A Criminal Mind: A surety by any other name . . .

Why can’t a surety post a cash bail in his own name? The surety makes an undertaking to ensure that the accused will appear for court and follow his bail conditions.

He makes a pledge, generally of money, to the court, but he does not and cannot deposit the security that he pledges. Section 515(2) of the Criminal Code only provides for the deposit of money, or other valuable security, by the accused.

The illogic of this anomaly of bail is constantly evident in our bail courts. When your client has been arrested, you call his family to see if they will serve as sureties, and they answer, “How much is the bail?”

The Bail Reform Act, S.C. 1972, c. 37, established a basic entitlement to bail: see R. v. Pearson, [1992] 3 S.C.R. 665. Poverty does not preclude the granting of bail.  Furthermore, s. 11(e) of the Charter of Rights constitutionalizes the right to reasonable bail: The accused has a right not to be denied reasonable bail without just cause.

Interestingly, the original provisions of the act provided for a deposit of cash or other valuable security by the accused only where the accused was not ordinarily resident in the province, or did not reside within 100 miles of the place where he was in custody, and this was with or without sureties.

The code presently provides for two situations in which a cash deposit may be ordered. The first is “with the consent of the prosecutor . . . without sureties” (s. 515(2)(d)). The second is the metric version of the old one from the Bail Reform Act: “If the accused is not ordinarily resident in the province . . .  or does not ordinarily reside within 200 kilometres of the place in which he is in custody . . . with or without sureties” (s. 515(2)(e)).
 
Sureties commonly believe that the cash bail will be returned to them if the accused follows his conditions and appears for court. Counsel should caution them that any money which is deposited is deposited in the client’s name, and it can only be returned to the client. It becomes the client’s cash, absent a bail assignment.

The surety must still make a pledge of money (or something of value) to the court, thereby doubly indemnifying the accused. If the surety only has that one sum, and it is all of the money available, then he cannot actually serve as a surety, because he is no longer in a position to pledge money to the court. 

No one can indemnify the surety. The accused cannot indemnify his surety, or he is guilty of the offence of obstructing justice under s. 139(1)(a) of the code, and, likewise, the surety cannot accept a fee or indemnity for serving as a surety, as this would violate s. 139(1)(b). He would also be obstructing justice.

There is a kind of logic to keeping the surety on the hook for the money that would be estreated if the accused breaches or absconds, but what if the surety has spent it? Certainly, the surety can relieve himself of his obligation by rendering the accused to the court, but, ironically, only the accused could apply to reduce the surety’s obligation, because the surety is not a party to the proceedings.  Another surety could also be substituted (s. 767.1).

Safely placing the surety’s security with the court is logical. As it stands now, at estreatment proceedings the surety may be ordered to come up with his security (or, if the judge is kind, a portion of it), while the surety could have simply deposited it with the court at the outset.

If the sheriff certifies that the surety is unable to satisfy the debt, then, after a show cause hearing, a surety can actually be incarcerated if they fail to make good their pledge (see s. 773).

Much as I enjoy the light entertainment of Dog the Bounty Hunter and his merry crew of relatives, I am more than comfortable with not having bail bondsmen and bounty hunters in Canada. The bail bondsman has a purely financial relationship with the accused. He is not a true surety.

A surety in Canada has a close relationship with the accused, and usually will have the accused live with or near him. Our system works: such changes would be minor. Permitting the surety to deposit his security with the court would surely be the clearest demonstration of the surety’s faith in the person whose conduct he is guaranteeing.

This would give legal recognition to the reality that the money that was deposited was really the surety’s, and would simplify estreatment proceedings, not to mention avoiding the ugly spectre of incarcerating indigent, errant sureties.

Rosalind Conway practises criminal law in Ottawa. She can be reached at [email protected].

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