Bail Pending Appeal

From Criminal Law Notebook

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.


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Where the appeal is against sentence only (s. 679(1)(b)), the appellate judge must decide the issue of whether leave should be granted first. In any other circumstances leave does not need to be determined.

Burden
The burden is upon the offender to establish the grounds of release on a balance of probabilities.[2] Each criterion must be met on a balance of probabilities.[3] This shift of burden is because the presumption of innocence is no longer in effect upon conviction.[4]

  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. ↑ R v Oland, 2017 SCC 17 (CanLII) at para 19 (“bears the burden of establishing that each criterion is met on a balance of probabilities”)
  4. ↑ Dow, ibid. at para 10

Bail on Sentence Appeal

679 (1) ...
Idem
(4) In the case of an appeal referred to in paragraph (1)(b) [appeal of sentence only], the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that

(a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody;
(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.


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Depending on the rules of court of each jurisdiction it may be required that the Court of Appeal grant leave to appeal before they can consider bail pending a hearing on the merits of appeal.[1]

  1. ↑ NS: R v KMF, 2018 NSCA 58 per Farrar JA in Chambers ("[17] K.M.F. is only appealing her sentence. Before she can seek bail pending appeal I must grant leave to appeal.") -- applying 91.24 (1) of the NS Civil Procedure Rules

Bail on Reference

679
...
Release or detention pending hearing of reference
(7) If, with respect to any person, the Minister of Justice gives a direction or makes a reference under section 696.3, this section applies to the release or detention of that person pending the hearing and determination of the reference as though that person were an appellant in an appeal described in paragraph (1)(a).
...
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.


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Bail on Appeal of Conviction, Conviction and Sentence, or Appeal to Supreme Court of Canada

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) [appeal of conviction or conviction and sentence] or (c) [appeal to supreme court of canada], 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.

[annotation(s) added]


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  1. ↑ see also R v Manasseri, 2013 ONCA 647 (*no CanLII links)

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 CanLII links) at para 38
  2. ↑ R v Passey, 1997 ABCA 343 (CanLII) 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]

  1. ↑ R v Forcillo, 2016 ONCA 606 (CanLII) at para 9
    R v Oland, 2017 SCC 17 (CanLII) at paras 23 to 27
    R v Farinacci (1993), 1993 CanLII 3385 (ON CA), 67 O.A.C. 197 (C.A.)
  2. ↑ R v LSR, 2008 SKCA 77 (CanLII)
    R v Toy, 2009 SKCA 32 (CanLII)

Public Safety

The risk of re-offence relates to risk to others or the administration of justice.[1]

Consideration will include prior criminal record and history of compliance while on release conditions.[2]

  1. ↑ 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")
  2. ↑ e.g. Iyer, ibid. at para 15

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.[1]

This is characterized as a weighing the two competing interests of enforceability and reviewability.[2] This balancing involves a "qualitative and contextual exercise, with no precise formula".[3]

The interest of reviewability concerns the interests of the accused not to serve "all or a significant part of a custodial sentence only to find out on appeal that the conviction ... was unlawful" and to acknowledge that the system is no infallible.[4]

The public's confidence in the administration of justice requires that judgments to be enforced.[5] So too does it require that judgments be reviewed and errors be corrected.[6]

This element is usually the most important when dealing with more serious offences with greater penalties.[7] A more serious offence who advances an arguable but weak ground, will side on the denial of bail.[8] A murder conviction will "rarely" be granted relief on the public interest branch.[9] 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.[10]

Where safety and flight are negligible concerns and the grounds are "not frivolous", the interests in reviewability may overshadow the enforceability, even for murder.[11]

Circumstantial Factors
The factors to consider include:[12]

