Are you eligible for bail if you appeal a conviction?

Written on behalf of Barrison Law
Jail image representing bail if appealing conviction

In addition to being relevant following an arrest and prior to a trial, bail can also be obtained during an appeal. For example, if you have been convicted and seek to appeal the conviction, it may be possible to apply for bail pending the determination of the appeal.

This article looks at the circumstances in which bail may be granted pending an appeal. Additionally, we examine a recent decision of the Court of Appeal for Ontario in which a man convicted of robbery sought bail while requesting an extension of time to appeal to the Supreme Court of Canada.

Persons convicted of crimes may be released pending appeals

Under section 679 of the Criminal Code, a judge of the court of appeal may release a person convicted of an indictable offence pending the determination of the appeal, if:

  • where appealing a conviction – the person has given notice of appeal or notice of an application for leave where leave (that is, permission) of the court to appeal is required;
  • where appealing the sentence only – the person has been granted leave to appeal; or
  • where appealing to the Supreme Court – the person has filed a notice of appeal or an application for leave to appeal where leave of the court to appeal is required.

Convicted defendant must establish that detention is not necessary in the public interest

If the defendant appeals the conviction to a court of appeal or to the Supreme Court, a judge may release the person if:

  • the appeal or application for leave to appeal is not frivolous;
  • they will surrender themself into custody as required by the bail order; and
  • detention is not necessary in the public interest.

The test is slightly different if appealing against the sentence only. In addition to surrendering into custody as required and being unnecessary in the public interest, a defendant appealing a sentence must also demonstrate that their appeal is meritorious and that detaining them would cause unnecessary hardship.

Robbery conviction affirmed on appeal

In R. v Scott, a man was charged with offences following a violent home invasion that took place in February 2017. He was granted bail pending trial.

In 2019, he was convicted of robbery after being found to be the driver of a car that transported two intruders to the relevant home. He was sentenced to six and a half years in prison.

After being granted bail pending appeal, his conviction was affirmed by the Court of Appeal in April 2022. His sentence was reduced by 23 days, reflecting a period of pre-sentence custody.

Convicted defendant sought bail while waiting for leave to appeal to the Supreme Court

The man convicted is currently seeking an extension of time to apply for permission to appeal the conviction to the Supreme Court of Canada. If the extension is granted and leave to appeal is obtained, he plans to argue that:

  • the Court of Appeal did not consider one of the grounds of appeal that he raised and argued, which caused the process to be procedurally unfair; and
  • the trial judge gave inadequate reasoning in finding that he was the getaway driver.

In the meantime, pending the determination of the application for leave to appeal to the Supreme Court, he sought bail from a judge of the Court of Appeal.

Balance must be struck between enforceability and reviewability, Court explains

The Crown conceded that the grounds of appeal were not frivolous and that the defendant would surrender into custody in accordance with the proposed bail order, so the only issue for the court was whether the detention was necessary in the public interest.

Justice of Appeal Paciocco explained that it was necessary to consider whether the public’s interest in reviewability before the sentence of detention begins outweighed the public interest in the enforcement of the trial judgment.

In the context of an application for leave to appeal, as opposed to where there is a right to appeal, it is more difficult for the person convicted to meet the public interest requirement. However, his Honour said there was no presumption in favour of rejecting the bail application and that the balance between enforceability and reviewability was still case specific.

Bail granted pending determination of application for leave to appeal

Justice of Appeal Paciocco accepted the Crown’s position that it was unlikely that the defendant would ultimately be granted leave to appeal.

However, his Honour noted that “the unusual circumstances of this case” reduced the enforceability interest. Because it was arguable that the Court of Appeal did not consider a ground of appeal, he is not asking for a second bite at the cherry, but rather, for the Supreme Court to ensure he is not finally convicted without having the ground considered.

His Honour noted that the defendant did not present a flight risk nor a substantial risk to public safety. Although the delay pending the leave to appeal decision would be short and his sentence is lengthy, such that denying bail would not result in the defendant serving much of his sentence, “any period of detention before being finally convicted represents a serious compromise on a person’s liberty”.

As a result, Justice of Appeal Paciocco decided that detention pending the leave to appeal determination was not necessary in the public interest and accordingly granted bail.

Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Skilled Representation in Bail Hearings

The team of criminal defence lawyers at Barrison Law assists clients at every stage of the process from bail hearings to trial and appeals. We recognize the huge upheaval that being denied bail causes to your life and family.

Our office is conveniently located just steps from the Durham Consolidated Courthouse. We accept cases on private retainer and Legal Aid and offer 24-hour phone service, so we are here for you when you need us. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.