800 words; 4 minutes to read
By volunteer Emily Stewart (who also did the audio summary)
In Canada, most people arrested and detained by police are released until trial after a bail hearing. Release on bail is generally subject to several conditions. These conditions are supposed to be only those necessary to ensure that the accused will appear in court, prevent the accused from committing an offence, and maintain the public’s confidence in the administration of justice. Previous posts have discussed evidence that bail conditions are often excessive and counterproductive.
Policing family and friends
One of the more common bail conditions is the use of sureties. A surety is a family member or friend who agrees to supervise the accused on bail. The idea is that the surety can reduce the accused’s risk to public safety through providing some assurance to the court that the accused will be monitored.
A surety is responsible for managing the risk of the released person on behalf of the state. In many ways, this process reshapes the relationship between the state and private citizens by requiring relatives or friends to provide surveillance and control. The law is used to control both the accused and the surety, compelling citizens to act as police in private settings. Imagine being a parent who now has to supervise your adult child 24 hours a day. This is hardly conducive to strong family bonds!
Some of the responsibilities of a surety include ensuring that the accused person attends all court-ordered appointments, complies with all bail conditions, and does not commit a new offence. Sureties are supposed to know where and what the accused is doing and report any failure to comply with conditions. It is not uncommon for the courts to ask the surety to call the accused at work, drop by unexpectedly, drive them to and from work or appointments, or accompany the accused when outside of their residence.
The courts can also require that the accused reside with their surety until the charges are resolved. While this may make supervision easier, it can also be highly disruptive for everyone concerned . Accused persons may have to uproot their lives to move in with their surety. This can be particularly impractical for those who may be forced to leave their homes, partners, and children to adhere to their court order.
Who can be a surety?
Accused persons are expected to find someone who is not only willing to take on these responsibilities but also deemed acceptable by the court. While the Criminal Code does not list the criteria needed to be a surety, research suggests that a wide range of factors may be considered. These include having a close relationship with the accused, being willing to supervise the accused, and not having a criminal record or knowing anything about the alleged offence.
The surety may be required to demonstrate to the courts that they have funds to forfeit should the accused fail to comply while on release. This signals to the sureties the seriousness of their responsibilities and encourages both the surety and the accused to abide by the conditions of release.
Requiring a surety for release on bail assumes that all accused have people willing and able to undertake these responsibilities. Yet many people with disadvantages or who have a history of state intervention often lack the resources that the courts require, such as having people within their networks who do not have a criminal record or who could forfeit a substantial sum of money should the accused fail to comply.
Are Canada’s courts setting the accused up to fail?
Sureties are one of the most onerous conditions of release. Not only does a surety requirement subject the accused to increased levels of surveillance, but they give sureties considerable power over the released person. For example, while the courts are prohibited from imposing treatment conditions as a condition of bail, they may encourage the surety to require the accused to attend and participate in programming. Generally, under the requirement to ‘be amendable to the rules and discipline of the home‘, a surety can require that the accused engage in treatment and programs for things like addiction, anger management, and general counselling.
Therapeutic conditions are questionable at the bail stage given that no assessment has been performed and no inquiries have been made into the availability and cost of treatment. There are also numerous privacy implications, as the accused must give their surety access to their private medical records to facilitate the monitoring of their progress.
Canadian courts have recognized that requiring sureties can impose unfair burdens on many accused and unnecessarily hinder release (see R. v. Antic and R. v. Zora). Yet, despite these reminders, the courts continue to create overly restrictive bail orders, expecting the accused person to adhere to many conditions, including having to produce a surety.
Emily Stewart is a recent graduate from Queen’s University, having completed her Master’s in Sociology with a specialization in Criminology, and is an active volunteer with the John Howard Society’s Blog. To connect with Emily, you can find her LinkedIn here.