  • ensuring fairness in the appeal process, to avoid the prospect of the applicant serving a sentence when the appeal is ultimately allowed[13]
  • the fact of conviction, and the public importance of respecting the trial decision and the trial process[14]
  • the apparent strength of the grounds for appeal, recognizing that it is not the role of the bail judge to resolve the merits[15]
  • the standard of review that will be applied by the appeal court[16]
  • any risk that the applicant will reoffend if released[17]
  • the applicant’s history of compliance with court orders and legally imposed conditions;[18]
  • whether the applicant was released pending trial, and if so if his release was uneventful;[19]
  • whether conditions of release could be crafted that would protect the public interest;[20]
  • the seriousness of the charges, reflected in the severity of the sentence, although no class of offence is excluded from release[21]
  • the effect on the perception of the administration of justice if the applicant is released, including the perception of an informed and reasonable member of society[22]
  • the status and state of readiness of the appeal[23]

No single factor should be considered determinative.[24]

  1. ↑ 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 CanLII links)
    R v Sidhu, 2015 ABCA 308 (CanLII) at para 5
  2. ↑ R v Oland, 2017 SCC 17 (CanLII) at para 24, 26
    Farinacci, supra at para 41, 44
  3. ↑ Oland, supra at para 49
  4. ↑ Oland, ibid. at para 25
  5. ↑ Manasseri, ibid.
  6. ↑ Farinacci, supra at p. 48
    Manasseri, supra
  7. ↑ HB, supra at para 3
  8. ↑ Manasseri, supra
    Farinacci, supra at p. 48
  9. ↑ R v Baltovich, 2000 CanLII 5680 (ON CA), at para 20
  10. ↑ 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
  11. ↑ R v Shlah, 2017 ABCA 103 (CanLII) at para 13
  12. ↑ R v Sidhu, 2015 ABCA 308 (CanLII) at para 12
  13. ↑ R v Fox, 2000 ABCA 283 (CanLII) at para 18 and 19
    Colville, 2003 ABCA 133 (CanLII) at para 12
  14. ↑ R v Nguyen, 1997 CanLII 10835 (BC CA), 97 BCAC 86, 119 CCC (3d) 269] at para.18
    R v Farinacci at para. 41
    R v Rhyason, 2006 ABCA 120 (CanLII)
  15. ↑ R v Heyden (1999), 1999 CanLII 1934 (ON CA), 127 O.A.C. 190, 141 C.C.C. (3d) 570 at paras. 7-8, 12
    R v Rhyason at paras. 13-18
    R v Colville at para. 16
  16. ↑ R. v. Sagoo, 2009 ABCA 357 (CanLII), 464 A.R. 258 at para. 9
  17. ↑ Nguyen, supra at para. 7
    Fox, supra at paras.18, 20-21
  18. ↑ Sidhu at para 12
  19. ↑ Sidhu at para 12
  20. ↑ Sidhu at para 12
  21. ↑ Nguyen, supra at paras. 13, 20-24
    Heyden, supra at para. 12
    R. v. R.D.L. (1995), 178 A.R. 142 at para. 5
  22. ↑ Nguyen at paras. 25-6
    Rhyason at para. 20
    Fox at para. 18
    Colville at para. 17
  23. ↑ Farinacci, supra at paras. 44, 4fg8
    Heyden, supra at para. 12
    R.D.L., supra at paras. 5, 12
  24. ↑ Sidhu at para 12
    R v Gingras, 2012 BCCA 467 (CanLII) at para. 45

Conditions of Release

679...
Conditions of order
(5) Where the judge of the court of appeal does not refuse the application of the appellant, he shall order that the appellant be released

(a) on his giving an undertaking to the judge, without conditions or with such conditions as the judge directs, to surrender himself into custody in accordance with the order, or
(b) on his entering into a recognizance
(i) with one or more sureties,
(ii) with deposit of money or other valuable security,
(iii) with both sureties and deposit, or
(iv) with neither sureties nor deposit,

in such amount, subject to such conditions, if any, and before such justice as the judge directs,

(c) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 141]

and the person having the custody of the appellant shall, where the appellant complies with the order, forthwith release the appellant.
Conditions
(5.1) The judge may direct that the undertaking or recognizance referred to in subsection (5) include the conditions described in subsections 515(4), (4.1) and (4.2) that the judge considers desirable.
...


