Bail Pending Appeal in Canada: Seeking Release After a Conviction

If you have been convicted of a crime, you may be thinking about appealing. One of the first steps in that process is often to apply for bail pending appeal, which allows individuals convicted of crimes and sentenced to jail to secure their temporary release before the court hears their appeal.

When a person applies for bail pending appeal in Canada, the court considers three factors.

1. Is the appeal frivolous? In other words, the appeal must raise viable issues. This does not mean the appeal is likely to succeed. To establish that the appeal is not frivolous, you need only show that the appeal is not dead on arrival.
2. Will you surrender into custody when the court orders you to?
3. Is your release contrary to the public interest? This factor has two components. First, would your release endanger public safety? Second, would your release cause a reasonable member of the public to lose confidence in the justice system? To answer this question, the court balances two competing concepts: (a) the public’s desire to immediately enforce the sentence; and (b) reviewability, which concerns the need to provide for a meaningful review process before you spend time in jail. Another way to think of the reviewability interest is that the court does not want to jail someone for a conviction that is later overturned.

The bail pending appeal hearing happens after the trial court sentences you.

The sentencing hearing will almost certainly happen on a day after you are found guilty. Put another way, you receive your verdict and then have a sentencing hearing in the future.

In many cases, the bail pending appeal hearing is on the day you are sentenced. To schedule the bail pending appeal hearing, you must give three clear days’ notice. “Clear days” means the count begins the day after you file your notice and excludes the day of the hearing. For example, if you want a bail pending appeal hearing on Friday, you must file your notice on Monday. Tuesday, Wednesday, and Thursday are the three clear days.

You may receive a decision on the same day as the hearing. Or the court may take days to decide.

Yes. No class of offences is ineligible for bail pending appeal. But the seriousness of the offence is one factor the court considers in determining whether your release would undermine the public interest.

If you plan to appeal your conviction, you should hire an appeal lawyer as soon as you can. The longer your lawyer has to prepare a bail pending appeal application, the better.

Although you want to have your appeal lawyer in place quickly, I also recommend taking the time necessary to make sure you hire the right person. Call around.

Many firms – including ours – offer initial consultations for free. You can speak to a lawyer now by calling (416) 999-8389. You may also email us or fill out an initial consultation form.