What is a Surety? Basics of Canadian Bail Law Explained.

If someone you know has been arrested and held for a bail hearing, there's a good chance they’ll need a "surety" to secure their release.

Who, or what is a surety? What are their powers and responsibilities? What are their obligations to the court? And what risk, if any, do they undertake when they agree to become a surety?

In this article I discuss some of the basic aspects of a surety's role. We'll discuss when and why they are required; what they can be expected to do or say in a courtroom; and what their legal obligations are.

A bail hearing is an extremely important event in every criminal case. The failure to address bail intelligently, effectively, and with a view to every potential risk could mean the difference between success and total failure in mounting a defence.

As I am always at a pains to explain, hiring an experienced criminal lawyer to assist you with a bail hearing is always advisable, especially where the charges are serious, the defendant has a prior criminal record, or where the evidence is complex.

If you or someone you know is thinking about acting as a surety, call me to talk to an experienced bail lawyer. I provide complementary assessments, including an overview of anticipated legal and procedural hurdles, basic strategy, and other important information not discussed here.

As always, the information contained below is not legal advice. Real legal advice requires a properly established lawyer-client relationship, and is responsive to the unique circumstances of each criminal case. If you need a criminal lawyer, contact me today to arrange for a consultation.

The Basics of Bail in Ontario: How They Start and How Sureties Become Involved

Once an accused person has been arrested, the police can release them at the scene or from the station after processing and/or interviewing them. If the police choose not to release the accused, they must bring them to court within 24 hours for a bail hearing.

If a defendant has been held for a bail hearing, a Crown Attorney will review the file prior to court. This will include, at a minimum, a synopsis of the allegations and the defendant's prior criminal record. On completion of their review, the Crown will determine how and whether they will agree to the defendant's release back in the community.

Generally speaking, because every Canadian is presumed innocent until proven guilty, and because we all enjoy a constitutional right not to be denied reasonable bail without just cause, if a Crown Attorney decides to "oppose" an arrestee's release, it is their legal responsibility to satisfy a judge as to the reasons why. In these cases - where "bail is opposed" - a contested bail hearing will result, and the criminal lawyer for the accused and the Crown Attorney will each argue their respective positions concerning bail. The judge then makes a final determination.

Often, the Crown Attorney will "consent" to bail - meaning, they will agree not to oppose an arrestee's release. The Crown's "consent", however," is virtually always conditional - meaning they will want something in return. This could mean a curfew, a no-contact term, a drinking ban, or...a surety.

Whether because a judge thinks one is necessary after a "contested hearing", or because the defence lawyer and the Crown have negotiated a "consent release" because one has been secured, a very large percentage of bail hearings in Ontario result in a surety release. That means bail with the involvement of a surety as supervisor.

So who, or what, is a surety?

Who, or what, is a surety?

In Ontario, a surety is a person who has been authorized by the court to supervise an accused person while on release in the community. Criminal cases can last a long time: months or sometimes many years. A surety's responsibility is to ensure the accused complies with certain terms and conditions during this time.

A surety's responsibilities are very serious, and can have real consequences both for the accused and the surety herself in the event of a failure to adequately monitor the accused person's conduct.

For better or worse, sureties are a staple of Ontario's bail system. Although not technically required to permit an arrested person to be released from jail pending trial, Ontario has been judicially recognized as a province that relies on them too often. Even the Supreme Court of Canada has mentioned - albeit passingly - that Ontario's bail system may depend too much on the assistance of sureties (see para. 65).

What's in it for the surety?

The benefit of becoming a surety is a substantially increased likelihood that an accused person will be released from custody pending trial. A talented criminal defence lawyer can then work closely with the accused to mount the most effective possible defence. The pressure to plead guilty that is created by a failure to make bail cannot be overstated. In my experience as a criminal trial lawyer, the vast majority of defendants who decide to enter pleas of guilt at an early stage do so because they cannot achieve bail. This, in turn, usually means that they do not have a surety.

As for the downside? Firstly, a surety must agree to assist the courts by enforcing certain terms and conditions. Many times, an accused person will be ordered to reside with the surety (a "residential surety," in lawyer-speak); at the extreme end, an accused may not be permitted to leave the surety's home unless in their direct company (a frequent term in "house arrest bails"). Apart from the residential component of most surety releases, a host of other terms and conditions may, and often are, imposed by the court. An experienced bail lawyer can usually anticipate what these will be, and explain their impact up-front.

On top of the responsibility of monitoring the accused, a surety is required to pledge a certain sum of money – usually without deposit - as an assurance that they will do their job. Although there is no fixed formula in law, the amount, or "quantum", of this money-pledge is usually determined by weighing the surety's assets against the strength and seriousness of the charges.

