Bail and release from custody
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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
- victim of the accused such as spouse who is complainant in
a domestic assault
Because the surety is expected to supervise the
accused, he or she should be someone who is able to do so. Relevant
factors are how long he or she has known the accused, whether
they are related, how frequently they see each other and how close
they live to each other.
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.
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
In a recent Ontario case (December 2001), a mother acting as surety for her son was found guilty of breach of recognizance 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)
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.
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