APPLICATION FOR RELEASE.. PENDING APPEAL ) These materialswere prepared by Morris Bodnar, QC, of Bodnar Wanhella &Cutforth law firm Saskatoon, Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Criminal Law Essentials; May 2002.
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TABLE OF CONTENTS I II Introduction Procedural Matters l l III Statutory Requirements 2 A. B. c. Not Frivolous 3 Surrender ofthe Appellant.. 3 Detention Not Necessary in the Public Interest.3 IV Procedure for Consensual Release Pending Appeal.4 Notice ofapplication for Release from Custody Pending Appeal 5 Affidavit ofappellant 8 Draft Release Order. '" 11
1 ) APPLICATION FOR RELEASE PENDING APPEAL I. INTRODUCTION Without bail being set between conviction and/or sentencing and the appeal, the whole appeal process may be of little value since the sentence may have been served prior to the hearing ofthe appeal. The outcome of a bail application may deterriline whether the appeal will in fact proceed. It would be most unfair to an accused and an injustice would occur if bail pending appeal was not granted in particular circumstances thus denying the individual access to the Court for a remedy since such a remedy would be fruitless. II. PROCEDURAL MATTERS Section 679 of the Criminal Code of Canada deals with applications for bail in the Court of Appeal and reads as follows: 679(1) A judge ofthe court ofappeal may, in accordance with this section, release an appellant from custody pending the determination ofhis appeal if, (a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678; (b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or (c) in the case of an appeal or an application for leave to appeal to the Supreme Court ofcanada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal. (2) Where an appellant applies to a judge of the court of appeal to be released pending the determination of his appeal, he shall give written notice of the application to the prosecutor or to such other person as a judge ofthe court of appeal directs. (3) In the case of an appeal referred to in paragraph (l)(a) or (c), the judge ofthe court of appeal may order that the appellant be released pending the determination ofhis appeal ifthe appellant establishes that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms ofthe order, and (c) his detention is not necessary in the public interest. (4) In the case of an appeal referred to in paragraph (1 )(b), the judge ofthe court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship ifhe were detained in custody;
2 (b) he will surrender himself into custody in accordance with the terms ofthe order; and (c) his detention is not necessary in the public interest. (5) Where the judge of the court of appeal does not refuse the application of the appellant, he shall order that the appellant be released (a) on his giving an undertaking to the judge, without conditions or with such conditions as the judge directs, to surrender himself into custody in accordance with the order, or (b) on his entering into a recognizance (i) with one or more sureties (ii) with deposit ofmoney or other valuable security, (iii) with both sureties and deposit, or (iv) with neither sureties nor deposit, in such amount, subject to such conditions, if any, and before such justice as the judge directs, and the person having the custody of the appellant shall, where the appellant complies with the order, forthwith release the appellant. In Saskatchewan no rules have been passed dealing with bail pending appeal. The procedure that has evolved will be discussed in this paper with reference to a point-form formula for bail, especially in situations where Crown consent is obtained. The bail application is heard before a single judge of the Court of Appeal. Evidence offered is generally in affidavit form and the affidavit most often presented is that of the appellant. Additional evidence such as from an employer, surety and/or spouse is also common. III. STATUTORY REQUIREMENTS Pursuant to Section 679(3) of the Criminal Code of Canada the appellant may be granted bail upon satisfying the Court ofappeal as follows: (a) The appeal or application for leave to appeal is not frivolous (b) The appellant will surrender into custody according to the terms ofthe Order ofrelease (c) The detention ofthe appellant is not necessary in the public interest. Throughout the onus is on the appellant to satisfy the judge on all of the above criteria on a balance ofprobabilities.
