Bail Pending Appeal (the Public Interest Criterion)

The three statutory criteria for bail pending appeal are found in s. 679(3) of the Code:

(3) In the case of an appeal [against conviction], 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 . . . 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.

The applicant seeking bail bears the burden of establishing that each criterion is met on a balance of probabilities:

R. v. Ponak, [1972] 4 W.W.R. 316 (B.C.C.A.), at pp. 317-18; R. v. Iyer, 2016 ABCA 407, at para. 7 (CanLII); R. v. D’Amico, 2016 QCCA 183, at para. 10 (CanLII); R. v. Gill, 2015 SKCA 96, 465 Sask. R. 253, at para. 14..

a.   The appeal is not frivolous

The first criterion requires the appeal judge to examine the grounds of appeal with a view to ensuring that they are not “not frivolous” (s. 679(3)(a)). Courts have used different language to describe this standard. The “not frivolous” test is widely recognized as being a very low bar:

See R. v. Xanthoudakis, 2016 QCCA 1809, at paras. 4-7 (CanLII); R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38; R. v. Passey, 1997 ABCA 343, 121 C.C.C. (3d) 444, at paras. 6-8; G. Trotter, The Law of Bail in Canada (3rd ed. (loose-leaf)), at pp. 10-13 to 10-15.

b.   Will surrender into custody in accordance with the terms of the release order

The second criterion requires the applicant to show that “he will surrender himself into custody in accordance with the terms of the [release] order” (s. 679(3)(b)). The appeal judge must be satisfied that the applicant will not flee the jurisdiction and will surrender into custody as required.

c.   Detention is not necessary in the public interest.

The third criterion requires the applicant to establish that “his detention is not necessary in the public interest” (s. 679(3)(c)).

 The public interest criterion consists of two components:

·         public safety, and

·         public confidence in the administration of justice

R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), per Arbour J.A. (as she then was)

The public interest framework which Farinacci established has withstood the test of time, and has been universally endorsed by appellate courts across the country, including the Supreme Court of Canada.

R. v. Oland, 2017 SCC 17, at para. 26.

Public Confidence in the Administration of Justice        

Public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values:

Oland, at para. 47; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80.

Enforceability & Reviewability

The public confidence component involves the weighing of two competing interests: enforceability and reviewability.

1.   Enforceability

The enforceability interest reflected the need to respect the general rule of the immediate enforceability of judgments

2.   Reviewability

This interest reflects society’s acknowledgement that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process — one which did not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful

R. v. Farinacci, at pp. 47-49.

Factors to Consider under the Public Interest Criterion

In R. v. Oland, 2017 SCC 17, the Supreme Court of Canada confirmed that--with appropriate modifications--the public confidence factors listed in s. 515(10)(c) (which governs pre-trial release) are instructive in identifying the factors that make up the public confidence component in s. 679(3)(c).

Flight Risk

While this factor is listed at s. 515(10)(a), it is specifically considered under s. 679(3)(b)-- will [the appellant] surrender himself into custody in accordance with the terms of the order.

Nonetheless, lingering flight risks that do not rise to the substantial risk level under s. 679(3)(b) will remain relevant under the public confidence component and can, in some cases, tip the scale in favour of detention:  Oland, at para 39.

 By the same token, the absence of a flight risk will attenuate the enforceability interest.

Public Safety

This component of the public interest essentially tracks the familiar requirements of the so-called “secondary ground” governing an accused’s release pending trial (see s. 515(10)(b))

R. v. Farinacci, at pp. 45 and 47-48.

Public safety concerns that fall short of the substantial risk mark — which would preclude a release order — will remain relevant under the public confidence component and can, in some cases, tip the scale in favour of detention.

Oland, at para 39: R. v. Rhyason, 2006 ABCA 120, 208 C.C.C. (3d) 193, at para. 15; R. v. Roussin, 2011 MBCA 103, 275 Man. R. (2d) 46, at para. 34.

The absence of a public safety risk will attenuate the enforceability interest: Oland, at para 39

The Strength of the Appeal

The strength of the grounds of appeal plays a central role in assessing the reviewability interest: Oland, at para. 40.

Separate from the question of whether the appeal is frivolous or not, a more probing inquiry into the chances of success on appeal is required when the offence is serious, such that public concern about enforceability is ignited.

Oland, at paras. 40-45 ; Gary Trotter, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267.

Remedy Sought              

The remedy sought on appeal may inform the reviewability interest. For example, if a successful appeal can result only in a murder conviction being reduced to manslaughter, this will lessen the interest in reviewability, even if the grounds of appeal appear to be strong:

R. v. Meda (1981), 23 C.R. (3d) 174 (B.C.C.A.); R. v. Olsen (1996), 94 O.A.C. 62, at para. 5; R. v. Roe, 2008 BCCA 253, 256 B.C.A.C. 308, at para. 14; R. v. Lees, 1999 BCCA 441, 127 B.C.A.C. 280, at paras. 4-5.

Seriousness of the Crime

This factor plays an important role: Oland, at para. 37.

The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending appeal.

The gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment are factors germane to an assessment of the seriousness of the crime: Oland, at para. 38.

The Final Balancing

Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence.  In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required.