A surety is a responsible person who knows the accused well and promises the Court to help ensure that the accused re-attends as required and follows the release conditions imposed. In some case one surety is sufficient to secure release. In other cases, several sureties might be necessary.
Sureties sign the Recognizance of Bail before a Justice of the Peace. To fulfil their obligations, Sureties must genuinely intend to call the police if the accused is not following bail conditions, among other things. In support of their promise to supervise the accused, Sureties usually pledge an amount of money that they could be forced to actually pay out by way of estreatment if the accused breaches bail and the Crown actually opts to pursue estreatment proceedings. Sureties are able to withdraw from their role by attending at the office of the Justice of the Peace. Sureties can also be immediately relieved of their obligation by surrendering the accused into custody directly.
Prospective Sureties should expect to testify at the bail hearing and to be challenged through the prosecutor’s cross-examination as to whether they are suitable for the role. In this regard, being prepared for testimony by an experienced criminal lawyer can make the difference in the result. Anyone considering acting as a surety might also be assisted also by a look at the Attorney General’s website under “Acting As a Surety Is a Serious Matter”.
Mr. Clark works closely with sureties to ensure that they understand what their role is, are truly able to fulfil it, and are therefore able to be part of a winning bail hearing. The Surety or Sureties are usually the centrepiece of the type of release plan that moves a Justice of the Peace to order release. A winning bail hearing requires that prospective sureties truly understand what is involved in being a witness, how to avoid having the truth distorted by cross-examination, and what to expect from the process generally, from arrival at the courthouse to actually securing the prisoner’s release.
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Acting as a Surety obviously is a serious matter. There are few statistics available on the number of estreatment proceedings in Ontario as a percentage of cases where bail was breached. A defence lawyer would not want to be quoted directly in the media with the observation that “I have often reminded sureties that the money they pledge is only at risk theoretically since the Crown rarely goes after them”. In any event, the accused person’s lawyer is not in a position to give potential sureties independent legal advice which would include reference to the decision of the Court of Appeal for Ontario in the case of Canada (Attorney General) v. Horvath, 2009 ONCA 732 where the Court stated at paragraph 51 and following:
…the diligence of the surety is only one factor relevant to a forfeiture hearing. In the end, the judge must attempt to balance various considerations in exercising the discretion conferred by s. 771(2). I do not think it is helpful or even possible to develop an exhaustive list of the factors that the judge should take into account in exercising this discretion. Further, not all factors will be of equal relevancy or weight in all cases. A review of the cases does, however, show that there are categories of factors that the courts regularly take into account, including: the amount of the recognizance; the circumstances under which the surety entered into the recognizance, especially whether there was any duress or coercion; the surety’s diligence; the surety’s means; any significant change in the surety’s financial position after the recognizance was entered into and especially after the breach; the surety’s post-breach conduct, especially attempts to assist the authorities in locating the accused; and the relationship between the accused and the surety.
 Before turning to the particular applications at issue in this matter, I would make three remarks relevant to forfeiture proceedings generally. As noted above, the onus is on the surety to show why full forfeiture of the recognizance should not be ordered. The circumstances relevant to the exercise of the court’s discretion to relieve against full forfeiture are largely within the knowledge of the surety. Sureties asserting that they should be relieved from forfeiture of any amount of the recognizance have the obligation to adduce credible evidence to support their position. The courts should also take into account that the Crown will often not be in a position to adduce evidence to refute those claims.
 Second, when hearing forfeiture applications, courts should remember that a bail order is a court order, and it is not open to the surety to mount a collateral attack on the appropriateness of that order. There was some hint of this approach in the Mirza case, the suggestion being that the $500,000 surety was out of proportion to the nature of the fraud and was excessive. There were procedures in place that Adnan or his sureties could have utilized if they considered the order to be inappropriate. Adnan could have sought review of the order. Additionally, of course, the Mirzas were not required to enter into the recognizance, and even after having done so they could have applied to be relieved as sureties in accordance with ss. 766 and 767 of the Criminal Code.