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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.


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Undertaking or Recognizance

679
...
Form of undertaking or recognizance
(9) An undertaking under this section may be in Form 12 and a recognizance under this section may be in Form 32.
...
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.


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Power to Expedite Appeal

Release pending determination of appeal
679 (1) ...
Directions for expediting appeal, new trial, etc.
(10) A judge of the court of appeal, where on the application of an appellant he does not make an order under subsection (5) or where he cancels an order previously made under this section, or a judge of the Supreme Court of Canada on application by an appellant in the case of an appeal to that Court, may give such directions as he thinks necessary for expediting the hearing of the appellant’s appeal or for expediting the new trial or new hearing or the hearing of the reference, as the case may be.
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.


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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.
...
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.


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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

Example Offences

Courts have considered bail in the following offences:

  • Sexual assault [1]

Homicide
Bail pending appeal for a conviction for murder is "rare".[2]

  1. ↑ R v Tcho, 2011 SKCA 113 (CanLII) - released
  2. ↑ R v Baltovich, 2000 CanLII 5680 (ON CA), 144 CCC (3d) 233 (ON CA)
    R v Short, 2017 ONCA 153 (CanLII) at para 9
    R v Manasseri, 2013 ONCA 647(*no CanLII links)

Bail On Ordering of a New Trial

Where the accused appeals and a new trial is ordered by the appellate court, the accused's release is governed by s. 679(7.1):

679
...
Release or detention pending new trial or new hearing
(7.1) Where, with respect to any person, the court of appeal or the Supreme Court of Canada orders a new trial, section 515 or 522, as the case may be, applies to the release or detention of that person pending the new trial or new hearing as though that person were charged with the offence for the first time, except that the powers of a justice under section 515 or of a judge under section 522 are exercised by a judge of the court of 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.


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This section intends to treat accused directed to a new trial to be treated "as if that person were charged with the same offence for the first time".[1]

The order of release or remand will be ordered under s. 515 for all offences except for s. 469 offences in which case it is governed by s. 522. The function of s. 679(7.1) would transfer these release powers to the Court of Appeal.[2]

The phrase "pending the new trial" includes (1) the period between the order of the new trial and the first appearance in addition to (2) the period between the first appearance and the commencement of the new trial.[3] During the first period of time, the appellate court has exclusive jurisdiction to deal with bail.[4] While in the second period of time both the trial court and the court of appeal share concurrent jurisdiction over bail.[5]

Concurrent Jurisdiction
Where there is concurrent jurisdiction to release an accused under s. 679(7.1), the court of appeal will often decline jurisidiction and refer the matter to the trial judge.[6] The Court of Appeal will take into account numerous factors when deciding whether to take jurisdiction including:[7]

  1. the geographic location of the person, the proposed sureties, counsel and where necessary, witnesses.
  2. the nature of the hearing, including the reasonable necessity of the introduction of viva voce testimony;
  3. the issues in controversy;
  4. the anticipated length of the hearing;
  5. the need for familiarity with the appellate record and the reasons provided for ordering a new trial;
  6. the relationship, if any, between the issue of release and the hearing and scheduling of the new trial;
  7. the review mechanism available to any party aggrieved by the decision;
  8. the nature of the record required for the hearing; and
  9. the timing of the hearing.
  1. ↑ R v Manasseri, 2017 ONCA 226 (CanLII) at para 38
  2. ↑ Manasseri, ibid. at para 38
  3. ↑ Manasseri, ibid. at paras 39 to 40
  4. ↑ Manasseri, ibid. at para 41
    R v Vincent, 2008 ONCA 76 (CanLII), per Sharpe JA, at para 7
    R v Geddes, 2012 MBCA 31 (CanLII), per Chartier JA at para 3
  5. ↑ Manasseri, ibid. at para 41
  6. ↑ Manasseri, ibid. at para 42
  7. ↑ Manasseri, ibid.

