Surety and Recognizance
A surety is a person that has entered into an agreement with the court to take responsibility for a person charged with an offence. Sureties are required to agree to certain terms and conditions imposed by the court. They may also be required to make cash deposits or sign documents pledging an amount of money.
The Ontario Ministry of the Attorney General provides excellent information regarding the role and responsibilities of a surety. Too many people take on the responsibility of being a surety without really understanding the consequences should something go wrong. If you are considering acting as a surety please take the time to review the material below.
Acting as a Surety is a Serious Matter
A surety is someone who agrees to take responsibility for a person accused of a crime. Being a surety is a serious commitment. Before you accept this responsibility, here are a few things you should think about:
Think about getting independent legal advice to make sure you understand what this commitment means.
Do not agree to be a surety if you are not sure that you can supervise the accused person in the community.
If the accused person fails to obey the terms and/or conditions of the court order, you could lose the money you have pledged.
Your responsibility as a surety continues until the case is completely over. In some cases, this may take a long time.
Accepting a fee or being paid back in return for acting as a surety is against the law.
Responsibilities of a Surety
Making sure the accused person comes to court on time and on the right dates.
Making sure that the accused person obeys each condition of the bail order, also known as a recognizance.
Conditions may require the accused person to report to the police and obey a curfew. They may also order the accused to not possess weapons, drink alcohol and/or communicate directly or indirectly with the victim or victim’s family. This means that you as the surety are also not to communicate on behalf of the accused person with the victim or the victim’s family.
If you are accepted as a surety, you must sign the recognizance. It means that you agree to pay a specified amount of money if the accused person fails to obey the court order.
Qualifications of a Surety
The judge or justice of the peace will decide whether you are suitable to act as a surety. Qualifications of a surety will vary depending on the allegations or charges against the accused.
The judge will look at your finances, personal character and background.
You may have to give evidence in court and be cross-examined about your qualifications.
Ending Your Obligations as a Surety
You may decide that you are no longer willing or able to supervise the accused person. In this case you have two options:
You may bring the accused to the court personally and ask that you be relieved of your responsibilities, or
You may come to the court and apply in writing to the court to be relieved of your duties. The court will then issue an order for the arrest of the accused person.
If you believe the accused person is a threat to your safety, you should not attempt to bring the accused person back to court yourself. Once a court order is made, the police can arrest the accused and your obligations will be over.
Failure to Obey a Court Order
If the accused person fails to appear in court or breaks any other term of the bail order, the accused person may be charged with another criminal offence.
If the person is found guilty of breaching the court order, the Crown may ask the court to make you pay the money you committed as a surety. A hearing will be scheduled. You and the accused person will be given at least 10 days notice of the date and place of the hearing.
The hearing is called estreatment. It will give you an opportunity to explain why you should not lose your money.
The judge may order that you pay all, part, or none of your money.
Further legal action may be taken against you to collect the amount owing.
In some cases, in addition to the surety’s pledge to pay a specified amount of money, the accused will be required to deposit a sum of money to the court.
Where there has been a deposit of cash by the accused person, or by the surety on behalf of the accused and the case is over, that money is returned to the accused person and not to the surety.