Ontario’s cash bail playbook punishes the poor, and does not make us safer

Premier Doug Ford announced last month that he wants cash bail to be the law of the land in Ontario. But this is not bold new policy. It is a recycled idea from failed experiments in the United States. Across America, courts have repeatedly ruled cash bail unconstitutional. I know this because I was one of the lawyers who argued to end it.

My legal career began in St. Louis, Missouri, where I worked to shut down a notoriously abusive jail known as “The Workhouse” and challenged Missouri’s cash bail laws as part of a national movement to stop punishing people for being poor.

Just think for a minute about what cash bail means—you can be arrested for a crime and presumed innocent, but whether you wait for the years before your trial at home or in jail depends entirely on the size of your bank account. If you can pay, you go home, prepare your defence, keep your job, support your family. If you can’t, you sit in a cage. You lose employment. Your kids may end up in foster care. Your family may be evicted. A person without money is no more “dangerous” than the person with it. This is simply wealth-based detention.

When I moved to Toronto I worked as a government-funded defence lawyer in Brampton’s bail court. While the situation here is marginally better than what I saw in the US, it is nothing to celebrate. Pre-trial release in Ontario is already difficult to get, particularly if you are working class, Indigenous, or Black. Even without cash bail, our system often demands a “surety”—someone who must take time from work to attend court, have space in their home for you to live, and demonstrate enough financial stability to cover potential forfeitures. If you don’t have such a person in your life, you sit in jail.

This is why Ontario’s jails are full of people who are legally innocent—80 percent of people in our provincial jails are detained pre-trial, meaning they haven’t been convicted of anything. Most of them are there for non-violent charges. Many of these people will eventually be proven innocent. Across Canada, about half of criminal cases end with the accused being found not guilty of the charge.

When someone spends time in jail for a wrongful conviction, the newspapers cover it, and they are often compensated by the government. When you spend pretrial time in jail and then are found innocent, nobody hears about it. This despite the terrible conditions you’ve been stuck in, sometimes for years. Many of our jails suffer from the same horrors I saw at the Workhouse: overcrowding, chronic lockdowns, inadequate health care, and high rates of segregation.

Ford’s proposed “bail compliance” package will deepen the crisis. It will require up-front cash deposits, charge user fees for GPS monitoring, and even contemplate suspending driver’s licences for people who fall behind on payments. In an era where one in four Canadians cannot absorb a $500 emergency expense, these policies all but guarantee that more people will be jailed simply because they cannot afford freedom.

This change will not make us safer. Contrary to the fear-based narrative coming from Queen’s Park, major crimes in Toronto have dropped sharply this year, with overall major crimes down 10 percent, homicides down 54 percent, auto thefts down 30 percent, and robberies down 16 percent.

But fear drives politics more than facts. Judges know that if someone dies in custody awaiting trial, the judge’s name will not appear in the news. But in the rare case where a released person is charged with a new offence, media coverage is immediate and sensational.

We hear endlessly about the number of bail “failures,” and almost nothing about the overwhelming majority of people who return to court, comply with conditions, keep working, and keep their families housed. This false, fear-based narrative will now be used to create bad policy.

American jurisdictions learned this the hard way. Cash bail failed to ensure court attendance, failed to reduce crime, and created devastating racial and economic inequities. That’s why cash bail systems have been challenged or dismantled in California, Alabama, Georgia, North Carolina, New Jersey, Oregon, Maryland, and elsewhere.

We have decades of evidence, and none of it supports what Ford is proposing.

Can Ford legally do this? Likely not. Bail is governed by the federal Criminal Code, which presumes release and requires judges to impose the least restrictive conditions. Financial conditions must be a last resort, and never used to detain people for being poor. Provinces simply do not have the authority to create a parallel bail regime.

But focusing only on constitutional limits misses the real danger of this policy. Ford does not need to rewrite the Criminal Code to reshape bail. Norms will shift quietly. If Crowns are directed to oppose release more aggressively, if cash deposits and GPS monitoring fees become routine asks, and if debt-collection tools are normalized, the day-to-day reality for communities most likely to face arrest will shift dramatically.

We all have a role to play to fight back. Defence lawyers must challenge unlawful conditions. Judges can demand real evidence before imposing invasive measures. And the public must recognize that civil liberties and community safety are not in conflict.

The American experience is a warning. Cash bail deepened poverty, entrenched racial injustice, and weakened community safety. Ontario does not need to repeat those mistakes. But unless we resist this shift in criminal practice, we risk cementing a two-tiered system: freedom for those who can pay, detention for those who cannot.

Sima Atri is a human rights lawyer and organizer at Toronto’s Community Justice Collective (CLO). She formerly served as civil rights counsel in St. Louis, Missouri.