Bill C-48 -Changes to Bail

Amendments to the Criminal Code of Canada would make it harder to get bail for those who have already been convicted of violent or weapon offences, are under a court order to not have weapons, or are charged with domestic assaults. This legislation is a response to increased random violence on public transit and city streets.

It is important that you discuss you particular case with an experienced criminal lawyer.


  1. What is a surety?

A surety is someone, that the defendant knows, that volunteers to pledge two things money and supervision. A surety supervises the defendant in the community, makes sure they follow the conditions of their bail and is prepared to call the police if there are any breaches of bail.

  1. Can more than one person be a surety?

Yes, depending on the circumstances

  1. Does the surety have to provide the money right away?

A cash bail may be ordered if the defendant lives over 200 km from the area/courthouse where they get bail, or if the charges are very serious. Usually, the surety pledges the money, understanding this money is at risk if they do not enforce the bail conditions.

  1. Is it automatic for the surety to lose their money if the defendant breaches?

Only if the Crown Attorney notes the bail for estreatment,

  1. What is estreatment?

This is a hearing at the Superior Court of Justice, where the surety testifies how they supervised the defendant.

  1. Can I be a surety if I have a criminal record?

That depends. If the proposed surety is still on probation or a peace bond it might not be possible. If the record is old, over 5 years, that is possible.

  1. Can I be a surety for more than one person?

Usually, no as being a surety is a big responsibility.

  1. What are the minimum requirements of a surety?

At least 18 years old, a Canadian citizen or permanent record, not a surety for anyone else and have assets (savings, RRSP, house, car(in some jurisdictions).

  1. The defendant is not following his bail conditions, what are my options?

You can contact the police, attend at the court where you signed the bail and ask to be removed as a surety. You will be responsible for the defendant until s/he gets re-arrested.

  1. If I am removed as a surety, can I be a surety again for the same person?

It depends, if you turned them in and then change your mind, it may be possible.

  1. What are some conditions that could be imposed on a defendant?

Some frequent conditions, to not have contact with the complainant/witness, no weapons, and not to attend at a specific address.

  1. Can I suggest some conditions?

Yes. Your conditions could also be the house rules if the defendant lives with you.

  1. Does the defendant have to live with me?

It depends, it may be easier to supervise the defendant if they are closer.

  1. How long could someone be on bail?

A person is on bail until their charges are dealt with either by a plea, trial or withdrawal.

  1. What is a recognizance?

It is a listing of the defendant’s charges and conditions and the amount of the bail. A copy is given to the surety.

  1. When should I carry the recognizance?

All the time, if you are required to attend court on the weekend, bring a copy of bail.

  1. My family member has been arrested Friday night. Do we have to wait until Monday to attend court?

There is a court opened 365 days a year in each jurisdiction: Brampton, Toronto (Old City Hall), Newmarket, Hamilton, Oshawa.

  1. My child has breached his bail, can I sign again?

Often the courts allow a parent to sign multiple bails for a young person, who is between 12-17 years of age.

  1. The defendant/surety want to change conditions on the bail, how is that


If the defendant has a lawyer, the lawyer can contact the assigned Crown Attorney and ask to vary the bail conditions. If the defendant does not have a lawyer they may get assistance at the duty counsel’s office, who can have a meeting with the Crown and request changes to the bail.

  1. How long does it take to vary the bail conditions?

Depends on how quickly the Crown Attorney can contact the officer in charge (OIC) of the file and receive an answer and whether the defendant has proof of why the change is needed.

  1. What proof is needed to vary the bail conditions?

A job letter, job/school schedule, lease showing a new address.

  1. Can the bail be changed if the Crown Attorney does not agree?

Depends, counsel for the defendant will have to bring an bail review application before the Superior Court of Justice to argue the bail variation.

  1. What is required for a bail review?

The transcript of the bail hearing, affidavits from the defendant and surety requesting the change(s) to the bail.

  1. How will I know if and when the bail is changed?

A bail variation form will have to be signed by the defendant, surety, Crown Attorney and justice before the bail is varied.

  1. I am going on a holiday without the defendant, can someone else be a surety while I am gone?

No, a person can not substitute a surety on their own.

