Sureties play an important role in our justice system
After someone is arrested for a criminal offence, they may be either released on a promise to appear or an undertaking if they are not held in custody. After an individual is arrested and charged for a criminal offence they are entitled to appear before a Justice or Justice of the Peace within 24 hours or “as soon as possible” if a judge or justice is not immediately available, according to the Criminal Code.
Depending on the type and seriousness of the offence, a Crown may either consent to an accused’s release or oppose their release. For most offences, where the Crown opposes the release, the Crown will have to justify why an accused person should remain in custody. Where the Crown opposes someone’s release, they will be entitled to a bail hearing.
A bail hearing may occur either before a Justice of the Peace or before a Justice. Unless the court decides they should be detained – for such reasons as their release would endanger the safety of others or that there is a risk they will re-offend – bail will be set. The court determines the terms of the bail based on the evidence and submissions of the Crown and the accused. The accused can then be released with or without conditions.
One of the common conditions can include a surety. This person agrees to act as the accused’s supervisor while they are released in the community. The court can also demand that the accused reside with the surety.
Not everyone can be a surety
Sureties are typically friends or relatives of the accused. Some conditions must be met before the court will accept someone into this role. Sureties must be:
- over the age of 18;
- be a Canadian citizen or a landed immigrant;
- not be involved in the offence the person was charged with;
- not already be acting as a surety for someone else;
- and not accept payment or other means of compensation for their role as surety.
Ideally, a proposed surety should not have any outstanding criminal charges or a criminal record, though minor offences that happened many years ago may be overlooked. Having a steady income or financial assets to pledge to the court as security is also good.
Perspective sureties may be called before a judge to be questioned about their qualifications before they are approved – it’s the defence counsel’s obligation to explain to you what will happen in court and prepare you to testify.
A surety’s main tasks
The fundamental duty of a surety is to ensure the accused follows their bail conditions. If those conditions are breached, the surety is obligated to report that failure to the police.
Conditions can include:
- reporting to the police regularly;
- obeying a curfew;
- a weapons ban; and
- no consumption of alcohol or drugs.
The surety is also responsible for ensuring the accused attends court when required – in the correct courtroom and at the proper time – for hearings and the trial. They should also confirm with their defence lawyer that a designation of counsel is filed with the court, and they attend the court appearances on their behalf.
A surety may pledge cash or property to the Clerk of the Court in order to bolster their commitment as a surety. This means that a surety will be liable to lose money or property if the accused person failed to follow their conditions. The value of cash or property to be posted by a surety will consider their financial situation. Their financial situation is assessed based on their assets, annual income, savings, monthly expenses, number of members of the family, etc. Although a surety will inform the defence lawyer how much they can pledge, it’s ultimately the justice of the peace or the judge at the bail hearing who decides the amount of money.
This security will only have to be paid if the surety doesn’t abide by the rules set out at the bail hearing or if the accused fail to follow their bail conditions and the surety doesn’t report to the police. Note that it’s not a criminal offence not to report the breach to the police, but the surety can lose the total amount they have pledged.
The accused, however, may be charged with a breach of the bail conditions, a separate offence from the original one they were charged with. If the accused is convicted on the breach charges, the surety can be asked to pay the amount they pledge. Within 10 days’ notice, a hearing called an “estreatment” will be scheduled, where the surety can explain why they should not lose the amount promised. The judge will decide if the surety will be ordered to pay all, part, or none of the quantity.
The surety’s duties end when the case ends, which can take years. If you are asked to be a surety for someone, carefully consider the time commitment and financial risk. If you are not confident the person will abide by their bail conditions or attend their trial, you should not agree to become their surety.
Sureties have the option of removing themselves
If at any time a surety feels they can no longer meet their obligations of supervising the accused, they can apply to the court to be released of their responsibilities. When that happens, the court will issue a surety warrant for the accused, meaning they will be placed into custody. An alternative for that would be to contact the defence attorney and try to obtain a variation of the bail conditions to have someone else to take over the role of surety.
Supreme Court on the role of sureties
The Supreme Court of Canada (SCC) has commented on the role of sureties in our justice system. In 2017, a SCC judgment noted: “Despite the fact that the Code applies uniformly across the country, some have suggested that courts are applying the pre-trial forms of release differently in different provinces and territories. For instance, Rosenberg J.A., writing for a unanimous five-judge panel of the Court of Appeal for Ontario, recognized that “[t]here may now be an over-reliance on sureties” in that province … surety release may also be relied on heavily in Yukon.
The same judgment noted, “In Alberta, some judges and justices are improperly imposing cash bail without seeking the consent of the Crown even though doing so is prohibited by the Code.
The decision reiterated that Crown attorneys should follow the “ladder principle” at the bail stage. That means starting with the least restrictive option for release (a release with no conditions), then moving up the ladder to the option of last resort: release with a surety.
Contact us for guidance
Being a surety is a significant responsibility. Your duties may continue for more than a year and you could be risking your financial security. However, if you trust the accused, your willingness to be a surety will allow them to get bail and return to their life as they await trial. Before making that decision, you should consider getting independent legal advice to make sure you understand all legal obligations and potential pecuniary liability involved in this important role. Talk to a criminal lawyer at Dunn & Associates for guidance.