R v Smith – 2013 ONSC 1341 (Dambrot):

[25] A surety may simply wish to be freed of his or her obligations because he or she is relocating,
or has taken on other responsibilities making it impossible to continue in the role of a surety. In
these cases, the cumbersome process of rendering, committal and a new judicial release hearing
may be unnecessary. A simple process permitting the substitution of one sufficient and satisfactory
surety for another was considered desirable, and s. 767.1 was enacted. But that provision was wisely
enacted as a discretionary power. Presumably a justice would decline to exercise it when the
rendering was said to flow from misconduct on the part of the accused. In this regard, I agree with
Trotter, at p. 7-16, where the author states, “In situations where the attempt to render the accused
reveals misconduct on the part of the accused person, it is better to issue a warrant and to have the
issue aired at a new bail hearing.”
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[33] With great respect, I cannot agree with the conclusion reached by Hill J. about the effect of a
s. 766(1) committal order. Whether or not a new bail hearing is “appropriate” in all circumstances is
debatable. I agree with Hill J. that there are some circumstances when it is not. But in my view,
whatever might be “appropriate,” where there is a committal order, a new bail hearing is necessary.
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[46] For all of these reasons, I conclude that once an order in writing is made committing an
accused to prison under s. 766(1) or the accused is committed to prison pursuant to s. 767, the
underlying release order is spent and a new judicial interim release hearing must be held.
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[48] The first distinction that I raise, that in this case the surety was named in the original release
order, is no mere technicality. Section 515(2)(c) authorizes a justice conducting a judicial interim
release hearing to release an accused “on his entering into a recognizance before the justice with
sureties in such amount and with such conditions, if any, as the justice directs”. Pursuant to s. 519,
the accused may be released immediately if the accused can immediately comply with the order, or
may be released later by the same or another justice if the accused cannot immediately comply with
the order. In a great many cases, particularly less serious cases, the justice who conducts the bail
hearing and orders the release of the accused on a recognizance with sureties does not name the
sureties, but merely orders that the sureties are to be “sufficient.” The sufficiency of the sureties is
then left to the justice who later actually has the accused enter into the recognizance and then
releases the accused.
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[52] While some might think that this is a mere technicality, in my view, this is as it should be. I
say this because in many cases, the naming of the surety is an integral part of the release order.
Admittedly, in some cases, naming the surety in the release order is a mere convenience. But often,
it is much more than a convenience. Often, in cases where release on the primary ground (ensuring
attendance in court – s. 515(10)(a)) or the secondary ground (for the protection or safety of the
public – s. 515(10)(b)) is a close call, the justice will find that the balance tips to the accused
because a strong and reliable surety with an effective plan of supervision is presented to the court.
In such a case, the act of substituting a new surety would not simply be a question of sufficiency.
Instead, a new consideration of the balance between those considerations favouring release and
those favouring detention would be necessary – in effect, a new bail hearing. As a result, where a
surety is named, and still more where, as here, the accused is required to reside at that surety’s
residence, substitution of new sureties without a new bail hearing would be entirely inappropriate.
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[53] Finally, Crown counsel complains that counsel for the accused appeared before the justice
without notice in this case seeking a substitution of sureties. Having regard to her understanding of
the outcome of the appearance before Forestell J., I will not criticize counsel for the accused for
failing to give notice to the Crown. But I will say this. When an application is made pursuant to s.
767.1 of the Code, an order for substitution does not go as of right. Where a surety was named in
the original order, or where some condition of the original order cannot be complied with, as I have
stated, substitution is not available. But even where no surety is named, the justice is still exercising
discretion. Section 767.1 provides that the justice “may” substitute another suitable person for the
surety. The reason that the surety is rendering the accused is an obvious consideration. If the
rendering is occasioned by an allegation of misconduct by the accused, this may tell against
substitution. As a result, in most cases, the justice should ensure that notice has been given to the
Crown, and should provide the Crown with an opportunity to appear and make submissions. The
only time that I could imagine that notice might perhaps be unnecessary is when there is no
allegation of misconduct on the part of the accused, no surety was named in the original order and
the substitution of one sufficient surety for another is all that is in issue.