Bail Hearings — so, you want to be a surety

If the police refuse to release my client, a Justice will decide at a bail hearing whether to release or detain him. If released, the Justice will impose conditions. Often, the Justice will require someone close to my client to act as a surety. If you are proposing yourself as a surety for my client, here is what you need to know, consider, and expect.

What does it mean to be a surety?  A surety monitors the accused person and acts as a financial guarantor. You must ensure that my client shows up in Court, obeys his conditions, and is well behaved. Some Justices refer to sureties as "civilian jailers." Your financial obligations will be stated on the bail document, the Recognizance of Bail. If my client does not show up in Court or does not follow the conditions, you may be liable to pay the full amount identified on the Recognizance.

Do I qualify to be a surety?  Generally, a proposed surety must be a Canadian citizen or a landed immigrant, must not have a criminal record or outstanding charges, and must not be acting as a surety for anyone else. The Justice will consider how long you have known my client, the nature of your relationship, and how often you communicate with one another. An older family member that my client respects, for example, is often an ideal surety. In determining suitability, the Justice will examine your character, background, community ties, and finances. A surety must be able to afford to sign for the amount of the bail.

If I have insufficient wealth, can I accept money from another person?  No. Do not accept a transfer of funds solely to show your supposed wealth. If you do, the Justice will be unimpressed. This conduct might even be viewed as obstructing justice.

What if I am a witness or the complainant?  Witnesses often cannot be sureties, but there are exceptions. An alleged victim is rarely if ever an appropriate surety. If you are a victim, witness, or complainant, immediately advise my office of this fact.

What should I bring to the bail hearing?  Bring photo identification, such as a driver's licence, passport, or health card. To demonstrate affordability, bring your recent bank, RSP, or GIC statements, bring documents showing the value of your home and mortgage, and/or bring your income stubs or tax assessment.

Should I speak to your client before the bail hearing?  Yes, if possible. One issue at the bail hearing is my client's willingness to submit to your and the Court's control. Will he allow you to become his civilian jailer? Discuss your expectations in your new role as surety. Discuss specifics such as where he will live, and whether he will abide by the anticipated conditions. Discuss what hardships the conditions might impose, as the Justice may consider reasonable exceptions. Before you do this, please speak to me, as I will give you a sense of the anticipated conditions. Be sure to ask my client if he understands what will happen if he doesn't follow your and the Court's rules. Make note of my client's answers. You may have to repeat them in Court under oath. In recommending this, keep in mind that my clients are under instructions not to speak about "the case" with anyone except me. This restriction should not hamper you.

Will I have to testify?  Perhaps. Be prepared to testify why you are an appropriate surety. If you testify, you will likely be cross-examined by the Crown. The Justice might also ask you questions. You may be questioned about your proposed role or the allegations. To prepare yourself to give evidence in Court, read this webpage carefully, and review my DOs and DON'Ts of testifying.

How does the Justice arrive at a decision?  The Justice will release my client if we demonstrate that my client will attend Court, obey the conditions imposed, and stay out of trouble. Some charges are more serious than others. Some cases are more complicated. The risks and issues in each case are different. Each must be determined on its own merits. To read a Justice's reasons for granting bail where the Crown opposed release, review Gordon's case (possession of a loaded 45-calibre gun). To read a complete bail hearing where the Crown agreed to my client's release, review Waldo's case (prostitution and fail-to-appear Court).

What can I expect the conditions to be?  The conditions will vary depending on the charges, the allegations, and my client's circumstances. A child pornography charge, for example, will attract much different conditions than a fraud charge. Conditions may include living at a specified place, reporting to the police, obeying a curfew, counselling, not contacting named persons, and not attending a defined area. One issue you must consider in advance is whether you are prepared to have my client live with you. If not, be prepared to explain why, and to further explain how you intend to monitor my client while he is living somewhere else.

Can someone pay me to act as a surety?  No. Accepting a fee to act as a surety is an offence contrary to section 139(1)(b) of the Criminal Code. Both you and the person paying you could be charged for obstructing justice.

If I pay a cash deposit, will that money be returned to me?  No. In some cases, a cash bail may be required. Anyone may make the deposit to the Court, but the money is paid on my client's behalf. Once paid, it becomes my client's money, held by the Court. At the end of the case, if there is no breach, a cheque will be mailed to my client. You as a surety will not receive any refund.

Will I have to pay money if your client disobeys the conditions?  Maybe. If my client fails to show up in Court and/or fails to follow his conditions, you and my client may have to pay the full amount outlined in the Recognizance of Bail. A Judge would determine the amount at an estreatment hearing. If you are required to attend such a hearing, you should immediately seek independent legal advice. Note that any agreement by any person to reimburse you for this potential liability is an offence contrary to section 139(1)(a) of the Criminal Code. Both you and that person could be charged for obstructing justice.

What should I do if your client disobeys the conditions?  It is a criminal offence for my client to disobey his conditions. As a surety, you are expected to immediately report any breach to the police. If you fail to do so, and the Crown later seeks payment from you, the Court will consider your inaction in determining your financial liability.

Can I be charged criminally if your client disobeys the conditions?  Yes. If my client breaches a condition and the police believe that you participated in the breach, you could be charged as a party to the breach. Even if you are not involved in the breach but simply failed to report the breach, there is a risk that you could be charged criminally.

How long will I be a surety?  A surety's responsibilities continue until the case is over. This may be as short as two months or as long as two years.

What if I no longer want to be a surety?  At any time, for any reason, you may attend the same office where you signed the bail to be relieved of your obligations. If you do that, you will no longer be a surety and a warrant will issue for my client's arrest. Of course, I would prefer that you contact my office so that we can discuss substituting another surety. Section 767.1 of the Criminal Code allows a Justice to "substitute any other suitable person."

What will happen to your client if he disobeys the conditions?  My client can be criminally charged for "breaching his recognizance." The Crown may also apply to revoke his bail (a revocation hearing), and seek payment of the bail amount (an estreatment hearing). My client may later obtain bail again — most likely with another surety — but the conditions will usually be stricter and the bail amount higher.

If I am paying your retainer, can I provide you with instructions?  No. You are not my client. Payment of my retainer comes with only two conditions: that the money be used for services and expenses relating to the case and that, if there is any refund owing, I would return the unused retainer to the person who paid the money.

As a surety, what control do I have over the case?  None. You cannot provide any instructions regarding the case.

Can there be more than one surety?  Yes. If you feel that you cannot monitor my client on your own or that you might not qualify financially, you and another person may propose yourself as sureties together.

Are our communications protected by solicitor-client privilege?  No. Your communications with me and my client are not protected by lawyer-client privilege. You are free to discuss them with anyone. While testifying, you must disclose those communications if asked to do so.

Can you provide advice to me as the surety?  No. While we may be working together to obtain my client's release, I am not your lawyer and cannot provide you with legal advice. I am there to protect my client's interests, not yours. If your require legal advice about your risks, rights, and obligations, consult another lawyer. If necessary, I may be able to assist you in finding independent legal advice.

But can you advise me if the accused is not your client?  Yes. In that case, you as the surety can be my client. I can advise you in confidence regarding your rights, risks, and obligations. Our communications will be protected by solicitor-and-client privilege. If served with a notice of an estreatment hearing to determine your liability under a Recognizance of Bail, you will need legal advice.

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