Criminal Law

A surety is a person who comes to court to help get you out of jail. They make a promise to the Court that they will make sure you don’t breach the terms of your bail and that you will attend court as required. They are required to pledge a sum of money that they could lose if you breach. They can also be charged with an offence if they allow you to breach. The person you ask to be your surety takes on a very important supervisory role with the expectation that you will comply with the terms that the Court sets out for you. It is an important job and not everyone is cut out for it.

If you’ve been previously released from jail and you breach the terms of your bail, or you commit further offences while out on bail, you land yourself in a reverse onus situation. The commission of certain offences can also bring about a reverse onus situation. In Canada, we have the constitutional right to reasonable bail and in most cases, it is the Crown’s job to show why an accused person should be held in custody. In a reverse onus situation, it becomes harder for an accused person to be released because they have to prove why their detention is not necessary.

That’s not as simple of a question as you might think. In certain circumstances, the police make the decision whether to keep you in custody for a bail hearing or to release you without the need for bail. If the police hold you, then you appear before a Justice of the Peace. In that situation, the Crown has to decide whether they wish to show cause why you should be detained. If the Crown consents to your release, the Justice of the Peace can follow the Crown’s recommendation for terms of bail or he or she can come up with their own terms. If the Crown doesn’t think you should be released, then you’re having a bail hearing, after which a Justice of the Peace will make the decision about your bail. In some rare circumstances, a judge makes the decision.

The information on this page is not meant as legal advice, but you do have certain rights upon arrest. You have the right to remain silent. You have the right to call any lawyer you choose to call. In Canada, it isn’t like what you see on television where the person only gets one phone call. All reasonable efforts will be made to be sure that you have spoken to the lawyer of your choice. In order to determine whether you should speak to police about the incident, you should speak to a lawyer. There are certain times when you are required to speak to a police officer. For instance, if you are in a motor vehicle collision, you are required by law to report it. This is an exception to the right to remain silent. There are still precautions to take and you should always consult with a lawyer before speaking to an officer. If, however, you are pulled over at a RIDE check, you are not required to answer when an officer asks you how much you’ve had to drink. When in doubt, speak to a lawyer before saying something you might regret.

There is a set of prescribed tests that you must do when asked by police. Similarly, if they ask you to provide a breath sample, you must do so. The penalty for failing to provide a sample is the same as providing a sample that is over the legal limit.

If you breach your bail, you will be re-arrested and a charge of failing to comply with your bail will be laid. Both you and your surety stand to lose the money pledged when you had your bail hearing and, depending on the circumstances, your surety could be charged too. It will also make it more difficult for you to get out on bail a second time.

There is a separate set of laws that pertain to youth. They are sentenced differently, tried differently, publication of the identity of the youth is generally prohibited. You need to speak to a lawyer who knows the ins and outs of the Youth Criminal Justice Act.