The court will typically order a “surety bail” where the charges against an accused are particularly serious or where financial consequences are necessary to minimize the risk that an accused will not comply with the terms of his release.
Background
A surety bail is imposed by way of a “recognizance”, a legal document the accused signs to acknowledge the terms of release ordered by the court and the debt owed to “Her Majesty the Queen” if he fails to abide by the terms of release. This potential debt is commonly referred to as bail or the bail amount.
The terms of release are set out in the body of the document, and the document is signed by the accused in the presence of a judicial officer who confirms that the accused understands what he is signing. The term “recognizance” derives from the verb “to recognize”, which is what an accused does by signing a recognizance; he recognizes the terms of his release and the consequences of breaching them.
For surety bail, a surety is required to guarantee the sum of money set out in the recognizance. A surety can be anyone who meets the financial requirements, i.e., satisfies the court that he or she can pay the bail amount if called upon to do so, and has the ability to supervise the accused while the accused is out of custody. A surety can be the accused’s spouse, parent, child, sibling, relative or friend.
The higher the level of risk that the accused poses for non-compliance with terms of release, the higher the sum of money or bail and more likely a surety will be required. Similarly, the more serious the charge against the accused, the higher the sum of money or bail and more likely a surety will be required.
Surety Requirements
In British Columbia, a surety must provide proof of his or her ability to pay the amount of the recognizance by providing information about his income and assets. Where the amount of the recognizance is $1,000 or more, a surety must provide proof of ownership of real property with equity that exceeds the amount of the recognizance or bail.
Typically, the surety is required to produce the following documentation to satisfy the court as to his financial qualification to act as surety:
- State of Title Certificate from the Land Title Office confirming the surety’s ownership of the real estate offered as evidence of the surety’s wealth
- Notice of Assessment from the BC Assessment Authority for the current year as proof of the value of the property
- Mortgage Statement from lenders indicating the amount secured by any mortgage on the property
- Proof of payment of current property taxes
Surety Responsibilities
Being a surety is not a trivial matter. It entails both a personal and financial commitment. The personal commitment is to supervise an accused person while he or she is out on bail to help ensure that the accused complies with his terms of release and attends court when required. The financial commitment is liability to the government for the amount of the bail in the event the accused breaches the terms of his release.
Neither should be taken lightly.
What is a Peace Bond?
In simple terms, a peace bond is a promise to abide by certain conditions on threat of criminal prosecution and liability for a sum of money. Legally, a peace bond is imposed by court order. The order requires the intended subject of the peace bond to enter into a “recognizance”, which lays out the conditions associated with the peace bond and specifies the maximum amount payable for failure to abide by the conditions.
Common Law vs. Section 810 Criminal Code Peace Bonds
There are two types of peace bonds – common law and statutory. Common law peace bonds are imposed by a court based on common law powers to make orders to prevent breaches of the peace, while statutory peace bonds are imposed by a court based on the authority of a statute. In Canada, statutory peace bonds are ordered under s. 810 of the Criminal Code.
Generally, a common law peace bond is preferable to a peace bond under s. 810 of the Criminal Code because a common law peace bond does not require an accused to make any admissions. By contrast, s. 810 of the Criminal Code requires an admission by an accused that another person “fears on reasonable grounds that [the accused] will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.”
Is a Peace Bond a Good Thing?
Peace bonds are often used to resolve assault, threatening and criminal harassment charges. In exchange for agreeing to a peace bond, an accused is spared from criminal prosecution and avoids a record of conviction for a criminal offence. This is clearly a good thing.
Unfortunately, a peace bond is not necessarily consequence-free. If a peace bond is entered into as a result of allegations arising in a spousal relationship, it can have repercussions for parenting arrangements (formerly known as child custody). If a “clean record” is needed to travel or immigrate to another country, a peace bond may create problems.
Family Law Consequences of Peace Bond
In British Columbia, new family law legislation was introduced in 2013. One of the notable features of the new legislation was the broadening of the criteria for determining appropriate “parenting arrangements” (formerly referred to as child custody).
