Anyone who’s been released from police custody while awaiting trial for criminal charges risks severe consequences if they break the conditions listed in their bail release form. Breaking bail conditions is a criminal offence that carries stiff penalties, including up to two years in prison, revocation of bail, and a much greater likelihood of pretrial incarceration.
Anyone serving as a surety for a criminal defendant released on bail also faces negative consequences if the defendant breaks bail conditions. For example, the Ontario Superior Court ordered surety Hong Wei Liao to forfeit $1 million after her daughter, Yun Lu Li, breached bail conditions while awaiting trial for murder. Ms. Liao failed in her duties by preventing her daughter from leaving home unsupervised to visit a restaurant and gym with a potential witness, and then spending the night at a hotel.
| Scenario | Potential Outcome |
|---|---|
| Minor breach | Partial forfeiture |
| Serious breach | Full forfeiture |
| Failure to supervise | Increased liability |
| Repeated breaches | Higher penalties and court scrutiny |
| Court discretion | Judge determines final amount |
“ Cases like this show how seriously courts treat the role of a surety,” adds Robbie Tsang . “Even unintentional lapses in supervision can lead to significant financial consequences.”
The Greater Toronto Area bail hearing lawyers of Mass Tsang believe this is the largest surety forfeiture in Canadian history. And, for the purposes of this legal blog forum, it raises the questions: What exactly is a surety, and what is their role in the Canadian legal system and pretrial release?
Read on to learn the basics of surety’s meaning in Canadian law and the most frequently asked questions we hear about how sureties work.
“ A surety is not just a formality — it’s a serious legal responsibility,” says Jeff Mass, co-managing partner at Mass Tsang . “You are effectively putting your finances and credibility on the line to ensure the accused follows every bail condition.”
According to the Criminal Code and judicial precedents, a surety is a responsible adult who agrees to act as a supervisor and guarantor for a person charged with a criminal offence who is released from custody while awaiting trial. As a supervisor, the surety is responsible for ensuring that the defendant complies with all the conditions of their release and attends all court hearings. As a guarantor, the surety pledges a specific sum of money to the court that can be forfeited if the defendant breaches bail conditions or fails to appear in court.
| Role | What the Surety Must Do | What Happens if They Fail |
|---|---|---|
| Supervisor | Monitor accused and ensure compliance | Risk of forfeiture |
| Guarantor | Pledge money to the court | Loss of pledged amount |
| Court support | Ensure attendance at hearings | Bail revocation |
| Risk manager | Prevent breaches of conditions | Legal and financial consequences |
The use of a surety as a means of helping criminal defendants secure pretrial release was influenced by Section 11(e) of the Canadian Charter of Rights and Freedoms, which gives any person charged with an offence the right not to be “denied reasonable bail without just cause.” Given this Charter Right, the Criminal Code encourages the criminal justice system to grant pretrial release to most criminal defendants with the “least onerous conditions” possible.
A “surety release” is considered one of the strictest forms of bail, and those charged with the most severe offences often cannot secure their pretrial release without a surety backing them.
Canada’s Criminal Code does not explicitly define “surety,” nor is the role of a surety clearly explained by any distinct section of the Code. Instead, sections within the Code—in particular, Section 515 and the Form 12 Surety Declaration —contextualize the role, which has been supported by judicial precedents established over time.
To serve as a surety for a criminal defendant, applicants must typically:
Other than the signed declaration, these are not statutory or minimal requirements. Rather, they are parameters the bail hearing court uses to help determine the suitability of a proposed surety. Based on these and other factors, the Crown can object to, and/or a bail hearing court can reject, a surety proposed by the defendant.
| Requirement / Factor | Why It Matters |
|---|---|
| Age (18+) | Legal capacity |
| Citizenship / status | Court reliability |
| Criminal record | Credibility assessment |
| Financial resources | Ability to pledge funds |
| Proximity to accused | Effective supervision |
| Relationship to accused | Trust and influence |
The degree of legal responsibilities a surety takes on depends in large part on the conditions the defendant must comply with as set out in their Form 11 release order. Potential conditions include:
| Condition Type | What the Surety Must Monitor |
|---|---|
| Court attendance | Ensure accused shows up |
| No-contact orders | Prevent communication with victims/witnesses |
| Travel restrictions | Prevent leaving jurisdiction |
| Curfew / house arrest | Ensure presence at home |
| Substance bans | Monitor alcohol/drug use |
| Passport surrender | Prevent international travel |
Anyone charged with a serious criminal offence in the Greater Toronto Area is likely to face significant challenges securing pretrial release at a bail hearing . This holds especially true for indictable offences, many of which require a reverse onus bail hearing, in which the defendant must prove to the court why they should not be held in custody until trial. And, even with such proof accepted by the court, it will often require further support for the proposed pretrial release through a surety.
If you’re facing a bail hearing on pretrial release on serious criminal charges, an experienced bail hearing lawyer, like those at Mass Tsang, can help you navigate a successful release with the least restrictive conditions. Your bail hearing lawyer can help strategize the best means of securing your pretrial release, which may include the need for finding a suitable surety. To learn more about our extensive bail hearing experience in the Greater Toronto Area, contact us today for a free consultation.
A: The Criminal Code lists no statutory minimum or maximum amount a surety must promise to secure a defendant’s pretrial release, and bail hearing courts determine amounts on a case-by-case basis based primarily on:
In most cases, courts accept a pledge for the surety amount instead of requiring the funds to be deposited with the court.
A: The Criminal Code does not require proof that a surety knew about or was aware of any bail condition breaches. Judges have wide discretion to order forfeiture of the full or partial amount of the pledged amount and typically base their decisions on the nature and circumstances of the breach and its potential impact on the case.
A: The Criminal Code does not require the surety to live with the defendant up until trial. However, a bail hearing judge can order a residential surety arrangement in which both must reside at the same address as part of the release plan. This is frequently done in cases involving serious offences, potential flight risks, and/or a perceived need for close supervision of the defendant.
A: The Criminal Code specifically permits a defendant to have multiple sureties, which provides them flexibility in tailoring release plans and upholds their Section 11(e) Charter Right to be granted reasonable bail.
A: Under Canadian law, a surety is not criminally or civilly liable for any new crimes committed by their supervised defendant unless they had personal involvement in the offence.
A: A surety can petition the court to relieve them of their obligations, even without cause (e.g., expressing concerns that the defendant plans to breach bail conditions). Upon receiving the petition, the court issues an order for the arrest and detainment of the defendant, and the surety’s obligations remain in force until the defendant is back in police custody.
