In Canadian criminal law, a surety is a person who takes responsibility for an accused individual who has been released on bail. When someone is charged with a criminal offence and held in custody, a judge may agree to release them into the community if a surety agrees to supervise them and ensure they comply with their bail conditions. The surety essentially acts as a personal guarantor for the accused and pledges a specified amount of money that may be forfeited if the accused breaches their release conditions or fails to appear in court.
Serving as a surety is a serious legal obligation, and it’s important for both the accused and the surety to understand what the role entails, the risks involved, and how a lawyer can assist in preparing for a bail hearing. This article provides a comprehensive guide to the concept of a surety in criminal law, including who qualifies, what responsibilities are involved, and what happens if the accused fails to comply with their conditions.
What Is a Surety?
A surety is a person who makes a formal promise to the court to supervise an accused individual while they are out on bail. The surety agrees to ensure that the accused complies with all court-imposed conditions, attends their court dates, and avoids criminal activity. The surety also promises to pay the court a specified sum of money if the accused violates any of the bail conditions. This financial pledge is typically not required to be paid upfront, but it can be collected if the accused breaches their release terms.
Who Can Act as a Surety?
To act as a surety, a person must meet certain requirements. They must be a Canadian citizen or permanent resident over the age of 18. They must not have a criminal record or be facing outstanding criminal charges. They must have a stable residence and be in a position to monitor the accused on a daily basis. They must be willing and able to report the accused to the authorities if they breach any conditions of their release.
The court must also be satisfied that the proposed surety is suitable. This means the judge will consider factors such as the surety’s relationship to the accused, their level of responsibility, their financial situation, and their ability to exercise control over the accused’s behaviour.
What Are the Responsibilities of a Surety?
When someone agrees to act as a surety, they take on legal obligations. These responsibilities include making sure the accused attends all court dates, ensuring the accused follows all bail conditions, such as curfews, abstaining from substances, or no-contact orders, ensuring the accused does not commit any further offences, and notifying the police or the court if the accused breaches their conditions.
If the surety fails to report a breach or allows the accused to violate their conditions, they risk losing the money they pledged to the court and could be held in contempt of court.
What Is a Bail Hearing and How Does a Surety Participate?
A bail hearing is the court proceeding where the judge determines whether the accused can be released from custody before trial and under what conditions. If the Crown is seeking detention, the accused has the opportunity to propose a release plan that includes a surety. The surety will often be required to testify at the bail hearing. They will be asked questions by both the defence and the Crown about their relationship with the accused, their understanding of the charges, their willingness and ability to supervise, and their financial resources.
A criminal defence lawyer can help prepare the surety for this testimony to ensure they are presenting a clear and compelling case to the judge.
How Is the Surety’s Money Handled?
The money that a surety pledges is not collected at the time of the bail hearing. It is a promise to pay if the accused fails to comply with their release terms. The amount is usually set based on the seriousness of the offence, the accused’s history, and the surety’s financial circumstances. If the accused breaches bail, the Crown may apply to the court for forfeiture of the surety’s funds. This means the court could order the surety to pay the amount they pledged. If the accused complies with all conditions and appears in court as required, the surety will not be required to pay anything.
What Happens If the Surety Wants to Withdraw?
A surety can apply to the court to be removed from their responsibilities at any time. This is done by attending the courthouse and filing an application to be relieved as surety. If the court accepts the application, the accused may be taken into custody until a new surety is approved or a new bail hearing is held. A surety may choose to withdraw for many reasons, including inability to continue supervision, breach of conditions by the accused, or concerns about the accused’s behaviour.
What If the Accused Breaches Bail Conditions?
If the accused breaches any of their conditions while on bail, the surety is expected to report the breach to the police or the court. Failing to do so could result in the surety being ordered to forfeit the pledged amount. The accused may be arrested, have their bail revoked, and face additional charges for failing to comply with a court order. In serious cases, this can negatively impact the outcome of the original charges and make it harder for the accused to obtain bail in the future.
Why Legal Advice Is Important for Sureties and Accused Individuals
Because of the legal obligations involved, acting as a surety is not a decision that should be taken lightly. A criminal defence lawyer can help by explaining the role and responsibilities to the proposed surety, preparing the surety for questions at the bail hearing, presenting a strong release plan to the court, negotiating with the Crown for reasonable conditions of release, and helping the accused avoid breaches that could impact the surety.
Legal representation is essential for ensuring that the bail process is handled properly and that the surety is protected throughout.
Why Choose De Boyrie Law
At De Boyrie Law, we regularly assist clients and their families in preparing for bail hearings and acting as sureties. We understand the legal standards involved and the importance of presenting a well-prepared surety in court. Whether you are seeking release from custody or considering acting as a surety for someone facing charges, our experienced legal team can guide you through the process, ensure compliance, and advocate for the most favourable outcome possible.
Schedule a Free Consultation with De Boyrie Law
If you or someone you care about is dealing with criminal charges and needs a surety for bail, contact De Boyrie Law today for a free, confidential consultation. We’ll explain your options, help you understand the obligations, and guide you through every step of the bail process.
Alex De Boyrie is an experienced Criminal Defence Lawyer covering Toronto, and the Greater Toronto Area.
In short, Alex’s experience ranges from working on bail hearings, sexual offences, weapons and firearms, assault charges, drug offences, youth crimes, Impaired Driving, and other criminal offences.