Section 37(2) of the Family Law Act requires the court to consider:
[T]he impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member
As a result, a peace bond entered into by one parent as a result of an incident involving the other parent has the potential to impact the former parent’s parenting responsibilities, including parenting time, even where the allegations have nothing to do with the children of the relationship and where the children were not present when the alleged misconduct leading to the peace bond occurred.
These changes in British Columbia’s family law mean that an accused should think carefully about the family law implications of accepting a peace bond and seek counsel from his or her family law counsel first. The last thing you want to do is solve your criminal law problem at the cost of creating a family law problem.
Travel and Immigration
Travel to the United States can be a challenge even when you do not have a criminal record. A peace bond, while not a record of a criminal conviction, will show up on the computer of US immigration and customs officials and may raise questions about admissibility. At the very least, a person with a peace bond on his record may be called upon to do some explaining. If travel to the United States is critical in your life, speak to a US immigration lawyer before you enter into a peace bond, common law or statutory.
For the purposes of US immigration law, a peace bond may be construed as a criminal conviction despite the fact that a peace bond is not a criminal conviction under Canadian law. I am advised by US immigration lawyers that any admissions or findings of fact made on the record at the time a peace bond is ordered can be construed as admissions of criminal conduct for the purposes of US immigration law and undermine a person’s application to immigrate to the United States. If you are thinking of applying for a green card or seeking US citizenship, be sure to speak to your US immigration lawyer before entering into a Canadian peace bond. Contact N.J. Preovolos Law Corporation today to learn more.
It is heartening to see national papers like the Globe and Mail and the National Post turn a critical eye to British Columbia’s civil forfeiture regime. In British Columbia, the Civil Forfeiture Act has been in effect for several years, but only occasionally has attracted the interest of the media. It’s kind of sad that it took the involvement of the “Hell’s Angels” in a forfeiture case to generate media interest in what is actually a very important issue for the whole country.
On the bright side, the Globe and Mail nailed the issue. In an editorial published on February 2, 2014 by the Globe, BC’s civil forfeiture regime was lambasted as “BC’s overzealous cash cow” and criticized for drawing cititzens into an unfair fight with the government:
The underlying problem with civil-forfeiture law has to do with the burden of proof. It’s low. Neither a criminal conviction or even a charge is needed to move on someone’s property. Not surprisingly, hundreds of those targeted by the B.C. office want to fight back. But it can be prohibitively expensive to fight a civil suit, particularly when the party on the other side of the table is the deep-pocketed government. The result? In B.C., 99 per cent settle before trial, on terms overwhelmingly favourable to the office.
Most people don’t have a lot of time or sympathy for Hell’s Angels or other alleged criminals. But finally it is starting to sink in that civil forfeiture laws can impact law abiding citizens harshly and disproportionately. If you own property and rent it to anyone, watch out. If that property is used in criminal activity by your tenant, you may find yourself on the wrong end of a government lawsuit targeting your property for forfeiture. You’ll then have to answer for why someone else committed crimes on your property and why you did not detect and put a stop to it. If you think I’m just a mouthpiece for criminals on this one, think again.
There is a case in progress right now in Maple Ridge, British Columbia, where of all people a lawyer has had his investment property, a second home, made subject to a civil forfeiture action because of what his tenants were doing on the property. Apparently, property owners have a dual role – landlord and unpaid police officer.
The unfortunate part about this whole story is that the Supreme Court of Canada has allowed the provinces to enact this type of legislation in the first place. In Chatterjee v. Ontario (Attorney General), [2009] 1 S.C.R. 624, the Supreme Court of Canada considered a challenge to the constitutionality of Ontario’s civil forfeiture legislation, the Civil Remedies Act, and found that such legislation was within the legal jurisdiction of provinces to pass, reasoning that:
The CRA [Civil Remedies Act] was enacted to deter crime and to compensate its victims. The former purpose is broad enough that both the federal government (in relation to criminal law) and the provincial governments (in relation to property and civil rights) can validly pursue it. The latter purpose falls squarely within provincial competence. Crime imposes substantial costs on provincial treasuries. Those costs impact many provincial interests, including health, policing resources, community stability and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it.
