The call usually comes at a bad moment. A brother, a son or an old friend is in custody, a lawyer or duty counsel is on the line, and somebody needs to be at the courthouse at 7755 Hurontario Street by morning. You are told the court may let him out if you sign. You want to help, and you have about an hour to decide.
Signing as a surety is one of the most serious legal commitments an ordinary person can make for someone else. It feels like a favour. In law it is closer to taking a job as an unpaid supervisor while putting your own money behind that person’s behaviour, and it may last for many months. People who understand that before they sign tend to do it better, and some of them decide that they should not do it at all.
What follows is general information about how the role works in Ontario, and it is not legal advice about your situation. Because the surety’s interests can differ from the accused person’s, you may want a short conversation with your own lawyer before you take the stand.
The Job, Described Honestly
A surety makes two promises to the court. The first is about money: you pledge a specified sum, and you may have to pay it if the accused breaks the release order. The second is about supervision: you agree to make sure the accused goes to court and follows the conditions.
Supervision is the part that people underestimate. Justices often ask sureties to explain exactly how it will work. If the order says your nephew must live at your Springdale home and stay inside after 9 p.m., then you are the person expected to know whether he is there at 9 p.m. If you work overnight at a warehouse near the airport, you will be asked who watches him while you are gone, and “I’ll call him” may not be a satisfying answer.
You are also expected to act if something goes wrong. A surety who learns of a breach and says nothing is in a very poor position later. That includes telling the police, even when the person is your own child. Many people find this the hardest part, and it is worth imagining the scene before you agree. Would you really make that call?
The role also has no fixed end date that you can plan around. It generally continues until the case is finished or the release is changed, and criminal cases can run a long time. Ask yourself whether you can carry this for a year or more, including during your own vacations, health problems or job changes.
Who the Court Will Accept
There is no form you can fill out to qualify. The justice looks at whether you are a suitable person to supervise this particular accused on these particular allegations. You should expect questions, under oath, from the defence and the Crown, and sometimes from the justice, about matters such as:
- your relationship to the accused and how long you have known each other
- whether you know what the person is charged with, and what you make of it
- your job, your hours and who lives in your home
- your savings, income or property, and whether you truly have what you are pledging
- your own criminal record and any outstanding charges
- what you would do if the accused ignored you, or if you caught them breaking a rule
The Criminal Code says a surety should be used only when it is the least onerous form of release available in the circumstances. So a court is not supposed to demand a surety automatically. The Code also tells the court to favour a promise to pay over a deposit of money where the accused or surety has reasonably recoverable assets, which is one reason your finances will come up.
A criminal record of your own can be a barrier. Under section 515(2.11), a court cannot name someone as a surety if that person was convicted of an indictable offence within the ten years before the release order, unless the court is satisfied that no other suitable surety is available and that naming the person is in the interests of justice. If that applies to you, tell the lawyer right away instead of letting it come out in cross-examination.
Honesty matters here for your own sake too. You are testifying under oath. Overstating your assets or claiming you will be home when you will not be can create a far larger problem than being turned down.
The Money: What Is Actually at Stake
American television has left many people with the wrong picture. Canada has no bail bond storefronts. You cannot lawfully pay someone to act as a surety, and nobody may promise to reimburse a surety for their loss: indemnifying a surety is treated as obstructing justice under section 139 of the Criminal Code. If the accused says, “Don’t worry, I’ll pay you back if anything happens,” that promise is not one you should accept or repeat.
The traditional Canadian model has been a promise to pay, with no money moving unless a breach led to a forfeiture order. Ontario has moved to change that. Amendments to the provincial Bail Act created a requirement to pay the promised amount as a deposit shortly after release, along with duties on sureties to provide and update their contact and identification information. The deposit requirement has been challenged in court, and a Superior Court judge granted an interim injunction that puts it on hold while the constitutional challenge is decided. This area is moving, so ask the lawyer handling the bail hearing exactly what you would have to pay and when, based on the rules in force on the day you sign.
If you own property, ask about that too. The amended Bail Act lets a certificate of lien for the amount you promised be registered against your land at the land registry office. If you later fail to pay an amount ordered against you, the Act allows the Crown to enforce the lien by selling the property in a process similar to a mortgage sale. A lien can also create practical friction well before that stage. It may surface when you try to refinance, sell or renew a mortgage, so raise it with your lawyer if a transaction is on the horizon. Co-owners, including a spouse, should also be part of this conversation.
How Forfeiture Happens
A breach does not instantly take your money. There is a process, and you get to take part in it.
Section 771 sets out the steps. After a default is certified, a judge fixes a hearing and notice goes out to the accused and to each surety at the address on file, not less than 10 days before the date. That is one reason to keep your address current. You then have the chance to show why the amount should not be forfeited. The judge has discretion to grant or refuse the application and to make whatever forfeiture order is proper.
