Bail Pending Appeal

Yes. The appeal court can put the sentence on hold until the appeal is heard and decided. 

If you were sentenced to jail, you would be released from custody with conditions. Typically, one or more sureties is required, and the conditions may include house arrest with exceptions for work/study and other necessities such as medical appointments. 

The appeal court can also suspend other orders, such as driving prohibitions and requirements to pay a fine, until the appeal has been determined. 

Similar to bail before trial, the appeal court will consider public interest factors such as the seriousness of the offence and public safety. The court must also be satisfied that the person will surrender back into custody on the morning that the appeal is being heard. This is one of the standard conditions of every appeal bail. 

An important difference from pre-trial bail is that bail on appeal requires a demonstration that the appeal has merit. That is, the basis for the appeal (referred to as ‘grounds of appeal’) must be set out with enough detail to convince the appeal court that there is some legitimate substance to the appeal. 

Applications for bail pending appeal can be heard anytime after sentence is imposed by the trial court. The hearing can be scheduled fairly quickly once the necessary materials have been prepared, served on the Crown, and filed with the appeal court. 

In addition to certain documents from the trial court file, the materials include evidence from the person applying for bail and the proposed sureties. This is submitted by way of written affidavit – there is no need to attend court to testify. There would also typically be an affidavit from an appeal lawyer setting out the grounds of appeal. Certain transcripts and rulings may also be required.

If bail is granted, the applicant is released from custody once the paperwork is signed by the sureties and the appeal court, and forwarded to the institution. 

It is wise to speak to an appeal lawyer as soon as possible after a finding of guilt has been made. It can take several weeks to prepare the necessary materials for a bail application. If the process is started early enough, the application can be timed to minimize time spent in custody once sentence is imposed by the trial court. 

It may be tempting to think that, since your trial lawyer already knows your case, s/he would be the best person to handle an application for bail pending appeal. Why deal with a whole new lawyer? Wouldn’t it be more cost-effective to have the same lawyer continue with the case?

For the same reason that you need an appeal lawyer to do the appeal, you need an appeal lawyer to do bail pending appeal. Finding and demonstrating grounds of appeal requires a different skill-set and familiarity with different legal principles than it does to run trials. While it’s certainly helpful to have your trial lawyer speak to the appeal lawyer to pass on his/her views of the case, it is the appeal lawyer who can best demonstrate the merits of the appeal to the bail judge. An appeal lawyer will also be more familiar with the procedural rules that apply to appeals versus trials and can therefore ensure that no deadlines are missed and everything goes as smoothly as possible. Remember that the appeal process can take many months if not a year or more to complete. If bail pending appeal is denied, it will mean waiting in jail throughout that time. 

Watch a slideshow to learn more about bail pending appeal or click here to continue reading about the different services I offer.