Bail pending appeal is often the basis of rather desperate telephone calls to counsel. The calls basically come to “GET ME OUT!!!”
Of course, the answer is not usually the one the client (or their spouse etc) wants to hear.
Bail pending appeal is not granted without some solid basis. An arguable appeal is a condition precedent to release pending appeal.
Yesterday’s Court of Appeal decision in R. v. Di Guiseppe, 2008 ONCA 223 sets out the test well. To obtain bail pending appeal the convict has to show that detention is not necessary in the public interest, that surrender will not be an issue and that the appeal is not frivolous.
The Court writes:
[10] In this case, which involves an appeal from conviction and in time, no doubt, an application for leave to appeal sentence, the standard to be applied in determining whether to grant release pending determination of the appeal, is established by s. 679(3) of the Criminal Code. It falls to the applicant to establish: 1) that the appeal is not frivolous; 2) that the applicant will surrender himself into custody in accordance with the terms of any release order; and 3) that the applicant’s detention is not necessary in the public interest.
[11] It is common ground that the single issue in controversy concerns the requirement of s. 679(3)(a) that the applicant demonstrate that the appeal is not frivolous. Said somewhat differently, the applicant must show an arguable ground of appeal. It is inadequate to the task to simply recite the grounds of appeal asserted, rather the applicant must produce information about the circumstances that underlie the claims of error, thereby to satisfy the standard erected by s. 679(3)(a). See, R. v. Davison and DeRosie (1974), 20 C.C.C. (2d) 422 at 423 per Brooke J.A.
[12] To discharge the onus imposed by s. 679(3)(a), the applicant relies upon particularized complaints about the form of the count upon which he was ultimately convicted and the basis of liability advanced on behalf of the prosecution.
…
[17] It is not for the applicant to demonstrate certitude of appellate success, only that the particularized grounds of appeal are arguable. That threshold, I am satisfied has been met.
James Morton
Steinberg Morton Hope &
M2N 6P4
416 225 2777
Blog: http://jmortonmusings.blogspot.com/
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