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What happens when you can't make bail?

Living in Canada, we're afforded certain rights that aren't available to the same degree in the rest of the world. One is the fact that everyone is innocent until proven guilty. That's why bail is available to those who find themselves facing jail time. The idea is that people should have an opportunity to enjoy their freedom while waiting to face charges in court.

But what happens when you can't make bail? Will you have to find a bail bondsman to put up the money in your stead? Worse, if you skip out, is some Dog the Bounty Hunter equivalent going to track you down and drag you back to face the music, like something out of a spaghetti western?

The surety bond
Thankfully, that's one thing that separates the Canadian legal system from the American one. "I can tell you that in Canada the bail bonds business is illegal," says Marcus Bornfreund, a Toronto-based defence lawyer who specializes in bail hearings. "You cannot offer to compensate somebody for serving a surety bond, and because of that, we don't have a bail bonds practice."

The surety is the person who comes forward in court -- normally a relative, a friend or a trusted community member -- promising an amount of money (determined at the court's discretion) for the bond and who must volunteer freely. To be a surety, you must provide proof of assets, such as a bank account or mortgage statement.

But before anyone can do so, onus must be determined. If the charge is a high crime, such as murder, it is up to the accused to prove why he or she should be released. If the opportunity for bail is to be determined at the arresting officer's discretion, it is up to the Crown to prove why the accused needs to stay in jail. In most cases, though, the Crown simply consents to the release.

"The conditions of the release are completely dependent on the circumstances of the alleged offence, as well as the facts of the proposed planned supervision," says Bornfreund. These can include where the person will stay and whether he or she is under a curfew, house arrest or is prohibited from contacting people or staying in a particular place. These conditions form the terms of the bail.

The surety is then responsible for making sure the accused follows the conditions of his or her release until the matter is resolved. But what happens if the accused violates the terms of the bail or gets arrested on another charge?

Skipping bail
If you fail to appear for court or violate the terms of your release, no bounty hunter will be sicked on you. In fact, such circumstances are rather less dramatic than they are south of the border. "If a person is to breach the conditions, or the surety believes that they will, then the surety is obliged to call the police and revoke the bail," says Bornfreund.

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-- Posted Apr. 26, 2010
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