How to get bail pending appeal

Getting bail pending appeal following a conviction is not as difficult as you might think. This article explains the legal principles and processes that are involving in obtaining bail pending appeal, whether your case occurred in Ontario, Alberta, New Brunswick, or some other Canadian province. This is not intended as legal advice and, to be clear, it is best to hire an experienced appeal lawyer if intend to apply for bail pending appeal.

The bail pending appeal test

To begin, it is important to understand the legal test for achieving bail pending.  The Criminal Code defines the governing test under section 679.  According to that section, a person seeking release on bail pending appeal must satisfy the court that three preconditions are met.  First, he or she must prove that the appeal is not frivolous.  This means that there is some arguable ground of appeal. The “not frivolous” hurdle is a low one. It does not require the appellant/applicant to prove that the appeal is likely to succeed or will succeed. Rather, he or she must simply demonstrate there is some ground(s) of appeal that has arguable merit.

The second pre-condition to bail pending appeal is that the applicant will surrender into custody as required.

Finally, the applicant must also demonstrate that his or release from custody on bail pending is not contrary to the public interest. The Supreme Court of Canada recently ruled that “public interest” means two things: public safety and public confidence.  In other words, a person who will commit further dangerous crimes while on bail pending appeal should not be released. Also, he or she should not be released if it would undermine public confidence in the administration of justice.

Things get very complicated when courts attempt to decide whether allowing a person on bail pending appeal would undermine public confidence. On the one hand, public confidence suffers when a person is released from custody after they were already found guilty.  This is because society has an interests in enforcing the decisions of a criminal court.  That is not the whole story, however.  Society also has an interest in making certain that people are not wrongfully convicted, and the appeal process is an important protection against wrongful convictions. On the appeal, the court reviews the proceeding and decision at trial to determine whether it was fair. This process becomes less meaningful if a person has to serve their sentence before an appellate court determines whether they should have been convicted in the first place. In other words, society has an interest in make sure that a convicted person has a meaningful right to review the conviction.

In R. v. Oland, a case that originated in Saint John, New Brunswick, and made its way up the New Brunswick Court of Appeal, the Supreme Court shed light on how judges should weigh the factors relating to public confidence. The court held that where the person is not a threat to public safety, the balance will begin to tip in favour of release where the applicant/appellant advances a ground of appeal that is “clearly not frivolous”.

The bail pending appeal process

The first step in applying for bail pending appeal filing the notice of appeal as well as the supporting documents.

The notice of appeal defines the grounds of appeal. There are three reasons why an appellate court could allow an appeal an enter an acquittal or order a new trial. The first is where the verdict was unreasonable.  The second is where the judge made a wrong decision on a question of law.  The final ground is where there has been a miscarriage of justice.

The notice of appeal will have to identify a ground of appeal that fits into one of those three categories.  Read more about the appeal process and how a Toronto appeal lawyer can assist.

In addition to the notice of appeal, the best appeal lawyers in Ontario file supporting materials on an application for bail pending appeal.  These materials include affidavits from the appellant and his or sureties as well as an affidavit of merits or factum, either of which explain to the court the grounds of appeal.  The affidavit of merit or factum are important tools for explaining to the court why the appeal has merit.  The issue of merit is important to the first (“not frivolous”) and final (“clearly not frivolous”) parts of the test for bail pending appeal.

Minimizing the client’s time in custody

Experienced appeal lawyers often try to schedule the application for bail pending appeal on the same day their client is being sentencing.  A best practice, this ensures that the client does not spend needless time in custody. The procedure differences from province to province.  In New Brunswick, for example, the defence files the notice of motion and schedules the hearing on a date offered by the court registrar.  In Ontario, the defence files the notice of application for bail pending appeal and the hearing takes place three days later.

The role of an appeal lawyer

Applications for bail pending appeal can be challenging and time consumming, even for experienced lawyers. With the necessary skill, knowledge, and experience, appeal lawyers can successfully obtain bail pending for their clients with out the need for long periods of jail time between the conviction and the release from custody.

Gorham Vandebeek LLP regularly succeed in obtaining bail pending appeal for their clients.  With offices in Toronto, Ontario and Saint John, New Brunswick, Nathan Gorham and Breana Vandebeek often appear before the Ontario Court of Appeal and the New Brunswick Court of Appeal.

Speak an appeal lawyer (416) 410-4814 or email

By |2019-04-28T12:43:11+00:00December 21st, 2018|Appeals, Bail|0 Comments