In Canada, if the accused commits a new offence while out on bail, the surety generally does not face criminal charges or jail time. However, the Crown can initiate an “estreatment hearing” to seize the money or property the surety pledged. A surety is only criminally charged if they actively helped the accused commit the new crime or intentionally aided in breaching the bail conditions.
Acting as a bail surety for a friend or family member is one of the most profound responsibilities in the Canadian justice system. When you sign a bail recognizance, you are essentially promising the court that you will supervise the accused and ensure they follow strict rules. Naturally, many people worry about their own freedom if the accused makes a terrible mistake.
Whether the accused is facing a minor summary conviction or a serious indictable offence, the rules for sureties remain consistent across Canada. If you live in Toronto, Vancouver, or Winnipeg, it is vital to understand your legal exposure. This guide explains what happens to a surety when a bail condition is broken or a new crime is committed, and how a criminal defence lawyer can help protect your assets. 📍
Step-by-Step Process in Canada
When the police discover that an accused person on bail has committed a new offence, the accused is typically arrested immediately and their bail is revoked. For the surety, a separate legal process begins.
Step 1: The Arrest of the Accused
If the accused is caught committing a new crime, they will face fresh criminal charges alongside a charge for breaching their bail conditions (failure to comply). They will be held in custody, and achieving bail a second time becomes incredibly difficult. 🚨
At this stage, the police may contact you as the surety to inform you of the arrest. It is crucial to understand that unless the police have evidence that you participated in the new crime, you are not a suspect. You do not need to pack a bag for jail.
Step 2: Receiving the Notice of Estreatment
While you may not go to jail, your wallet is in serious danger. The Crown prosecutor will likely apply for an estreatment hearing. Estreatment is the legal process where the government seizes the money or property you promised to the court when you signed the bail papers. 💰
You will receive a formal notice in the mail commanding you to appear in court. This notice will state the date and time of the hearing, usually at the local Superior Court of Justice or Court of King’s Bench. Ignoring this notice will result in the automatic loss of your pledged assets.
Step 3: Preparing for the Estreatment Hearing
An estreatment hearing is your opportunity to convince a judge not to take your money. You must prove that you took your duties seriously and that the accused’s new offence was completely out of your control. ✍️
A skilled lawyer from a reputable law firm will help you gather evidence. This might include text messages showing you checked in on the accused, proof that you called the police when you suspected a breach, or testimony about your diligent supervision. The judge has the power to seize all of the money, part of it, or forgive the debt entirely.
Step 4: Relieving Yourself as a Surety (Before a Breach)
If you suspect the accused is hanging around the wrong crowd or is about to commit a new offence, you can legally protect yourself before it happens. You have the right to revoke your surety status at any time. 🚫
To do this, you must go to the courthouse and apply to be relieved of your duties, or physically bring the accused to the local police station and surrender them. Once you are officially relieved, you are no longer financially responsible for their future actions.
How Much Does it Cost in Canada?
The financial consequences of a breached bail can be devastating. As a surety, you are legally on the hook for the amount you promised. 💵
- Pledged Bail Amount: This varies wildly. For minor offences, it might be $500 to $2,000 CAD. For major indictable offences, pledges often range from $10,000 to $100,000 CAD or the equity in your home.
- Lawyer Fees for Estreatment: Hiring a defence lawyer to represent you at the estreatment hearing generally costs between $2,500 and $7,500 CAD.
- Court Costs: If you lose the hearing, the court will issue a judgment against you, and they can garnish your wages or place a lien on your property to collect the debt.
How Long Does the Process Take?
If the accused is arrested for a new offence, your involvement in the estreatment process can drag out for several months. ⏱️
The Crown usually waits until the dust settles on the accused’s new charges before scheduling the estreatment hearing. It can take anywhere from 3 to 12 months to receive your hearing date. Once in court, the hearing itself is usually completed in a single afternoon.
Frequently Asked Questions (FAQ)
What if I didn’t actually deposit cash for the bail?
In Canada, many sureties sign a “pledge” without depositing upfront cash. If the accused breaches bail, the Crown will sue you for that pledged amount. If you don’t pay it, they can seize your assets or garnish your income.
Can I be a surety for someone else if I lose an estreatment hearing?
It is highly unlikely. If a judge orders your assets seized because you failed to supervise an accused person, your credibility with the court is ruined. Future judges will generally reject you as a surety.
What if the accused is found not guilty of the new offence?
Even if the accused is later acquitted of the new crime, the fact that they breached their bail conditions (e.g., by being out past curfew when the incident happened) might still be enough for the Crown to pursue your pledged money.
Can the police charge me with aiding and abetting?
Yes, but only if you actively participated. If you drove the accused to a location knowing they were going to commit a crime, or if you intentionally hid their weapons, you can be charged as an accessory. Merely failing to supervise them only costs you money, not your freedom.
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