  1. How many chances does someone have for bail?

An initial bail hearing, if detained, counsel can bring a bail review before the Superior Court of Justice (see #23). A bail hearing can occur after a preliminary hearing. If the defendant is a young person, a bail de novo can occur on another date.

  1. The defendant was released, now the Crown Attorney is trying to get the defendant detained, can they do this?


  1. Can someone give me money to be surety for someone?

No, you should have your own assets.

  1. What is bail program?

This is a government program that provides a person with supervision if there are no one in the community that can or want to assist. If someone can not make it to court for a few days, bail program will not assist.


The material in this FA.Q is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer – immediately. Prince Law Office 416-469-3443




Estreatment Hearing

An estreatment hearing is the Crown’s attempt to obtain some or all of the money pledged for bail. The Crown can seek this money if the defendant has breached her bail, that is was charged with a further Fail to Comply Recognizance, Fail to Comply Undertaking while under bail conditions. The crown may seek to have the bail estreated if the defendant does not show up for court and there is not a reason why he is not at court. The crown may also request estreatment if the defendant is charged with new charges while out on bail even if a fail to comply recognizance is not one of the charges.

Once someone is charged, while out on bail the crown may seek to cancel any previous releases and are able to do so according to section 524 of the Criminal Code of Canada and the Crown may seek to estreat any previous bails as well.

Notice is provided to the surety and the defendant at their last known addresses by way of registered mail. A hearing is held at the Superior Court of Ontario. At the hearing, the surety and the accused may testify as to why the bail should not be estreated because of steps they took. Once an estreatment order has been granted, there is no opportunity to appeal.

Being a surety is a lot of responsiblity, please contact our office at 416-469-3443 if you have any questions about being a surety or an estreatment hearing.

Why should someone be released on bail?

A judge or justice of the peace can consider three important areas before deciding whether to release a person charged with a criminal offence.

One will they come to court. If there is a criminal record where someone has fail to appears or escape lawful custody convictions, or if there is a possibility of a long jail sentence the court will be concerned about whether the accused will come to court.

Second, will they get into further trouble. The court will look at a criminal record because past behaviour predicts future behaviour. If there is not a criminal record the court will look at any outstanding charges to see if past charges are similar. The court will also check whether there has been any breaches of bail or probation – that means the accused did not follow previous court orders. Another concern is whether the victim/witnesses will be harmed if the accused is released.

Third, the court will ask will the administration of justice be compromised if this person is released because of the nature of the offence, whether a firearm was used, the seriousness of the offence and the possibility of a long jail sentence.

These are the main concerns of the court and then the court looks at the person who has stepped forward to sign the bail for the accused. Do they know the accused, can they supervise and keep the accused out of trouble and will they call the police if the accused breaches her bail conditions.

These are the main concern of the court.

Who is responsible for a breach?

Can we hold the police and sureties civilly responsible when an accused person breaches their bail and commits further offences – even murder? This is the claim of the 2 families who are suing the Eaton’s Centre, the police, the government for not doing enough to stop Mr. Christopher Husband before his shooting rampage on June 2, 2012 at the Eaton’s Centre.

It will be interesting to see how the case progresses, here is the link to the article in the Toronto Star.

How to be a surety?

You get the call late at night or early morning on the weekend, someone you know and love has been arrested and they want you to come to court to sign a bail. You are still trying to understand what the police officer or duty counsel is saying to you.

Signing a bail means that you are supervising someone who has been charged with one or more criminal offenses, out in the community. As the supervisor, you are promising the court, that you will make sure that the defendant will attend their court dates and that they will follow all the rules of the bail. This promise by you is backed by a pledge of money – you will risk an amount of money if you do not fulfill your promise and or if the defendant is charged again.

When someone is arrested, the court and crown attorney are concerned about 3 issues:

1. Will the defendant come to court when they are required to;
2. Will the defendant commit further criminal offenses generally;
3. Will the public be outraged that this person is being released because of the type of the offense

So you run to court – bring your government issued identification to show who you are. Bring bank statements, pay stubs, rrsp or other investment statements, mortgage or deed showing that you have valuable property.

A good surety does not have a criminal record or if they have one from long ago – at least 10-15 years earlier. They are a Canadian Citizen or Permanent Resident and is not a surety for anyone else (unless it is for a a minor – someone younger than 18 years old.