Bail Pending Appeal in Ontario

Obtaining bail pending appeal secures the client's release from custody while his or her appeal is litigated before the Appeal 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.

Yes. Bail pending appeal exists precisely for that situation. It is a different thing from bail before trial: the conviction stands unless and until the appeal succeeds, the presumption of innocence no longer applies, and the burden of justifying release is on you rather than on the Crown. What you have to show is set out in section 679 of the Criminal Code.

Before an appeal bail 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. In Ontario a convicted person files it within 30 days after the day the sentence is imposed. If you are appealing your sentence only, you also need leave to appeal that sentence, and the motion for leave is heard and decided before the release application.

The mechanism is different. A summary conviction appeal goes to the Superior Court of Justice, and the Criminal Code says that an appellant who is in custody stays in custody unless that court makes a release order, which must include a condition that the person surrender back into custody. Once the order is made and complied with, the institution has to release the person immediately. If the case goes further — to the Court of Appeal with leave on a question of law alone, or to the Supreme Court of Canada — section 679 applies again.

Once the notice of appeal is filed, a bail application can be brought before the appeal court on providing three clear days notice to the Crown Attorney, unless the Crown consents to a shorter period and a judge permits it. That said, it often takes a couple of weeks on average, sometimes longer, to prepare proper materials to maximize the chances of obtaining bail.

Given the time required to properly assemble appeal bail materials, it is often suggested 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. In this case, a bail pending appeal application can often be filed with the Court in advance of the sentencing hearing so that the bail hearing can be argued the day following sentencing. Done properly, it is not uncommon to spend less than a single day in jail before being released on bail pending appeal.

Unlike bail at trial, the sureties on bail pending appeal rarely testify in court. The surety information, including the plan of release and proposed bond, 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 previous release orders, including bail while at trial. A good surety plan can make the difference between being released and being detained.

Either side can still ask to cross-examine on the affidavits, in the manner a judge directs, and both sides attend the argument of the application.

The decision to release a person on an appeal bail 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. If the application is refused, the Chief Justice can direct that the decision be reviewed by the court, normally a panel of three judges.

It became harder in 2026. Under changes made by the Bail and Sentencing Reform Act, a court must not name a person as a surety if that person was convicted of an indictable offence within the previous ten years, unless the court is satisfied that no other suitable surety is available and that naming them is in the interests of justice — and if it does, it has to put its reasons on the record. A release order pending appeal is a release order under section 515, so this rule applies to appeal bail as well. It is worth identifying a second surety early.

The key to obtaining bail on 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 set out the proposed grounds of appeal. The “not frivolous” standard itself is a very low bar; where the Crown puts public confidence in issue, the judge takes a closer look at whether the grounds clearly surpass it.

Every bail pending appeal has a term that the client must surrender to the jail from where he or she was released on the day before the appeal hearing. 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.

The Supreme Court of Canada added an important qualification in R v Oland: where all or a significant part of the sentence would be served before the appeal could be heard, bail takes on greater significance rather than less, because otherwise the right to have the conviction reviewed becomes meaningless. And the balance is not resolved by a formula — it is qualitative and contextual, measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate and informed of the circumstances of the case.

Yes. Section 679(4) of the Criminal Code applies instead of section 679(3), and it has an extra requirement at the front: leave to appeal the sentence must already have been granted. You then have to establish that the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if you were detained in custody, that you will surrender into custody as required, and that your detention is not necessary in the public interest. The supporting affidavit has to spell out what that unnecessary hardship would be.

Not by way of a fresh appeal, but the Criminal Code provides a review. On the direction of the Chief Justice or Acting Chief Justice of the Court of Appeal, the decision can be reviewed by the court, which can vary it or substitute the decision that should have been made. The review panel defers to the judge's findings of fact unless there is a palpable and overriding error; it can intervene where the judge made a material error of law or principle, or where the decision was clearly unwarranted. If release is refused, a judge can also give directions to expedite the hearing of the appeal itself.

Every release order pending appeal requires you to surrender into custody in accordance with its terms, and the standard Court of Appeal order records your acknowledgment that failing to do so is deemed to be an abandonment of the appeal. The order can be varied to extend the surrender date, but the court will want evidence that you have been complying with your conditions, that your sureties are willing to continue, and that the appeal is being moved along. Breaching any other condition can lead to the order being revoked and to a return to custody.

It is very important to properly articulate the merits of the appeal at the bail hearing stage. An experienced appeal lawyer is often in the best position to assist the Court in understanding the arguments that may lead to a conviction being overturned. Failure to convince the Court of the merits of the appeal can result in the bail being denied. It also helps to have a lawyer familiar with the procedures and judges at the appeal court to best present the client's case for bail pending appeal. Therefore, retaining a trial lawyer to address an appeal bail may negatively impact the client's chances of success on that hearing.