Bail Pending Appeal

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General Principles

Bail pending appeal may be initiated under the rules of court for the particular province.[1]


Release pending determination of appeal
679. (1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,

(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678;
(b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or
(c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal.

...
R.S., 1985, c. C-46, s. 679; R.S., 1985, c. 27 (1st Supp.), s. 141; 1997, c. 18, s. 95; 1999, c. 25, s. 14(Preamble); 2002, c. 13, s. 66.


CCC

Burden
The burden is upon the offender to establish the grounds of release on a balance of probabilities.[2] This shift of burden is because the presumption of innocence is no longer in effect upon conviction.[3]

  1. e.g. Rule 19(4) of the Criminal Appeal Rules (BC)
    Rule 91.24 of the Civil Procedure Rules (NS)
  2. R v Chubbs, 2013 NLCA 30 (CanLII) at para 3
    R v Dow, 2013 NSCA 50 (CanLII) at para 10 citing numerous NS cases
    R v Brown, 2013 ABCA 256 (CanLII) at para 2
  3. Dow, ibid. at para 10

Grounds

Section 679(3) sets out the grounds to consider on bail:[1]

679.
...
Circumstances in which appellant may be released
(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.

R.S., 1985, c. C-46, s. 679; R.S., 1985, c. 27 (1st Supp.), s. 141; 1997, c. 18, s. 95; 1999, c. 25, s. 14(Preamble); 2002, c. 13, s. 66.


CCC

  1. see also R v Manasseri, 2013 ONCA 647 (*no link)

Not Frivolous

The requirement of a non-frivolous appeal is made out where the appeal raises "arguable issues" that has a "viable ground". This does not require establishment of a "likelihood" of success.[1]

It is only necessary that it be shown that the appeal will "not necessarily fail".[2] Or to put in another way, it is "an appeal that one can say with confidence cannot possibly succeed".[3]

  1. R v H.B., 2014 ONCA 334 (CanLII) at para 3
    R v Manasseri, 2013 ONCA 647 (*no link) at para 38
  2. R v Passey, 1997 ABCA 343 at para 7
    R v Iyer, 2016 ABCA 407 (CanLII) at para 8
  3. Iyer, ibid. at para 8

Public Interest

The public interests criterion has two components: 1) public safety and 2) public confidence in the administration of justice.[1]

The third factor takes into account the appellant’s risk to reoffend, the strength of his case, the nature and circumstances of the offence, the circumstances of the appellant himself, delay and its impact, post-charge conduct, the possible terms of release, and the impact of release on the confidence of the public in the administration of justice.[2]

Public Safety
The risk of re-offence relates to risk to others or the administration of justice.[3]

Consideration will include prior criminal record and history of compliance while on release conditions.[4]

Confidence in the Administration of Justice
The analysis should balance the need to review a conviction leading to imprisonment and the need to have immediately enforced judgments.[5]

The public's confidence in the administration of justice requires that judgments to be enforced.[6] So too does it require that judgments be reviewed and errors be corrected.[7]

This factors is usually the most important when dealing with more serious offences with greater penalties.[8] A more serious offence who advances an arguable but weak ground, will side on the denial of bail.[9] A murder conviction will "rarely" be granted relief on the public interest branch.[10] But where the grounds are strong and there is a "serious concern" of accuracy of the verdict. The public interest will side on granting bail, even in serious offences.[11]

  1. R v Forcillo, 2016 ONCA 606 (CanLII) at para 9
  2. R v LSR, 2008 SKCA 77 (CanLII)
    R v Toy, 2009 SKCA 32 (CanLII)
  3. Forcillo, supra at para 10
    R v Iyer, 2016 ABCA 407 (CanLII) at para 15 ("This involves the likelihood of re-offence or harm to the public if [accused] is released")
  4. e.g. Iyer, ibid. at para 15
  5. H.B., supra at para 3
    R v Farinacci, 1993 CanLII 3385 (ON CA), (1993), 86 CCC (3d) 32 (Ont. C.A.), at pp. 47-48
    R v Manasseri, 2013 ONCA 647 (*no link)
    R v Sidhu, 2015 ABCA 308 (CanLII) at para 5
  6. Manasseri, ibid.
  7. Farinacci, supra at p. 48
    Manasseri, supra
  8. HB, supra at para 3
  9. Manasseri, supra
    Farinacci, supra at p. 48
  10. R v Baltovich, 2000 CanLII 5680 (ON CA), at para 20
  11. Baltovich, ibid., at para 20
    R v Parsons, 1994 CanLII 9754 (NL CA), (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187
    Manasseri, supra

Procedure

679.
...
Notice of application for release
(2) Where an appellant applies to a judge of the court of appeal to be released pending the determination of his appeal, he shall give written notice of the application to the prosecutor or to such other person as a judge of the court of appeal directs.
...
R.S., 1985, c. C-46, s. 679; R.S., 1985, c. 27 (1st Supp.), s. 141; 1997, c. 18, s. 95; 1999, c. 25, s. 14(Preamble); 2002, c. 13, s. 66.


CCC

Revocation

See also: Bail Revocation and Termination

Section 679(6) allows for an application to revoke bail in the same manner as regular bail under s. 525:

679...
Application of certain provisions of section 525
(6) The provisions of subsections 525(5), (6) and (7) apply with such modifications as the circumstances require in respect of a person who has been released from custody under subsection (5) of this section.


Upon arrest for an allegation for failure to comply with the provisions of bail pending appeal, a chambers judge may:[1]

  1. revoke release order
  2. cancel the recognizance; and
  3. release on a new recognizance under s. 515(10) where the detainee shows cause;
  1. R v Manasseri, 2015 ONCA 3 (CanLII), at para 32

Case Digests

Courts have considered bail in the following offences:

  • Sexual assault [1]
  1. R v Tcho, 2011 SKCA 113 (CanLII) - released