When one of our clients is accused of a crime and taken into custody, our first responsibility as criminal defence lawyers is to help that client get out on bail. A justice of the peace (JP) will usually decide whether or not to let an accused person out on bail through a bail hearing. The bail hearing is conducted in a criminal court house. At the bail hearing the JP will assess whether the accused should be let out on bail by considering three criteria:
- 1) If released, is the accused likely to appear in court or is he/she a “flight risk”?
- 2) If released, is the accused a danger to the community, the complainant or his or herself?
- 3) Is it contrary to the public interest that the accused is released? Would a decision to release the accused on bail “shock the community”? (This is often an issue with usual or violent crimes that get a lot of media attention).
If consideration of these three criteria suggests that it would be ok to release the accused, the JP can grant bail and is free to impose any conditions he or she sees fit. Some examples of conditions which may accompany bail are:
- a curfew,
- a duty to remain in a specific geographical area,
- a duty to report to the police at regular time intervals,
- a duty to seek counseling or other forms of treatment,
- a duty to reside at a specific address,
- a condition that the accused not possess any weapons,
- a condition that the accused refrain from drinking alcohol,
- or a condition prohibiting the accused from communicating with the victim.
These conditions will be spelled out in a court order granting bail commonly referred to as a recognizance.
Often, a JP will be more likely to release an accused on bail if another individual (either a friend or family member of the accused) agrees to sign the bail and act as a surety. A surety takes responsibility for the accused and promises that court that the accused will comply with certain conditions when released from custody. If the judge decides to assign bail, the surety will have to sign the recognizance. It is the surety’s responsibility to make sure that the accused person complies with the conditions in the recognizance and attends all court appearances. If the accused fails to meet these obligations, the surety may have to forfeit an amount of money specified in the recognizance.
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Who Can Sign Bail?
Not just anyone can act as a surety. There are several requirements an individual must meet to qualify as a surety:
- ¥ The surety must not be involved with the charge (i.e., a complainant or co-accused cannot act as surety)
- ¥ The surety must be 21 years of age or older
- ¥ The surety cannot have a criminal record
- ¥ The surety must be a Canadian citizen or landed immigrant
- ¥ The surety cannot be an employee of the accused person
- ¥ The surety must be employed (with some exceptions)
In addition to these requirements, the JP must be satisfied that the surety is able to pay the amount of bail set out in the recognizance should the accused fail to comply with the terms of the bail. Sometimes the surety will be asked to deposit the amount of the bail at the time the accused is released and will have the money returned if the accused complies with the recognizance. More often, the surety must simply show using bank statements, RRSPs, savings bonds, etc. that he or she is able to pay the amount of the bail if necessary. In the end, the JP will decide if an individual qualifies as a surety and has discretion to waive some of the requirements listed above in special circumstances. The JP will also consider the character of the surety and their overall impression of how responsible and trustworthy the surety appears to be. During the bail hearing, the potential surety may have to give evidence or answer questions about their qualifications to act as a surety. It is very important to note that it is against the law accept payment for acting as a surety.
Duties of a Surety
The main duty of a surety is to supervise the accused person after they are released back into the community and ensure that the accused follows all of the terms and conditions of his or her recognizance. Another important duty of a surety is to make sure that the accused attends at all their assigned court dates. As an acting surety, you are also obliged to ensure that the accused does not commit any criminal offences after they are released on bail. If, at any point during your obligation as surety, it comes to your attention that the accused person has or is about to break a condition of his or her bail you are obliged to notify the police. These responsibilities begin at the bail hearing when the surety signs the recognizance and do not end until the accused’s case is completely over. In some cases, this can take a very long time (even several years), so an individual should not take the decision to become a surety lightly. If you are considering acting as a surety, we suggest that you obtain independent legal advice from a criminal defence lawyer before making such a commitment.
If you do decide to act as a surety, and at some point during the course of your duties you find that you are no longer willing or able to act as a surety, there are steps you can take to relieve yourself from the obligation to act as surety. You can bring the accused person to court personally and ask that they relieve you from your obligation. Another option is to come to the court alone and apply in writing to be relieved of your obligation. In both cases, the accused will be rearrested should you decide to stop acting as their surety. If you believe that the accused person is a threat to your safety in any way, we recommend that you apply in writing to end your obligation as surety and do not attempt to bring the individual personally to court.
If you decide to act as a surety you may be forced to forfeit the bail amount specified in the recognizance. If the accused fails to appear for a court date or fails to comply with a condition specified in the recognizance, the Crown may ask that the court direct you to pay the money you committed as bail for the accused. If the Crown makes such a request, a hearing will be scheduled. This type of hearing is referred to as an estreatment. During the estreatment, you will have an opportunity to tell the court your side of the story and explain why you should not have to forfeit the amount of the bail. In the end, the JP will order that you pay all, none or part of the bail amount. If this happens, the accused will likely be returned into custody, and your obligations as a surety will end.
In our criminal justice system, every individual is presumed innocent until proven guilty. When an individual is facing criminal charges, until he/she is proven guilty, he/she should not be denied his/her freedom unless there is a good reason for doing so. By acting as a surety for an accused person, you play an important role in the criminal process and you help a friend or family member during through a very difficult period in their lives. That said, it is a significant responsibility and you should be fully informed before pledging to act as a surety. If you have any questions about acting as a surety, contact one of the criminal defence lawyers at our office by calling 416-658-1818.