If there ever were a type of law that was purely “criminal” in nature, i.e., falling under the head of the federal government’s power to legislate criminal law, I would have thought the inaptly named civil forfeiture regimes fit the bill and trampled all over the federal government’s legal territory. But the Supreme Court of Canada has concluded there is “overlap” with legitimate provincial powers, and therefore room for both governments to legislate. With respect, I find the court’s reasoning tortured, and believe that the provinces have effectively been granted partial criminal law jurisdiction.
The only hope of reining in these civil forfeiture regimes now rests with the Hell’s Angels’ challenge. Since Chatterjee, no one else has had the stamina or resources to mount the costly and difficult battle necessary to obtain another ruling from the Supreme Court of Canada on this issue. You know whose side I’m on.
If you are charged with a criminal offence and you are not a Canadian citizen, your immigration status in Canada and your right to remain in the country might be in jeopardy. In fact, it is not just charges under the Criminal Code of Canada that can cause problems. Offences under any other federal legislation such as the Controlled Drugs and Substances Act and the Customs Act can have serious immigration law consequences as well.
The degree to which you may be affected depends on your immigration status. Anyone who is not a Canadian citizen is either a “foreign national” or a “permanent resident” for Canadian immigration purposes. The threshold for deportation is substantially lower for foreign nationals than permanent residents under Canada’s Immigration and Refugee Protection Act (IRPA), which governs immigration matters. Visit an experienced Vancouver criminal defence lawyer to learn more.
Foreign National vs. Permanent Resident
Under IRPA, a “permanent resident” is defined as a person who has obtained and not lost “permanent resident” status. Permanent residents are entitled to live and work in Canada indefinitely, and are ultimately eligible to become Canadian citizens if they wish. If you are a permanent resident, you will have a form of photo identification known as a “permanent resident card” or “PR card” issued by the federal government. A “foreign national” is a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. Permanent residents are people who have been accepted as permanent immigrants to Canada (formerly known as “landed immigrants”) whereas foreign nationals are typically individuals in Canada on a short-term basis such as foreign students and temporary workers.
Inadmissibility of Foreign Nationals
Under section 36(1) and (2) of IRPA, foreign nationals are “inadmissible”, meaning deportable, if they have been convicted in Canada of:
- an offence under an Act of Parliament (e.g., Criminal Code, Controlled Drugs and Substances Act or the Customs Act) punishable by way of indictment;
- an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; or
- two offences under any Act of Parliament not arising out of a single occurrence
For the purposes of IRPA, an offence “punishable by way of indictment” includes offences which can be prosecuted summarily or by indictment (referred to as “hybrid offences” by criminal lawyers) even where the Crown has proceeded summarily. As a result, an “offence” includes the vast majority of offences set out in the Criminal Code, as there are very few offences punishable only by summary conviction.
Even a conviction for a minor assault (s. 266 of the Criminal Code) or shoplifting (s. 334(b) of the Criminal Code) therefore renders a foreign national “inadmissible” and subject to immediate deportation. Deportation is effected by way of a “removal order”, which cannot be appealed by a foreign national.
For a foreign national it is therefore critical to avoid being convicted of any hybrid offence or indictable offence. All options for avoiding a criminal record should be pursued by defence counsel.
Inadmissibility of Permanent Residents
Under section 36(1) of IRPA, permanent residents are “inadmissible”, meaning deportable, if they have been convicted in Canada of:
- an offence under an Act of Parliament (e.g., Criminal Code, Controlled Drugs and Substances Act or the Customs Act) punishable by a maximum term of imprisonment of at least 10 years; or
- an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed
Convictions for offences like robbery and breaking and entering, which are punishable by maximum sentences of life imprisonment, render permanent residents inadmissible. So do convictions for offences like assault and assault causing bodily harm since they are punishable by maximum sentences of 10 years if prosecuted by indictment. It makes no difference that the Crown has proceeded summarily because the offences are considered indictable for the purposes of IRPA. Avoiding a conviction is the only way to avoid inadmissibility.
