When a person commits a criminal offence, the law must act to ensure that the victim, their friends and family, and society as a whole are protected from danger. Therefore, many accused criminals are held in custody until a decision can be made on their case.
However, not all accused criminals have to be held in custody or detention. In some circumstances, a person can volunteer to make sure the accused criminal does not pose a threat to others if temporarily freed from custody, this is known as being a surety.
In this article, What The Law will be looking at what we mean by a surety, including who can become one and its consequences.
Before we can learn more about becoming a surety, we must first look at why sureties are required.
When a person commits a crime, it must be decided if they need to be held in custody. This is because certain crimes like murder, manslaughter or sexual assault are very serious, and the law has a duty to protect not just the victim of a crime but also everyone else in society. For this reason, accused criminals are often held in custody where they cannot cause harm to others.
On the other hand, holding people in jail does cost the Ontario taxpayer. In 2017, it was estimated that an inmate costs $217 per day in jail, whereas only $7 per day is needed to monitor them if they are free from custody. The act of releasing someone from custody and monitoring their behaviour is known as bail.
It may also be appropriate to release the accused on bail because they are low risk to the community and might have mental or physical health conditions that would endanger them while in custody.
Bail seeks to bridge the gap between keeping victims and society safe while working to protect the rights of an accused criminal who is still presumed innocent. The granting of bail and the conditions for it ultimately depends on the judge and the specific type of criminal act, this is decided upon at a bail hearing. To succeed in a bail hearing, a bail hearings lawyer or criminal defence lawyer is strongly recommended.
Granting bail does have some risk, especially in complex cases where the accused’s behaviour might not be fully understood. Because the accused cannot be actively monitored by the police, a surety acts as a temporary solution while the accused waits for their trial outside of custody.
A surety is an individual(s) who promises to monitor the accused and make sure that they obey their bail conditions. They are responsible for supervising the accused and must report to the police if they break any bail conditions.
Being a surety is not as simple as it may appear. To make sure the surety is confident with their responsibilities, they must be willing to put their money on their ability to make the accused follow bail conditions. This is what lawyers call the ‘Quantum of Bail’ - the money that the surety swears to give up if the accused breaks bail conditions.
Generally, most Ontarians are eligible to become a surety for an accused individual. In fact, more than one person can become a surety. Ideal sureties include parents, family members or family friends, this is because they are able to keep regular contact with the accused.
A person acting as a surety is expected to be a responsible and respectable individual, though they do not necessarily need to have a clean criminal record in the past. You must also be over 18 years of age, a Canadian citizen or permanent resident and have no current criminal charges. Therefore, two people involved in the same or different crime cannot act as a surety for the other.
Acting as a surety for an accused criminal is a serious undertaking and should not be taken lightly. Even if you wish to protect a loved one or friend, you should make sure you fully understand your responsibilities.
Being a surety does not mean you are entirely tied to the accused. If you feel you cannot or do not want to be a surety anymore, you can go back to court and ask that you are relieved of your responsibilities. Do note that the accused will be consequently arrested however.
Bail conditions are rules that an accused criminal must follow while free from custody as they wait for their trial in court. What these rules are depend on the individual case. For example, a person charged with assault or harassment may not have any direct contact with the victim or be within a certain radius of their home.
In some circumstances, the accused might later realize that they cannot reasonably follow their bail conditions despite agreeing to them. As their surety, you should make sure you are aware of this as it could cause you to lose your money in the event they do not try to solve the situation. You or the accused can contact their bail hearings lawyer and they will work with you on requesting these changes. Attempting to change bail conditions does not mean they will automatically lose bail.
If you suspect or know the accused is breaking their bail conditions, you are expected to report this to the police. Although you might risk losing the money you declared as an asset for bail, it is important to do your part and ensure the accused follows their conditions. An appearance in court may be required, especially if you know the accused has broken their bail and do not report it.
Breaking bail will likely mean the money you offered as part of being a surety will be surrendered and not returned to you. This is decided in a hearing known as estreatment and the judge will decide if and how much you are expected to pay for failing as a surety. The accused is also likely to go back into custody for the safety of the victim and the public.
If you wish to act as a surety for an accused criminal, you should make sure you are fully aware of your responsibilities. Our team of bail hearing lawyers in Toronto and across Southern Ontario are here to assist you and explain the process clearly to you.
As experienced criminal defence lawyers, we can also take on your loved one’s case and fight to secure them bail so you can become their surety. Get in touch with us today for a free consultation. We are here to help fight for your loved one’s case.