Bail Pending Summary Conviction Appeal

Interim Release of Appellant
Undertaking or recognizance of appellant
816 (1) A person who was the defendant in proceedings before a summary conviction court and by whom an appeal is taken under section 813 shall, if he is in custody, remain in custody unless the appeal court at which the appeal is to be heard orders that the appellant be released

(a) on his giving an undertaking to the appeal court, without conditions or with such conditions as the appeal court directs, to surrender himself into custody in accordance with the order,
(b) on his entering into a recognizance without sureties in such amount, with such conditions, if any, as the appeal court directs, but without deposit of money or other valuable security, or
(c) on his entering into a recognizance with or without sureties in such amount, with such conditions, if any, as the appeal court directs, and on his depositing with that appeal court such sum of money or other valuable security as the appeal court directs,

and the person having the custody of the appellant shall, where the appellant complies with the order, forthwith release the appellant.
Application of certain provisions of section 525
(2) 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 (1).
R.S., 1985, c. C-46, s. 816; R.S., 1985, c. 27 (1st Supp.), s. 181(E).


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Undertaking or recognizance of prosecutor
817 (1) The prosecutor in proceedings before a summary conviction court by whom an appeal is taken under section 813 shall, forthwith after filing the notice of appeal and proof of service thereof in accordance with section 815, appear before a justice, and the justice shall, after giving the prosecutor and the respondent a reasonable opportunity to be heard, order that the prosecutor

(a) give an undertaking as prescribed in this section; or
(b) enter into a recognizance in such amount, with or without sureties and with or without deposit of money or other valuable security, as the justice directs.

Condition
(2) The condition of an undertaking or recognizance given or entered into under this section is that the prosecutor will appear personally or by counsel at the sittings of the appeal court at which the appeal is to be heard.
Appeals by Attorney General
(3) This section does not apply in respect of an appeal taken by the Attorney General or by counsel acting on behalf of the Attorney General.
Form of undertaking or recognizance
(4) An undertaking under this section may be in Form 14 and a recognizance under this section may be in Form 32.
R.S., c. 2(2nd Supp.), s. 16.


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Application to appeal court for review
818 (1) Where a justice makes an order under section 817, either the appellant or the respondent may, before or at any time during the hearing of the appeal, apply to the appeal court for a review of the order made by the justice.
Disposition of application by appeal court
(2) On the hearing of an application under this section, the appeal court, after giving the appellant and the respondent a reasonable opportunity to be heard, shall

(a) dismiss the application; or
(b) if the person applying for the review shows cause, allow the application, vacate the order made by the justice and make the order that in the opinion of the appeal court should have been made.

Effect of order
(3) An order made under this section shall have the same force and effect as if it had been made by the justice.
R.S., c. 2(2nd Supp.), s. 16; 1974-75-76, c. 93, s. 91.1.


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Recognizance

Requiring an Undertaking or Recognizance

Undertaking or recognizance
832 (1) When a notice of appeal is filed pursuant to section 830, the appeal court may order that the appellant appear before a justice and give an undertaking or enter into a recognizance as provided in section 816 where the defendant is the appellant, or as provided in section 817, in any other case.
Attorney General
(2) Subsection (1) does not apply where the appellant is the Attorney General or counsel acting on behalf of the Attorney General.
R.S., 1985, c. C-46, s. 832; R.S., 1985, c. 27 (1st Supp.), s. 182.


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Leave to Appeal

679
Application to appeals on summary conviction proceedings
(8) This section [concerning release pending appeal on indictable matters] applies to applications for leave to appeal and appeals to the Supreme Court of Canada in summary conviction proceedings.
...


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