Can a Person with a Criminal Record Act as a Surety?

April 7, 2021

What is a Surety?

A surety is someone who agrees to take responsibility for a person accused of a crime. Being a surety is a serious commitment. A surety is responsible for supervising an accused person in the community and ensuring that an accused person obeys all of the terms of their release and can include terms such as:

  • Residing with their surety or at an address approved of by their surety
  • Abiding by a term of house arrest or possibly a curfew
  • Attending court
  • Reporting to the police
  • Not having direct or indirect contact with the alleged victim or witnesses or not attending within a defined boundary where the alleged victim or witnesses are known to live, work, or be
  • Not possessing or consuming alcohol or drugs, not to be in possession weapons
  • Keeping the peace and being of good behavior

If the accused person fails to obey the terms and/or conditions of the court order, a surety could lose the money they have pledged. A surety’s responsibility continues until the case is completely over or until they have requested to be removed as surety from the office of the justice of the peace. Accepting a fee or being paid back in return for acting as a surety is against the law.

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What Factors Should be taken into Consideration When Assessing the Sufficiency of a Proposed Surety?

It is up to a judge or justice of the peace to determine whether the person being proposed as a surety for the accused person is suitable to act as a surety. Qualifications of a surety will vary depending on the allegations or charges against the accused. Factors that the judge or justice of the peace will consider in determining whether or not the proposed surety is acceptable include:

  • Finances
  • Personal character
  • Background, including a criminal record or lack thereof
  • Relationship to the accused
  • Ability and availability to supervise the accused

A potential surety may be required to testify to these issues under oath and can be cross-examined by the crown about their qualifications. While normally, a surety should be a person without a criminal record, there is no rule or law that prohibits individuals with criminal records from acting as a surety. It is at the discretion of the presiding justice whether or not to approve a particular surety. The fact that a proposed surety has a previous criminal record is not determinative of whether he is a good and sufficient surety.

Two cases that support this proposition are R. v. Fauteux [1995] O.J. No. 4967 and R. v. Barnes, [2006] O.J. No. 2828. However, a record for particular offences might make a potential surety unacceptable for certain accused, e.g., accused seeking bail on drug charges and surety has lengthy record for drug related offences. Likewise, a surety's record for offences of dishonesty and disregard of court orders might erode the trust and confidence of the court in the surety's assurances.

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