HOW DO I BAIL SOMEONE OUT?
12 QUESTIONS ANSWERED
May 5, 2021
1. What is a surety?
A surety is someone approved by the court to supervise an accused in the community pending the resolution of their criminal charges. A surety must pledge an amount money in support of this promise, which will be at risk if the accused does not follow the bail conditions.
2. What are the minimum requirements?
A surety must be:
- 18 years of age
- a Canadian citizen or permanent residence
- able to supervise the accused person as required by the conditions of the bail
- have assets (bank accounts, investments, property) to pledge to the court
- not be involved offences charged.
3. What are the responsibilities of a surety?
There are three responsibilities to being as surety:
- Make sure the accused attends court when required;
- Supervise the accused to ensure that the conditions of bail are followed; and,
- Call the police if the accused does not comply with the terms of bail
4. How much money will I have to pledge?
The size of the pledge will depend on the surety’s financial resources. In other words, the amount should be significant to the individual surety. For example, $1000 may mean little to one person, but a great deal to another. Having said that, the size of the monetary pledge is generally the least important factor in determining whether an accused will be released on bail. Far more significant is the ability of the surety to supervise and enforce the conditions imposed by the court.
5. Do I have to deposit the money immediately?
In the vast majority of cases the surety does not deposit money into court. The exception is if the accused does not ordinary live in Ontario or resides more than 200 km from the place where they are in custody. Whether it is a cash deposit or a pledge, so as long as the accused follows the conditions of the bail order, the surety pays nothing. However, if the accused breaches a bail condition, the Crown can apply to the court to seize the money pledged (called “estreatment”). If that case, an estreatment hearing will be scheduled and a judge can order the surety, depending on the circumstances, to pay all, some or none the amount promised to the court when the bail was signed.
6. What are the potential conditions of the bail?
The nature and number of bail conditions imposed by a court will vary from case to case. Typical terms of bail include non-contact orders with witnesses or co-accused, not to attend certain location (for example where the offence was alleged to have occurred), and not to possess drugs or alcohol. Where the charges are more serious, the court may impose a curfew or house arrest.
Whether these or other conditions are imposed by the court will depend on the circumstances of the case, including: (i) the extent of the accused’s criminal record, if any; (ii) whether the accused was facing any outstanding charges; and, (iii) the nature and seriousness of the current allegations. For example, an accused with no criminal record may have few bail conditions, while an accused with a criminal record, charged with the exact same offences, may be required to comply with stricter conditions.
7. What is a “consent release” versus a “contested hearing”?
If the police decide not to release the accused from the station, he/she will appear for a bail hearing. Your lawyer will at that point speak to the Crown attorney to determine whether an agreement can be reached for their release. During these negotiations, your lawyer should ensure that conditions are the least onerous possible. (This is important because, while it is possible to later change the conditions of your bail, the process is not easy, especially if the Crown does not consent.) If your lawyer and the Crown cannot agree to a release, a “contested hearing” will be scheduled.
8. What is the “plan of release”?
The “plan of release” refers to the plan to supervise the accused if he/she is released from custody. Consequently, before the bail hearing is heard, your lawyer should work with the family and proposed surety to design a plan of release that best responds to the concern of the Crown attorney and court. By doing so, the accused stands the best chance of either securing a consent release from the Crown attorney (the ideal result) or bail after a contested hearing.
9. What if the accused breaches his bail?
If the accused breaches a condition of his bail, he will be arrested and charged with a new offence of failing to comply with the bail order. The Crown may apply to cancel the accused’s original bail (called a “section 524 application”) and new bail hearing will be scheduled to determine whether he/she should be released from custody. The Crown can also apply to have the surety pay to the court the amount of money pledged in an estreatment hearing.
10. How long will I have to be a surety?
The responsibilities of surety continue until the accused’s case is concluded, either when the Crown withdraws the charges, the accused is acquitted or once he/she is sentenced after pleading guilty or a trial. However, a surety may, at any time, be discharged of their obligations by bringing the accused to the court, into custody, or making an application to the court, in which case the surety’s obligation continue until the accused is located by the police and brought into custody.
11. What is a “special bail hearing”?
If the bail hearing is expected to take longer than two hours (because the charges are serious or the issues complex), the court will require a “special bailing hearing” be scheduled. To set the special hearing, a request form must be submitted by your lawyer, who then has a conference with the Crown attorney and justice to discuss the issues. At that point, a hearing will be set with its own courtroom and justice. While this process does take some time, the benefit versus being in the regular bail court (where you will be one of many awaiting their turn at bail) is you have certainty that the bail hearing will proceed as scheduled.
12. What if I have a criminal record?
While a proposed surety will ideally have no a criminal record, it does not necessarily prevent an individual from acting as a surety. The impact of a criminal record will depend primarily on the nature of the record and how dated it is. For example, an old record involving less serious offences, particularly for an individual who has otherwise been an upstanding citizen, should have little impact their ability to act as a surety.
HERE TO HELP
If you would like to meet with me to discuss your case or any legal problems that you are facing, please contact me to set up a free consultation.
Call 249-266-4222 for an immediate free consultation.
While the right to be released on bail applies to all criminal charges (meaning no offence, no matter how serious, is excluded), the practical reality is that being released on bail is much more difficult when you are facing firearm related charges.