Bail: Can a witness be a suitable surety?

Bail: Can a witness be a suitable surety?

A surety serves as the responsible party for the accused throughout the duration of their case. Typically, a surety oversees the accused, ensuring they adhere to the conditions that their release is contingent upon, such as reporting or non-contact clauses.

During this time, they act as the “jailer” of the individual in question and must have continued daily contact. Typical reasons finding a surety unsuitable for the role include them being: underage, an alleged victim of the accused, the counsel of the accused or an individual not residing in the province in which the trial is taking place. However, there is no precedent suggesting a witness cannot be a suitable surety.

Crowns will routinely object on the suitability of any surety who is also a potential witness, however it is an error in principle to disqualify a surety on that basis alone. 

E.K., [2006] O.J. No. 5852 (SCJ):

 26     Finally, the learned Justice appears to reject proposed sureties on the basis that they are potential witnesses at trial. I agree with counsel for the applicant that to reject a surety on this basis without more amounts to error on principle. To agree to such a principle could lead to the unreasonable disqualification of a proposed surety who is suitable thereby frustrating the interim release prior to trial of individuals accused of criminal offences. Of course, some individuals may be unsuitable sureties based on the likelihood of being a witness. For example, the spouse who is the victim of domestic violence would not be a suitable surety in a case arising from domestic violence directed against her by an accused person. See Garry Trotter Law of Bail in Canada page 294.
27     The suitability of a surety is to be assessed on a case by case basis. In that assessment of suitability the likelihood of the surety being a witness is a factor that may be taken into account by a court. However, it was in error to disqualify a proposed surety on the basis of a rule of general application that any person who is a potential witness in the trial of an accused is therefore not suitable to act as a surety for that accused pending trial.

The reason for the “disinclination” of both the Crowns and even Judges in accepting a witness as a proposed surety is articulated in Brown, [2010] O.J. No. 3946:

71     Finally, while the Crown did not raise this issue, the Court also concludes that there is a substantial possibility that one or both of the proposed sureties may be witnesses for the defence at the trial, in particular in respect of what may be raised as Charter challenges to the admissibility of the evidence from the search. Although there is no clear or absolute rule barring potential witnesses from serving as surety, there is a general disinclination to do so, on the basis that they join in interest with the accused and may colour their eventual evidence to strengthen the defence case. Being in the constant presence of the accused may bring added pressure to do so.

However, this reason alone does not exclude a witness from suitability of acting as a surety. 

This is explicit in Valade, [2016] O.J. No 2140 (SCJ):

44     Christine Valade was involved in the discussion/argument that preceded the discharge and will be a witness at trial. Although uncommon, witness status does not exclude her as surety.

46     The jurisprudence does not exclude potential witnesses as a stand-alone ground for exclusion as surety.

Based on the above precedent, being a witness is not, on its own, reason enough to exclude an individual from acting as a surety for the accused.

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