3 ) A. NOT FRIVOLOUS The appellant may have grounds ofappeal but this is not sufficient before the court. There must be merit established. Such can be done, for example, by filing a portion ofthe transcript, ifsuch is available, reasons for judgment or rulings during the trial or a copy of the charge to the jury. Also, an affidavit oftrial counsel can be filed. The judge hearing the application may determine there is insufficient material filed to assess the grounds of appeal and may either dismiss the application or adjourn it to allow further materials to be filed. B. SURRENDER OF THE APPELLANT This is set out in Section 679(3)(b) of the Criminal Code ofcanada. To satisfy the court the appellant will surrender into custody, counsel should establish the appellant's roots in the community, employment, friends and relatives living in the community, ownership of immovable property (residence), ownership of a business and record of attending in court for previous appearances. This will assist the judge in assessing the likelihood of the appellant fleeing the jurisdiction. C. DETENTION NOT NECESSARY IN THE PUBLIC INTEREST The term "public interest" provides a flexible standard for the court. This term usually considers the protection and safetyofthe public. As well, the term "public interest" also considers matters ofpublic perception and confidence in the administration ofjustice. In R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask C.A.) the court held the judge has a wide and unfettered discretion to determine what constitutes public interest. Anything that may affect the public confidence and respect for the judicial system in a detrimental fashion would be considered contrary to the public interest. The appellant must show more than simply the fact that the appeal is not frivolous and that he will surrender himself into custody but must show that his detention is not necessary in the public interest. Similarly in R. v. Pabani (1991), 10 C.R. (4th) 381 (Ont. c.a.) public interest was held to not relate solely to the prevention of further criminal acts but also to include matters of public perception and confidence in the administration ofjustice.
4 IV. PROCEDURE FOR CONSENSUAL RELEASE PENDING APPEAL 1. Contact Crown prior to sentencing with regards to consent to release pending appeal. 2. Call the Registrar of the Court of Appeal (306) 787-5382 and advise an application for release pending appeal may be commenced immediately after sentencing. 3. Prepare an Application for Leave to Appeal and/or Notice ofappeal. 4. Prepare a Notice ofapplication for Release Pending Appeal. 5. Prepare affidavit(s) in support ofapplication for release pending appeal. 6. Prepare draft Release Order with consent ofcrown. 7. Fax the draft Release Order to the Crown for approval and endorsement by Crown. 8. Request Crown to deliver draft Release Order with consent endorsed to the Court of Appeal after sentencing has been completed. 9. Obtain Certificate ofconviction. 10. Fax Certificate of Conviction, Application for Leave to Appeal and/or Notice of Appeal, Notice ofapplication for Release Pending Appeal and supporting affidavit(s) to the Court of Appeal at (306) 787-5815. 11. Request Court of Appeal to fax issued Release Order to your office and to the appropriate Court House or Correctional Centre where accused is detained. 12. If necessary, contact Justice of the Peace to attend at the Correctional Centre to have recognizance/undertaking signed. In Saskatoon contact Justice of the Peace On Call 797 6505 or Cell 229-1932 or Call the ChiefJustice ofthe Peace Don Webster, direct line (306) 787-5290 or his office at (306) 787-5682. 13. Courier originals to Court ofappeal. Attached are draft copies of the documents used to obtain release pending appeal with the consent of the Crown. The most important aspect to keep in mind is the need to contact the Registrar of the Court of Appeal to alert the Court of Appeal of the pending release application and contacting the Crown in advance to arrange the terms of release for the draft Release Order in the event the appellant is sentenced to incarceration.
5 File No. IN THE COURT OF APPEAL FOR THE PROVINCE OF SASKATCHEWAN BETWEEN: AND: A.B. HER MAJESTY THE QUEEN APPLICANT RESPONDENT NOTICE OF APPLICATION FOR RELEASE FROM CUSTODY PENDING APPEAL Your Law Finn Barristers & Solicitors Your address
6 File No. IN THE COURT OF APPEAL FOR THE PROVINCE OF SASKATCHEWAN IN THE MATTER OF AN APPEAL TO THE COURT OF APPEAL by A.B. in respect ofthe conviction and sentence on (date) by the Honourable Mr. Justice Y.Z. in the Cityof Saskatoon, in the Province of Saskatchewan, following a trial sitting with a jury, in the Court of Queen's Bench for Saskatchewan, at the City of Saskatoon, in the Province of Saskatchewan, upon the offence that AB. on or about the _ day of_, 20_ at Saskatoon, in the Province of Saskatchewan did (state charge from Indictment),contrary to Section ofthe Criminal Code a/canada. AND IN THE MATTER of the detention of the said AB. sentenced on the _ day of ' _ to a term of imprisonment in a Provincial Correctional Centre for the conviction on the offence of (briefly state offence) ; AND IN THE MATTER of an Application on behalf of A.B. for his Release from custody pending the determination of the said Appeal pursuant to Section 679 of the Criminal Code o/canada. BETWEEN: AND: A.B. HER MAJESTY THE QUEEN APPLICANT RESPONDENT NOTICE OF APPLICATION FOR RELEASE FROM CUSTODY PENDING APPEAL TAKE NOTICE that an application will be made on behalf of the Applicant, AB., before the presiding Judge ofthe Court ofappeal sitting in Chambers at the City of Regina, in the Province of Saskatchewan, on _day, the _ day of -, _ at the hour of a.m.lp.m. or so soon thereafter as the Application may be heard for an Order, pursuant to the provisions of Section 679 of the Criminal Code for Canada, releasing the Appellant from custody pending the determination ofhis appeal to this Honourable Court upon his giving an undertaking without conditions or for such further and other order as this Honourable Court deems just. AND FURTHER TAKE NOTICE that in supportof such application will