If, while on release, the accused violates their bail in any way, the surety may be sued by the Crown for the sum of money they have pledged. Although not entirely common, suing the surety in this way results in what is called an estreatment hearing - and its consequences can be severe if the surety's assets are limited.

What, exactly, are the responsibilities of a surety?

At a bail hearing, lawyers for the Crown and the defence will make submissions concerning the appropriate terms and conditions of a bail order. If these terms have been agreed to up-front, most judges will accept them without significant scrutiny. Where the bail hearing has proceeded on a "contested basis," however, the judge will usually consider the evidence before crafting a bail order with the conditions she considers appropriate.

The end result of a successful bail hearing in Ontario is a "Recognizance of Bail" - an official court document that spells out a host of important information, including the charges, the next court date, and, for our purposes, the conditions of release.

A surety’s basic responsibilities are twofold:

a. To make sure the accused person attends court as required; and

b. To make sure the accused complies with each and every condition of the release.

The court's expectation is for perfect compliance. If an accused is placed on a curfew, for example, it must be enforced strictly. A minute past, without a lawful excuse, could result in an accused person's arrest by police and a surety being sued for the full amount of their pledge.

Absent-mindedness concerning the next court date could have the same consequences. A single phone call between an accused and a complainant in a domestic violence case could spell more disaster than anticipated. In each case, where an accused person under their watch has breached or is about to breach the terms of their recognizance of bail, a surety is expected to phone the police. They become, in a word, "the eyes and ears of the court".

Prior to proceeding with a bail hearing, therefore, it is important for sureties to carefully consider the seriousness of their commitment and their ability to fulfill it. After a bail hearing, it is equally important to discuss any uncertainties about the exact meaning of the terms of the release with a qualified criminal lawyer.

How long do the surety's responsibilities last?

In the ordinary course, the surety's role remains in effect until the completion of the criminal case. This usually means the completion of a trial, the withdrawal of the charges or the entering of a plea. Once the case is complete, the bail order is exhausted and the surety is relieved of their responsibilities, including the pledge of money. This can months in the case of a plea, or years in the case of a trial.

A surety's responsibilities may also expire as a result of cancellation or revocation of the bail.

Cancellation can occur, for example, if the accused is re-arrested. In such cases, it is unlikely - though by no means impossible - for the accused to be re-released with the same surety, assuming they have been held for bail again. You should speak with an experienced bail lawyer if you or someone you know is in such a situation.

Revocation, on the other hand, occurs when a surety no longer wants to shoulder their responsibilities. This is the topic of our next segment.

What if I want to stop being a surety?

Being a surety is completely voluntary. That means a surety can revoke their status at any time, with or without a good reason. The most common method for cancelling or revoking a surety is to attend at the courthouse where the bail hearing was held, and to ask to speak with a Justice of the Peace at an "intake office".

After a quick administrative process, a warrant will be issued for the arrest of the defendant. The surety's monetary pledge will continue in effect until the point in time when the accused has been arrested. In other words, a surety who has lost track of an accused is still "on the hook" until the defendant has been rendered back in custody.

Talk to an experienced bail lawyer if you are currently a surety and are uncertain about whether to revoke your status. As a Toronto criminal lawyer who has dealt with thousands of bail hearings, I have often observed that sureties need as much guidance as some criminal defendants.

What makes for a "good" surety?

There are very few strict, legal limits on who can serve as a surety. As a criminal lawyer with years of experience in the field, here are what I believe are the key ingredients to a great surety. The most qualified surety is someone who:

1. Has a clear understanding of their powers and responsibilities, and is able to make an firm promise in open court to enforce them;

2. Is of good character themselves ;

3. Knows the accused person well;

4. Has some roots in the community; and

5. Has some assets.

Let’s look at these ingredients in detail.

a. A Surety should know their role - not least because they will be questioned about it.

Bail hearings proceed differently in different courthouses. At a busy downtown Toronto courthouse like the College Park Courthouse, a surety may simply be asked to stand and identify themselves in the middle of addressing an accused person's case. After some quick questioning about their role, and after considering the submissions of the criminal defence lawyer and Crown, a judge will determine the surety's fitness to serve.

If, on the other hand, you are facing criminal charges in Hamilton, it is frequently the case that sureties will testify - even where a consent release is in place. In these cases, a surety's background, their relationship with the accused, and their understanding of their role will all be examined in open court, under oath, and on the record. At these kinds of bail hearings, the surety may also be cross-examined by a Crown Attorney about these or any other relevant matters touching on the case or their role.

In either scenario, sureties should walk into a bail hearing with a clear understanding of their powers and responsibilities. They should also be in a position to firmly, clearly and unequivocally promise the court that they will call the police if the accused is violating the court's order.

b. A Surety should be of good character.

