Acting as a Surety - Role and Responsibilities

What is a Surety?

A surety in Canadian criminal law is a responsible individual (usually a friend, family member, or coworker) who agrees to supervise an accused person released on bail and pledges a specific amount of money or property to the court as a guarantee. Sureties are often referred to as "jail guards in the community" or a "Court appointed baby-sitter". While neither of these phrases sound great, they do capture a surety's role fairly well.

Responsibilities of a Surety

A surety’s job boils down to two things. First, it is a surety’s obligation to make sure that the accused person comes to all court appearances. Second, it is the surety’s obligation to enforce the bail conditions and/or to report any breaches of the bail conditions to police. The bail conditions imposed will be laid out in court and provided to you and the accused in the Release Order.

A Volunteer Position

It seems simple enough, but the court has to be satisfied of a few things before agreeing to release someone to the care of a particular surety. It is important for the person coming forward to understand that being a surety is a volunteer position. It is a position that can be absolved at any point in time, for any reason (even reasons that do not involve the accused party doing anything wrong).

How Much Will it Cost?

Many people have concerns about the amount of money that they need to have in order to bail someone out. As a general rule, there is no minimum amount that will secure a person’s release. It depends on a number of things, including the quality of the surety and the quality of the plan of supervision. Also, the court often does not require a cash deposit to secure someone’s release. However, the prospective surety must provide evidence, either under oath in open court, or by way of Affidavit, confirming that they do have access to the amount of money that is being pledged.

Relationship to the Accused Person

The types of people, who come forward to act as a surety for a person, are often those that the accused party is closest to in their everyday life; Parents, grandparents, siblings, aunts, uncles, best friends and colleagues. For this reason, the court needs to be satisfied that the person coming forward is going to take their obligations seriously. The person coming forward needs to satisfy the court that they are willing to sacrifice the personal relationship that they shared with the accused party in order to be a surety. The court is essentially looking for confirmation that you are prepared to be a surety first and a loved one second. The court needs to be satisfied that if the need arises, you are willing and prepared to have your loved one rearrested, and brought back to jail, if he/she has missed a court date, not followed a rule of the bail or if there is the potential for a rule to be broken.

What if the Rules are Broken?

Failing to report an accused person’s misconduct when you are the surety carries significant consequences. If a surety fails to report a breach of a bail condition or is aware that the accused party has missed a court date, the surety is at risk of losing the money that has been pledged on the recognizance and they could also be charged with a criminal offence of aiding and abetting a breach of a bail condition or failing to abide by a court order. To avoid these consequences, you as the Surety, have to live up to your obligation to the court: report any breaches of the release conditions and make sure the accused person gets to their court appearances on time.

 How Long Will I be a Surety?

Anyone who is considering coming forward to act as a surety should also know that the charges could take several months or years before being completed. By coming forward to act as someone’s surety, you are acknowledging at that stage, that you know the charges could be outstanding for a long time, and that your obligations remain in effect until the case is completed.

Be Prepared to Answer…

If you are thinking about acting as someone’s surety, the court will expect clear answers to a number of questions which will include, but are not limited to:

• Do I understand what the obligations of a surety are?

• Do I have a criminal record?

• Am I aware of the charges that the accused person is facing?

• Am I aware of the Criminal Record, if any, of the accused?

• Am I acting as a surety for anyone else at this time?

• Am I a potential witness in the case if the case proceeds to trial?

• Am I prepared to call the police on this person if I become aware that a breach has occurred or may occur in the future?

• What income/assets do I have available to pledge to secure someone’s release?

• What plan can I present to the court? For example, where will the person live? When will they be allowed out of the house? Under what circumstances can they be out of the house?

• Am I prepared to be a surety for several months/years, until the case is completed?

If you are a surety and have questions about your legal obligations, remember that the accused's lawyer is responsible to the accused. While the lawyer has professional obligations to be truthful and forthright, that lawyer cannot give you legal advice because of the risk of a conflict. You can always ask to receive Independent Legal Advice from another lawyer. Many lawyers will help you find another lawyer to talk to about your legal obligations and risks.