If someone you care about has a bail hearing, a Justice will decide if he or she can be released and under what conditions. Usually, the Court will require the accused to have a surety. Sometimes, the accused must live with the surety.
What is a surety? A surety supervises the accused, and acts as a financial guarantor. Some Justices refer to sureties as civilian jailers. The surety must promise the Court that she will do her best to ensure that the accused attends Court, obeys his bail conditions, and is well behaved. The surety's financial obligations will be stated on the Recognizance of Bail. If the accused does not show up in Court or does not follow the conditions, the surety can be liable to pay the full amount.
Becoming a surety is a serious decision, one not to be made lightly. To get informed, and to assess whether you might qualify as a surety, carefully review the questions and answers below. If you need advice as a surety, or want to hire me for the bail hearing, contact me now: 416 410 2266.
Craig Penney, Certified Specialist (Criminal)
Toronto Bail Hearing Lawyer
Do I qualify to be a surety? Generally, a proposed surety must be a Canadian citizen or a landed immigrant, must not have a criminal record or outstanding charges, and must not be acting as a surety for anyone else. The Justice will consider how long you have known the accused, the nature of your relationship, and how often you communicate. An older family member that the accused respects, for example, is often an ideal surety. The Justice will consider your character, background, community ties, and finances. A surety must be able to afford the amount of the bail.
If I have insufficient wealth, can I accept money from another person? No. Do not accept a transfer of funds solely to show your supposed wealth. If you do, the Justice will be unimpressed. It might even be viewed as obstructing justice.
What if I am a witness or the complainant? Witnesses often cannot be sureties, but there are exceptions. An alleged victim is rarely if ever an appropriate surety. If you are a victim, witness, or complainant, immediately advise the lawyer.
What should I bring to the bail hearing? Bring photo identification, such as a driver's licence, passport, or health card. To show affordability, bring your recent bank, RSP, or GIC statements, bring documents showing the value of your home and mortgage, and/or bring your income stubs or tax assessment.
Should I speak to the accused before the bail hearing? Yes, if possible. One issue at the bail hearing is the accused's willingness to submit to your and the Court's control. Will he allow you to become his civilian jailer? Discuss your expectations in your new role as surety. Discuss where the accused will live, and whether he will abide by the anticipated conditions. Discuss what hardships the conditions might impose, as the Justice may consider reasonable exceptions. Before you do this, consider consulting me as a Toronto bail lawyer, as I will give you a sense of the anticipated conditions. Be sure to ask the accused if he understands what will happen if he doesn't follow the conditions. Make note of the accused's answers. You may have to repeat them in Court. When speaking with the accused, keep in mind that the accused is generally under instruction from his Toronto criminal lawyer "not to speak about the case with anyone except the lawyer." This restriction should not hamper you.
Will I have to testify? Perhaps. Be prepared to testify why you are an appropriate surety. You may be questioned about your proposed role or the allegations. To prepare yourself to give evidence in Court, read this webpage carefully, and review my DOs and DON'Ts of testifying.
How does the Justice arrive at a decision? The Justice will usually make a release Order if satisfied that the accused will attend Court, obey the conditions imposed, and stay out of trouble. Some charges are more serious than others. Some cases are more complicated. The risks and issues in each case are different. Each must be determined on its own merits. To read a Justice's reasons for granting bail where the Crown opposed my client's release, review G.T.'s case (possession of a restricted weapon). To read a complete bail hearing where the Crown agreed to my client's release, review W.C.'s case (prostitution and fail-to-appear Court).
What can I expect the conditions to be? The conditions will vary depending on the charges, the allegations, and the accused's circumstances. A child pornography charge, for example, will attract much different conditions than a fraud charge or a domestic charge. Conditions may include living at a specified place, reporting to the police, obeying a curfew, counselling, not contacting specific persons, and not attending a defined area. One issue you must consider in advance is whether you are prepared to have the accused live with you. If not, be prepared to explain why, and to further explain how you intend to monitor the accused while he is living somewhere else.
