CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 28, 2022

Grad on Bail Pending Appeal

Kenneth Grad (York University, Osgoode Hall Law School) has posted The More Things Change, the More They Stay the Same: Bail Pending Appeal After R v Oland (Manitoba Law Journal, Forthcoming) on SSRN. Here is the abstract:
In 2017 the Supreme Court of Canada rendered its decision in R v Oland. The Oland case presented a rare opportunity for the Court to clarify the test for bail pending appeal in Criminal Code s. 679(3), which asks: (a) whether the appeal is frivolous; (b) whether the appellant will surrender into custody; and (c) whether the appellant’s detention is necessary in the public interest. Oland’s focus was on the public interest ground and particularly the sub-question of whether public confidence in the administration of justice supports the applicant’s release. Oland held that it is appropriate to provide a detailed assessment of the merits of the appeal as part of the public confidence inquiry. However, the Court emphasized that public confidence should play a role only in the most serious cases. Consideration of public confidence was to be the exception, not the rule. This article provides an empirical analysis of over two hundred bail pending appeal decisions in the five years preceding and following Oland.
This data suggests that Oland has been widely misinterpreted. Contrary to its intent, Oland has led to application judges routinely providing detailed analyses of the grounds of appeal. This is concerning because application judges lack the proper record to assess the appeal’s merits at the bail stage. Accordingly, Oland’s misapplication has created a disturbing risk of injustice. This article further argues that Oland was incorrectly decided. The merits of the appeal should have no role beyond the not frivolous criterion in s. 679(3)(a). This is the interpretation the Supreme Court should adopt if it further considers the issue of bail pending appeal.

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