7 be read the following: 1. Notice ofapplication for Release Pending Appeal dated _ 2. Affidavit ofthe Appellant, A.B., sworn _ 3. Draft Release Order 4. Such further and other materials as counsel may advise and this Honourable Court m~ypermit. DATED at the City of Saskatoon, in the Province of Saskatchewan, this day of YOUR LAW FIRM Per: ----------------- Your Lawyer, Solicitor for the Applicant, A.B. TO: The Registrar ofthe Court ofappeal AND TO: The Attorney General ofsaskatchewan This document was delivered by: Your Law Firm Barristers and Solicitors Your Address whose address for services is: Same as above Lawyer in charge offile: Telephone Facsimile
8 File No. IN THE COURT OF APPEAL FOR THE PROVINCE OF SASKATCHEWAN IN THE MATTER OF AN APPEAL TO THE COURT OF APPEAL by A.B. in respect ofthe conviction and sentence on (date) by the Honourable Mr. Justice Y.Z. in the City ofsaskatoon, in the Province of Saskatchewan, following a trial sitting with a jury, in the Court of Queen's Bench for Saskatche'o/an, at the City of Saskatoon, in the Province of Saskatchewan, upon the offence that A.B. on or about the _ day of_, 20 at Saskatoon, in the Province of Saskatchewan did (state charge from Indictment), contrary to Section ofthe Criminal Code ofcanada. AND IN THE MATTER of the detention of the said A.B. sentenced on the _ day of, to a term of imprisonment in a Provincial Correctional Centre for the conviction on the offence of (briefly state offence) ; AND IN THE MATTER of an Application on behalf of A.B. for his Release from custody pending the determination of the said Appeal pursuant to Section 679 of the Criminal Code ofcanada. BETWEEN: AND: A.B. HER MAJESTY THE QUEEN APPLICANT RESPONDENT AFFIDAVIT OF A. B. I, A.B., of, in the Province of Saskatchewan, MAKE OATH AND SAY: 1. THAT I am the Applicant in this proceeding and as such have personal knowledge of the matters and facts deposed to herein except where stated to be on information and belief and where so stated I do verily believe the same to be true. 2. THAT I am presently years of age, married, and immediately prior to my incarceration upon the charge in respect ofwhich this appeal is taken resided in _ in the Province ofsaskatchewan, with my wife and family. 3. THAT on _~(D~at:.=eJ-)_ I was convicted at Saskatoon, Saskatchewan by the Honourable Mr. Justice Y.Z., following a trial sitting with a jury, in the Court ofqueen's
9 Bench for Saskatchewan, in the City of Saskatoon, in the Province of Saskatchewan, that I did (briefly state charge) contrary to Section of the Criminal Code of Canada and on the _ day of, I was sentenced to a term of imprisonment in a Provincial Correctional Centre for the conviction on the offence of 4. THAT for the past years I have resided in, Saskatchewan with my family. 5. THAT if I am released from custody pending the determination of my appeal to this Honourable Court I propose to continue to reside in, Saskatchewan with my wife and family. 6. THAT prior to my conviction for the above described offence, I was (list lifetime career, current career if charge resulted in a job change, other beneficial factors) 7. THAT I have never previously been convicted ofa criminal offence. 8. THAT I believe my continued detention in custody will cause unnecessary hardship in that: (a) I will have difficulty in continuing my activities with my children. (b) I will have difficulty providing for my family since I am the sole income earner for my family. (c) My wife and children are having a very difficult time coping with this incident and I fear that harm may befall one of them unless close attention is given to them byme. (d) List whatever particular circumstances might apply) 9. THAT I have no intention of moving from the Province of Saskatchewan to any other jurisdiction. 10. THAT I will abide by such terms and conditions for release that this Honourable Court may require. 11. THAT I ask this Honourable Court to consider my release on the charge for the following reasons: (a) I have remained in Saskatoon, Saskatchewan throughout the police investigation, knowing that I might be charged with some criminal offence,
10 and the court proceedings. attend court ifi am released. There is no reason to believe that I will fail to (b) I have no prior criminal convictions and do not believe that my detention is (c) necessary for the protection or safety ofthe public. (List whatever circumstances might apply) 12. THAT I make this affidavit in good faith in support of an application for release pending the determination of my appeal to this Honourable Court and for no improper purpose or motive. SWORN BEFORE ME at the City ) ofsaskatoon, in the Province of ) Saskatchewan, this ) day of ) )--------------- ) A.B. -----------~) A COMMISSIONER FOR OATHS in and for the Province ofsaskatchewan. Being a Solicitor.
