Do you want to be a surety?
Being a surety is a serious matter. You will be required to supervise the accused until their court matter is complete or until they return to custody. Your job is to prevent the commission of any criminal offences, including enforcement of the court’s release terms.
Personal Considerations
Consider getting independent legal advice to make sure you understand all of the consequences of being a surety.
Do not agree to be a surety if you do not think the accused will listen to you.
If the accused breaches the terms of their release, or commits a new offence, you should expect to pay the money you promised the court.
You may be supervising the accused for over 2 years if a trial is scheduled for serious charges.
Accepting payment for being surety is against the law and is punished with significant jail time.
Responsibilities of a Surety
If you are approved as a surety, you will be required to make a financial promise to the court and to sign the release order. Once the accused is released, you will be:
1) Making sure that the accused follows all of the rules of their release order, and does not commit and new offences.
2) Keeping track of court dates and making sure the accused attends court.
No-contact terms with the complainant (victim) are very common and can be difficult to enforce in domestic disputes. No indirect contact is permitted unless specified by the court, usually for coordination of parenting.
Qualifications of a Surety
In Ontario, sureties are normally required to testify in court. Both the prosecutor and defence counsel will ask you questions to help the court assess whether you are a suitable surety.
Your finances, ability to supervise, personal character, background, and relationship with the accused will be considered.
A dated or unrelated criminal record is not necessarily a bar to being a surety.
Witnesses to the allegations are not usually permitted to act as surety. It may be possible for ancillary witnesses to be in a surety, or in exceptional circumstances.
Ending Your Obligations
Your financial promise to the court is in jeopardy until the file is concluded or the accused is returned to custody.
You can have the accused surrender, or call the police to come arrest them. In practice, the police tends not to attend unless the accused is breaching their release terms.
The best way to end your obligation is to attend any court in Ontario with the accused. You will advise the Justice of the Peace intake office that you no longer wish to be surety. This is a no-questions-asked process and it is not a breach. The accused will be taken into custody and will automatically get a new bail hearing. This procedure is ideally coordinated with defence counsel ahead of time so that the accused is re-released to a new surety or on new terms within a few hours.
Simply calling the police to report a breach will not protect your money because your job is to prevent any new offences. If the accused runs away and you report it to police, the province may still come after your financial promise if he commits a new offence while on the run from authorities.
Breach of Release Terms
If the accused fails to attend court or breaks any condition of their release, they may be charged with another criminal offence.
If the accused is later found guilty of breaching his release order, you may be asked to pay the money you promised the court at the bail hearing.
You will receive notice and an estreatment hearing will take place. The court will give you an opportunity to explain why you should not pay all or some of the pledge.
Failure to pay the pledge could result in further legal action against you.
Cash Deposits
Unlike in the United States, most Canadian bail hearings do not require a cash deposit.
Canadian law only requires a deposit if the accused resides more than 200 km from the location of his charges.
The deposit will be returned to the accused, not the person who made the deposit, if the case ends without a breach or if the accused is surrendered.
If the parties wish to have the deposit returned to someone other than the accused, including a lawyer, a signed direction must be filed with the court.