criminal
Bail Hearings
25 August, 2025
If someone you care about has been arrested and has a bail hearing, a Justice (Judge or Justice of the Peace) will determine if they can be released and under what conditions. Typically, the Court will require the accused to have a surety. In some cases, the accused must reside with the surety.
What is a Surety?
A surety supervises the accused and acts as a financial guarantor. Some Justices refer to sureties as civilian jailers. The surety must assure the Court that they will do their best to ensure that the accused attends Court, obeys bail conditions, and behaves appropriately. The surety's financial obligations will be outlined in the Recognizance of Bail. Should the accused fail to appear or violate conditions, the surety may be required to pay the full amount.
Becoming a surety is a serious commitment not to be taken lightly. To properly inform yourself and gauge your suitability as a surety, carefully review the questions and answers provided below.
Qualifications to be a Surety
Generally, a proposed surety must be a Canadian citizen or a Permanent Resident, must not have a criminal record or outstanding charges, and must not act as a surety for anyone else.
The Justice will evaluate how long you have known the accused, the nature of your relationship, and the frequency of your communication. An older family member, respected by the accused, often makes an ideal surety. Your character, background, community ties, and finances will be considered. A surety must be able to afford the bail amount independently of anyone else.
Financial Assistance
A surety should not accept money from another person solely to demonstrate sufficient wealth, as it may be perceived unfavorably by the Justice and could obstruct justice.
Witness or Complainant Restrictions
Witnesses generally cannot serve as sureties, though exceptions exist. Alleged victims are rarely appropriate sureties. If you are a victim, witness, or complainant, inform the lawyer immediately.
Preparation for Bail Hearing
Bring photo identification such as a driver's license, passport, or health card. To prove affordability, provide recent bank, RSP, or GIC statements, documents showing the value of your home and mortgage, and income stubs or tax assessment.
Contacting the Accused
Prior to the bail hearing, discuss the expectations and conditions with the accused. Consult with a Toronto bail lawyer, who can outline anticipated conditions. Ensure the accused understands the consequences of failing to comply.
Testifying Requirements
You may need to testify regarding your suitability as a surety. Prepare by reviewing our blog on DOs and DON'Ts of testifying.
Decision Criteria
The Justice will release the accused if satisfied that they will attend Court, adhere to conditions, and avoid further trouble. Seriousness and complexity of charges vary, requiring case-by-case evaluation.
Expected Conditions
Conditions depend on the charges, allegations, and accused's circumstances. They may include living arrangements, police reporting, curfew, counselling, restricted contact, and area limitations. Be prepared to explain monitoring plans if the accused does not live with you.
Payment for Surety Services
Accepting payment for acting as a surety is illegal and constitutes obstruction of justice.
Refund of Cash Deposit
Cash bail deposits are held by the Court and returned to the accused (not the surety) at the end of the case, provided no conditions are breached.
Liability for Breach of Conditions
Both the surety and accused may be financially liable if conditions are violated. Seek legal advice if facing an estreatment hearing, which is a hearing in the Superior Court of Justice where the prosecuting Crown Attorney is seeking to forfeit the amount pledged as a surety.
Reporting Condition Violations
As a surety, promptly report breaches to the police. Failure to report may affect financial liability.
Criminal Charges for Condition Violations
You could face charges if involved in breaches or if you fail to report them.
Duration of Surety Responsibilities
Surety responsibilities continue until the case concludes, which may take weeks, months, or years.
Applicability of Conditions Internationally
Conditions apply worldwide, not just in Canada.
Modifying Conditions
Conditions can be changed with mutual consent or through a bail review before a Judge.
Relinquishing Surety Duties
You can withdraw as a surety at any time, however, you may wish to consult the accused person's lawyer first to consider alternatives.
Consequences for Accused's Non-compliance
The accused may face criminal charges, bail revocation, and stricter conditions for future releases.
Retainer Payment and Instructions
Payment of a retainer does not grant instruction rights.
Control Over the Case
Sureties cannot provide instructions regarding the case.
Multiple Sureties
Multiple sureties may be proposed to share responsibilities. Each will be financially liable in the event of a failure to comply with the conditions of release.
Solicitor-Client Privilege
Communications by a Surety with the accused person's lawyer are not protected by solicitor-client privilege. This is because the surety is not the client. The client is the accused person not the surety.
Legal Advice for Surety
A surety should seek independent legal advice from their own lawyer, if they feel it is needed.
Defence Lawyer Assistance
A defence lawyer can advise on rights, risks, and obligations.
The Law Office of Kalina & Tejpal can assist with the release of accused held in custody for a bail hearing. Contact us at (416) 900-6999 or 1 (844) 268-6477.
