The Keeping Criminals Behind Bars Act uses real human suffering to manufacture a political grievance
Back in December, I wrote about Ontario Premier Doug Ford’s plan to impose cash bail in Ontario and called it an unconstitutional disaster.
Well, the disaster has arrived.
On August 17, regulations implementing the Ford government’s Keeping Criminals Behind Bars Act came into force. The name tells you quite a bit about the intellectual rigour behind the legislation. People seeking bail are presumed innocent; calling them “criminals” before trial gives the game away.
Ford’s new law requires an accused person or surety who promises to pay money as part of a bail order to actually deposit that amount with the government within two business days. Failing to come up with the money, there is no bail.
That might sound reasonable if you don’t know much about bail. A $10,000 pledge sounds like $10,000 cash. But it isn’t. A parent might pledge $50,000 because they own a home and have recoverable assets. That doesn’t mean they have $50,000 sitting in their chequing account to hand over by tomorrow afternoon.
More importantly, Parliament deliberately created that distinction. You see, Canada already tried cash bail. Before the 1972 Bail Reform Act, access to money played a much larger role in determining who went home and who stayed in jail. The predictable result was that liberty depended too much on wealth. Parliament changed the law because cash bail operated harshly against poor people, a history the Supreme Court revisited in R. v. Antic, when it made clear that cash bail should be exceptional.
Last month, Superior Court Justice Scott Cowan provided a preview of what is coming. In a human trafficking case, he ordered release based on financial pledges but concluded that Ontario could not transform those pledges into mandatory cash deposits. The federal Criminal Code says one thing. Ontario says another. Federal law wins.
And last week, the Canadian Civil Liberties Association and Criminal Lawyers’ Association were in court seeking to have Ontario’s law struck down altogether. Judgment was reserved, but on Monday, Justice Robert Chalmers suspended the law pending his decision on the constitutional challenge. I’ll go out on the same limb I climbed onto in December: Ontario’s cash bail law will be found unconstitutional.
The arguments against the law are compelling. Bail is a criminal procedure. Criminal procedure is under federal jurisdiction. Ontario can build courthouses, appoint judicial officers, prosecute offences and operate jails. It cannot rewrite the Criminal Code because Doug Ford thinks Parliament isn’t enthusiastic enough about locking people up.
Ontario offered an astonishing response to the challenge. The government argued that requiring an accused or surety to deposit the full amount of a financial pledge isn’t actually cash bail –
it is just a measure to ensure that Ontario can effectively and efficiently administer promises to pay in release orders.
Let’s cut through the snake oil: Ford’s law requires cash to be deposited as a condition of release on bail. Calling that something other than cash bail is an Orwellian exercise in insisting that everyone reject reality.
The Party told you to reject the evidence of your eyes and ears. Ontario would like to add: ignore your bank statement as well.
There is no subtle distinction here. Under federal law, a surety can promise to pay $20,000 if an accused breaches bail. Ontario says that surety must hand over $20,000 is cash in advance. The government can call it a security deposit, a financial accountability mechanism or a magical bag of justice beans. It is still mandatory cash bail.
And the absurdity of Ontario’s argument tells us something important: this isn’t serious criminal justice policy grounded in evidence, experience or even reality. It is political theatre.
Doug Ford and his Attorney General Doug Downey know better. They have lawyers. Lots of them. They know what the Constitution says. They know what the Supreme Court has said. They know that the Criminal Code expressly directs judges to favour promises to pay over cash deposits. And they know that criminal procedure, including bail, falls within federal jurisdiction.
Even Toronto Sun columnist Brian Lilley, who is not exactly known for demanding that governments be gentler with people accused of crimes, sees the constitutional problem.
The coming constitutional defeat isn’t an unfortunate consequence of Ford’s plan – it is the plan.
Pass something called the Keeping Criminals Behind Bars Act. Hold a press conference. Talk about dangerous criminals roaming our streets. Pass a law that collides head-on with federal legislation. When challenged, argue with a straight face that forcing people to deposit cash isn’t cash bail. Then wait for a judge to do the entirely predictable thing and strike it down.
And then comes the payoff: cry that an activist judge appointed by the Liberals has let criminals loose. The courts are soft on crime. The justice system is broken. Doug Ford tried to protect you, but the elites wouldn’t let him.
Everyone gets a villain, and nobody has to do the difficult work of making communities safer.
That work is expensive, complicated and, worst of all for politicians, boring. Housing. Mental-health treatment. Addiction services. Community supports. Legal aid. Rehabilitation. Crime prevention. Proper bail supervision. And perhaps asking why police are not doing a better job of enforcing bail conditions when enforcement is warranted.
The problem is that the people used as props in this performance are real. A person unnecessarily detained before trial doesn’t just lose their liberty, even though they're presumed innocent. They can lose their job, their apartment and contact with their children. They can be assaulted, isolated and warehoused in Ontario’s overcrowded jails under conditions that courts have repeatedly described in horrifying terms.
Pre-trial detention also creates a more insidious pressure. Imagine being innocent, sitting in a filthy jail, separated from your family, unable to work and watching your life collapse, while being told you can go home today if you plead guilty. Innocent people can have perfectly rational reasons to plead guilty.
There is one final irony. Ford has spent years complaining about Ontario’s judiciary. He has threatened to “measure” judges and hold them accountable for their decisions. He politicized the appointment process while demanding more tough-on-crime judges and justices of the peace. His government’s appointments have skewed heavily toward people with Crown, policing and law-enforcement backgrounds.
You can’t spend years remaking the refereeing crew and then complain every time you don’t like the call.
None of this means bail laws should never change. Parliament has already made them tougher. Nor does it mean public safety is unimportant. It means public safety requires actual work, evidence and competent government. Constitutional rights are not props.
Ford and Downey have passed a law they know will be struck down, so they can launch a performative attack when it is. And in doing so, they deliberately undermine confidence in courts, plow under the Charter and civil liberties, and use real human suffering to manufacture a political grievance.
Ontario’s cash bail law will be found unconstitutional. And when Ford inevitably expresses outrage that a judge has done exactly what everyone knew a judge would do, remember this: that won’t mean his plan failed. It will mean it worked exactly as intended.
