulty is that Parliament, not Ontario, has jurisdiction over criminal law and criminal procedure. More importantly, the Supreme Court of Canada has already spent considerable effort explaining that cash is not meant to substitute for liberty merely because an accused cannot afford it.

The federal Criminal Code already governs bail. Bail is fundamentally a matter of federal criminal law. Section 515 of the Criminal Code establishes the framework governing judicial interim release. It provides a graduated series of release mechanisms and embodies what has become known as the “ladder principle”: an accused should ordinarily be released at the earliest reasonable opportunity and on the least onerous form of release appropriate to the circumstances.

The Supreme Court made that principle unmistakable in R. v. Antic, 2017 SCC 27. Antic involved an accused who had spent more than a year in pretrial custody before a bail review judge ordered his release on conditions that included a $100,000 cash deposit. The Supreme Court held that the judge had failed to apply the statutory ladder properly. Cash should not simply be imposed because a judge believes it provides greater assurance of compliance.

The point is important because Ontario’s legislation does not merely establish an administrative mechanism for collecting money after a court has made a bail order. It potentially changes the financial consequences attached to the federal bail order itself.

That is precisely the concern raised before the Ontario legislature’s Standing Committee on Justice Policy in April. The Criminal Lawyers’ Association told the committee that the proposed cash-bail provisions were unconstitutional because they intruded upon Parliament’s exclusive criminal law jurisdiction. The association also pointed out that cash bail is already available under s. 515 of the Criminal Code when it is reasonable and necessary in the circumstances.

A second, potentially more serious, constitutional problem remains. Section 11(e) of the Canadian Charter provides that anyone charged with an offence has the right “not to be denied reasonable bail without just cause.” The Supreme Court has explained that this right contains two distinct protections: the right not to be denied bail without just cause, and the right to reasonable bail.

The latter protection is particularly significant here. As the federal Justice Department’s Charter analysis notes, s. 11(e) protects accused persons against unreasonable terms of bail, including unreasonable monetary requirements. The Supreme Court has also recognized that a legislated form of release can itself be unconstitutional if it imposes unreasonable terms.

Consider the practical effect. Suppose a judge concludes that an accused can safely be released if a surety promises $20,000. Under the existing federal scheme, that may be sufficient. The surety does not normally have to produce $20,000 in cash. The promise is intended to incentivize supervision of the accused and ensure compliance.

Under Ontario’s new system, however, that $20,000 promise can become a demand for $20,000 in cash. For a wealthy accused or wealthy surety, the distinction may be insignificant. For a person of modest means, it can be the difference between freedom and continued detention. That is where a seemingly administrative provincial measure can become a constitutional problem.

The Supreme Court has already considered this question. Antic is difficult legislation for Ontario to get around. The Supreme Court emphasized that the bail system is structured as a ladder. The starting point is release. More restrictive forms of release can be imposed only where justified. Each rung must be considered before moving to a more onerous rung.

The principle is not simply a matter of judicial courtesy. It reflects the constitutional protection of liberty and the presumption of innocence. The Supreme Court subsequently reinforced that approach in R. v. Zora, 2020 SCC 14.

Zora dealt with bail conditions rather than a cash deposit, but the court’s reasoning is highly relevant. Bail conditions restrict the liberty of people who have not been convicted and can expose them to additional criminal liability if they breach those conditions. Consequently, conditions must be necessary, reasonable, minimally intrusive and proportionate to the specific risks presented by the accused.

The federal government’s own Charter materials summarize the point particularly well: both legislated forms of release and individual bail conditions can be unconstitutional when unreasonable.

A mandatory financial requirement raises exactly that concern. “Cash” does not necessarily make bail safer. The government’s premise also has a conceptual problem. Why should $20,000 in cash be a more effective guarantee of compliance than a $20,000 promise? That question was central to Antic.

The Supreme Court rejected the notion that cash necessarily has some special coercive quality that makes it inherently superior to a pledge. A person who promises to pay a substantial sum if bail is breached already faces a serious financial consequence.

The important distinction is not between “real money” and “imaginary money.” It is between an appropriate and proportionate means of securing compliance and a financial barrier that may effectively keep an accused person in jail.

