So you’ve got the dreaded call, the one that’s depicted in movies with off-kilter camera angles, grungy colour-schemes, and depressed, sheepish characters inducing panic in their previously-calm friends and family members, who naturally drop whatever they are doing to rush to “bail out” their loved ones. It looks simple, obvious even: of course you would bail them out! Before you do, however, there are a few things to keep in mind.
Bailing someone out, also known as being a surety, is serious business. First, it requires that you make a promise to the court – something that, itself, is always serious business. Second, the promise that you must make as a surety can be challenging and difficult to keep – in part because you are required to make a promise about someone else’s behaviour. Third, your promise must be backed up a specified sum, essentially collateral, that you stand to lose if the person who called you breaks his or her own promises.
If you don’t report [a breach of bail conditions] to the police, you could lose the money you’ve pledged to get your friend or loved one out of custody.
Judges have described sureties as “civilian jailers.” The term is apt: your job as a surety is to supervise your friend or loved one while he or she is out on bail. You are responsible for making sure that he or she attends court when required, that he or she follows all bail conditions set by the court, and that he or she doesn’t commit any criminal acts while on bail. If you discover that your friend or loved one isn’t towing the line (by adhering to bail conditions and abstaining from criminal activity), it becomes your responsibility to call the police.
If you don’t report to the police, you could lose the money you’ve pledged to get your friend or loved one out of custody. (In fact, even if you do report, you could, hypothetically, lose your money – remember, it’s gamble how someone else will behave.) How much you would owe the court – all, part, or none – of the money you’ve promised will be determined at an estreatment hearing where you will have an opportunity to present the steps you took to ensure the surety followed the conditions. If, however, the police believe that you participated in the activities that constituted a breach of the court order – for example, by acquiescing to the accused moving to a different address despite a stated bail condition that he or she live with you – you could be in more trouble. Breaching a court order is a separate criminal offence. It is likely your friend or loved one would be charged with a breach and, not only does that make it more difficult and unlikely for him or her to get bail in the future, it is also conceivable (albeit highly uncommon) that you could be charged as a party to the breach.
becoming a surety is not automatic and it is not a right…
You’ve thought about the potential consequences and what’s at stake. You’ve decided that you are comfortable keeping your friend or loved one on track and are prepared to make a tough call if it comes to that. You still want to bail them out – what should you do next?
You must put your name forward at your friend or loved one’s bail hearing and the judge or justice of the peace will decide whether or not to make you a surety. Remember, becoming a surety is not automatic and it is not a right, nor is there a set formula: it is a case-by-case endeavor. That means that it’s going to be important, as always in court matters, to “put your best foot forward” at your friend or loved one’s bail hearing. Depending on whether your appointment is contested, you may or may not be required to testify. Either way, there are certain pieces of information that the court considers before appointing a surety; presenting them coherently will help, such as:
• Your identity – make sure to bring photo id with you and be prepared to speak to your character;
• Your relationship to the accused – be able to describe your relationship, how long you’ve known each other, what kind of contact you regularly have with each other, and how close you live to each other, and
• Your finances – while ordinarily you won’t be expected to pay any money to the court right away, you must be able to show that you have access to sufficient assets to cover the sum specified in the recognizance. This means that you should bring copies of your bank or investment statements, pay stub, or property holdings to show the court.
Sureties come in all forms and sizes, like everything, but it’s normally advisable that a surety:
• is a Canadian citizen or a permanent resident in Canada;
• resides in the same province where the accused has been charged;
• is mature and over 18 years old;
• does not have a criminal record;
• has no outstanding charges;
• is not already acting as a surety for someone else, and
• was not involved in the events that lead to the accused being charged – as a co-accused, a witness, or an alleged victim.
There are, of course, exceptions – the suitability of each surety is determined based on the unique facts of the case at hand. A minor criminal record from a number of years ago, for example, may not prevent you from becoming a surety.
Bailing someone out is a commendable, but weighty, task.
If you become your friend or loved one’s surety, it is your job to supervise him or her for “good behaviour” until the end of his or her case, potentially months or years down the road. During that time, you must make sure he or she goes to court when required and you must make sure that he or she follows the court’s conditions; you are to notify the police if the accused breaches the conditions. To do your job, it will be important for you to know at least the following:
• the charges against your friend or loved one;
• the dates and times your friend or loved one must be in court, and,
• the specific conditions of your friend or loved one’s bail.
If you have second thoughts for any reason about being a surety for your friend or loved one, you can apply at any time to the court to stop being a surety. You will not have to give reasons or explain your decision to the court. Upon your ceasing to be a surety, the accused will either go back into custody or a warrant will be issued for his or her arrest (unless a replacement surety can be appointed beforehand).
Bailing someone out is a commendable, but weighty, task. Make sure you’re up to the challenge. Remember, lawyers aren’t just for accused persons or real estate deals – if you have questions and concerns about what it means for you to be a surety in a particular instance, independent legal advice could help.