It is every parent's worst nightmare: the phone rings late at night and the somber tone of the caller advises, "Mrs. Johnson, this is you son's lawyer. He is under arrest requires a surety for a bail hearing tomorrow morning".
As a criminal defence lawyer, I'm often that serious sounding voice on the other line at 3:00 a.m. I am the person who gets to make that call to sleepy individuals that my client has provided me the phone number for when asked "Who do you know that would be able to bail you out tomorrow, and who would make a good surety?" I emphasize the "and" because it is easy for clients to provide names and numbers for people who are available, but quite another to give me leads on who will be a suitable surety.
First of all, what is a "surety"? To begin with, it is not an "assurety" as there is no such thing in the law. I think that people often hear "Would you like to be a surety" and join the two words into one. So, starting with that, a "surety" is, in its simplest terms: 1) Someone who is going supervise the accused in the community while awaiting for trial or until the matter resolves; and, 2) Someone who is willing to make a pledge for value (i.e. equity in a home, savings, cash, etc.) to the Court, which, in turn may be lost if the individual breaches the bail.
Although this sounds simple enough, pledging oneself as a surety is a serious and involved commitment. This article does not intend to explain everything about being a surety, it is intended to help individuals present themselves better in Court so that they have a better chance of being approved as one.
So here they are, Sean Robichaud's "Ten Tips for Potential Sureties":
1) Dress appropriately
I wish I didn't have to tell people not to wear excessive jewelry a la Mr. T., "stop snitching" T shirts, marijuana leaf sweaters, red and gold suits, tight white tank tops, and revealing clothing that would make Lindsay Lohan blush to Court, BUT, I do: so dress appropriately. Your ability as a surety will be judged on your appearance that conveys your level of respect to the Court, it is that simple.
2) Take it seriously
Your actions or inactions, preparation or lack thereof, could determine whether young Johnny spends the next 12 months in custody, or gets out today. It is a serious proceeding with serious consequences. Take the day off work, be well rested, meet with the lawyer prior to, be on time, ask questions of counsel, and anything else you would normally do to prepare yourself for something where they stakes are high and subject matter is serious.
2) Understand what it means to be a surety.
Prior to the bail hearing, your lawyer or duty counsel should advise you of everything it means to be a surety so you can answer the questions put to you by the Crown and Court. You need to understand what sort of commitment you are getting yourself into, what to do if the person breaches the bail, how long it might take, how to revoke bail, and so on. Ask questions of counsel and know the answers.
3) Think about the plan of supervision and be capable of articulating it
With a pen and piece of paper, write out the schedule you have planned for supervising the accused. Who is going to watch him when you have book club on Wednesday evenings? Are other people helping and do those people know they are? It is called a "plan of supervision" and not an "ephemeral notion of watching an accused" for a good reason. Plan it and put it to writing.
4) Know the accused
Question: "Madam, how old is the accused?"
Answer: "I don't know"
Question: "Are you aware he has a 2 page criminal record?"
Answer: "Oh really? Oh, well I guess that is ok"
Question: "Do you know where he has been living for the past 5 years?"
Answer: "No idea, he doesn't tell me anything"
Obviously this is a bail hearing that is not going well. Know the accused, know the charges, know his record, know everything you can about him because you will be asked.
5) Be candid and truthful in your testimony
A surety caught lying on the stand can virtually guarantee the accused is not getting out that day. Similarly, being evasive or incredible in your testimony may have the same effect. Answer the questions truthfully, accurately, completely, and to the best of your ability. Let the lawyer deal with the bad facts, but do not shy away from them.
6) Don't use slang while testifying
Police are "police officers", not "cops", "5-0", "feds", etc. No one in the Court appreciates your knowledge of street lingo. Court is a formal setting which includes formal language.
7) Bring documentation to prove claims of equity and savings;
If you are making a claim that you own a home worth $300,000.00, the Court would be very interested to see documentation to prove that. It saves a trip back home when asked to prove your assertions of net worth.
8) Do not argue or be rude with the Court or Crown Attorney
You are not the lawyer. Your role is not to argue, defend yourself, or the accused. If the Crown is excessively or unfairly rude with you, then it may very well give you some sympathy with the Court. Arguing back gets you nowhere and will only be helpful to the Crown's assertion later on that you are not a suitable surety. Of course you are entitled to correct false assertions, mischaracterizations, and any other discrepancies that you see - do so confidently and professionally, not argumentatively.
9) Don't be oblivious to the accuseds' behaviour or try to justify his alleged actions
If the police allegations are that two police officers walked into a bank that your son was robbing at the time, restrained him, and subsequently arrested him, it is not helpful to advise the Court there must be some mistake as little Johnny would never do such a thing. Bail hearings are not the time and place to try and demonstrate innocence, whether the victim is partially to blame, or whether you believe the allegations. The Crown usually has the advantage at this stage as the police are the one who get to write the narrative that is read out in Court. You were not there, you do not know what happened. Similarly, individuals are capable of all sorts of things that we never would have dreamed they had the capacity to do. There are allegations, you do not have to give them more credit than that, but do not try to minimize them either.
10) Hire a criminal defence lawyer
Like all legal proceedings, it is a dynamic situation that requires skilled advocacy, thorough legal knowledge, familiarly with the proceedings, and experience to understand when it is best to proceed and when it is best to wait for another day. A person only gets one chance at a bail hearing (short of an appeal in Superior Court), make sure the first one is done properly.
Sean Robichaud can be reached at (416) 220-0413 to provide legal assistance for any bail hearings in Ontario
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