What is a surety?

March 18, 2017

A surety is a person that assumes responsibility for an accused party in a criminal proceeding. In certain scenarios, a person charged for a criminal offence will be held for “bail”. When a person is held for bail, they often require a “surety” to attend court to bail them out. Being a surety is a serious undertaking. As a starting point, a surety needs to consider whether they are able to supervise the accused person while they are on bail. Further, a surety needs to remember that in order to be a surety, they have to pledge a sum of money to the court in order to secure the accused persons’ release. If an accused person fails to obey the terms and conditions of the bail, they could stand to lose the money that they pledged. The task of being a surety continues until the matter is completed in court. In Canada, is against the law to accepting a fee or being paid back in return for acting as a surety is against the law. For more information

Responsibilities of a Surety
The primary responsibilities of being a surety include:

1. Ensure the accused person comes to court

2. Ensure the accused person obeys all of the conditions of the bail, also known as a recognizance.

3. There may be specific conditions, particular to the type of offence that the accused person is alleged to have committed. Here are some examples, this list is NOT exhaustive:

a. Not possess any weapons as defined by the Criminal Code

b. Abstain from the consumption of alcohol

c. Not have care or control of a motor vehicle

d. Not communicate directly or indirectly with the certain named individuals

e. Not to attend a certain place

f. Deposit your passport with the local police station

g. Not consume non-prescription drugs

4. There also may be conditions that require the accused person to report to the police and obey a curfew

Once a person is accepted as a surety, they sign a document called a“recognizance”. By signing the recognizance, the surety agrees to pay a specified amount of money if the accused person fails to obey the court order.

Who Can be a Surety?
The ultimate decision to qualify an individual as a surety comes down to the respective Judge or Justice of Peace. Normally, the qualifications of a surety depend on finances, personal character and the person’s background. Those who do have status in Canada are unable to be a surety. In order to satisfy the court that a person is a viable surety, they may have to give evidence in court and be cross-examined on their evidence.

Say if a person wants to stop being a surety?
If a person decides that they no longer wish to be a surety, they have options. They can attend court with the accused party and ask to be relieved of the responsibility of being a surety. If the accused party has another surety in mind, they can bring this person along to substitute the old surety (assuming the new surety is approved). Alternatively, the surety can attend court at any time and ask to be relieved of the duty of being a surety. The court will then issue an order for the arrest of the accused person.

What happens if the accused person violates a term of the bail?
If the accused person violates a term of the bail, they will be charged for an additional criminal offence (Breach of Recognizance). If the accused party is found guilty of the “Breach of Recognizance” offence, then Crown may ask the court to make the surety pay the money that they pledged at the original bail hearing. In order for the Crown to do this, a hearing is held, this is known as “estreatment” hearing. At an “estreatment hearing”, the former surety is given an opportunity to explain why they should not lose their money. A judge may make an order requiring that the former surety pays all, some or none of the money.

Cash Deposits
In certain cases, the court will require a “cash deposit” in order to secure an accused persons release. Where there has been a deposit of cash by the accused person, or by the surety on behalf of the accused and the case is over, that money is returned.

At Passi & Patel, our criminal defence lawyers in Mississauga, Milton, and Brampton understand legal issues can be stressful. Please call us at 905-459-0004 or e-mail us at info@passipatel.com to schedule a free consultation.