Monday, March 22, 2010

Surety guarantees now?

I was on vacation for two weeks and have spent much of the last two catching up and there has hardly been any spare time to work on this blog.  To start this piece, of course, I am back at the courthouse barristers's lounge on Monday morning between court appearance.

There is always something different to notice if you are gone for any period of time.  On being back, the one thing that came to my attention was the new surety affidavit form for proposed sureties in bail matters.   I have already commented on it in court because, in my view, the information contained in it is incorrect. 

The Ministry of Attorney General has a pamphlet available with surety information.  The creation of that document was done with care and I can find nothing in the webpage and document entitled, "What Sureties Need to Know" that I would disagree with.  The difference between the pamplet and the new form and the problems with the new form are these:
  1. That there is no suggestion in the new form that a surety may not be entitled to be relieved of the obligation to pay the full amount of the bail;
  2. The statements that the surety guarantees the good conduct of the accused are questionable;
  3. The statement that the surety could be imprisoned are questionable.
If the statements in the form are not accurate, this will have no impact on the situation where a surety is prepared to take on the obligation in any event.  The problem of course is when the form scares off a surety and an accused has to remain in custody for that reason.

The Court of Appeal for Ontario case of Canada (Attorney General) v. Horvath, 2009 ONCA 732 (CanLII) 2009-10-20, authored by Rosenberg J.A., involved the application to estreat bail in extradition matters for failing to appear in court.  The amount of bail sought to be estreated was significant.
The court noted that on the one hand, efforts by sureties were to be recognized and should go to mitigation.
However, it was still important for the integrity of the system for entirety of the bail to be at risk.
[41] I agree that the “pull of bail” is an important factor that serves as a reminder that, in attempting to do what is just and fair towards the sureties, the courts must be careful not to undermine the effectiveness of the bail system.
Our system depends upon accused attending court and if accused came to believe that they could fail to attend court without their sureties suffering any penalty, the surety system would be ineffective. ... 
The court also noted that as general rule, for smaller amounts $5,000 and under, the full amount of bail should be estreated.  The case stands for the proposition that where the accused does not attend court, the surety's best efforts are only a factor.  However, it must be the case that where bail is sought to estreated because of a breach, the surety's best efforts must be a more important consideration. 

Interestingly the court commented on the need for sureties to have accurate information about their obligations.  Attached to the decision was a form proposed or actually used by the Attorney General of Canada. It makes such statements as the surety must pay the full bail if there is a breach of one of the terms and that the surety guarantees the good behaviour of the accused.

Without being specific, the court commented that the use of the form was a good idea, but that the form should be modified in accordance with the courts reasons.

Interestingly, the form--download pdf file from golishlaw.com site--now being circulated, includes no statement as to its authorship, and essentially copies the basic form used in the Horvath case.  Moreover, the only modification is the additional threat to the proposed surety of a jail term:

OBLIGATIONS OF A SURETY and CONSEQUENCES OF BREACH

1) I understand that if approved as surety by the Justice, I am promising to pay the full amount of the bail set opposite my name on the recognizance, if the accused person does not attend court as required or if he/she does not comply strictly with a term of bail or if he/she commits a criminal offence while on bail.
2) I understand that if the accused person breaches any term of the bail or commits a criminal offence, I must immediately report this to the police.
3) I understand that it is my responsibility to prevent any breach of the bail terms but if a breach does occur, the court may seek payment from me of the full amount of the bail set opposite my name on the recognizance, even if I supervised the accused person to the best of my ability,.
4) I understand that if I do not meet a financial obligation ordered by the court, I may be imprisoned. 
It is interesting that the court noted that while s. 773 does actually provide that a surety may be committed to prison in default, the judges were "told by counsel that there is no reported case of any surety having been imprisoned in Ontario in over 100 years."  That said, it seems improper to put these statements in.  The authors of the form should have simply relied on the statements set out in the official Attorney General "What Sureties Need to Know" document.