Acting as a Surety for a Criminal Bail Hearing
A surety is someone who agrees to take responsibility for a person accused of a crime while out on bail. Being a surety is a serious commitment. Before you accept this responsibility, here are a few things you should consider:
- Think about getting legal advice to make sure you understand what this commitment means.
- Do not agree to be a surety if you are not sure that you can supervise the accused person in the community.
- If the accused person fails to obey the terms and/or conditions of the court order, you could lose the money you have pledged.
- Your responsibility as a surety continues until the case is completely over. In some cases, this may take many months or even years.
Is it against the law to accept money to be a surety?
Accepting a fee or being paid back in return for acting as a surety is against the law and a person found engaging in such behavior can be charged with the crime of obstructing justice.
What are my responsibilities as a surety?
As a surety, you are making a commitment to the court. Essentially, a surety promises to make sure the accused person comes to court on time and on the right dates and promises to make sure that the accused person obeys each condition of the bail order, also known as a recognizance.
Conditions of the bail may require the accused person to report to the police and obey a curfew. They may also order the accused to not possess weapons, drink alcohol and/or communicate directly or indirectly with the victim or victim’s family. This means that you as the surety are also not to communicate on behalf of the accused person with the victim or the victim’s family.
If you are accepted as a surety, you must sign the recognizance. It means that you agree to pay a specified amount of money if the accused person fails to obey the court order.
What are the qualifications of a surety?
The judge or justice of the peace will decide whether you are suitable to act as a surety. Qualifications of a surety will vary depending on the allegations or charges against the accused. The judge will look at your finances, personal character and background. You may have to give evidence in court and be cross-examined about your qualifications.
How do I end my obligations as a surety?
You may decide that you are no longer willing or able to supervise the accused person. In this case you have two options:
- You may bring the accused to the court personally and ask that you be relieved of your responsibilities, or
- You may come to the court and apply in writing to the court to be relieved of your duties. The court will then issue an order for the arrest of the accused person.
If you believe the accused person is a threat to your safety, you should not attempt to bring the accused person back to court yourself. Once a court order is made, the police can arrest the accused and your obligations will be over.
What happens if the accused person fails to obey his bail conditions?
If the accused person fails to appear in court or breaks any other term of the bail order, the accused person may be charged with another criminal offence.
If the person is found guilty of breaching the court order or failing to appear for his/her court date, the Crown may ask the court to make you pay the money you committed as a surety. A hearing will be scheduled. You and the accused person will be given at least 10 days notice of the date and place of the hearing.
The hearing is called estreatment. It will give you an opportunity to explain why you should not lose your money. After hearing from you and the prosecutor, the judge may order that you pay all, part, or none of your money pledged on the bail.
Further legal action may be taken against you to collect the amount owing.
Do I need to pay the money pledged on the bail right away?
In most cases, a person signing bail need only promise to pay the money they are pledging at a future date if they accused fails to comply with the bail order. However, in some cases, in addition to the surety’s pledge to pay a specified amount of money, the accused will be required to deposit a sum of money to the court.
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 to the accused person and not to the surety. Care should be exercised to ensure that the surety who posts a cash bail has a clear agreement with the accused person to return the cash deposit.
Daniel Brown is a criminal lawyer with extensive experience assisting people who have unsuccessfully acted as sureties and now risk the possibility of losing the money pledged on the bail. If you are facing the possibility of losing your bail money, contact Daniel Brown immediately to arrange a consultation. Alternatively, you can follow this link for more information on bail hearings in Toronto.