If the latter occurs, the constitutional issue becomes unavoidable. The greatest concern may therefore be inequality. Two accused persons could appear before the same bail court, charged with identical offences and presenting identical risks. One has a family member who can produce $25,000 immediately. The other has a family member who owns a home and has employment and assets but cannot produce $25,000 in cash.

If the first person walks out of jail while the second remains behind bars solely because of cash availability, the bail system begins to resemble a wealth test.

That is difficult to reconcile with the principle that pretrial detention is not supposed to become punishment before conviction.

Ontario’s own Crown Prosecution Manual recognizes the problem. It says prosecutors should not seek a cash deposit where a surety’s assets can instead be promised and warns that a monetary amount should not be set beyond the means of the accused or surety because an unattainable amount has the same effect as detention. The new legislation appears to move in the opposite direction.

A further constitutional issue is the division of powers. Section 91(27) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction over “the Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.”

Ontario unquestionably has an important administrative role in the bail system. Provincial governments operate courthouses, prosecutors’ offices and correctional institutions, and Ontario has long had legislation dealing with the collection and administration of forfeited bail.

But a constitutional line exists between administering the federal bail regime and altering its substance. The government will presumably argue that its legislation merely regulates the collection and administration of money associated with bail orders. That argument has some force.

But the legislation goes further than simply collecting an existing debt. Section 8.0.1 of the amended Bail Act provides that where a release order contains a promise by the accused or a surety to pay a specified amount, that person must actually pay the amount in accordance with the provincial scheme. Failure to comply with the payment requirement itself becomes an offence.

That makes the constitutional question much more difficult. Ontario is not merely collecting money after a breach. It is imposing a new financial obligation on a federal release order. This is not a hypothetical concern raised after the legislation was passed.

During legislative hearings in April, representatives of the Criminal Lawyers’ Association expressly warned that the cash-bail provisions intrude on federal jurisdiction and conflict with the Supreme Court’s bail jurisprudence. The provincial government nevertheless proceeded.

There is an irony here. In June, Parliament itself enacted significant new federal bail reforms through Bill C-14, the Bail and Sentencing Reform Act. Those reforms made more than 80 changes to the Criminal Code relating to bail and sentencing. That reinforces the constitutional point. Bail is not an area in which provinces can simply establish a parallel criminal procedure whenever they believe federal law is inadequate.

Once the Ontario provisions come into force, it would not be surprising to see a constitutional challenge from an accused person who remains in custody because the required cash cannot be raised.

That case would provide a concrete factual setting for courts to decide whether the provincial requirement merely administers the federal bail system or impermissibly changes it.

The Charter issue could be equally direct.

If an accused is otherwise entitled to release but cannot obtain the money demanded by the province, the argument would be that the cash requirement has become a denial of reasonable bail.

The Supreme Court has already said that the constitutional protection extends to the quantum of financial security demanded as a condition of release.

That does not mean every cash-bail requirement is unconstitutional.

The Criminal Code expressly permits monetary deposits in appropriate circumstances. Nor does Antic say that cash can never be required. The constitutional problem arises when cash becomes a default requirement, or when it is imposed without an individualized assessment of why less onerous alternatives are inadequate.

There is little doubt that Ontario’s government is responding to a genuine public concern. Victims and members of the public understandably want accused persons released on bail to comply with their conditions. Sureties should take their responsibilities seriously. Courts should have effective mechanisms to deal with breaches and collect forfeited amounts.

But constitutional rights are designed precisely for circumstances in which a popular objective collides with individual liberty. The presumption of innocence does not disappear because an accused is charged with a serious offence. Nor does the right to reasonable bail disappear because governments believe a cash deposit would make the system more effective.

The Supreme Court’s message in Antic and Zora was that bail must be individualized, proportionate and restrained. The least onerous form of release that adequately addresses the legitimate risks must be preferred. Ontario’s new cash-bail regime may therefore face a difficult question when it reaches the courts:

Can a province, in the name of making federal bail more effective, impose a financial condition that Parliament did not require and that may keep an otherwise releasable accused behind bars simply because the accused is poor? The answer may determine whether Ontario’s attempt to make bail “real” becomes, instead, a constitutional test of what bail is supposed to mean in Canada.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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