Can I get bail during my appeal?

Yes, you can get bail while awaiting the appeal of your matter. Obtaining bail pending appeal secures your release from custody while the appeal is litigated before the Appellate Court. The appeal process is lengthy, so failure to obtain bail pending appeal can mean waiting months or even years in jail prior to the appeal being heard.

What must be done before bail pending appeal is sought?

Before bail pending appeal can be sought, a Notice of Appeal must be filed with the Court. The Notice of Appeal sets out the basic reasons for appeal and is required to commence the appeal process.

Once the Notice of Appeal is filed, an application for bail pending appeal can be made and served on the Crown Prosecutor. It often takes several weeks to prepare proper materials to maximize the chances of obtaining bail.

Given the time required to properly assemble bail pending appeal materials, it is best to retain an appeal lawyer in advance of the sentencing hearing to commence work on the bail application where the imposition of a jail sentence is likely. If you have an appeal lawyer in place, a bail pending appeal application may be filed with the Court in advance of the sentencing hearing so that the bail hearing can be argued shortly after sentencing.  Done properly, it is not uncommon to spend less than a single day in jail before being released on bail pending appeal.

What is the difference between a bail pending appeal hearing and a regular bail hearing? 

Unlike a bail hearing after you are charged, witnesses and/or sureties rarely testify in a bail pending appeal hearing. The surety information, including the plan of release and proposed amount, is set out in a sworn affidavit.  It is very important that the surety affidavits are well prepared and set out both the plan of release and the client’s track record on pervious release orders, including bail while at trial. A good surety plan can make the difference between being released and being detained.

Who decides whether to release a person on bail pending appeal?

The decision to release a person on bail pending appeal is made by a single judge from the Appeal Court. This judge may or may not continue as the judge on the actual appeal hearing after the bail hearing stage is completed.

What factors will a judge consider at a bail pending appeal hearing?

The key to obtaining bail pending appeal is well prepared bail application materials.  The burden is entirely on the applicant seeking bail.  He or she no longer benefits from the presumption of innocence. The applicant must meet a three-part test: (a) the appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the release order; and, (c) his detention is not necessary in the public interest.

The Court places significant emphasis on being able to establish that there is an arguable ground of appeal; i.e. that there is some chance that the appeal will be successful.  It is very important that any bail application fully sets out the proposed grounds of appeal.

Every bail pending appeal has a term that the client must surrender to the jail from where he or she was released. The Court must be satisfied that the accused will surrender as required.  The Court will generally consider any prior charges of failure to appear for court or whether the person is generally a flight risk.

Finally, the Court will consider the public interest.  This factor considers such issues as the seriousness of the offence and the person’s level of risk to commit further offences.  Also relevant to this factor is the issue of enforceability of court orders versus the right of the accused to review the correctness of the decision at trial.  If a long sentence is imposed, the Court may consider it not to be in the public interest to grant bail.  A good surety plan can offset public interest concerns.

About Cory Wilson

Cory has represented individuals from all walks of life including lawyers, police officers, athletes, corporate executives, teachers, and everything in between. Cory believes in access to justice for every person charged with a criminal offence regardless of their economic background.