Michael Dyck | Criminal Law

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Supreme Court of Canada Series: R. v. Oland (Bail Pending Appeal)

Michael Dyck

On March 23, 2017, the Supreme Court of Canada released its unanimous decision in R. v. Oland, 2017 SCC 17. 

This case dealt with the issue of bail pending appeal. Basically, if a person is convicted and sentenced to serve custody (a jail sentence), he or she has the right to apply for bail and be released into the community instead of remaining in custody while the appeal is being decided. Appeals can take months or sometimes years to be completed and if the appeal is successful and the custodial sentence is set aside, it would be unfair that the person would have had to spend that whole time waiting in jail.

In this case, Mr. Oland was convicted for second degree murder. He applied for bail pending his appeal before a single judge of the Court of Appeal and it was denied on the basis of public interest - the judge was not satisfied that public confidence would be maintained in the administration of justice if Mr. Oland was released on bail. Even though the judge found that Mr. Oland posed no danger to the public at large. Mr. Oland appealed that decision to a review panel but the panel of judges decided the bail judge's decision was not unreasonable and there were not any material error of facts, law, or mixed facts and law. Mr. Oland then appealed that decision to the Supreme Court.

Before the Supreme Court heard this appeal about his bail, Mr. Oland's appeal of his conviction was successful and a new trial was ordered. He was then granted bail pending his re-trial. But the Supreme Court proceeded anyway to address this issue because it was an important legal issue and held at para. 28:

Appellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases like the present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.

The Court also wanted to make it clear about what public confidence means, specifically, who is the public at para 47:

This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.

The Court commented on how the review panel should act under s. 680(1):

First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

Ultimately, the Supreme Court determined that Mr. Oland ought to have been released on bail pending appeal.

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About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.