Interim Remedies Pending Appeal

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 84625)

General Principles

The filing of a notice of appeal does not suspend the operation of any sentencing orders.[1]

  1. R v Trabulsey, 1993 CanLII 14673 (ONSC), (1993), 16 OR (3d) 52, 84 CCC (3d) 240, per Watt J

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, probation order, and conditional sentence orders, where it is in the interest of justice to do so:[1]

[omitted (1), (2), (2.1), (2.2), (2.3), (3) and (4)]

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 [restitution orders] or 739 [restitution orders];
(d) an obligation to pay a victim surcharge under section 737 [victim fine surcharge];
(e) a probation order under section 731 [probation orders]; and
(f) a conditional sentence order under section 742.1 [conditional sentence orders].
Release order or recognizance

(5.1) Before making an order under paragraph (5)(e) [powers of court of appeal – suspension of probation] or (f) [powers of court of appeal – suspension of CSO], the court of appeal, or a judge of that court, may make a release order or order the offender to enter into a recognizance.

Revocation of suspension order

(6) The court of appeal may revoke any order it makes under subsection (5) [powers of court of appeal – suspension of orders] where it considers the revocation to be in the interests of justice.

Release order to be taken into account

(7) If the offender is subject to a release order under subsection (5.1) [powers of court of appeal – release order or recog], the court of appeal shall, in determining whether to vary the sentence of the offender, take into account the conditions of that order and the period for which they were imposed on the offender.
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; 2019, c. 25, s. 281.
[annotation(s) added]


Note up: 683(5), (6) and (7)

Defined terms: "offender" (s. 2) and "property" (s. 2)

At any time when the "interests of justice" are served by the revocation of the 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), per O’Ferrall JA
  2. R v Barrett, 2008 NLCA 23 (CanLII), 842 APR 308, per Welsh JA
  3. Shaw, supra
  4. R v Shaw, 2014 ABCA 6 (CanLII), per O’Ferrall JA, 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]

Interim Suspension of Orders

The ordering of interim measures on Charter appeal requires consideration on the following:[3]

  1. "the seriousness of the question to be tried";
  2. "the possibility of irreparable harm to the applicant if the interim order is refused"; and
  3. "the balance of inconvenience caused to the parties by the interim order."
  1. R v Strongitharm, 2013 NLCA 69 (CanLII), per Hoegg JA, at para 20
  2. R v Lupyrypa, 2010 ABCA 264 (CanLII), 490 AR 59, per Berger JA
  3. 143471 Canada Inc v Quebec (Attorney General); Tabah v Quebec (Attorney General), 1994 CanLII 89 (SCC), [1994] 2 SCR 339

Bail on Appeal

Suspension of Restitution and Forfeiture

Restitution or forfeiture of property

689 (1) If the trial court makes an order for compensation or for the restitution of property under section 738 [restitution orders] or 739 [restitution orders] or an order of forfeiture of property under subsection 164.2(1) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2] or 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances], the operation of the order is suspended

(a) until the expiration of the period prescribed by rules of court for the giving of notice of appeal or of notice of application for leave to appeal, unless the accused waives an appeal; and
(b) until the appeal or application for leave to appeal has been determined, where an appeal is taken or application for leave to appeal is made.
Annulling or varying order

(2) The court of appeal may by order annul or vary an order made by the trial court with respect to compensation or the restitution of property within the limits prescribed by the provision under which the order was made by the trial court, whether or not the conviction is quashed.
R.S., 1985, c. C-46, s. 689; R.S., 1985, c. 42 (4th Supp.), s. 5; 1995, c. 22, s. 10; 2002, c. 13, s. 69; 2005, c. 44, s. 12.
[annotation(s) added]


Note up: 689(1) and (2)