What does it mean to be a surety at a bail hearing?

If somebody close to you has been arrested, they may ask you to become a surety for the purpose of their interim release.  Very basically, this means that the accused person has been arrested and the court may be willing to allow them out of jail while they await trial or resolution of their charges, but only under certain conditions.  In some cases the accused may be released on their own recognizance, which means without a surety.  Oftentimes, however, the court requires a person close to the accused to essentially help make sure the conditions of bail are met.

What does a surety do?

In simple terms, a surety is a person who promises to help the court make sure the accused follows his or her bail conditions, whatever they may be.  The surety will also agree to forfeit to the court a certain agreed-upon amount of money if the accused breaches their bail conditions … a sort of incentive to make sure you keep a careful eye on the accused.  Sometimes the surety will be asked to put down a deposit, but oftentimes it is simply a promise to pay if the accused breaches.

Can’t I get a bail bond in Canada?

Unlike in the United States (as you may have seen on TV or in movies), there are no bail-bondsmen or bounty-hunters in Canada.  There is no situation where some stranger will post bail on behalf of the accused.  This is because in Canada, a surety must know the accused person well and demonstrate to the satisfaction of the court that he or she is capable of ensuring the bail conditions are not breached.

How well do I need to know the accused as a surety?

As a potential surety, you may be asked questions in court about your relationship with the accused, whether or not you have a criminal record, whether or not you have been a surety in the past, and your financial status.

The object of this exercise is for the court to gain insight into how effective you will be as a surety – that is, how effective you will be at making sure the accused person abides by their bail conditions.  For example, the parents of an accused person with whom the accused lives and on whom the accused is financially dependent may be very capable of monitoring their child and making sure he does not breach.  On the other hand, a second cousin, with a criminal record, who rarely sees or speaks to the accused would not be a suitable surety as he or she would not be seen as capable of sufficiently influencing the behaviour of the accused.

How much is bail going to be set at and do I have to pay up front?

It should be noted that the purpose of the monetary pledge is simply to satisfy the court that the surety has strong incentive to keep the accused in line.  Therefore, the quantum of the recognizance (the amount) will represent whatever amount is seen to be sufficiently burdensome on the surety should he or she forfeit that money following a breach.

It ought to be well known that securing bail is a very important step in the long process following an arrest and criminal charge, and everyone is encouraged to discuss this important step with a good lawyer.  Failure to secure bail can mean months or even years in prison despite the presumption of innocent and perhaps despite an eventual finding of innocence.  The first step in this process is often finding a suitable surety who understands his or her responsibilities.

What are my rights as a surety?  Can I pull the bail?

Also important is for this surety to understand his or her rights.  Chief among these is the right of the surety to unilaterally withdraw his or her commitment in accordance with sections 766 and 767 of the Criminal Code of Canada.  Of course, this will lead to the re-arrest of the accused as their bail will no longer stand absent the agreed-upon surety.

Should you wish to discuss this topic or any related topic further, please do not hesitate to contact me at 416.414.5093 or by email at jordan@robichaudlaw.ca, and I would be pleased to talk about it with you.

The more informed you are about the law, the better you can enforce your rights.

Jordan Gold
Student-at-Law