By “good character”, I don’t mean wealthy, educated, or first in line to donate blood.

In general, the courts will look favourably on an adult who doesn’t have a criminal record (although a dated one is often ok); works, raises children, or has a good reason for not working (like retirement, an injury or a lay-off); is not drug or alcohol dependent; and, most importantly, presents respectfully, truthfully and seriously in court.

This last one is important. One of the major benefits of retaining an experienced Toronto criminal lawyer is the opportunity to hear and prepare for the types of questions you may be asked at a bail hearing. Knowing these questions, and having some familiarity with the process, a surety can then focus more attentively on the process itself - without fear of the unknown.

(As an aside: the difference between success and failure at a bail hearing - or any criminal case, for that matter - often rests in a witness' anxiety levels. The more anxious or combative, the more likely a judge will be to mischaracterize the witness' interest in the case. The more calm, prepared and self-assured, the more likely the witness' presentation will win favour.)

The courts know that a surety can revoke their status at any time. That’s why sureties are often called “jailors in the community”: because if the accused doesn’t listen, the surety can just pull the bail. That’s also why good, strong characters often make the best sureties – because everyone knows they will demand good behavior from an accused under their supervision.

c. A Surety should know the accused well.

A judge hearing a bail hearing will have greater faith in a surety who knows an accused person well. That is because, armed with such knowledge, a surety can better predict a defendant's future misconduct; better identify the sources of bad behaviour; and better respond to bad behaviour by linking the defendant with appropriate resources in the community.

It should go as no surprise that criminal allegations are often fuelled by a number of underlying issues, like:

- an undiagnosed mental health problem; - a broken, damaged or difficult upbringing; - a drug or alcohol addiction;

- exclusion from a community, particularly for aboriginal clients; or - personality issues unique to the accused, like anger management problems.

If these issues form part of the charges against the defendant, the defence lawyer or Crown may examine a surety's level of knowledge about them.

A surety who claims she is close to an accused but has zero knowledge about their rampant alcoholism, for example, may raise a judge's eyebrows. On the other hand, a surety who is aware of a defendant's aboriginal heritage, and the way their parents and grandparents transmitted intergenerational trauma as a result of being stripped of it, will certainly have a judge's ear.

Knowledge of a defendant's shortcomings, especially when brought to the attention of a skilled criminal lawyer, also presents amazing opportunities both for rehabilitation and an enhanced chance of release. A judge who hears that a surety knows about the accused's anger management problems, for example, may be satisfied; a judge who hears that the surety has taken steps to register the defendant for a program, and will pull the bail if he doesn't attend, will score major points.

So before testifying at a bail hearing, ask yourself: Will you make your son, nephew, co-workers or spouse see a family doctor or psychiatrist? Do you have a drug or alcohol treatment program in mind? Have you called these people and carefully noted the program name, location, and a start time? What will you do if the defendant refuses to participate?

A surety doesn’t have to be perfect. They need not know an accused person's biography from start to finish. But as in all criminal cases, the golden rule applies: preparation is power. Taking the stand and having nothing to say about these types of important issues can often mean the difference between bail granted, and bail denied.

d. A Surety should have some assets.

Remember that a surety must pledge some form of “valuable security” to the court – usually money, and usually without deposit. This sum creates what the Ontario Court of Appeal calls the "pull of bail" - or the dual incentives of sureties to monitor, and accused persons not to breach.

A surety need not be rich, or even well-off. But in general, the availability of some tangible asset - money in the bank, a valuable car or a home - gives the criminal lawyer latitude in crafting a plan that will result in an accused's release.

Although there is no fixed rule for determining the exact amount or "quantum" of a surety's pledge, judges will usually weigh the seriousness of the charges, the strength of the evidence, and the total amount of the surety's worth to arrive at a number. In general, the more serious the charge - the more substantial the pledge.

Final Thoughts: Hire a Toronto Bail Lawyer who Knows What They're Doing

Every day, perfectly innocent Canadians plead guilty to crimes they did not commit either because they could not make bail, or their sureties weren't up for the task. The failure to achieve bail - and achieve it on fair terms - is often the decisive difference between success at trial or a guilty a plea behind bars.

Prospective sureties reading this guide should have no misunderstandings: knowing the basics is by no means "adequate" preparation. Every criminal case is as different as the personalities and the facts behind them. Even knowing these, and adding a mountain of legal knowledge, is just the start of the road to an informed and effective bail hearing.

As a Toronto criminal lawyer who has conducted thousands of bail hearings, I invite you to call or email me if you require assistance. call me for an in-depth assessment of your case.

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