Being a Surety for Bail
A significant portion of Canadians face criminal or criminal-like charges during their lifetimes. Many of us will be asked at some point to act as a surety for a partner, family member, loved one, co-worker or friend. A proposed surety should discuss with the accused person’s lawyer exactly what being a surety means, and what it will involve in the specific case.
What is a surety?
A surety is expected to supervise the accused person while he or she is out on bail, awaiting resolution of the charges (usually by trial or guilty plea). The surety comes to court and promises a judge or justice of the peace that he or she will make sure the accused person attends court on time, and follows all of his or her conditions (which includes a condition not to commit more criminal offences).
Who can be a surety?
Normally, a surety must be a Canadian citizen or landed immigrant, at least 21 years old, not involved in the current offence, and not have a criminal record or any outstanding criminal charges. If there is a bail hearing, the surety may be required to testify about his or her qualifications as a surety, and ability to supervise the accused person.
Responsibilities of a surety
A surety signs a recognizance, which is a kind of bond, promising to pay a set amount of money if the accused person fails to attend court when required, or fails to follow any conditions. It is a criminal offence for a person to breach a bail condition; if caught doing so, they will likely have new charges. And if you, as surety, knew about the breaches (or should have known) and failed to report them, that’s when you may be on the hook to pay some or all of the money pledged in the bond.
What sureties need to know
One of the hardest things a surety has to commit to is to call the police if you find that the accused person is not following his or her conditions. From the court’s perspective, you are the accused person’s “jailer in the community”, and this is probably not the relationship you had in past, or would choose to have in future. If you decide to act as surety, it is important to know:
- all of the charges that the accused person is facing, including the charges for which he or she is seeking bail, and any other outstanding charges;
- all of the conditions the accused person will be required to follow (these will be listed on the recognizance, which you should get a copy of and make sure you understand);
- the accused person’s upcoming court dates, and any other dates related to the conditions (checking in with police, for example);
- whether the accused person has a criminal record already, and the details of the record.
Depending on your relationship with the accused person, these may be things you did not know, that you “don’t want to know”, or that the accused person would have preferred not to tell you. It is important that you have this information however, so that you can convince the court you know what you’re getting into, and you’re up to the task. The defence lawyer should explain to the accused person why sureties need these details, and get their consent to share them with you.
Withdrawing as a surety
There are lots of reasons why somebody might decide to stop acting as a surety, and it is every surety’s right to do so, even without providing a reason. The surety can come to court and apply to a judge or justice of the peace, to be relieved of his or her responsibility. If the surety brings the accused person with them to court at this time, the accused person will be returned to custody. If not, an order will be issued for their arrest. The accused person will have to reapply for release, unless the defence is ready to propose a replacement surety that is acceptable to the judge or justice of the peace. If the reason for withdrawal is related to the accused person’s difficulty following the conditions (or if it is unknown), a simple surety swap is unlikely to be acceptable.
For more information
Legal Aid Ontario provides excellent clear information for sureties, and the Government of Ontario’s “What Sureties Need to Know” is also helpful.
This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.
Featured image by Jordan McQueen, falling under Creative Commons CC0 license.