Bail pending appeal prior to sentencing

The recent Nova Scotia decision in R. v. MacIntosh, 2010 NSCA 68 (CanLII) is a useful source for the law on the fairly narrow question of when bail pending appeal but prior to sentencing will be granted.  The Court holds: 

 

[5]               This motion is unusual, but not unprecedented, in that the appellant is applying for release from custody, on an appeal from conviction, notwithstanding he has not yet been sentenced.  In situations where the appellant has not been sentenced for the offences, the jurisdiction to release him should only be exercised in unusual and limited circumstances.

 

[6]              In R. v. W.A.H.. [1998] N.S.J. No. 313, Justice Flinn of this court cited with approval the decision of the Ontario Court of Appeal in Re Morris v. the Queen reflex, (1985), 21 C.C.C. (3d) 242 at p. 244, where the court held:

 

It has been decided that a judge of this Court has jurisdiction under this provision to release an appellant after conviction but before sentence: R. v. Bencardino and De Carlo (1973), 11 C.C.C. (2d) 549; R. v. Smale reflex, (1979), 51 C.C.C. (2d) 126. In Smale it was said that this “jurisdiction should only, it appears to us, be exercised in unusual and limited circumstances but it does exist”.

 

[7]              It was also noted in Morris, supra, the power of interim judicial release only relates to the release of the appellant from the custody to which he is presently subject.  It cannot be a release from  some future custody which may not be imposed [p. 245].

 

[8]              The question, for me, on this motion, is whether the appellant has established that his circumstances are such that I should exercise my jurisdiction to release him pending sentencing.  I have concluded they are not.

 

[9]                The information provided in the affidavit evidence of Mr. MacIntosh and his counsel, do not establish any “unusual” circumstance that would warrant my interference with the exercise of the trial judge’s discretion at this stage of the proceeding.  Gary T. Trotter in his text The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) reviews the authorities and suggests some circumstances that may satisfy the test including:  overwhelming hardship in being detained; it is clear the appeal will be successful, or a lengthy delay between conviction and sentencing (p. 373).  Although this is not an exhaustive list, none of those factors are present in this case.  Nor has any other unusual circumstance been established.