Sureties and bail forfeiture

Sureties and bail forfeiture

What is a surety?

A surety is responsible to ensure that the accused attends court as required until the case is over. He or she is also responsible to ensure that the accused abides by the conditions of his release, including any reporting, curfew and non-contact clauses. The surety is the “jailer” of the accused as he or she must provide some measure of supervision over the accused’s daily activities. He or she should maintain daily contact with the accused.

Criteria of surety’s suitability

The following persons would not be acceptable:

  • co-accused
  • a minor
  • a person who is already surety for another person
  • counsel for the accused
  • a non-resident of the province
  • a person allegedly victimized by the accused such as his or her spouse in a domestic assault case

Because the surety is expected to supervise the accused, he or she should be someone who is able to do so. Relevant factors are length of their acquaintanceship, whether they are related and live in close proximity, and the frequency of their contact.

It is best that the surety have no criminal record. A conviction for a serious offence or one related to the administration of justice, such as for breach of a court order, could render the surety unsuitable. He or she may not be considered suitable if he or she is awaiting trial on a criminal offence.

The surety must have sufficient funds or personal assets in Ontario (i.e., the province where the accused stands charged) to cover the recognizance, that is, the amount of the bail. He or she should attend court with proof of his or her ability to do so (e.g., bankbooks, proof of property ownership), and photo ID, such as driver’s licence or passport. If bringing a bankbook, make sure it’s updated. It is a criminal offence to accept payment to act as a surety. Offering such payment is also an offence.

Lawyer cannot be surety

A lawyer cannot act as surety or use his or his firm’s money to secure the release of the accused, say the Ontario Rules of Professional Conduct. However, these restrictions do not apply if the lawyer is in a “family relationship” with the accused and the accused is represented by the lawyer’s partner or associate.

Ceasing to act as surety

A surety who has a change of heart, disapproves of the accused’s conduct on release, fears the accused may abscond, or for any other reason, may apply to a judge or justice of the peace to be relieved of his or her obligations. The surety does not have to give a reason; his or her right to be relieved of his or her obligations is unconditional. If this occurs, the accused must return to custody and reapply for release; he may be able to avoid returning to custody if a judge or justice of the peace accepts a new surety in place of the old one.

Forfeiture of bail

If the accused breaches his bail conditions, the Crown can go after his surety for the money acknowledged to be owed to the Crown in the recognizance. This procedure is called estreatment of bail. A forfeiture hearing is held where the surety has an opportunity to establish why the recognizance should not be forfeited.

If the surety has taken all reasonable steps to ensure the accused keep his conditions, he or she may avoid penalty. Such steps include informing authorities immediately if the accused absconds or when the apprehension of absconding arises. If the surety made some, though insufficient, effort to discharge his or her obligations, he or she may be ordered to pay an amount less than the full recognizance.

The Crown need not establish a link between the lack of due diligence by the surety and the breach of conditions of a recognizance by an accused.

Criminal liability

An Ontario mother acting as surety for her son was found guilty of breach of recognizance in 2001 after her son violated a bail condition requiring that he reside with her. The court found the mother guilty as a party to the commission of the offence by her son. The son lived at the new address for a few months; his mother had visited him and phoned him there. Noting that the mother could control her son by revoking her suretyship, the court ruled that her failure to stop him from breaching the condition showed an intention to aid him in carrying out the offence.

Related link

What Sureties Need to Know (Ontario government publication)

Bail review and variation >>