11 ) File No. IN THE MATTER OF AN APPEAL TO THE COURT OF APPEAL by A.B. in respect ofthe conviction and sentence on (date) by the Honourable Mr. Justice Y.Z. in the City ofsaskatoon, in the Province of Saskatchewan, following a trial sitting with a jury, in the Court of Queen's Bench for Saskatchewan, at the City of Saskatoon, in the Province of Saskatchewan, upon the offence that A.B. on or about the _ day of_, 20_ at Saskatoon, in the Province of Saskatcpewan did (state charge from Indictment),contrary to Section ofthe Criminal Code ofcanada. AND IN THE MATTER of the detention of the said A.B. sentenced on the _ day of, to a term of imprisonment in a Provincial Correctional Centre for the conviction on the offence of (briefly state offence) ; AND IN THE MATTER of an Application on behalf of A.B. for his Release from custody pending the determination of the said Appeal pursuant to Section 679 of the Criminal Code ofcanada. BETWEEN: AND: A.B. HER MAJESTY THE QUEEN APPLICANT RESPONDENT BEFORE THE HONOURABLE JUSTICE IN CHAMBERS ) ) ) DAY, THE OF DAY RELEASE ORDER ) UPON the Application of the Applicant, A.B., convicted at Saskatoon, Saskatchewan on _~D::..:a=te=-_ by the Honourable Mr. Y.Z., following a trial sitting with a jury, in the Court of Queen's Bench for Saskatchewan, in the City of Saskatoon, in the Province of Saskatchewan, that he did (briefly state charge) contrary to Section of the Criminal Code ofcanada and on (date) was sentenced to imprisonment in a Provincial Correctional Centre, now a prisoner at Saskatoon Correctional Centre, for an Order, pursuant to the provisions ofsection 679 of the Criminal Code of Canada, releasing the said Appellant from custody pending the determination of his appeal upon the said.. charge, and upon hearing counsel for the Appellant and on behalf of Her Majesty the Queen, and upon hearing read the Notice of
12 Application for Release Pending Appeal dated, filed; and the Affidavit of A.B. sworn IT IS HEREBY ORDERED that upon the Applicant, A.B., giving an undertaking upon the following conditions: 1. THAT he keep the peace and be ofgood behaviour; 2. THAT he report to the Court when required to do so; 3. THAT he personally attend on the date set for the hearing ofhis appeal; 4. THAT he will reside in, Saskatchewan and notify the Court in writing ofany change of address; 5. THAT he will file his Factum within 30 days ofbeing advised that the transcript ofthe trial is in the Registrar's office or as otherwise ordered by the Court. 6. (list terms as agreed with Crown) the said Applicant, A.B., be released from custody pursuant to the provisions of Section 679 ofthe Criminal Code ofcanada. day of ISSUED at the City ofregina, in the Province ofsaskatchewan, this Registrar Approved as to form and content this day of,. This document was delivered by: Your Law Firm Barristers and Solicitors Your Address whose address for services is: Same as above Lawyer in charge offile: _ Telephone Facsimile _ AGENT OF THE ATTORNEY GENERAL FOR THE PROVINCE OF SASKATCHEWAN