Although the underlying appeal of Mr. Oland’s second degree murder conviction had been granted, and the bail issue rendered moot, the Supreme Court took the extraordinary step of considering a moot appeal to clarify the proper scope of the public interest criterion for denying bail pending appeal, pursuant to s. 679(3)(c) of the Criminal Code.
Unlike an accused who seeks pre-trial bail under s. 515(10), a convicted individual who applies for bail pending appeal does not benefit from the presumption of innocence, and therefore bears the onus of demonstrating that “his detention is not necessary in the public interest.” The public interest criterion involves the weighing two competing values, namely (1) enforceability of the trial court’s verdict and (2) reviewability of said verdict through a meaningful appeal. These two values inevitably come into conflict where a Court of Appeal is “faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.”
Despite the difference in onus, the Supreme Court confirmed that principles developed in the “admittedly different but related context of bail pending trial … are also instructive in the appellate context.” In particular, appellate courts should consider “the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment” which dictate the public interest in enforceability; weighed against “the strength of the grounds of appeal, which informs the reviewability interest.”
Because “there is no precise formula that can be applied to resolve the balance between enforceability and reviewability,” it is necessary to apply a “qualitative and contextual approach,” whereby a conviction for murder or some other very serious crime will weigh strongly in favour of enforcability, particularly where the grounds of appeal are weak; but the public interest in reviewability may overshadow the enforceability interest where the grounds of appeal clearly surpass the “not frivolous” criterion.
Decided by the Supreme Court of Canada on March 23, 2017.
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