On July 7, 2011, prominent businessman Richard Oland was found bludgeoned to death in his office at the investment firm Far End Corp. in uptown Saint John, New Brunswick. On November 12, 2013, over two years later, Dennis Oland, his son, was charged with second degree murder. On November 18, 2013, Oland was granted bail. On December 19, 2015, he was convicted by a jury in a sensational trial and sentenced to life imprisonment with no chance of parole for ten years. He appealed and applied for bail again. Here’s the story.

The application for bail pending appeal was denied under the third criterion in s. 679(3)(c) of the Criminal Code which requires that an applicant establish that detention is not necessary in the public interest. The judge of the New Brunswick Court of Appeal who heard the application ruled that public confidence in the administration of justice would not be maintained if Oland was released. A review of that decision by a three judge panel, on the direction of the Chief Justice under s. 680(1) of the Code, was dismissed. Oland appealed to the Supreme Court of Canada.

Then, on October 24, 2016, the Court of Appeal allowed Oland’s appeal from conviction and ordered a new trial in a judgment reported as R v Oland, 2016 NBCA 15. He was granted bail again the next day pending the new trial. Although the appeal of the review panel’s decision was therefore moot, the Supreme Court of Canada decided to hear the appeal on the merits.

On March 23, 2017, the Supreme Court released its unanimous opinion reported as R v Oland, 2017 SCC 17. Writing for the court, Justice Michael Moldaver held, at para. 70, that if Oland was not released pending the new trial, the court would have set aside the detention order. However, because the appeal was moot, the court simply allowed the appeal and no further order was made. One of the main reasons the court heard the appeal was its importance in resolving inconsistent approaches to bail pending appeal taken by provincial appellate courts. As Justice Moldaver observed, at para. 17, bail pending appeal is, by its temporary nature, evasive of appellate review and this was an appropriate case to resolve conflicting jurisprudence. And it thus presents a rare opportunity to blog an important subject that infrequently arises in Canadian case law. (See also: R v McNeil, [2009] 1 SCR 66 per Charron J., at para. 2)

1. Three Criteria

The text of s. 679(3) of the Code requires that an applicant for bail pending appeal must establish three things: (1) the appeal is not frivolous (2) the applicant will surrender himself into custody in accordance with the terms of a release order and (3) detention is not required in the public interest. The first criterion, the not frivolous test, is generally recognized as being a very low bar. The second criterion requires an assessment of what is often described as flight risk. The third criterion, the public interest, consists of two components: (a) public safety and (b) public confidence in the administration of justice. (See e.g., R v DMP, 1997 ABCA 343 per Berger JA, at paras. 6-8)

It was on the basis of the third criterion, the public interest, that Oland’s bid for bail pending appeal failed. The question before the Supreme Court of Canada was how the strength of the grounds of appeal from a conviction should be considered in determining whether detention is necessary in the public interest.

2. Public Interest Criterion

The leading case on the public confidence component is the opinion of Justice Louise Arbour in R v Farinacci (1993), 86 CCC (3d) 32 (Ont CA) that is still good law. In Farinacci, Justice Arbour did not analyze the public safety component. It essentially tracks the secondary ground for denying bail pending trial in s. 515(1)(b) of the Code where detention is necessary for the safety of the public. The public confidence component, however, is more nuanced and requires the weighing of two competing interests: (a) enforceability and (b) reviewability.

The enforceability interest reflects the need to respect the general rule of the immediate enforceability of judgments. Reviewability, on the other hand, reflects society’s acknowledgement that the justice system is not infallible. Those who challenge the legality of their convictions should be entitled to a meaningful review process which does not require them to serve a gaol sentence only to find out on appeal that the conviction upon which it was based was unlawful.

Parliament has not legislated the factors to be taken into account on an application for bail pending appeal that may affect public confidence in the administration of justice. Parliament has, however, spoken in the context of bail pending trial in s. 515(10)(c) of the Code – the tertiary ground. The factors are: (a) the apparent strength of the prosecution’s case (b) the gravity of the offence (c) the circumstances surrounding the commission of the offence and (d) the potential length of imprisonment. While these factors arise in the pretrial context, Justice Moldaver held, at para. 32, that “a corollary form of the interest underlying each exists in the appellate context” and should be adopted with appropriate modifications. Further, this approach advances an important policy consideration that Justice Moldaver described this way, at para. 33:

“It has the virtue of promoting consistency and harmony between the trial and appellate contexts so that, together, they may be seen as providing a cohesive and comprehensive statement of the law governing bail in Canada. Importantly, it accords with the basic principle that, in general, bail should not be more readily accessible for someone who has been convicted of a crime than for someone who is awaiting trial and is presumed innocent. Approaching the two contexts in that fashion can only serve to foster the goals of fairness and coherence and enhance society’s confidence in the administration of justice.”

How, then, are the factors in the pretrial context blended into the appellate setting? First, Justice Moldaver concluded, at para. 37, that the seriousness of the offence plays an equal role in assessing the enforceability interest on bail pending appeal under s. 679(3)(c). The factors of gravity of the offence, the circumstances surrounding the commission of the offence and the potential length of imprisonment are transferrable to the appellate context. Second, the strength of the prosecution’s case translates into the strength of the grounds of appeal which informs the reviewability interest. Justice Moldaver concluded, at para. 44, that appellate judges should examine the grounds of appeal for their general legal plausibility and their foundation in the record to determine whether they pass the not frivolous test. It is important to also emphasize that reviewability is not solely the applicant’s interest. The justice system is not perfect and a meaningful review process is essential to maintain public confidence in it. As Justice Moldaver said, at para. 45: “…[T]here is a broader public interest in reviewability that transcends an individual’s interest in any given case.”

Appellate delay is also an important consideration in balancing the tension between enforceability and reviewability particularly where a significant portion of a sentence may be served before an appeal can be heard. Justice Moldaver expressed that concern, at para. 48, where he emphasized that, in these circumstances, bail takes on greater significance if the reviewability interest is to remain meaningful. Expediting an appeal under s. 679(10) of the Code is an imperfect solution. (See e.g., R v Baltovich (2000), 47 OR (3d) 761 (Ont CA) per Rosenberg JA, at paras. 41-42)

3. Conclusion

The Oland court did not suggest a precise formula to resolve the balance between enforceability and reviewability. And there is no categorical approach to murder or other serious offences. The principles apply uniformly. A qualitative and contextual assessment is necessary. The final balancing requires an evaluation of the factors that inform public confidence – the strength of the grounds of appeal, flight risk, public safety and the seriousness of the offence.

The test is an objective one. Public confidence is measured through the eyes of a reasonable member of the public. As Justice Moldaver put it, at para. 47, a reasonable member of the public “is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values.”