Who Can Bail Me Out? The Role of a Surety in Canada.

Our bail system does not work the way it seems to work on American television dramas. It is not as simple as a monetary amount being shouted out in court as a gavel slams down, and someone showing up with bail money to sign you out of jail.

If you have been arrested and charged with an offence, you have the right to a bail hearing and to appear before a Justice of the Peace within 24 hours. During the hearing, a Judge or Justice of the Peace will determine whether you should be released or held in custody leading up to your trial. Should you be releaseable on bail, you’ll likely need a surety- the person responsible for “bailing you out”. This person pledges to ensure your compliance with bail conditions, and will have the duty of calling the police should you breach them.

As a Criminal Defence Lawyer in Toronto, I have years of experience in dealing with sureties and advising accused persons on the complexities of the bail process in Canada. I recommend that anyone entering into a bail hearing first contact legal counsel to discuss the process of selecting a surety, and to have that process thoroughly explained to the chosen party before they formally accept the position.

Your surety will be required to back up their pledge to the court with a set amount of money. This money does not usually need to be deposited to the court, but instead proven to exist either in savings or other appreciating assets such as home equity. Cars are not considered to be a solid asset in this respect as they depreciate in value. Should you breach your bail conditions, your surety can be sued by the Crown for the amount they have pledged.

The court will need to approve the surety, and the Crown may cross-examine them during the bail hearing about their qualifications. A suitable surety is:

- Responsible
- Honest
- Not bankrupt
- Law-abiding (sureties with a criminal record are less likely to be approved)
- Strong-minded and unlikely to be manipulated
- Able to monitor the accused to ensure compliance with all bail conditions

If the court requires a residential surety, they will need to live with you (or, more likely, you with them). If you are placed under house arrest (such that you cannot even leave home on bail except in certain situations), your surety will have to attest to a day-to-day schedule that allows them to monitor your whereabouts at all times.

An ideal surety, for example, would be an Aunt or Uncle who is a Canadian citizen, retired and able-bodied, and the owner of a house or significant assets and savings. They’ve had a career which included supervising other people in some way, and have somehow had a positive impact on your life in the past. This individual should know you well enough that they are aware of what is happening in your life, but not be so close to you that they will choose not to call the police should you breach your conditions. The surety is supposed to be a person who the Judge or Justice of the Peace can trust to put their duty to the Court ahead of any personal loyalties to you (ie. letting you off the hook if you breach your bail conditions by not reporting it).

Even with the best of potential sureties, the bail process can seem daunting and unpredictable, and misstep can mean unnecessarily spending an extra day (or more) in jail, or being denied bail entirely. During my years of experience working as a Criminal Defence Lawyer in Toronto, I’ve advised countless clients on the bail process. My clients understand that I am available 24 hours a day, 7 days a week to discuss matters such as these during their time of need. If you require assistance navigating the bail process, or naming a surety, reach out to my office to arrange a free consultation today.

If you are considering becoming a surety for someone who wants to be released on bail, you can obtain independent legal advice about taking on this obligation. So long as I am not representing the person who is seeking bail, I can provide this independent advice.

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Have you been treated fairly during the bail hearing process? Were you made aware of all your options, or left in the dark to make a decision without all the facts?