The Criminal Lawyers’ Association (“CLA”) and Canadian Civil Liberties Association (“CCLA”) have launched a Constitutional challenge before the Ontario Superior Court of Justice against the introduction of mandatory cash bail by the province. The organizations are requesting an interlocutory injunction from the Court. If granted, the provisions would be paused until a final ruling on the challenge.
Cash bail creates two tiers of justice: one that works for the rich, and one that needlessly punishes the rest of Ontarians. People presumed innocent across Ontario who cannot afford to pay a security deposit will be more likely to be left in jail. An accused person or potential surety would risk provincial prosecution if they are unable to raise enough cash in time after the accused’s release from custody.
In the Notice of Application filed with the court, the CLA and CCLA argue that mandatory cash bail under Bill 75 violates the Constitution. Criminal procedure is a federal power under the Constitution. The federal Criminal Code sets out that a justice has discretion on whether to order a security deposit (‘cash bail’). The province cannot rewrite federal law. Neither can the province violate the s. 11(e) Charter right to not be denied reasonable bail.
The province already has tools at its disposal to address major violations of bail conditions by seeking forfeiture of an amount pledged when a bail condition is violated. Enacting clearly unconstitutional laws is a haphazard way to administer the criminal justice system.
The Notice of Application can be viewed here.
The CCLA and CLA are grateful for the excellent pro bono assistance of Matthew Gourlay, Stephanie DiGiuseppe, Brandon Chung, and Jacob Roth of Henein Hutchison Robitaille LLP.
