Ontario’s cash bail requirements face a legal wall and are based on flawed logic

The Ontario Courthouse at 361 University Avenue in Toronto in May 2022. THE CANADIAN PRESS/Christopher Katsarov Ontario’s cash bail requirements face a legal wall and are based on flawed logic Published: September 7, 2026 8.14am EDT Share article Print article Ontario’s new cash-deposit requirements for bail are built on a simple idea: put money at risk and people will have a greater incentive to follow their bail conditions. But research on cash bail raises doubts about whether financial incentives actually improve bail compliance. The new rules took effect on Aug. 17, 2026, amid growing concerns in Canada about the bail system, although they are currently on hold due to an Ontario Superior Court ruling. The provincial government says the change is intended to strengthen accountability and make communities safer. Under the new rules, a person accused of a crime — or a family member or friend acting as their surety, responsible for helping ensure they follow their bail conditions — may have to put up cash within two days of release. Previously, they could make a promise to pay, with the money only forfeited if the accused breached their bail and the court ordered payment. Read more: Trump out on bail – a criminal justice expert explains the system of cash bail The Canadian Civil Liberties Association and the Criminal Lawyers’ Association argued in court that cash bail requirements violate Canada’s Charter of Rights and Freedoms. Within weeks of taking effect, the legislation has already generated costly litigation. But constitutional concerns aren’t the only reason to question whether this policy will achieve its stated goals. Cash bail won’t make communities safer Research on deterrence suggests that increasing the severity of a penalty is often a poor substitute for making compliance more certain. Deterrence cannot be bought. This approach assumes that bail non-compliance is primarily a rational calculation. However, people may breach conditions because of unstable housing, addiction, mental health challenges or release conditions that are difficult to understand or realistically meet. If these underlying barriers prevent compliance, making the penalty more severe does not solve the problem. Ability to pay is not a measure of risk: Whether an accused person or their surety can produce a cash deposit tells us little about whether they’ll attend court or breach their conditions. Evidence from American jurisdictions that have reduced or…