Interim Remedies Pending Appeal

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General Principles

Suspension of Sentences

Under s.683(5), the Court of Appeal has the power to suspend fine orders, forfeiture orders, restitution orders, victim fine surcharge, rpobation order, and conditional sentence orders, where it is in the interest of justice to do so:[1]

683
...
Power to order suspension
(5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

(a) an obligation to pay a fine;
(b) an order of forfeiture or disposition of forfeited property;
(c) an order to make restitution under section 738 or 739;
(d) an obligation to pay a victim surcharge under section 737;
(e) a probation order under section 731; and
(f) a conditional sentence order under section 742.1.

...
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29.


CCC

At any time when the "interests of justice" are served by the revocation of suspension order, the accused may do so. (683(6))

Before any order is revoked under s. 683(5), the Court may consider placing the offender on an undertaking or recognizance.(s. 683(5.1)) The terms and conditions imposed upon the offender may be a factor when considering whether the vary the sentence. (683(7))

Variations of Court of Appeal Sentences
Variations of a conditional sentence imposed by a Court of Appeal should generally be done by the trial court.[2]

Variation of probation will not be considered where the reason for the suspension can equally be accomplished by an application to vary the order to the sentencing court.[3]

Interest of Justice
The merit to the appeal is a factor in considering the interest of justice. A low chance of success will weigh against suspending order.[4]

  1. R v Shaw, 2014 ABCA 6 (CanLII)
  2. R v Barrett, 2008 NLCA 23 (CanLII)
  3. Shaw
  4. R v Shaw, 2014 ABCA 6 (CanLII) at para 10

Stay of Order Pending Appeal

Whether an order can by stayed pending appeal requires three findings:[1]

  1. a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.
  2. it must be determined whether the applicant would suffer irreparable harm if the application were refused.
  3. an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits

A firearms prohibition may be the subject of a stay of proceedings.[2]

  1. Strongitharm, 2013 NLCA 69 (CanLII), at para 20
  2. R v Lupyrypa, 2010 ABCA 264 (CanLII)

Bail on Appeal