The Canadian Bar Association
Criminal

The implications of R. v. Oland

The Supreme Court of Canada’s ruling in R. v. Oland confirms the bar is set exceptionally high for people convicted of serious crimes and seeking release pending appeal, says Toronto criminal lawyer Lindsay Daviau.

“The court reinforced how difficult a review of an appellate judge’s decision can be,” she tells AdvocateDaily.com.

“By putting their best foot forward, counsel must have a complete bail plan (i.e. good sureties) and all the material that supports their argument on merit, which could very well mean waiting for, and including, transcripts.”

In its unanimous decision, the high court says Dennis Oland was wrongly denied bail pending the appeal of his second-degree murder conviction in connection with the death of his father, Richard Oland. 

Oland appealed his conviction in January 2016 and sought release on bail, but the request was turned down. The New Brunswick Court of Appeal affirmed that decision but granted release in October 2016 when a new trial was ordered.

While the high court's decision on bail didn’t have any immediate impact on his case because he is no longer in custody while awaiting a new trial, the SCC says Oland provided an opportunity to clarify the statutory regime in the Criminal Code that governs bail pending appeal, particularly for those who have been convicted of a serious crime and sentenced to a lengthy prison term. 

Daviau, who practises with Rosen and Company Barristers, says Oland offered a “fair assessment” with his position that if he didn’t qualify for bail, then no one charged with murder could ever qualify. 

“I think the SCC decision taken as a whole means that for people convicted of serious offences, absent an obvious error or compelling grounds of appeal that clearly surpass the minimal standards required to meet the ‘not frivolous’ criterion, the chance at release pending appeal is significantly reduced,” she says.

Daviau notes how the high court referred to the grounds of appeal needing to clearly surpass the minimal standards required to meet the “not frivolous criterion," and how appellant courts should avoid categories that grade the “prospect of success.” Instead, the SCC says, the appellate judges’ preliminary assessment of the case should be relied upon in addressing the strength of the appeal.  

“This, I expect, will be fine-tuned as the court begins hearing applications for bail pending appeal, but for now, it remains very unclear what that test actually is,” she says.

Oland also raises the question of what appellate judges will use to base their review of the case strength, Daviau says.

“The court confirms the record should include as much information as possible to support the grounds of appeal, which could include transcripts,” she says.

“Based on my experience, the closer you are to being able to perfect an appeal, the less inclined a court may be to grant bail. So while you will want to include as much detail as possible in order to allow a complete review by the appellate judge to assess the strength of an appeal — waiting for transcripts and other materials to be put together — could adversely impact the likelihood of being granted bail pending appeal.”

The SCC alludes to this in its decision, where the court notes that in those cases where bail is denied, "appellate judges should consider ordering the appeal expedited under s. 679(10) of the Code.

"While this may not be a perfect solution, it provides a means of preserving the reviewability interest at least to some extent,” the court says. 

Daviau says that while bail pending appeal for those convicted of serious offences was always difficult, it would seem the Oland decision will make it more arduous, especially without specific guidance on what the SCC means by “clearly surpass the minimal standard required to meet the not frivolous criterion.”  

“I suspect that absent glaring errors or particularly compelling grounds of appeal, the public interest will always mean bail will be denied,” she says. 

“It seems to me that Mr. Oland, and his particular circumstances, both in terms of the material in support of his application and his grounds of appeal, is a high watermark and I think most appellants will fall short of that.”

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