If an accused person commits a new crime while on bail, a surety is generally not personally sued by the victim. However, because committing a new offence usually violates the standard bail condition to “keep the peace and be of good behaviour,” the Crown can hold an estreatment hearing to seize (forfeit) the money you pledged to the court.
Stepping up to be a surety for a friend or family member is a massive responsibility. When you sign a bail recognizance, you are essentially acting as a civilian jailer. You promise the court that you will supervise the accused, ensure they attend all their court dates, and enforce their strict bail conditions. To back up this promise, you pledge a specific amount of money.
Many people worry about their financial ruin if the accused goes out and breaks the law again. 🚨 The Canadian justice system does not hold you criminally responsible for someone else’s new crimes. You cannot be sent to jail because they decided to steal a car or assault someone. However, the financial pledge you made to the court is absolutely at risk if their new crime breaches their release conditions.
Step-by-Step Process in Canada
When the accused commits a new offence, a specific legal chain of events is triggered regarding your pledged money. Here is the process of what happens and how you might defend your funds.
Step 1: The Arrest on New Charges
The process starts when the police arrest the accused for a new criminal offence. Because they were on bail, they will almost certainly be charged with an additional offence for breaching their release conditions. The moment they are arrested, your role as their surety is effectively paused, and they will likely be held in custody pending a new, much tougher bail hearing.
Step 2: Notification of Estreatment
If the Crown decides to pursue the money you pledged, you will receive a formal notice to attend an estreatment hearing. 📄 This is a special court proceeding where the judge decides if you must pay the pledged amount to the government. You must attend this hearing; ignoring it will result in an automatic order against you.
Step 3: Preparing Your Defence
Before the hearing, you and your criminal defence lawyer will gather evidence to show you did your job properly. You must prove that you supervised the accused to the best of your ability and that you immediately called the police the moment you suspected they were violating their conditions. If you hid their bad behaviour, you will likely lose the money.
Step 4: The Estreatment Hearing
During the hearing, the judge will listen to the Crown’s argument on why the money should be forfeited. ⚔️ Your lawyer will then present your side. The judge understands that a surety is not a superhero who can monitor someone 24 hours a day. They will assess your level of fault, diligence, and whether you reported the breach.
Step 5: The Judge’s Decision
The judge has the power to order the full amount forfeited, a partial amount, or nothing at all. If the judge orders you to pay, the money becomes a debt owed to the Crown. If you cannot pay it immediately, the government can take civil enforcement steps, such as garnishing your wages or placing a lien on your property.
How Much Does it Cost in Canada?
Defending your pledged bail money can be an expensive and stressful process. Here is what you can expect to pay if things go wrong.
- The Pledged Amount: This is the most obvious cost. If you pledged $5,000 CAD without deposit, and the judge orders full estreatment, you owe that exact amount to the court.
- Lawyer Fees: Hiring a law firm to represent you at an estreatment hearing generally costs between $1,500 CAD and $4,000 CAD.
- Civil Enforcement Fees: If you fail to pay the forfeited amount, the government may add collection fees, interest, and legal costs to your debt.
| Potential Expense | Estimated Cost (CAD) | When It Applies |
|---|---|---|
| Bail Pledge Forfeiture | Varies (Amount Pledged) | If the judge rules you failed your duties. |
| Legal Representation | $1,500 – $4,000 | To defend yourself at the estreatment hearing. |
| Court Filing Fees | $0 | No fee to attend your own hearing. |
How Long Does the Process Take?
The timeline for an estreatment hearing is usually quite slow. After the accused is arrested on new charges, it can take anywhere from 3 to 8 months for the Crown to schedule the estreatment hearing. If the judge orders you to pay the pledge, they will typically give you a deadline (such as 30 to 90 days) to come up with the funds before collection actions begin.
Frequently Asked Questions (FAQ)
Can the victim of the new crime sue me?
Generally, no. Under Canadian law, a surety is not held civilly liable for the independent criminal actions of the accused. The victim cannot sue you for damages unless they can prove you directly participated in or facilitated the new crime.
How can I protect my money if I suspect they will re-offend?
You must revoke your surety status immediately. You can do this by going to the courthouse and filling out a form to be relieved of your duties, or by calling the police and physically turning the accused in before they commit a new offence.
Do I have to pay cash upfront to be a surety?
In most Canadian provinces, no. Courts usually accept a pledge “without deposit,” meaning you just sign a document promising to pay if the accused breaches. However, if the accused lives out of province, the court may demand a cash deposit upfront.
What if I didn’t know they committed a new crime?
If you genuinely did not know, and you were diligently fulfilling your supervisory duties (like checking in on them and ensuring they were home for curfew), your lawyer can argue that you should not forfeit the money because you were not negligent.
Can I go to jail if I cannot pay the estreatment?
No. We do not have debtor’s prisons in Canada. However, the Crown will treat it like any other civil debt and can seize your assets, garnish your wages, or put a lien on your house to recover the funds.
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