Asked to be a surety in Ontario: what are you agreeing to?

A surety promises the court two things: to supervise the accused while the case is open, and to pay a set amount of money if the accused breaks a bail condition or misses court. You sign a sworn declaration first, the court decides whether you are suitable, and the duty lasts until the case ends or the court relieves you. It is against the law to be paid for it.

Sureties come up at bail hearings in Ontario, usually with very little notice. If a family member or friend has asked you, here is what the role involves, in the order you will meet it.

What does a surety actually promise?

Ontario's Ministry of the Attorney General describes a surety as the accused person's supervisor in the community while the case is before the courts. You are responsible for making sure the accused comes to court on time and obeys each condition of the release order. If you are accepted, you sign the release order and pledge a specified amount of money.

The pledge is usually a promise to pay, not cash up front. The Criminal Code tells the justice to prefer a promise to pay over a cash deposit when the accused or the surety has reasonably recoverable assets (s. 515(2.02)). Ontario's Crown policy on bail adds that the amount must be within the means of the accused and the surety; an amount nobody can reach has the same effect as a detention order. Where money is deposited, it is returned when the case is over and the bail terms have been followed.

You cannot accept a fee or be paid back for acting as a surety. The province's court guidance is direct about this.

Is a surety always needed?

No. Bail in Canada follows a "ladder": the justice starts at the least restrictive form of release and only moves up if the prosecutor shows why the lower rung would not be enough (s. 515(2.01)). Before ordering a surety, the justice must be satisfied it is the least onerous form of release possible for the accused in the circumstances (s. 515(2.03)). Ontario's Crown Prosecution Manual calls a surety release one of the most onerous forms and says a surety should not be requested unless every lesser form has been considered and rejected. Different rules apply where the accused carries the burden at bail, known as a reverse onus. The same Crown policy says supervision may also come from a Bail Verification and Supervision Program, or from community groups or organizations, rather than a family member.

What do you sign, and what will the court ask you?

Before a court names you as a surety, you give it a signed declaration under oath or solemn affirmation in Form 12 (s. 515.1). It covers:

• your name, date of birth and contact information, and your relationship to the accused;
• information showing you are suitable, including your finances;
• anyone else you are already a surety for;
• that you know the charge, any other outstanding charges, and the accused's criminal record;
• the amount you are willing to promise or deposit, and that it can be forfeited;
• that you understand the role and take it on voluntarily; and
• your own criminal record and any outstanding charges.

Ontario's Crown policy says that, although surety approval is up to the court, prosecutors should generally use the surety's affidavit and an out-of-court approval process where one is available, so the process stays efficient and minimally intrusive. The declaration can be sent electronically in a form that produces a writing. A judge or justice of the peace then decides whether you are suitable by looking at your financial means, your character, your background and your ability to supervise, and you may be questioned in court. A person convicted of an indictable offence in the ten years before the release order cannot be named as a surety unless the court is satisfied no other suitable surety is available and it is in the interests of justice (s. 515(2.11)).

Under the Ontario Court of Justice's practice direction, sureties may appear in person or by video unless directed otherwise, and by audio with the presiding officer's permission. In Toronto, adult bail hearings are held at the Toronto Regional Bail Centre on Finch Avenue West. A charge laid in York Region is heard at the Newmarket courthouse. If English is not your strongest language, ask the accused's lawyer to request an interpreter for you; the Ministry provides interpretation in any language required in criminal matters, and its interpreter page lists sureties among the people who may need one. A surety who speaks mostly Persian (Farsi) can do the job well, as long as they truly understand every condition they are promising to enforce.

How long does the obligation last?

Until the case is completely over, which can take a long time. Adjournments and a change in the place of trial do not end it (s. 763), and it continues after a finding of guilt until the accused is sentenced or discharged (s. 764). Because you are part of the release order, any change to it on consent needs your written consent along with the accused's and the prosecutor's (s. 519.1). In the Ontario Court of Justice, sureties complete their own part of the consent variation form. Our page on changing a no-contact bail condition walks through that process when the accused shares children or a home with the complainant.

What happens if the accused breaks a condition or misses court?

The accused can be charged with a new offence, and you can be asked to pay what you pledged. The process has fixed steps:

Can you stop being a surety?

Yes, at any time. You can apply in writing to a court or justice to be relieved (s. 766), or bring the accused before the court and surrender them into its custody (s. 767). In both cases the court orders the accused committed to custody, and your obligation ends once that is recorded. The province's guidance adds a safety point: if you think the accused is a threat to you, do not try to bring them to court yourself. Once the court makes the order, police are responsible for the arrest. Because stepping down sends the accused back into custody, it helps to speak with their lawyer first about whether someone else can take your place.

What changes the answer?

