Wednesday, July 24, 2013

Bail pending appeal

R. v. Shelly Annette Taylor 2013 PECA 1 holds:

[3]               For this motion, the hearing and determination are governed by the provisions ofs.679(3) of the Criminal Code.  The judge of the Court of Appeal may order that the appellant be released pending determination of her appeal if the appellant establishes that:

a.         the appeal is not frivolous;

b.         the appellant will surrender herself into custody in accordance with the terms of the order; and

c.         her detention is not necessary in the public interest.


[4]               Section 679(5) of the Criminal Code provides that where the judge of the Court of Appeal does not refuse the application of the appellant, he shall order that the applicant be released: a) on her giving an undertaking, with or without conditions as the judge directs, to surrender herself into custody in accordance with the order; or on her entering into a recognizance, with or without a surety or sureties, and deposit of money or other valuable security, subject to such conditions, and before such justice, as the judge directs.


[5]               The Criminal Code provisions for release pending determination of appeal provide for granting of bail pending appeal to the Court of Appeal.  On a s.679 application, the appellant has the burden of establishing or proving all three of the listed criteria or conditions for release, and the applicable standard of proof is the balance of probabilities. 


[6]               As an overview, the jurisprudence interpreting and applying s.679 indicates that release should be granted unless there is some factor which would cause ordinary, reasonable, fair-minded members of society or persons informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case to believe that detention is necessary to maintain public confidence in the administration of justice (R. v. Nguyen,1997 CanLII 10835 (BC CA), [1997] 119 C.C.C. (3rd) 269 (BCCA)).  In order to establish that the appeal is not frivolous, the appellant need only show that the ground of appeal would not necessary fail (R. v. Passey1997 ABCA 343 (CanLII), [1997] 121 C.C.C. (3rd) 444 (Alta.C.A.)).  The second criterion is self-explanatory.  There is no burden on the Crown to adduce evidence that the accused will not surrender into custody (R. v. Allen2001 NFCA 44 (CanLII), (2001), 158 C.C.C. (3rd) 225 (Nfld.C.A.).  The third criterion, the "public interest" ground, involves a balancing of competing considerations.  The jurisprudence advises that in the context of bail pending appeal, the public interest provides a clear standard relating to both the protection and safety of the public and to the need to maintain a balance of the competing dictates of enforceability of judgments and reviewability for correction of errors.  Thus, there will be cases where the hearing of the appeal will be so delayed and the probability of success so strong that it would be contrary to the public interest to refuse to release, even for a serious offence.  On the other hand, the public interest may require that the person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail (R. v. Farinacci1993 CanLII 3385 (ON CA), (1993), 86 C.C.C. (3rd) 32 (Ont.C.A.)).  The assessment of the public interest requires an analysis of the seriousness of the offence, the strength of the appeal, and the delay inherent in perfecting and listing the appeal (R. v. Daniels1997 CanLII 3670 (ON CA), (1997), 119 C.C.C. (3d) 413 (Ont.C.A.).  (Regarding this overview, see also: Greenspan, Rosenberg and Henein 2013 Martin's Criminal Code, s.679, Annotations, pp. 1366-1368).

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