Ontario Says Accused Persons Can No Longer Be Trusted: New Mandatory Cash Bail

Update: On August 31, 2026, the Canadian Civil Liberties Association and Criminal Lawyers’ Association were granted an injunction in their case challenging the new cash bail system. This means that the new system is on hold pending the final ruling on its constitutionality.

Since August 17, 2026, a pledge in an Ontario bail court is no longer enough. Section 8.0.1 of the Bail Act (part of the “Keeping Criminals Behind Bars Act”), together with O. Reg. 278/26, requires any accused or surety whose release order records a promise to pay to deposit that full amount (cash, money order, or bank draft) within two business days of release. Failing to pay is itself a provincial offence, punishable by a fine of up to $5,000.

This is not a minor bureaucratic change. It fundamentally alters the conditions on which people go home and disproportionately affects those without quick access to large amounts of cash.

What the Code says

Parliament has treated cash bail as a last resort for over fifty years. Section 515(2) of the Criminal Code ranks forms of release from least to most onerous, and s. 515(2.01) bars a justice from climbing a rung unless the Crown shows every less onerous form would be inadequate. Section 515(2.02) is even more clear, stating that a justice “shall favour a promise to pay an amount over the deposit of an amount of money” where there are reasonably recoverable assets. A cash deposit is contemplated under s. 515(2)(e) mainly for an accused who does not ordinarily reside in the province or within 200 kilometres of the place of custody.

The Supreme Court of Canada settled this in R. v. Antic. A recognizance is functionally equivalent to cash bail and carries the same coercive effect, so cash “should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable” (2017 SCC 27, at para. 67(h)). Where a satisfactory recognizance can be obtained, “a justice or a judge cannot impose cash bail” (at para. 49). As well, release on the least onerous terms is the default (Myers, 2019 SCC 18, at para. 1).

Ontario has now inverted that rule, in every case, without regard to risk or means. Notably, Bill C-14 tightened federal bail in July but left cash sitting at the top of the ladder.

The Constitutional Challenge

The CCLA and CLA filed their challenge in the Superior Court on August 24. (Court File No. CV-26-00016332-0000). Their argument has two main pillars. First, bail is criminal procedure under s. 91(27) and beyond provincial reach. Paramountcy renders the provisions inoperative because a province may not “compromise the proper functioning of the Criminal Code” (Chatterjee v. Ontario, 2009 SCC 19, at para. 40). Second, conditioning liberty on liquidity offends ss. 11(d) and 11(e), which protect accused persons “from unreasonable terms and conditions of bail” (R. v. Zora, 2020 SCC 14, at para. 20).

As noted by the CCLA and CLA, at least one Superior Court judge has already released an accused on pledges alone, without a deposit, notwithstanding the new rules. The reasons are subject to a publication ban.

What this means now

For defence counsel, do not accept the suggestion that a deposit is now automatic. Build the record on means and argue the Code and caselaw directly. If one judge can release on pledge alone, others can and will.

For those needing to pay deposits, two business days is short. Assume that some measure of cash may be required in short order after a bail hearing.