Supreme Court of Canada Series: R. v. Oland (Bail Pending Appeal)

On March 23, 2017, the Supreme Court of Canada released its unanimous decision in R. v. Oland, 2017 SCC 17. 

This case dealt with the issue of bail pending appeal. Basically, if a person is convicted and sentenced to serve custody (a jail sentence), he or she has the right to apply for bail and be released into the community instead of remaining in custody while the appeal is being decided. Appeals can take months or sometimes years to be completed and if the appeal is successful and the custodial sentence is set aside, it would be unfair that the person would have had to spend that whole time waiting in jail.

In this case, Mr. Oland was convicted for second degree murder. He applied for bail pending his appeal before a single judge of the Court of Appeal and it was denied on the basis of public interest - the judge was not satisfied that public confidence would be maintained in the administration of justice if Mr. Oland was released on bail. Even though the judge found that Mr. Oland posed no danger to the public at large. Mr. Oland appealed that decision to a review panel but the panel of judges decided the bail judge's decision was not unreasonable and there were not any material error of facts, law, or mixed facts and law. Mr. Oland then appealed that decision to the Supreme Court.

Before the Supreme Court heard this appeal about his bail, Mr. Oland's appeal of his conviction was successful and a new trial was ordered. He was then granted bail pending his re-trial. But the Supreme Court proceeded anyway to address this issue because it was an important legal issue and held at para. 28:

Appellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases like the present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.

The Court also wanted to make it clear about what public confidence means, specifically, who is the public at para 47:

This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.

The Court commented on how the review panel should act under s. 680(1):

First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

Ultimately, the Supreme Court determined that Mr. Oland ought to have been released on bail pending appeal.

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• Supreme Court of Canada Series: R. v. Anthony-Cook (Joint Recommendations)(MichaelDyck.ca)

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• Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)

• Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)

• Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail)

On May 15, 2015, the Supreme Court of Canada released its decision R. v. St-Cloud.  This is the first of a three part series studying and outlining the case.  The court was analyzing the reasons to justify someone's detention in custody, specifically the third reason listed in the Criminal Code.  It is commonly referred to as the tertiary ground and it is found in s. 515(10)(c):  "if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

1. the apparent strength of the prosecution’s case,
2. the gravity of the offence,
3. the circumstances surrounding the commission of the offence, including whether a firearm was used, and
4. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more."

The Supreme Court considered the tertiary ground in the 2002 decision R. v. Hall, and it refers to that earlier decision throughout this one.  The Supreme Court reminded us that the Charter of Rights and Freedoms guarantees us all the right to "not be denied reasonable bail without just cause."  This court held this means two things:  "(1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause" at paragraph 27.

The court also clarified that in order for the tertiary ground to be relied upon, the crime does not have to be horrific, heinous, or unexplained. Justice Wagner held, "In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c)" at paragraph 47. Also, the rarity of a certain crime is not something to consider because the court held "I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice" at paragraph 52.

Finally, the court interpreted "all of the circumstances" to potentially include other aspects besides the ones listed in the Criminal Code. It is not an exhaustive list, but the court did list the following at paragraph 71:

• the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant
• the status of the victim and the impact on society of a crime committed against that person
• the fact that the trial of the accused will be held at a much later date.

Overall, it seems like the Supreme Court is trying to open the door for judges to rely upon the tertiary ground in more cases. That may have been the original intent of Parliament when the legislation was enacted, but the way judges in provincial and superior courts have interpreted the law over time may have slowly changed how we thought the tertiary ground was supposed to work. It was obviously an issue important enough that the court heard the case in the first place. We now have to wait and see how it has an impact on a day to day basis when we apply for a client's release from custody.

Related articles

• Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)
• How a bail hearing works in Manitoba (MichaelDyck.ca)
• What is an undertaking? (TomRees.ca)
• Ontario Court of Appeal revokes bail after contact breach (TomRees.ca)
• Michael Sona is released on bail pending appeal (TomRees.ca)
• About bail (TomRees.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.