THUNDER BAY — Anyone accused of a crime will now need enough cash to cover their full bail amount, or be kept in jail, under new rules.
The province says new bail requirements implemented as of Monday are intended to strengthen the province’s bail system and improve compliance, but some working in the region’s justice system question what the impact will be on an already strained system.
Where previously no cash deposit was required, the new bail measures will require a cash security deposit in the full amount pledged to be paid once an accused person is released from custody, with payment due within two business days of release.
“It’s hard to say what the new idea is behind the measure, because the impact to the criminal justice system at large from my perspective seems to be on the whole rather negative,” said Amanda Gallo, a criminal defence lawyer in Thunder Bay and managing partner at Gallo Lewis Professional Corporation.
What it actually does, she said, is make bail much more difficult for people who are low income, insecure in housing, or people whose support networks are also poor.
The Canadian Civil Liberties Association and Criminal Lawyers’ Association are already launching a constitutional challenge, arguing the cash bail policy creates a two-tired justice system: “one that works for the rich, and one that needlessly punishes the rest of Ontarians.”
Gallo said the new measures will, in her opinion, also disproportionately impact First Nations in the region.
“For Indigenous people in particular, for example, members of our Indigenous communities here in Northwestern Ontario who live in remote First Nations communities, these are people who, if arrested, may be transported hundreds of kilometres away from their home to a custodial facility in Thunder Bay.
“The entirety of their support network might be isolated in a remote or maybe even fly-in only community, and now they’re somehow going to have to be able to come up with immediately liquidable monies to be able to help support their loved one get out of jail on bail.”
The impact on already-strained jails will also be negative, she said.
“What’ll happen is our provincial jails, which are already sitting at on average about 120 per cent capacity across Ontario, they’re going to be that much more overpopulated.
“And the reality is that some 80 per cent, at any given time, of an Ontario jail’s population are these very people that we’re talking about who are going to be most impacted by these changes. These are accused persons who have yet to be found guilty of any kind of criminal wrongdoing, who are awaiting bail or trial or resolution as the case may be.
“And so that in turn creates all kinds of dangerous situations. Overpopulated jails, we know, are dangerous for the inmates themselves. They’re dangerous for the staff who work there — and we know our jails are understaffed — and they create dangerous situations for the public who visit, criminal justice system participants who visit, as well as for the inmates when they are finally released, having been through whatever it is they’ve been through in custody.”
Anthony Rojik represents staff at the Thunder Bay District Jail as president of the Ontario Public Service Employees Union Local 737. He also said capacity is a concern under these new measures.
“As much as we like to see the justice-involved individuals held accountable for their actions, it will impact us by obviously putting more workload on the staff and creating more housing issues within our already stressed institutions,” Rojik said.
Julia Facca, press secretary for Attorney General Doug Downey wrote in an email statement to Newswatch, “Our government will never apologize for the actions we are taking to strengthen the bail system and keep dangerous, repeat offenders behind bars — where they belong.”
Bail, by definition, applies only when a person has been accused but not convicted of a crime and presumed innocent.
The province cannot violate the charter right not to be denied reasonable bail, said The Canadian Civil Liberties Association and Criminal Lawyers’ Association in a joint press release.
They said they intend to argue the mandatory cash bail policy “clearly violates the Constitution” and oversteps into federal jurisdiction. “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.”
Ontario’s Bail Act traditionally never dealt with these kinds of criminal law procedures, said Gallo, but “was really limited to a more administrative function in terms of the government collecting money from sureties primarily.
“This is new territory for the provincial government and so it’s a big debate as to whether they even had the power to go this far.”
Facca also wrote that the Ontario government “is also working to enhance digital tools to track repeat offenders and those who fail to comply with bail conditions, including the creation of a surety database to help streamline and strengthen surety checks.
“Together, these new measures are closing the gaps in the bail system, strengthening accountability, and ensuring the justice system has the tools it needs to protect our communities by keeping criminals off our streets.”