If a permanent resident is found to be inadmissible for one of the reasons described above, he or she has a limited right of appeal to challenge the inadmissibility finding and removal order, provided that he or she was not sentenced to a term of imprisonment of more than six months. Representation for such an appeal should be provided by an experienced immigration lawyer.
Advice from an Immigration Lawyer
If you are either a permanent resident or a foreign national and have been charged with an offence under federal legislation, it is imperative to raise the issue of your immigration status with your criminal lawyer as soon as possible. Immigration issues can be complex and most criminal lawyers do not have the necessary expertise to provide complete advice on the immigration law consequences of convictions.
My practice is to refer clients to an immigration lawyer as soon as possible if there are potential immigration law issues. From the outset, a backup or contingency plan should be prepared in case a finding of inadmissibility results from the outcome of their case. If staying in Canada or returning to Canada is important to the client, there might be options that an immigration lawyer can develop.
I have worked on a number of cases with Vancouver immigration lawyer Rudolf Kischer of the firm Maynard Stojicevic Kischer, and urge you to contact Mr. Kischer for case-specific advice if you have a problem.
By definition, a plea bargain is an agreement between the accused and the Crown to resolve an outstanding set of charges. It can be as limited as an agreement which requires the accused to plead guilty to a specific charge and requires the Crown to stay other charges. Alternatively it can be as broad as an agreement that covers not only the specific offences to which guilty pleas will be entered but also specifies the sentence for each offence as well as other sanctions such as DNA orders and firearms prohibitions.
The essence of a plea bargain is an incentive offered by Crown to the accused to plead guilty. Depending on the circumstances, the incentive can be trivial or significant.
A “joint submission” is a plea bargain which includes an agreement by Crown and defence on the sentence to be imposed and requires counsel to make a “joint submission” to the court for the sentence sought. There is no guarantee that a judge will abide by the agreement of counsel with respect to a joint submission, as judges retain overriding discretion to depart from a joint submission and pronounce a different sentence, either harsher or more lenient, if they consider it appropriate. That being said, judges are usually reluctant not to follow joint submissions, and will only refuse if they perceive that the interests of justice require a different sentence or the sentence proposed by counsel is out of the range of sentences acceptable at law for the offence in question.
There are also plea bargains which include the accused’s agreement to plead to a certain offence and the Crown’s agreement to ask for a certain sentence, leaving defence counsel to argue for whatever sentence they believe is appropriate. Sometimes plea bargains include agreement on the “facts of the case”, where only agreed facts are put to the judge for consideration at sentencing. This can be done in writing or orally.
The vast majority of plea bargains are concluded informally without any formal documentation exchanged by Crown and defence with respect to the terms of the agreement. The term “plea bargain” itself is not commonly used in British Columbia, and the process of negotiating a plea bargain is more typically referred to as “plea negotiations” or “resolution discussions.”
Plea bargaining plays an important role in the criminal justice system in British Columbia.
It benefits accused persons by reducing the uncertainty of trial and sentencing outcomes. At the same time, it benefits the public by reducing the number of trials, which are costly to the state, and it benefits victims of crime and other witnesses by sparing them the inconvenience of coming to court and testifying.
Were it not for plea bargaining, the workload of the courts would be heavier, and the administration of the criminal justice system would arguably be no better off.
To those who find plea bargaining repugnant, it is worth remembering that sometimes there is no plea bargain to be had, as a “compromise” acceptable to all parties cannot be found. In other words, the “public interest” dictates full prosecution of the charges or an unconditional guilty plea by the accused, and the case proceeds. No one forces the Crown to plea bargain, and the practice can be ended if the public wishes to bankroll the increased costs that the criminal justice system will incur without it.
