In R v Oland, 2017 SCC 17, the Supreme Court of Canada clarified the “public interest” branch of the test for bail pending appeal.

Facts and procedural background

Mr. Oland was convicted of second degree murder. He appealed his conviction to the Court of Appeal of New Brunswick and applied for bail pending the determination of his appeal. His application for bail was rejected first by a single judge of the Court of Appeal, and then by a review panel of three judges of the same court. Mr. Oland appealed to the Supreme Court of Canada. Before Mr. Oland’s appeal was heard by the Supreme Court, the Court of Appeal allowed his appeal from conviction and ordered a new trial, which made the Supreme Court appeal moot.

Court addressed the merits despite mootness

The Supreme Court concluded that guidance was needed as a result of inconsistent appellate decisions on the issue of bail pending appeal, and addressed the appeal on its merits. The Supreme Court also noted that both the Crown and Mr. Oland requested the case to be heard on its merits, and it was possible that Mr. Oland would again find himself in the same situation following his re-trial.

Review panel should defer to single judge

The Supreme Court held that, where a single judge’s decision on bail pending appeal is reviewed by a panel of three judges pursuant to section 680(1) of the Criminal Code, the reviewing panel should show deference to the single judge’s findings of fact. A reviewing panel may only substitute its decision for that of the single judge where the judge erred in law or in principle or where the judge’s decision was clearly unwarranted.

Similarly, in deciding whether to order such a panel review, a chief justice should consider whether it is arguable that the single judge committed material errors of fact or law or made a decision that was clearly unwarranted.

The test for public confidence

The Supreme Court interpreted section 679(3)(c) of the Criminal Code, which requires an appellant to establish that his detention is “not necessary in the public interest” in order for the appellant to be released on bail pending an appeal. As established in R v Farinacci, this public interest criterion consists of two components: public safety and public confidence in the administration of justice. The Supreme Court focused its attention on the “public confidence” component.

According to the Supreme Court, public confidence under section 679(3)(c) involves a balancing of two competing interests: the “enforceability interest” reflected in the need to respect the rule of immediate enforceability of judgements, and the “reviewability interest” reflected in society’s acknowledgement that the justice system is not infallible and that persons challenging the legality of their convictions are entitled to a meaningful process.

The Supreme Court held that these two competing interests should be resolved by considering the following factors:

  • The seriousness of the crime;
  • The risk to public safety;
  • Whether the appellant is a flight risk; and
  • Whether the grounds of appeal clearly surpass the standard of “not frivolous”.

In the case of Mr. Oland, the Supreme Court concluded that although he was convicted of a serious crime, there were no public safety or flight concerns and his grounds of appeal clearly surpassed the standard of “not frivolous”. Therefore, the reviewability interest overshadowed the enforceability interest, and keeping Mr. Oland in detention pending his appeal would not have been necessary in the public interest. The Supreme Court held that the decision of the reviewing judge was clearly unwarranted, and allowed Mr. Oland’s appeal. Since the appeal was moot, the Supreme Court made no further orders.