The Ontario Superior Court is set to decide early next week whether to halt the province’s recently implemented cash bail system as it examines constitutional concerns raised about the new regulations. The challenge comes from the Canadian Civil Liberties Association (CCLA) and the Criminal Lawyers’ Association, which argue the rules, introduced last week, infringe upon the Constitution and the Canadian Charter of Rights and Freedoms.

During a hearing Thursday in Toronto, both sides presented extensive arguments regarding the provincial government’s authority to institute cash bail requirements. Justice William Chalmers, presiding over the case, indicated he was skeptical of the provincial government’s position that its regulations do not intrude on federal jurisdiction over criminal law, which includes bail procedures under the Criminal Code.

Justice Chalmers highlighted the apparent intent behind the provincial legislation, known as the Keeping Criminals Behind Bars Act, noting its title suggests a clear focus on detaining more individuals pretrial. “It seems to me that they’re trying to do indirectly what they can’t do directly,” he said.

The core legal dispute centers on the division of powers between the federal and provincial governments. While the federal government controls criminal law, provinces are charged with the administration of justice within their territories. Ontario’s new regulations mandate that accused individuals post actual cash, money orders, or bank drafts within two business days of release on bail, moving away from the generally accepted practice in Canada since the early 1970s of relying on promises to pay when financial conditions are imposed.

Lawyers representing the CCLA and the Criminal Lawyers’ Association contended Ontario’s cash bail system is designed to make bail significantly more difficult to obtain, thereby overstepping the province’s constitutional jurisdiction. “You have a [provincial] government who’s telling you loud and clear in unmistakable terms what it’s trying to do: keep more people behind bars,” said Matthew Gourlay, who represents the legal groups. He further described Ontario’s move as a “radical outlier,” noting that no other Canadian province has reinstated cash bail to this extent.

In response, the Ontario government argued its regulations do not interfere with judicial discretion in bail decisions and do not affect whether a judge or justice of the peace grants bail. Government lawyer Zachary Green said the challengers “overstate the impact” of the new rules, emphasizing that the provincial laws do not authorize detention for failure to comply. “Nothing in the [Ontario] Bail Act authorizes anyone’s detention,” Green said.

Following the hearing, Justice Chalmers indicated he hopes to issue a ruling on whether to grant an injunction to pause the cash bail regulations by early next week, with a full decision on the constitutional questions expected to take longer. The outcome will clarify the balance of criminal justice powers between federal and provincial authorities in the wake of Ontario’s unprecedented approach.