Legally a Jailer, Practically a Carer: Release on Bail Subject to Surety Supervision

Abstract

The pre-trial release decision involves an assessment of the risk the accused poses to the community and the administration of justice if they are released pending trial. To ameliorate risk and provide some insurance, a surety – a family member or friend who agrees to supervise the accused and promises a sum of money if the accused fails to appear in court, commits further offences, or breaches a condition of their release – may be required. Sureties are required to act as “jailers in the community,” conceptualized as a mechanism for reducing risk and enhancing public safety by providing supervision and improving the likelihood that the accused will comply with conditions. While the court imposes a legal relationship of monitoring and control between the accused and their surety, this expectation is confounded by tension between acting as someone’s jailer and providing care in the context of a close personal relationship. Through 32 interviews with sureties in Ontario, we explore the tensions and contradictions in the ways the legal relationship imposed by the court is experienced in practice, revealing a lack of formal support, a sense of powerlessness to exert authority over the accused, and a flexibility in enforcement that raises questions about surety effectiveness as a risk management strategy.