What is a Surety in Canada?

If a friend or loved one has been arrested and is being held in custody until their bail hearing, you may be asked by that person or their lawyer to act as their surety. So what does it mean to be a surety? Who can act as a surety? What do you have to do to become a surety and what are your responsibilities?

These are common questions people in this situation need the answers to, which is the reason for this blog post. Use this guide as a starting point for what you need to know about being a surety in Ontario. However, your first priority is to contact a respected Toronto criminal lawyer as quickly as possible to have them represent your friend or family member if they don’t already have representation. The moments after someone has been charged with a crime are crucial for setting the tone on how the case plays out and ultimately resolves. Also speak to a criminal lawyer if you have questions about being a surety in your specific circumstances.

What is a Surety?

The general definition of a surety is someone who promises to pay money or perform an act if someone they vouch for fails to meet their obligations. In a criminal justice context, being a surety basically means signing a court document that makes you responsible for someone charged with a criminal offence until their case is completely over. This can take several months and even years. You can not accept pay for being a surety.

There’s more to it than that, but it’s essential to know a little about a criminal procedure, specifically, knowing what a bail hearing is, before going into more detail.

What are a Bail Hearing and a Surety’s Role in it?

If the police arrest and charge someone with a criminal offence, they can release them or keep them in custody.

If the police decide not to release someone after an arrest,  they must either bring them to court or video link them to a court for a bail hearing within 24 hours of the arrest. The hearing is in front of a judge or justice of the peace to decide if the accused will be allowed to return to the community until their trial is complete or if they will have to remain in jail for that time.

The Crown prosecutor will decide to either consent to or oppose the bail after looking at a summary of the investigation against the accused and their criminal record. If they consent, they will want assurances that the accused will come to court and be of good behaviour while on bail. If they oppose bail (e.g., if the accused has been convicted of breach of probation in Ontario), there will be a bail hearing where Crown and Defence give arguments against and for bail, respectively. If the court decides to grant bail, it will likely want assurances as well.

That’s where a surety comes into play. The Crown or court usually asks for bail conditions that can include:

  • A curfew.
  • A prohibition against weapons, drinking and drug use.
  • An order not to contact the victim, especially if the charges include uttering threats in Canada.

They will want someone who knows the accused to supervise them and ensure they abide by those conditions. Another common bail condition is that the accused live with their surety. To be eligible to act as a surety, a person must be over 18 years old, be a Canadian citizen or Landed Immigrant and not be involved in the alleged offence in any way.

Whether the accused is ordered to live with you or not, if you act as a surety, you are also taking on the responsibility to:

  • Make sure the accused comes to court when they are supposed to.
  • Monitor and ensure the accused obeys each condition of the bail order (also known as a Recognizance of Bail.)
  • Call the police if the accused violates a condition of their bail.

You will have to sign a Recognizance pledging that you agree to pay a financial penalty if the accused misses a court date or breaches a bail condition. The amount pledged generally depends on the seriousness of the charge, and the accused (or you on their behalf) may or may not have to leave a deposit. You may also have to sign a Surety Caution stating that you understand your responsibilities as a surety.

If you don’t feel that you can handle the responsibility, you can either ask that another person assist by becoming a co-surety, or just refuse to do so. Being a surety is a serious responsibility, so you should not take it on unless you can handle it.

Crown and Defence Counsel Discussing if a Surety is Required for Bail

What Does the Court Consider When Deciding to Allow Someone to Act as a Surety?

If the Crown agrees to bail and asks for a surety, they will interview that person to determine if they are willing and suitable to do so. In other words, they need to know if the surety can fulfil their responsibilities as a supervisor over the accused. They may also ask if they have the financial resources to cover the amount of the Recognizance. The Crown is concerned with:

  • The safety of the community and any victims of the accused.
  • Where the accused will live.
  • What restrictions and conditions make sense for the accused while on bail.
  • Programs the accused should attend, such as counselling.

If the Crown opposes bail and a bail hearing commences, the surety will likely give evidence by answering direct questions from the Defence and cross-examination questions from the Crown. The judge or justice of the peace will decide based on the facts of the case and the history of the accused and must be satisfied that the surety is suited to take responsibility over the accused.

A potential surety will usually have to answer questions about their:

  • Personal and financial history, including any previous criminal convictions, what they were for, how long ago, etc.
  • Relationship to the accused.
  • Ability to supervise the accused.
  • Understanding of their role and obligations as a surety.
  • Willingness to report the accused if they breach their conditions.

If the accused is granted bail, a Recognizance of Bail is drafted that includes information such as the conditions of the Recognizance.

What If You Change Your Mind About Being a Surety?

Being a surety is voluntary, so you don’t need a reason to change your mind. If you decide to stop being a surety, you can come to court with the accused (if it’s safe for you to do so) and speak to a judge or justice of the peace. Bail will be revoked and a warrant issued for the arrest of the accused.

What Happens if the Accused Breaches a Condition of Their Bail?

If the accused fails to appear in court or breaks a condition of their bail order, they can be charged with another criminal offence. These are the possible repercussions for you as a surety:

  • If the person is found guilty of breaching their conditions, the Crown may ask the court to make you pay the money you committed as a surety.
  • If the Crown is successful, a hearing, called estreatment, will be scheduled. You and the accused will be given at least ten days’ notice of the hearing’s time, date, and place.
  • At the hearing, you will have to explain why you should not have to pay the money.
  • The judge may order you to pay all, some or none of the pledged amount.
  • You may face further legal action to collect the amount owing.

What Happens to a Deposit After the Case is Complete?

Regardless of whether you or the accused left a deposit as part of the Recognizance, that money is returned to the accused, not the surety.