Bail is Too Important to Get Wrong.
As I've pointed out time and again throughout my written materials here and elsewhere, a bail hearing is a critical point in every criminal case. The failure to make bail can exert tremendous pressure on innocent Canadians to plead guilty to charges they did not commit. On the other hand, a successful bail hearing means more than liberty. It means enormous leverage in mounting an effective, strategic defence in concert with your criminal lawyer.
In this easy-to-read article I explain some of the things sureties can do to prepare themselves for a bail hearing in Ontario. The information is intentionally simple and basic, and will be especially helpful for people who have never stepped foot in a courtroom before.
Being a surety often means testifying in court about sensitive matters. This can be a scary prospect for Canadians unaccustomed to Ontario's criminal courts.
As always, the information contained in this blog article is not legal advice. Whatever else a surety may do to help a loved one who is incarcerated, the single best thing they can do is to hire a skilled Toronto criminal lawyer. Someone from my office is available 24 hours a day 7 days a week to discuss your case if you decide on us.
What is a Surety, and What are Their Responsibilities?
A surety is somebody who has been approved by the court to supervise a person who is facing criminal charges.
A surety has two main responsibilities:
1. To ensure that the accused follows the rules of the bail; and
2. To ensure that the accused comes to court when required.
Let’s look at these two responsibilities in more detail.
First Responsibility – Make Sure the Accused Follows the Court’s Rules
A court which releases an accused person will usually impose rules on them. The kind and number of these rules will vary case to case. Some common examples include to “stay away” from victims or witnesses; to “reside” at the surety’s home; to abstain from the consumption of drugs or alcohol; and/or to comply with a curfew or even house arrest.
A surety is responsible for ensuring that the accused is following each term strictly. To do this, sureties are expected to take whatever additional steps they may feel they need – for example, searching an accused’s bedroom or cell phone, or ordering them to attend counselling.
Sureties are often called “jailors in the community,” or “the eyes and ears of the court”. Making sure that the accused is following all the court’s rules is a surety’s most important responsibility.
If, as explained, a surety wishes to add rules to the ones set by the court, they may do so as long as they are not exploitative or otherwise illegal.
Second Responsibility – Make Sure the Accused Attends Court
Criminal cases can take months or years to complete. During this time, the accused will have a number of court appearances to make. A surety’s second responsibility is making sure the accused attends court when required.
A Surety Must Call the Police if the Accused Violates the Rules or Fails to Attend
A surety is expected to call the police if an accused person has, or is about to, break the rules of the court. Sureties are also required to contact the authorities if the accused fails to attend court or absconds from the jurisdiction.
The court does not believe in “second chances” – it expects action. If you are thinking of acting as a surety for someone, carefully consider whether you are actually prepared to phone the police on the person under your charge. If a judge senses that you will hesitate, especially in serious cases, you may not be approved. This can have devastating consequences on the accused’s chances of release.
A Surety Must Promise Money to the Court
To ensure that an accused will follow the rules, sureties, and sometimes the accused himself, must make a financial pledge to the court. This amount is usually without deposit. The exact amount will vary from case to case, usually based on the seriousness of the charges and the financial health of the surety. The actual dollar figure must be enough, however, to create a “pull,” or moral pressure, for the accused to listen.
If an accused person violates the rules of their bail or fails to attend court, the Crown Attorney may sue the surety for up to the amount pledged. This initiates what are called “estreatment proceedings”. The surety will be notified by mail that they are being sued, and will be permitted to attend court and make submissions as to why some or all of their moneys should not be forfeited.
Being a Surety Can Last a Long Time...
A surety’s responsibilities will last as long as the bail remains in place. This can be months, or in some cases even years, as the criminal case winds its way through court.
Although it is possible to change sureties or to modify the court’s rules, the assistance of a qualified criminal lawyer is recommended.
