Ontario’s new cash bail rules will be suspended while a court case on whether they are consistent with Canada’s constitution is decided, an Ontario Superior Court justice ruled Monday. In a written decision, Justice William Chalmers said that he was willing to grant an injunction against the rules created by the Keeping Criminals Behind Bars Act to avoid the possibility that someone’s chance at bail would be affected by them. “An impact on the liberty of presumed innocent individuals is irreparable harm,” Chalmers said in his ruling, as he quoted a Canadian Supreme Court judge in saying, “Liberty lost is never regained and can never be fully compensated for.” The ruling’s effect is to cancel, for now, the new rules, which came into effect two weeks ago and require that someone granted bail would have to produce the money within two days of being released. Previously, someone granted bail was usually required to pledge the money, with it being given up only in the case of a breach of the bail terms. Requiring cash bail up front has been an option for judges, but federal rules have required that to be a last resort for about 50 years. The Ford government had enacted the new rules earlier this month, arguing that the rules would better encourage people on bail to follow the rules with their own money held by the court, which could more easily seize it. The rules were challenged on the same day they came into force by the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers Association. Those groups said that requiring a cash deposit up front would lead to different rules for the rich and the poor, and that if every order from a judge to pledge an amount became a requirement for cash bail, that would conflict with federal law. Chalmers said the test for an injunction was granted, saying that it was a serious issue, that there was the possibility of irreparable harm, and that the balance of convenience favoured the challengers. “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,” he wrote. “The legislation came into effect less than two weeks ago. I am also of the view that it is not necessary or appropriate to wait for irreparable harm to occur before an injunction may issue,” he wrote. Shakir Rahim, the director of Criminal Justice Program at the CCLA, said he was happy with the interim rules and said this would go a long way to settling some of the disruptions they had created at bail hearings through Ontario. One judge in Milton ruling on a bail application, for example, had ruled he would not follow the provincial rules, arguing that they conflicted with federal rules. “We even heard situations where Crown (attorneys) had different views about what to do with this. The uncertainty was going to continue if we didn’t have the clarity of the injunction,” Rahim said. Chalmers has yet to rule on the merits of the case. The injunction’s effect is immediate, Rahim said, which means the courts will revert to a pledge bail system. “They will just go back to how they were operating around two weeks ago,” Rahim said.
