Two weeks ago Ontario changed how bail money works. On the last day of August, a court suspended the change. If you or someone in your family is facing a bail hearing right now, here is where things actually stand.
What The New Rules Did
For as long as most people have dealt with the bail system, bail money in Ontario was a promise. You or your surety pledged an amount, and if the accused followed the conditions, nobody paid anything. Under provincial amendments that took effect in August, anyone released on a promise to pay, or their surety, had to deposit the full amount in cash within two business days of release. Failing to pay was made a provincial offence carrying a fine.
The province’s position, argued in court, was that the deposit is not a condition of release. A justice still decides who is released and on what terms; the money became payable only afterwards.
What A Judge Has Now Done
Two legal organizations challenged the scheme. Bail, they argued, is federal: the Criminal Code tells a justice to favour a promise to pay over a cash deposit, and a province cannot rewrite that. They also argued the scheme offends the Charter right not to be denied reasonable bail. And they asked the court to suspend the deposit requirement while the constitutional question is decided.
The court has now done exactly that. The deposit requirement is suspended until the ruling on the challenge is released.
The evidence that carried the day is worth knowing. An experienced defence lawyer told the court that virtually every surety release includes a promise to pay, and that requiring cash within two days would make it significantly harder to find willing and suitable sureties. If people will not come forward, or release is delayed while a family raises cash, people who are presumed innocent sit in custody. Liberty lost, the court observed, is never regained.
What Federal Law Still Says About Cash
None of this changes the background rules, which is where the durable lessons sit. The Criminal Code sets a ladder of release: start with the least restrictive form and climb only where the Crown shows a more restrictive one is necessary. The Code expressly directs a justice to favour a promise to pay over a cash deposit where the accused or a surety has reasonable assets. And the Supreme Court has said cash should be relied on only in exceptional circumstances, because a promise to pay is functionally equivalent to cash, and because requiring a deposit will often prevent an accused person from being released at all.
Where cash is properly ordered, the amount cannot operate as a detention order, and the justice must inquire into what the accused and sureties can actually pay.
Where This Stands
The suspension is temporary. The court heard full argument on the constitutional question and the ruling is still to come. It could strike the scheme down, uphold it and revive the deposits, or land somewhere between. This article describes the position at the start of September; confirm it on the day it matters to you.
If You Are Facing A Bail Hearing This Week
As of now, no cash deposit requirement is in operation in Ontario. The Criminal Code framework applies as it has for fifty years. If cash is proposed as a term of the release itself, the longstanding rules govern: exceptional circumstances, an inquiry into ability to pay, and an amount genuinely within reach. If nobody asked what your family could realistically pay, raise it at the hearing, where the record gets made.
This article is general information about Ontario criminal law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.
