Updated: Jun 22, 2020
The Surety's Dilemma
Every day, thousands of Ontarians awaiting trial are released to the supervision of sureties. To say that sureties play an essential role in our province's bail system is an understatement.
Sureties take on a massive responsibility when they sign for bail. In a word, they are expected to be the "eyes and ears of the court". The exchange is simple. The accused is passed from police custody into the custody of the surety. The surety is then expected to act in exactly the same way as a police officer or prison guard would. If the accused breaches, the surety must call the police.
But what happens when an accused person is simply misbehaving - flirting with the line without actually crossing it? Should the surety call the police?
I often get calls from sureties acting for a client who’s flirting with disaster. These sureties want to know whether they can or should notify the authorities of misbehaviour. Understandably, they don’t want their child, friend or loved one to go to back to jail. But they also understand that they’ve made a promise to the court to enforce its rule.
The Secret Stresses of a Surety's Job
Sureties put a lot on the line when they sign for bail. Their name and reputation for one, since everything they say and do is placed on the public record.
Sureties accept a financial burden, too. To secure an accused person's release they pledge a sum of money. This money could be forfeited if the accused breaks the rules, creating what we call the "pull of bail": the moral incentive for an accused person to listen. A son or boyfriend or co-worker, or the assumption goes, is less likely to violate the bail if they know someone they love will be out of pocket.
As a criminal lawyer with extensive experience in Ontario's bail system, there's something else sureties put on the line every time they sign for bail. Their mental and emotional well-being.
Being a surety, especially for someone you love, is a stressful job. Although no two cases is alike, each has the potential to create major inner turmoil. I've seen mothers struggle to monitor their drug-addicted children, skipping house arrest to nurse their health crisis; I've seen fathers try wrench their children from organized crime, unable to shake off the bad influences; and I've seen friends and lovers watch as a person with mental health issues slips further and further from their grasp.
The problem these scenarios create is simple: the surety has made a pledge to call the police, but as the accused flirts with breaking the rules the surety hesitates. Like most people with direct knowledge of the jail system, they know how useless and dehumanizing custody can be.
What they often forget is that, in many cases, a much smarter option exists: revocation.
Revocation as a Smart Solution
Sureties often forget that their role is a voluntary one. They can revoke their status at anytime. In many cases, this option will not only preserve their sanity, but the accused person's case as well. In a word, revocation is among the most under-utilized, and most effective tools in the criminal justice arsenals. And it's up to sureties to learn how to use it wisely.
What is Revocation?
Revocation occurs when a surety advises the court that they no longer want to be a surety for the accused. No questions are asked. No inquiries are made. There are no interviews about "what the accused did". The bail order is simply verified, then cancelled. In short, it is no longer in place.
Once complete, a warrant is issued for the accused's arrest. If the accused is with the surety, they can march directly to the police station together. If not, the accused will be located by police and arrested on the strength of the "surety revocation warrant". After the arrest is made, the surety's financial pledge ends. The bail is fully cancelled and the surety's money is safe.
Here's what's crucial about revocation: it doesn't add, or take away, from the accused person's case. What does this mean? Simply, that a revocation does not result in any new charges. Unless the accused is actually violating the bail at the time of their arrest (for example, a house arrest), or has otherwise failed to attend court, once the accused is back in custody, the bail is reset.
That's right. It starts from scratch. In other words, the accused can apply for bail again - as if for the first time. They can do so with a new surety. They can do so with the same surety. Because they’ve accrued no new charges, they can even try to do so without a surety.
If the accused was released on consent the first time, the new bail will almost certainly be on consent too. If the first bail order was hotly contested - meaning that the Crown was opposed - in many cases the new release won’t be. I’ve seen many Crown Attorneys honour a previous release order, even if there has been a subsequent revocation by the surety.
"The Road to Hell is Paved with Good Intentions"
Now compare this with the situation that's usually created by a surety's hesitation to enforce the rules strictly.
I've handled and won thousands of of bail hearings in my time. It didn't take long for me to learn that clients who break their bail orders have a tendency of getting caught. The reasons are a mystery. But whether it’s due to poor judgment, sharp police instincts or sheer bad luck, when clients of mine violate their bail orders a surprising number of them attract law enforcement.
Why does this matter? Because getting caught means getting new charges. And in the cat-and-mouse game of beating criminal charges, new charges often make all the difference.
Sureties who can't stand the thought of revoking the bail usually learn the hard way that the police aren't so nice. Instead of a revocation leading to a clean slate with no new charges, lax enforcement usually winds up with the accused facing additional charges. It could be as simple as violating curfew, or as serious as engaging in new criminal activity. Regardless, these new charges mean new jeopardy; and new jeopardy means a significantly reduced chance at making bail again.
Any judge asked to consider a new bail plan will be told about the alleged breaches. The original surety, who might have proposed themselves again after revocation, is now compromised. The allegations will paint them as a failure. If the accused has nobody else to turn to, proposing the same surety - although not unheard of - is often a non-starter.
If the Crown consented to bail the first time around, there’s no guarantee they’ll do so again. (In fact, they probably won’t.) If the Crown opposed the first bail, you can bet your downpayment they’ll oppose more vigorously this time around.
In the long run, all of this has a direct and major impact on the accused’s chances of beating the charges. Why? Because if the accused is unable to make bail again - as is usually the case - they’re very likely to plead guilty. In cases involving first-time offenders, working professionals, people with a precarious immigration status or any other client who wants to avoid a criminal record - this means hell, paved with good intentions.
If You to Want to Win, Be Smart.
I admit, it's not common for a criminal defence lawyer to advocate the benefits of turning a client in to the police. But I'm not your typical defence lawyer. I don't measure success based purely on whether my client is in custody for out. I measure success based on winning.
Revocation usually results in a few days in custody while a client, or their surety, cools off and pieces together a new bail plan. Compare that with the narrow approach. Lax enforcement leads to new charges; new charges means no bail; no bail means a plea to multiple charges, including violating a court order and the charge(s) that started the case; and, now, a few days with a chances to win, turn into a few months and total failure.
The best criminal lawyers are not pugilists - they're tacticians. Success in criminal law is about thinking. There can never be too many tools in the arsenal. Revocation is one of them.
The road to many of my clients' personal hells were paved by their surety's good intentions. Many of these sureties simply did not know they could revoke. Those who did were not able to clearly pictures the pros and cons. I hope articles like this help them.
When we compare revoking the bail, on one hand, with the nightmare scenario created by lax enforcement on the other, it turns out that soft-hearted sureties really do their loved ones no favours. In most cases, lax enforcement will only lead to new charges, harder bail, and an increased chance of losing the criminal case.