• Who carries the burden. In a reverse onus case, for example some charges laid while the accused was already on release, the accused must show why release is justified (s. 515(6)). A strong surety plan often matters more there.
• Your own record. A conviction for an indictable offence in the last ten years bars you unless no other suitable surety is available and it is in the interests of justice (s. 515(2.11)). Outstanding charges are part of what the court weighs.
• Your means. Crown policy says the amount must be within the means of the accused and the surety. A promise you cannot honour helps no one.
• Where you live. Supervision is easier to show when you live with or near the accused. If the accused lives outside Ontario or more than 200 kilometres away, a deposit can be required (s. 515(2)(e)).
• The conditions themselves. A condition to live with you, a curfew or a no-contact term changes what supervising means in practice. In domestic violence cases in Ontario, no-contact terms are common, and supervising means acting on a breach even when the family wants peace.
• Other people you supervise. The declaration asks whether you are already a surety for anyone else, and the court may doubt you can supervise two people at once.

For example: a parent as surety at the bail centre

This is a hypothetical, not a real client or a result. Suppose a 21-year-old from Thornhill is arrested in Toronto on a Friday night and held for a bail hearing. His father, who has lived in Canada for 15 years and speaks mostly Farsi, is willing to be his surety. The lawyer explains the role to the father in Farsi, including that he will have to report any breach, and asks the court for a Persian interpreter for him.

The father completes the Form 12 declaration and appears by video from home. He is asked about his job, his savings, the house rules and whether he knows the charge and his son's record. The justice accepts him, and the son is released to live with him under a curfew and a no-contact condition. Three months later, the son wants to move out for work. Because the father is part of the release order, the change needs a consent variation with his written consent, or a court order, before the son moves.

What mistakes do sureties make?

1. Agreeing without reading the conditions. You are promising to enforce every one of them, for the life of the case.
2. Pledging an amount out of loyalty, not means. If a default happens, the amount can become a judgment debt (s. 771(3)).
3. Staying quiet about a breach. A surety who knows the accused is breaking a condition and does nothing will find it harder to explain at a forfeiture hearing why the money should not be lost. A breach is also a new charge for the accused; see the penalties for breaching a bail condition.
4. Accepting money for the role. It is against the law to accept a fee or be paid back for acting as a surety.
5. Forgetting the obligation lasts. Adjournments do not end it (s. 763), and it continues until sentence or discharge (s. 764). Missed court dates count too; see what happens after a missed court date.
6. Trying to bring a dangerous accused to court alone. The province's guidance says not to; apply in writing instead and let police make the arrest.

What can you do this week?

1. Ask the accused's lawyer for the exact conditions being proposed, and read them twice.
2. Gather proof of your identity, address, job and finances for the declaration.
3. Write down the accused's charges, any other outstanding charges and their record, as you know them.
4. Decide honestly how you will supervise: who is home, when, and what you will do if a condition is broken.
5. If you will need an interpreter, tell the lawyer now so it can be requested.
6. Consider independent legal advice, as the province recommends, before you sign.

Frequently asked questions

Can more than one person be a surety?

Yes. The Code allows release with one or more sureties (s. 515(2)(c)). Two sureties can share supervision, for example a parent at home and a sibling who works nearby, but each signs the order and each pledge can be forfeited.

Can I be a surety if I am travelling to Iran for part of the year?

A surety must actually be able to supervise for as long as the case lasts. If you will be away for long periods, the court may not see you as suitable, and if plans change after release, you may need to apply to be relieved or have another surety take over.

Will I have to pay money on the day?

Usually not. The Code tells the justice to prefer a promise to pay over a cash deposit when the surety has reasonably recoverable assets (s. 515(2.02)).

Can I be a surety by video?

Under the Ontario Court of Justice practice direction, sureties may appear in person or by video unless directed otherwise, and by audio with permission.

What if the accused breaches and I act on it?

Acting on a breach is part of supervising. At any forfeiture hearing you can explain what you did, and the judge may order you to pay all, part or none of the amount (s. 771(2)).

Does being a surety affect my own record or immigration status?

Being a surety is not a charge or a conviction. The risk the Criminal Code sets out for a surety is financial: forfeiture of the amount pledged (s. 771).

Getting help

Ontario's court guidance recommends that anyone considering the role get independent legal advice, and says that if you are not sure you can supervise the accused in the community, you should not agree. Gambriani Law PC prepares release plans for bail hearings and explains the surety role to families in English and Farsi. If the arrest happened late in the week, read when a weekend or holiday bail hearing happens in Toronto. Our first-week checklist covers what comes after release. Families more at ease in Persian can start with our guide for Persian-speaking people charged in the GTA.

This page is general information about Ontario bail law, not legal advice about your situation.