The Role of a Surety
By Carolina Salles Quaresma, Articling Student
What I should know before becoming a surety?
A surety is a person, usually a trusted family member or a friend, who promises to supervise an individual accused of a crime while they are out of custody on court approved bail program. A surety makes a solemn declaration stating that will supervise the accused person and pay a specified amount of money if the accused fails to follow any of the conditions of their release.
Who can be a surety?
In order to act as a surety, a person must:
be over the age of 18,
be a Canadian citizen or a landed immigrant,
not be involved in the offence the person has been charged with,
not already be acting as a surety for someone else,
and not accept payment or other means of compensation for their role as surety.
It is also ideal for a proposed surety not to have a criminal record, have a steady income, and be able to prove they have the ability to keep a watchful eye on the accused, ensure they attend their court dates, and follow the rules of the bail.
Every bail is unique, so it’s important to keep in mind that your role as a surety is specific to the conditions set out in the bail. If you have concerns about meeting the requirements of being a surety, be honest with defence counsel so they are able to prepare the strongest bail plan possible for your loved one.
What’s the role of a surety?
A surety is required to ensure the accused person does two things:
1. Attends court appearances when required
Either assist so the accused is able to attend each of their court dates (at the correct time, in the correct room in the courthouse or via the correct zoom link), or confirm that their defence counsel files a designation form with the court and attend on their behalf.
2. Complies with the conditions of release
Some examples of common conditions are orders for the accused to not possess drugs or weapons, not to drink alcohol, not to be in a driver’s seat of any motor vehicle, obey a curfew or a house arrest order, or not communicate directly or indirectly with the complainant or complainant’s family. There are many other conditions that could be imposed at a bail hearing. Ask the accused’s defence counsel to walk you through the possibilities since they will directly effect your role as surety.
Keep in mind that a surety is also prohibited to communicate on behalf of the accused person with the complainant or the complainant’s family, and a surety cannot associate with any person that is also accused (“co-accused”) in the offence, or potential witness or complainants.
Who decides if a person qualifies as a surety?
The justice of the peace or the judge will decide. They will analyze the finances, personal character, and background of the surety.
How long will I have to be a surety?
The responsibility remains until the end of the court case, which can resolve when the accused pleads guilty, the accused is found not guilty, or the Crown withdraws all the charges against them.
All cases are different and sometimes dependant on the backlog of the court system. Ask the accused’s defence lawyer for their opinion on the length of the proceedings, especially if you have concerns about availability down the road.
How much should a surety pledge?
A surety promises to give the court money if the accused person doesn't follow the conditions of their bail, also known as the amount of the bail, or the “quantum of the bail”. A surety will pledge a significant amount that depends on their individual financial situation. For example, a significant amount for a millionaire is not the same for a person who works for minimum wages. A surety will tell the defence counsel how much they can pledge, but it’s the justice of the peace or judge at the bail hearing decides the amount.
What happens if the accused breaches the bail conditions?
A surety must contact the police immediately, and ask to remove themselves from their role of surety.
Do I have to pay the Court the money I pledge?
In general, if a surety doesn’t abide by the rules set out at the bail hearing, the could lose the money they pledge. Not reporting a breach could result in these ramifications. It is important to know that there aren’t any legal implications, which means that it is not a crime not to report the breach to the police, but you could lose the entire amount you have pledged.
From the accused perspective, they may be charged with another criminal offence. If the person is found guilty of breaching the court order, the Crown may ask the court to make a surety pay the money pledged. A hearing called an “estreatment” will be scheduled, within 10 days’ notice, where the surety is given an opportunity to explain why they should not lose the amount promised. The judge may order that a surety pay all, part, or none of the money.
Can I remove myself as surety?
If at any time a surety does not want to continue being a surety, they can attend the courthouse and apply in writing to a judge or a justice of the peace to be removed from the responsibility. A surety warrant will be issued for the accused person. The accused person will be arrested and put back into custody. To avoid this, a surety can first obtain a variation of bail that allows someone else to take over the role of surety. This is something that defence counsel can help with.
Keep in mind: a person who agrees to act as surety takes on significant legal obligations and is subject to a serious potential pecuniary liability. For this reason, someone who is thinking of being a surety should consider getting independent legal advice to make sure they understand what this serious commitment means. Call our office if you have any questions about becoming a surety at 416-304-1414 or email us at dplaw@derstinepenman.com.