Is Ontario’s new cash requirement discriminatory?

Ontario has decided that the revolving door of jail to bail and back to jail needs a lock.

As of August 17^th, 2026, Ontario’s new bail rules require an accused person or their surety, when a court orders a financial pledge as part of release, to deposit that money rather than merely promise to pay it later. The province is also strengthening collection tools when bail is forfeited. The idea is that if real money is on the line, people may take bail conditions more seriously.

There is good logic in that. Canadians have watched too many cases involving people accused of serious offences being released, breaching conditions, being arrested again and then cycling back through the system. Ottawa has already responded with tougher federal bail laws for repeat and violent offenders, including new reverse-onus provisions in certain cases and instructions for courts to consider serious outstanding charges and public safety more carefully.

That is not unreasonable, and the presumption of innocence is fundamental, but it does not require us to pretend that every accused person presents the same risk.

If someone has repeatedly committed violent offences, ignored previous release conditions, threatened witnesses or demonstrated an obvious danger to the public, keeping that person in custody may be entirely appropriate.

This is where cash bail creates a problem. The question a judge should really be asking is: “How likely is this person to hurt someone, flee or obstruct justice?” not “How much money does this person need to deposit in order to stop him or her from reoffending?”

Imagine two people accused of the same offence, with similar histories and similar risk profiles. One comes from a family that can produce $20,000 by tomorrow morning. The other has a mother working two jobs who could not find $500 this week if her life depended on it. If one walks out and the other remains behind bars, have we measured danger, or have we unfairly measured ability to pay?

The Supreme Court of Canada has already warned about this. In its 2017 Antic decision, the Court emphasized that bail should follow a ladder principle, beginning with the least restrictive form of release reasonably necessary. It also rejected the assumption that cash is somehow more effective than a meaningful financial pledge. The Court noted that requiring cash can make freedom depend on access to money.

That matters even more when we look at who is already disproportionately represented in our correctional system. Statistics Canada reported that in Ontario in 2023/24, Indigenous adults were incarcerated at an age- and gender-adjusted rate 8.3 times that of non-Indigenous adults. Black adults were incarcerated at 3.2 times the rate of white adults.

Those numbers do not prove that Ontario’s new cash requirement is discriminatory. They do, however, tell us that any policy tying pre-trial freedom more closely to financial resources deserves consistent scrutiny. Poverty, unstable housing and limited family resources do not automatically make someone dangerous, yet all of them can make producing thousands of dollars on short notice nearly impossible.

We should also remember that bail is not a sentence as the person standing before the court has been accused, not convicted. None of this means going soft on violent crime. Quite the opposite.

Canada should become much tougher on chronic violent offenders, repeat breaches, weapons offences and people who demonstrate that previous chances at release have failed, especially at the sentencing phase after the criminal has been convicted. Electronic monitoring, meaningful sureties, strict reporting requirements and detention all have a place, and so does cash bail.

The system should be built around risk. Justice must protect the public, but it must also resist turning financial status into a proxy for character or risk, especially prior to a conviction. A wealthy accused person should not be able to purchase freedom when he poses a serious risk, and a poor accused person should not sit in jail merely because his family cannot write a cheque on demand.

The revolving door needs a lock. We just need to be careful with that lock; people’s lives are at stake.