If an order is made, you become a judgment debtor of the Crown for the amount ordered, and it can be enforced much like a civil judgment. Under the Bail Act, the province also has added collection tools.
What helps at such a hearing depends on the facts, but courts generally look at matters such as:
- how seriously you took your supervision, and what you did day to day
- whether you reported problems promptly or looked the other way
- whether you tried to be relieved from the order once you lost confidence in the accused
- your finances, and the effect that paying would have on you and your family
Keeping simple records can help. Dates of curfew checks, messages you sent, and the day you called the police are all useful if you ever have to explain your conduct. Consider a hypothetical: a mother who notices her son has stopped coming home and immediately calls the police and his lawyer stands in a very different place from one who knew for three weeks and hoped it would sort itself out. Neither outcome can be predicted with certainty, but those facts would likely matter.
Living With the Conditions
Get a copy of the release order and read it line by line with the lawyer. You cannot supervise rules you do not understand. Then have the conversation that most families avoid, and have it on the first day, before old habits return:
- Set house rules beyond the order. If the curfew is 9 p.m., decide when he must leave work and how he gets home on a Brampton Transit schedule.
- Talk about phones. A no-contact term usually covers indirect contact, so messages passed through cousins or a shared group chat can be a breach.
- Agree on what happens when things go wrong. Tell the accused plainly that you will call the police and the lawyer if you discover a breach, and that this is a condition of your help.
- Keep the court dates on your own calendar. Do not rely on the accused to tell you. A missed date can lead to a warrant and put your pledge at risk.
- Plan for your absences. If you will be away for a family wedding abroad or an extended work trip, ask the lawyer beforehand whether a variation or a replacement surety is needed.
Your own circumstances count as well. If you move, change jobs, separate from your spouse or fall ill, tell the accused’s lawyer quickly. A change to the release plan generally needs paperwork, and it may need your consent. Until the order is changed, the existing terms still apply.
How to Step Away
You are not locked in for good. The Code gives you ways out, and using them is lawful, even though it may be emotionally difficult.
Applying in writing. Under section 766, a surety may apply in writing to a court, provincial court judge or justice to be relieved of the obligation. The court then makes an order for the accused to be committed to custody, and the surety or a peace officer may arrest the person and deliver them to the prison named in the order. Once the committal is recorded, the surety’s obligation is discharged.
Bringing the person to court. Section 767 allows you to bring the accused before the court during its sittings, before the trial, and discharge your obligation by giving the person into the court’s custody.
Practically, nobody is suggesting that you handle an arrest yourself if there is any safety concern. Call the lawyer or the police. Peel Regional Police can respond if the person is refusing to cooperate or if you are afraid.
You do not need to prove a breach to withdraw. Losing faith in the accused, or finding you can no longer do the job, is reason enough to raise it. Be aware of the consequence, though: unless a replacement surety or a new plan is in place, withdrawing is likely to send the accused back into custody. That is why, in a calmer situation, the better course is often to call the accused’s lawyer and let them try to arrange a substitute before you file anything. If you think a breach is already happening, do not wait for that to be arranged.
Timing also matters to your financial exposure. Stepping away after a person has already skipped court may not undo a default that has already occurred, so it is better to act when your doubts first arise.
When Saying No Is the Right Answer
Families feel enormous pressure at these moments. Parents may ask you to sign for a sibling with a long history of ignoring rules. A partner may feel obliged despite being afraid of the accused. Nobody should sign out of guilt.
Consider saying no, or at least asking for time, if you are afraid of the person, if you depend on them financially, if you already doubt you could report them, if the plan requires you to be home when you cannot be, or if the amount would devastate your household. In a domestic case, a surety who shares a life with the complainant raises its own difficulties that should be discussed with a lawyer.
Declining does not necessarily leave the person without options. A release plan can be built in other ways, such as a different surety, a release without a surety where the court finds that sufficient, a treatment bed, or a bail supervision program where one is available and appropriate.
Questions to Ask Before You Sign
Take a few minutes with the lawyer, even if everybody is rushing:
- What am I pledging, and is a deposit or lien involved today?
- What exactly are the conditions, and what would count as a breach?
- Who pays for what if I cannot supervise on a given day?
- How long is this likely to last, and where is the case heading?
- What do I do on the night I find out something has gone wrong?
Remember that the accused’s lawyer represents the accused. They can explain the process, but their duty runs to their client. If your home or your savings are significant or the arrangement concerns you, get separate advice. You can read more about the wider process on our criminal law page, or contact the office with your questions.
Being someone’s surety can make a real difference to a person who would otherwise wait in custody for their trial. It works best when the person signing has gone in with open eyes, knows the rules, and is willing to enforce them when it is hard.