What is a Surety?

August 9, 2021
    bail surety

    A surety is an individual who agrees to be responsible for and supervise an accused person once the accused is released in the community on bail. The surety has to be approved by the court by testifying to their competency and that they qualify financially in case the accused does not abide by their court ordered conditions. Specifically, the surety is required to ensure the accused appears in court when required, abide with conditions imposed by the court such as not contacting a victim(s), adhering to a curfew or house-arrest, not leaving the province, abstain from using drugs, alcohol, and weapons, and so on. The surety is also required to call the police if the accused is not abiding by their bail conditions. If the accused fails to arrive at court or does not abide by their conditions, the surety is liable to pay the court a pledged amount.

    When someone is charged with a criminal offence they are either released at the scene on a Promise to Appear or an Undertaking, or they are not released. If they are not released, they are held in custody and are required to go in front of the court within 24 hours for a bail hearing. Whether an accused will be granted bail is dependent on multiple factors. However, having a competent surety significantly increases the accused’s chances of being released on bail. The team at Pyzer Criminal Lawyers have decades of experience securing bail for their clients through the use of sureties. Contact us today and schedule a free 30 minute consultation to learn how you can help your loved one obtain bail by being their surety.

    Why Become a Surety?

    Far too often, accused individuals who are not successfully released on bail will plead guilty. The pressure an accused is under when they are denied bail and detained in jail impacts them psychologically, emotionally, mentally, and physically. For them, at the time, pleading guilty can seem like their only option for them to get released into their community. Failing to make bail and pleading guilty can have significant and permanent impacts on the accused and their families.

    Having a surety increases an accused’s chance of being released on bail into the community because they assure the court the accused will appear at future court dates, as well as not pose a danger to the specific victim(s) or community at large. To make sure your loved one doesn’t face a permanent criminal record by pleading guilty to their charges, contact us at Pyzer Criminal Lawyers to learn how you can assist them during their bail hearing by being their surety.

    At the accused’s bail hearing the best outcome is that they are released on bail. If they aren’t granted bail, they will have to wait in jail until their case goes to trial or is resolved. Criminal cases are often lengthy and can take several months or even years. Therefore, it is extremely important to obtain an experienced defence attorney who is knowledgeable in bail hearings and first appearances so the accused can remain in the community and not in jail as their case proceeds through the court system.

    Who Can Be a Surety?

    A surety is often someone who is in regular contact with the accused, knows them well, has assets, and can supervise the accused, such as a parent. You cannot act as a surety if you are the complainant of the alleged offence against the accused. A surety must be the following: at least 21 years old, be employed or retired, a Canadian citizen, landed immigrant, or permanent resident, and not have a criminal record.

    In order to be authorized as a surety, the court needs to be satisfied the surety is capable of supervising the accused and that they qualify financially if the accused is to breach their bail conditions. Often, a court will ask the surety for papers such as a deed or bank statements to prove they have enough money to pay the court if the accused misses a future court date or does not abide by their conditions. There is no set equation a court will require a surety to pay. Typically, the court determines the amount by considering the surety’s assets and the seriousness of the accused’s charges. A surety is not required to pay the court up front.

    What Are a Surety's Responsibilities?

    The roles and responsibilities of a surety are to be taken seriously. The court expects a surety to fully comply with their duty to the court. First and foremost, a surety enters a legal agreement to help the courts by fulfilling certain terms and conditions. The court may order the accused to reside with the surety. In some cases, house arrest may prohibit the accused to leave the surety’s residence unless in their company.

    As a surety, you have three responsibilities:

    1. Make sure the accused attends all future court dates,
    2. Make sure the accused abides to every one of their conditions, and
    3. Call the police if the accused is not following the conditions set out by the court.

    If a surety does not follow through on their duty to the court, the Crown can sue the surety for the amount of money the surety pledged to the court. The idea behind having a surety is that by having a relative or close friend involved, the accused will be more likely to show up to future court dates and abide by their conditions. If they don’t, it won’t just be them who surfers - their friend or relative will suffer as well.

    Will I Have to Speak to the Court if I Want to Be a Surety?

    You will be required to speak to the court if the bail hearing is contested, meaning the Crown does not believe the accused should be released into the community completely or conditionally. In most cases however, even if the Crown consents to the accused being released, a surety is still required to testify in front of the court to their competency and ability to supervise the accused if the accused is released on bail. In either instance, the surety is exposed to questioning from the accused’s defence lawyer, the Crown, and the releasing Justice.

    What Happens to the Surety if the Accused Breaks One of the Bail Conditions?

    A surety is under a strict duty to call the police if they learn the accused breached one or more of their bail conditions or does not attend court. If the accused is found to be in breach of their bail conditions or fails to attend court and the surety didn’t notify police, the Crown may sue the surety and ask them to pay the money they pledged to the court during the accused’s bail hearing. If this happens, an estreatment hearing occurs where the surety gets a chance to explain in front of a judge why they shouldn’t have to pay the court.

    At the end of the hearing, the judge decides whether the surety has to pay the entire pledged sum, only part of it, or if they don’t have to pay at all. This determination will be based on the efforts made by the surety to fulfill their promise to the court while supervising the accused.

    How Long Do the Bail Conditions Last?

    The bail conditions remain in effect until the case ends, either by a withdrawal, guilty plea, or a finding at trial. This may take several months or even years. A surety remains responsible for the accused for the entirety of the accused’s bail conditions once the accused and surety sign the Recognizance of Bail document. However, a surety can relieve themselves from being responsible for the accused.

    Releasing the Surety

    A surety may also ask the court to be relieved of their responsibilities at any time. A surety may also be relieved of their responsibilities if the court cancels or revokes the accused’s bail.

    A surety is usually responsible for the accused until the end of the criminal case. This means that the surety’s duties and responsibilities end when the trial is completed, the charges are withdrawn or the accused has pled guilty and been sentenced.

    When the criminal case ends, the Recognizance of Bail also comes to an end and as a result the surety is absolved of all responsibilities. However, a criminal case can take months or even years to end.

    What Happens to the Accused if the Surety Is Removed?

    The surety can ask the court to be relieved from duty at any time by going to the court and submitting a written application. When the surety is relieved of their duty, the court issues a surety warrant for the accused, which means that the accused will be arrested and brought back into custody. The accused will then have the right to another bail hearing and attempt to secure another surety to sign on their behalf.

    If the surety brings the accused with them to the court when submitting their application to be relieved of surety duties, the accused will be arrested on the spot. The same person can also ask to become a surety again.

    Need more information on securing a bail for a loved one? Contact Pyzer Criminal Lawyers for advice.

    Jenessa May
    Written By:
    Jenessa May
    Summer Student and JD Candidate
    Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.
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