Supreme Court

Criminal Law

Post-trial procedure

Release pending appeal

Bail pending appeal for person convicted of murder was not restricted by Parliament?

Accused was convicted of second degree murder of his father. Appeal judge dismissed accused’s application for release pending his appeal under public interest criterion in s. 679(3)(c) of Criminal Code. Court of Appeal review panel dismissed accused’s application for review under s. 680(1) of Code and found no material error or unreasonableness in appeal judge’s decision. Accused appealed. Appeal allowed. Appeal was heard on merits despite mootness. Guidance was given on public interest criterion and on standard of review by review panel. Detaining accused on public interest criterion was unwarranted in circumstances. Appeal judge made material legal error that affected outcome, and review panel erred in failing to intervene. Aside from seriousness of offence, accused presented as ideal candidate for bail. Parliament did not restrict availability of bail pending appeal for persons convicted of murder. Appeal judge found that there were no public safety or flight risk concerns and that grounds of appeal were arguable. Appeal judge overlooked important finding made by trial judge, that accused’s crime gravitated toward offence of manslaughter, which reduced his degree of moral blameworthiness, attenuating seriousness of crime and enforceability interest. Cumulative effect of considerations favoured release. Appeal judge erred by not applying correct test of “not frivolous” in assessing strength of accused’s appeal by wanting something more than clearly arguable grounds of appeal. ?

R. v. Oland (2017), 2017 CarswellNB 115, 2017 CarswellNB 116, 2017 SCC 17, 2017 CSC 17, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNB 126, 2016 CarswellNB 127, 2016 NBCA 15, J. Ernest Drapeau C.J.N.B., M.E.L. Larlee J.A., and Kathleen A. Quigg J.A. (N.B. C.A.).

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