Sureties as Civilian Jailers: Understanding the Role of the Court in the Lives of Accused Released on Surety Bail in Ontario

Abstract

Changes to Ontario's bail system (2017) are intended to keep accused out of custody and in the community as they await trial. For the Ministry of the Attorney General, living in the community while on bail is a vast improvement to remand because there is minimal state involvement in the lives of accused, resulting in fewer personal and administrative disruptions. Yet, most accused in the province require a surety to be released. Justices of the peace, Crowns, and even defense counsel expect sureties to act like civilian jailers, which questions the level of state intervention at this stage in the legal process. Previous scholarship on bail attributes the overuse of surety releases to a culture of risk aversion whereby the courts offload responsibility and blame for the accused's actions onto the surety. By exploring how court officials describe and determine who an appropriate surety is and the types of powers afforded to them, this paper argues that although sureties are legally obligated to supervise the accused, the court is still heavily involved in defining what this role looks like and how it should unfold outside the courtroom. The qualitative findings provide important insight into how criminally suspect individuals are governed in the province more generally.

Reflections from accused: Advice on navigating life on bail

“…The overwhelming consensus among Canadian scholars and legal professionals is that bail is arduous for accused individuals (Canadian Civil Liberties Association, 2014; John Howard Society of Ontario, 2013;Myers, 2017Myers, , 2019Schumann, 2018;Yule et al, 2022). While the voices of accused themselves are absent from much of the research, the work that does include them provides concrete examples of the challenges -as well as opportunities -they experience when living in the community with bail conditions.…”