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Lawyers need to carefully consider bail pending appeal

Lawyers should think carefully before seeking bail for their clients pending appeal because there's a higher threshold to be granted release at that point, says Toronto criminal lawyer Lindsay Daviau.

“You’d want to give it some good thought. You’d want to make sure that you have a really strong plan,” she tells AdvocateDaily.com. “You’re going to need a compelling argument on merit.”

Obtaining bail on appeal is much more difficult than prior to trial, Daviau says. 

Before trial, unless defendants are charged with particularly serious offences like murder or terrorism, they have a right to an expeditious bail hearing, she says. “Most people, absent some serious concern, should get bail.” 

But once a person is convicted, the presumption of innocence no longer applies, says Daviau, who practises with Rosen & Company Barristers.

“It’s a much higher threshold at that point. You need really good grounds of appeal and a strong application. What was good enough prior to trial is not good enough after conviction,” she says. 

Lawyers should make sure their clients understand that they no longer enjoy the presumption of innocence upon appeal and will need to make a stronger bail application than they did before trial, whether through providing better sureties or an improved release plan, Daviau says. 

“So don’t rush into it. Make sure it’s done right,” she says, adding that you won’t likely get a second chance. “It’s really one kick at the can.”

Lawyers may want to wait for the trial judge’s reasons for judgment before seeking bail, or at least have an affidavit from the trial counsel outlining what transpired, Daviau says. They should familiarize themselves with the appeal bail rules, a paper-heavy process that is very specific about what documents need to be filed and how, she says. 

Some recent high-profile cases underline the challenges and considerations involved, she says. 

In a March 2017 Supreme Court of Canada (SCC) ruling in the case of a New Brunswick financial planner, Justice Michael Moldaver, with eight judges concurring, clarified some of the considerations governing bail pending appeal — but at the same time seemed to raise the bar for applicants, Daviau says. 

The court overturned a New Brunswick ruling that denied bail to the man while he appealed his second-degree murder conviction in the bludgeoning death of his prominent father. The decision emphasized that the accused was an ideal candidate for release, she says. 

“He had a strong plan. He had good sureties,” Daviau says. “The case against him seemingly isn’t that strong.”

Very few convicted people have the resources and background equal to this man, she says. “It concerns me a little bit that it felt like the decision was raising the bar. I think most convicted people are going to have difficulty meeting that standard.”

Although it is relatively rare for someone appealing a murder conviction to be granted bail in New Brunswick, it is much more common in Ontario, she says. “I’m not sure we’re much further ahead after this decision.”

Certainly this ruling does not have the same liberalizing effect on appeal bail as another recent SCC ruling  on pre-trial bail, she says. In the more recent decision, the Supreme Court affirmed that bail should be denied only in the narrowest of circumstances and that unconditional release with an undertaking should be the default position.

Another high-profile case shedding light on the issue concerns a Toronto police officer who was granted bail pending the appeal of his attempted murder conviction in the fatal shooting of a Toronto teenager, the Toronto Star reports. But in November 2017 he was charged with breaching his bail conditions when he was supposed to be under house arrest; his bail was revoked and he's now serving his six-year sentence while he awaits his appeal, the newspaper says.

This case highlights that there is no room for error when someone is granted bail pending appeal, Daviau says. 

If he breached his bail conditions before trial, he likely would have more wiggle room, she says. “That certainly doesn’t exist on appeal.”

If the appeal court orders a new trial for this man, his presumption of innocence will be restored, but the fact that he allegedly breached his appeal bail will lessen his likelihood of obtaining interim release once again, Daviau says. 

These recent cases illustrate the higher bar that needs to be met in appeal bails as compared to those before trial, she says.  

“You’re no longer an innocent person. You’ve been convicted and there’s no room for error,” Daviau says.

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