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“Bail Pending Appeal” and securing release from custody after a conviction has been entered: recent cases.

Published On: May 28,2018

Criminal bail hearings, Bail at Appeal,
Bail Hearings, Bail Pending Appeal, Criminal Bail Hearings, Urgent Criminal Defence Lawyers

What is Bail Pending Appeal?

If you have been convicted of a Criminal Code offence or of an offence under an Act of Parliament resulting in a jail term, an application can be made to secure judicial interim release (i.e. Bail) pending the outcome of your appeal.   It is critical to note, that the criminal law standards for securing bail are elevated, primarily due to the loss of the presumption of innocence due to the entry of the conviction.  Section 679(3) of the Criminal Code allows a judge of a court of appeal to order the release of an offender who has appealed his (or her) conviction “if the appellant establishes that (a) the 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.” There are two (2) components to the last criterion. The offender must establish that he or she is not a threat to public safety – the offender will not commit a criminal offence while on bail – and that a reasonable person who is thoughtful, dispassionate, informed and respectful of society’s fundamental values would not lose confidence in the administration of justice if the appeal court released the applicant.  
In determining the public interest involves the balancing of great many factors. Some were listed in Regina v McNaughton, 2010 ABCA 97at para. 12, 26 Alta LR (5th) 126: Without attempting to compile a complete list, some of the factors that are relevant to the exercise of the jurisdiction include:  
  • ensuring fairness in the appeal process, to avoid the prospect of the applicant serving a sentence when the appeal is ultimately allowed (Charter of Rights, s. 11(e); Farinacciat paras. 43, 48; v. Fox, 2000 ABCA 283, 8 M.V.R. (4th) 1 at paras. 18-9; R. v. Colville, 2003 ABCA 133, 327 A.R. 143 at para. 12);
 
  • the fact of conviction, and the public importance of respecting the trial decision and the trial process (Nguyen[ (1997), 97 BCAC 86, 119 CCC (3d) 269] at para.18; Farinacciat para. 41; v. Rhyason, 2006 ABCA 120, 57 Alta. L.R. (4th) 31, 208 C.C.C. (3d) 193);
 
  • the apparent strength of the grounds for appeal, recognizing that it is not the role of the bail judge to resolve the merits ( v. Heyden(1999), 127 O.A.C. 190, 141 C.C.C. (3d) 570 at paras. 7-8, 12; Rhyasonat paras. 13-18; Colvilleat para. 16);
 
  • the standard of review that will be applied by the appeal court ( v. Sagoo, 2009 ABCA 357, 464 A.R. 258 at para. 9);
 
  • any risk that the applicant will reoffend if released (Nguyenat para. 7; Foxat paras.18, 20-21);
 
  • the applicant’s history of compliance with court orders and legally imposed conditions;
 
  • whether the applicant was released pending trial, and if so if his release was uneventful;
 
  • whether conditions of release could be crafted that would protect the public interest;
 
  • the seriousness of the charges, reflected in the severity of the sentence, although no class of offence is excluded from release (Nguyenat paras. 13, 20-24; Heydenat para. 12; v. R.D.L.(1995), 178 A.R. 142 at para. 5);
 
  • 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 (Nguyenat paras. 25-6; Rhyasonat para. 20; Foxat para. 18; Colvilleat para. 17);
 
  • the status and state of readiness of the appeal (Farinacciat paras. 44, 48; Heydenat para. 12; D.L.at paras. 5, 12).
It cannot be said that the presence or absence of any one of those factors is determinative of the public interest, or of the eligibility of the appellant for release pending appeal: Regina v Gingras, 2012 BCCA 467 at para. 45, 293 CCC (3d) 100.

The Court of Appeal has recently considered two (2) cases that have considered the recent application of this rule:  R. v. C.L, infra, and R. v. B.G.  Each are discussed below:

Regina v. C.L, infra The Ontario of Court of Appeal dismissed the accused’s application for bail pending appeal. Following a judge-alone trial, the accused in this case was convicted of sexual assault and being unlawfully in a dwelling house.  As a consequence of the conviction and the outcome of the sentencing hearing, this accused person received a sentence of two (2) years less a day imprisonment plus two (2) years of probation.  His application for bail pending appeal was dismissed.  In dismissing the accused’s application, Trotter J.A. held that the public interest criterion was not met. This was because “[t]he materials filed fail to demonstrate that the grounds of appeal have sufficient strength to overcome the serious enforceability considerations present in this case” (at para. 21).     The Ontario Court of Appeal took umbrage with accused’s new charges of breach of recognizance, combined with his failure to mention them in his bail pending appeal affidavits.  The Court stated that it did not inspire confidence about compliance with any bail pending appeal order that might be made. Justice Trotter stated as follows (at para. 13): “The new criminal charges should have been disclosed. Judges of this court rely heavily on the trustworthiness of affidavits sworn in support of bail pending appeal applications. They are expected to be both accurate and complete     Regina v. B.G, Infra, In Regina and B.G., 2018 ONCA 455 (RD), Justice Brown of the Ontario Court of Appeal, granted the accused’s application for bail pending appeal from his conviction for child pornography and sexual offences. The trial judge found that the accused had taken and distributed photographs depicting his young daughter naked. The Crown opposed the application on the grounds that the public interest criterion was not met. The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: R v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23 & 26. The public confidence criterion requires balancing several factors: the seriousness of the offence; the strength of the grounds of appeal; public safety; and flight risks: Oland, at paras. 37- Justice Brown held as follows:   [12]       The offences of which the applicant was convicted are very serious, involving as they do a vulnerable young child. However, when that factor is weighed with the remaining factors under the Oland public interest test – the strength of the grounds of appeal, no flight risk, and no threat to public safety – on balance, reviewability is favoured over enforceability.   “The offences of which the applicant was convicted are very serious, involving as they do a vulnerable young child. However, when that factor is weighed with the remaining factors under the Oland public interest test – the strength of the grounds of appeal, no flight risk, and no threat to public safety – on balance, reviewability is favoured over enforceability.”

These cases demonstrate the importance of the benefits of a properly prepared bail application (affidavits and arguments).  The procedure in securing bail prior to trial differs markedly when a conviction has been entered and a person has been remanded into custody.

If you have been convicted of a criminal code offence and you are seeking bail, contact Mr. J.S. Patel, Barrister at 403-585-1960 to secure a telephone consultation.