Article by Rory Ziv
I have been practising criminal law in Alberta for at least twenty years. My work has also taken me to other provinces in the country, including Ontario, B.C., Saskatchewan, and Manitoba.
Pre-2017: Cash Bail Was King in Alberta
Prior to 2017, I had done maybe one or two surety releases in my career. In Alberta, the carrot and the stick, so to speak, had always been releasing on cash bail. This process was efficient. A person was arrested and the offer of cash, where appropriate, was the mechanism used to secure people who required more onerous forms of release.
The Turning Point: R. v. Antic, 2017 SCC 27
However, about five years ago, following the Supreme Court of Canada’s decision of R. v. Antic 2017 SCC 27, surety bails became more prevalent in Alberta.
How Bail Works in Ontario: Surety by Default
Bail courts in Ontario are vastly different from those in Alberta. In that province, the default method of bail release has always been through a surety: not cash.
What Exactly Is a Surety?
In common speak, it is a person known to the accused who acts as a jailor while that person is on community release. It could be a friend, a family member, or even a spouse. The surety promises the court that they will monitor and supervise the accused person and immediately inform the court if that person violates the terms of their release.
The Value of Examining Sureties in Court
The court must trust that the surety is a suitable person to complete this task and sometimes asks that the surety be cross examined on their suitability. See R. v. Smith-Lowe, 2022 ABQB 494, at paras 33-34, where Justice Devlin says:
While the examination of sureties before bail courts is common practice in many jurisdictions, that is less the case in Alberta. With the move away from cash bails pursuant to the guidance of the Supreme Court in R v Antic, 2017 SCC 27, the practice of examining and cross-examining proposed sureties should become more commonplace here. Sureties are a far superior form of release to cash in that they provide a prosocial influence to the accused individuals, as well as a continuous set of supervising eyes in the community. In turn, hearing from sureties personally is often revelatory as to their suitability. Some sureties significantly impress the Court with their clarity, candour, and strength of character such that a release to them as the gaoler in the community becomes a viable answer to significant primary, secondary, and even tertiary grounds which would otherwise see an accused person detained.On the other hand, even a brief examination may reveal a surety to be underinformed, naïve, or otherwise unprepared for the task of supervising someone with potentially significant criminal involvement. I strongly urge counsel in the Provincial Court, in which bail applications are most often heard, to adopt the practice of presenting and examining sureties in serious cases. Public safety and confidence in the administration of justice will be greatly enhanced if this is done.
A Strong Judicial Critique of Alberta’s Cash-Bail Practices
In the more recent decision of R. v. Smith, 2024 ABKB 762, the same Justice Devlin had this to say, at para 1, about Alberta’s bail system: “The history leading to this application is significant and also a source for serious concern about bail practices in this province, especially as concerns have increased relating to alleged repeat offenders being released through a revolving door of small and ineffective cash bails.”
The Political Context and Call for Real Chang
On an aside, the above quote seems to be the same type of rhetoric we now hear politically as the country gears up for a general election this year. In any event, the Justice on the facts of this case was highly critical of the release protocols currently in place in Alberta. The case is a call for action and change.
“A Little Bit More Cash” Is Not the Answer
Justice Devlin forcefully explains in Smith that “a little bit more cash” is not an effective bail method and that
“[t]he practice of granting unsupervised cash bails to individuals apprehended for serious offences while already on bail, especially with a track record of noncompliance and strong indicators of involvement in the drug/criminal subculture, must stop.”
What This Means for Alberta Lawyers and the Justice System
As a result of this case and the political changes happening in Canada, bail practice in Alberta is going to shift from a cash to a surety system. What this means for Alberta lawyers is that the release process is going to require more time and effort to secure and brief sureties and conduct bail hearings. Legal costs and strain on the system will increase.
Finding the Right Balance with Sureties
I would add that Justice Devlin, at para 22 of Smith, also fairly recognizes that
“[i]n Ontario, there has been persuasive criticism of over-reliance on sureties for accused persons without significant criminal antecedents.”
In Alberta, we must find the right balance when it comes to the use of sureties in our bail system.
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