...But You Can Stop Anytime You Like
The role of a surety is a voluntary one. If you are acting as a surety for someone and no longer wish to continue, you can attend any criminal courthouse in Ontario to “revoke” your status. Simply ask for the “Justice of the Peace Intake Office,” or talk to a criminal lawyer for guidance. Ordinarily, the criminal lawyer representing the accused will not be able to assist you in this process, so you should seek independent legal advice.
A surety who wants to terminate their role will not be asked why. Nor will the accused person under their care face any additional charges. However, after a surety revokes their status, a warrant for the arrest of the accused will issue. Any moneys pledged by the surety will continue to be at risk until the accused has been arrested and brought back into custody. At that point the bail will be cancelled, and the accused will be entitled to another bail hearing if they choose.
How to Prepare to be a Surety.
A surety may be required to testify in court, especially in more serious cases. This permits the court to ensure the surety understands their role, and to measure the strength of the plan that is being proposed.
Testifying also gives the prosecutor, who may be opposed to the accused person’s release, a chance to “cross-examine” the surety. Cross-examination is a form of questioning designed to expose weaknesses in a person’s evidence. In a bail hearing, a prosecutor’s cross-examination will typically be geared to expose weaknesses in the surety’s understanding of their role, their relationship to the accused, or the bail plan generally.
If you want to be a surety for someone, here are the best things you can do to prepare:
Speak to an experienced criminal lawyer who practises in the city where the bail hearing will take place. When it comes to bail, there is no substitute for a criminal lawyer's advice. This is especially true in serious cases, or in cases where the accused has a lengthy or complex history of trauma, drug addiction, mental health or involvement with the criminal justice system. As a Toronto criminal lawyer who has conducted hundreds of bail hearings, you can always call me for advice.
Make sure you understand your role. Remember: a. enforce the court’s rules, b. make sure the accused goes to court, and c. call the police if there are any violations.
Before attending court, make sure you have reviewed the charges and the allegations the accused is facing. The accused person’s criminal lawyer should have this information available.
Review the accused person’s prior criminal record, if they have one. Some accused persons have prior criminal records for breaching bail orders or failing to attend court. Others may have an extensive history for crimes of violence or substance abuse. Expect to be asked about this record by the prosecutor. The judge will want to know how the accused person’s prior record has weighed on your decision to be a surety for them.
Consider the reasons why the accused may have come into trouble with the law. Do they have undiagnosed mental health issues? Are they addicted to drugs or alcohol? Now put together a concrete plan that addresses those issues. A bail plan that involves adequate counselling or other rehabilitative measures geared toward these issues will present as much stronger than one that doesn’t. Be prepared to tell the court about the actual steps you’ve taken to contact and arrange for these measures. “On Monday I spoke with Joan at the Canadian Mental Health Association,” is much stronger testimony than “I will get him help.” There are plenty of community resources across Ontario that can address, among other things: mental health, drug addiction, alcoholism, and anger management. Your criminal lawyer can help put you in touch with some of these programs.
If possible, visit the accused in jail. Avoid discussing the charges, as some crafty prosecutors may ask you what the accused told you. But do make sure that the accused understands what the rules will be if they are released, and consider their willingness to listen. This way, if you are asked in court about the accused’s attitude toward the bail plan, you can confidently say that you have spoken to them and believe they will listen – because they told you so.
Avoid minimizing the accused person’s past or current legal troubles. Although a bail hearing is not a trial, it is important to convey to the court that you take the charges seriously. Judges are naturally suspect of sureties who have easy answers for an accused person’s criminal past. They may also distrust your preparedness to monitor the accused closely if you protest in court that they’ve “done nothing wrong”. The appropriate place for proving an accused person’s innocence is at a trial. During the bail hearing, focus on your responsibilities to the court and the bail plan which you have created.
Above all, work closely with your criminal lawyer and ask them for pointers or guidance as you need it.
I hope this guide has been helpful to you. If you need the assistance of a confident, skilled bail hearing lawyer in Southern Ontario, not hesitate to contact me for advice.