Why Ford and Downey’s Cash Bail Bill Won’t Make Ontario Safer

We need to talk about bail. Again.

Because whenever a government needs a distraction, a villain and a fundraising hook, they dust off the same script. Cue the ominous music. Pretend bail is broken. Pretend the courts are pushovers. Pretend complexity can be fixed with slogans. It is political comfort food for people who should know better.

Enter Premier Doug Ford and Attorney General Doug Downey with a new bail bill that will not fix bail, reduce crime, or make anyone safer. Instead, Ford and Downey are serving Ontarians a double-double of unconstitutionality.

Ontario’s new bail law would require every accused person and every surety to hand over cash in every case, even when a judge does not order it. Downey says that “right now, in Ontario, bail money put up by a surety is ordered as a pledge or a promise. It is not money up front.” He frames this as if courts cannot order cash deposits. That is false. Courts can. Courts do. Courts will do so when the circumstances justify it. But Downey’s snake oil pitch is only the opening act.

Any first-year law student could tell you this proposal is unconstitutional.

The constitutional division of powers is not a choose-your-own-adventure. Provinces do not get to rewrite the Criminal Code. They cannot, in effect, eliminate a rung on the bail ladder by forcing cash releases in every case. That is Parliament’s turf.

And here comes constitutional strike two. The proposal violates the Charter right to reasonable bail. It is unreasonable to decree that every accused person, no matter their circumstances, must pay cash for their freedom. The Supreme Court has already warned that cash bail, which “makes an accused person’s release contingent on his or her access to funds,” should be the exception, not the rule.

The SCC also cited with approval the 1969 Ouimet Report, which condemned systems with an “undue preoccupation with [bail’s] monetary aspects” and warned of the “unconscionable result” that “the ability of the accused to marshal funds or property in advance determined whether he or she would be released.”

Or, put more eloquently by the French satirist, Anatole France, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread.” Except in Ford and Downey’s world, it is more like: rich and poor alike may enjoy the right to bail, as long as they can afford to purchase it.

Ford and Downey seem to want exactly that. A system where the rich buy their freedom and the poor wait for trial in a cage.

And those cages are not theoretical. Ontario’s jails are intentionally inhumane. That is not hyperbole. The Ontario Superior Court has found that conditions in Ontario’s largest jail “fail to comport with basic standards of human decency.”

And Ontario’s Dickensian hellholes have never been fuller.

A CBC analysis shows “Ontario jails are heading toward a record year for overcrowding, remand populations and lockdowns.” In the first six months of 2025, jails held “10,800 prisoners” in facilities designed for “8,500 beds.” Eighty-two percent of those living in these conditions are legally innocent. For women, it is more than eighty-five percent.

This is where Ford and Downey want even more legally innocent people to wait. Crammed into mould-filled, violent, inhumane facilities. Cut off from family, housing, employment, mental health supports and addiction treatment.

And experts have been saying the same thing for decades–you cannot torture your way to safety. Destabilizing someone’s life does not reduce crime. Degrading people does not rehabilitate them. Every serious criminologist knows this, which is probably why Ford and Downey will never consult a serious criminologist.

If jail made us safer, Ontario would be the safest place on Earth, given the remand explosion on this government’s watch. Yet violent crime has risen about twenty percent since Ford took office. To be clear, I am not playing the dumb stats game politicians adore. Crime is not spiralling. Canada is not burning. But you cannot take credit for being tough on crime while ignoring the record on your own scoreboard.

Tough-on-crime theatrics are great for press conferences and even better for fundraising. But they do not make communities safer. If Ford and Downey were serious, they would ask why bail enforcement is inconsistent despite ballooning police budgets. They would expand proven programs, such as the John Howard Society’s bail supervision services. They would fund supervised bail beds. They would ensure people on bail have access to programming and counselling. But doing things that work is much more difficult than doing unconstitutional things that sound tough.

And this bill will grind the courts to a halt with constitutional challenges. Even the United States – the birthplace of commercial bail bonds and the absurdity of cash bail – is backing away from cash bail. As John Oliver put it, cash bail is “arbitrary, destructive, and basically criminalizes poverty and that’s without getting into the massive racial disparities involved. And when you take all this together, you can understand why so many jurisdictions passed some form of bail reform over the last few years.”

There is a cost to being dumb on crime. It is expensive. It is dangerous. It erodes confidence in the justice system. It does nothing for community safety. And it is inhumane.

Ford and Downey know this. But their grift relies on fear because fear obscures their own record of failure. Fear is profitable. And to them, constitutional rights and human beings are just collateral damage.