Can someone pay me to act as a surety? No. Accepting a fee to act as a surety is an offence contrary to section 139(1)(b) of the Criminal Code. Both you and the person paying you could be charged for obstructing justice.
If I pay a cash deposit, will that money be returned to me? No. In some cases, a cash bail may be required. Anyone may make the deposit to the Court, but the money is paid on the accused's behalf. Once paid, it becomes the accused's money, held by the Court. At the end of the case, if there is no breach, a cheque will be mailed to my client. You as a surety will not receive any refund.
Will I have to pay money if the accused disobeys the conditions? Maybe. If the accused fails to show up in Court and/or fails to follow his conditions, you and the accused may be liable to pay the full amount outlined in the Recognizance of Bail. A Judge would determine the amount at an estreatment hearing. If you are required to attend such a hearing, you should immediately seek independent legal advice. Note that any agreement by any person to reimburse you for this potential liability is an offence contrary to section 139(1)(a) of the Criminal Code. Both you and that person could be charged for obstructing justice.
What should I do if the accused disobeys the conditions? It is a criminal offence for the accused to disobey his conditions. As a surety, you are expected to immediately report any breach to the police. If you fail to do so, and the Crown later seeks payment from you, the Court will consider your inaction in determining your financial liability.
Can I be charged criminally if the accused disobeys the conditions? Yes. If the accused breaches a condition and the police believe that you participated in the breach, you could be charged as a party to the breach. Even if you are not involved in the breach but simply failed to report the breach, there is a risk that you could be charged criminally.
How long will I be a surety? A surety's responsibilities continue until the case is over. This could be weeks, months, or years. The case is over when the charges are dismissed, stayed, or withdrawn, or the accused is sentenced.
Do the conditions apply outside Canada? Yes, the conditions apply to the accused everywhere in the world.
Can the conditions be later changed? Yes. The conditions can be later changed if the Crown, accused, surety, and Court approve. If the Crown does not consent, the accused can bring a bail review before a Judge. Click here to watch my YouTube video on bail variations.
What if I no longer want to be a surety? At any time, for any reason, you may attend the same office where you signed the bail to be relieved of your obligations. If you do that, you will no longer be a surety and a warrant will issue for the accused arrest. If the accused is my client, I would prefer that you first contact my office to discuss substituting another surety. Section 767.1 of the Criminal Code allows a Justice to "substitute any other suitable person."
What will happen to the accused if he disobeys the conditions? The accused can be criminally charged for "breaching his recognizance." The Crown may also apply to revoke his bail (a revocation hearing), and seek payment of the bail amount (an estreatment hearing). My client may later obtain bail again — most likely with another surety — but the conditions will usually be stricter and the bail amount higher.
If I am paying your retainer for the accused, can I instruct you? No. You are not my client. Payment of my retainer comes with only two conditions: that the money be used for services and expenses relating to the case and that, if there is any refund owing, I would return the unused retainer to the person who paid the money.
As a surety, what control do I have over the case? None. You cannot provide any instructions regarding the case.
Can there be more than one surety? Yes. If you feel that you cannot monitor the accused on your own and/or that you might not qualify financially, you may propose yourself as surety with one or more other persons.
Are my communications with the accused's lawyer protected by solicitor-client privilege? No. Your communications with the accused and/or his lawyer are not protected by lawyer-client privilege. You are free to discuss them with anyone. While testifying, you must disclose those communications if asked to do so.
Can you advise me as the surety if you are the accused's lawyer? No. While we may be working together to obtain my client's release, I am not your lawyer and cannot provide you with legal advice. I am there to protect my client's interests, not yours. If you require legal advice about your risks, rights, and obligations, consult another lawyer. If necessary, I may be able to assist you in finding independent legal advice.
But can you advise me as a Toronto criminal lawyer if the accused is not your client? Yes. As a Toronto defence lawyer, I can advise you in confidence re your rights, risks, and obligations. If served with a notice of an estreatment hearing to determine your liability under a Recognizance of Bail, seek legal advice immediately.