There is no lower point in the criminal justice system than the conclusion of a sentencing hearing where a judge hands down a custodial sentence. For families watching a loved one being led away by court officers, a wave of panic sets in. The immediate, desperate question becomes: Can we get them out of jail while we fight this wrongful conviction on appeal?
The short answer is yes, it is legally possible. However, filing a notice of appeal does not automatically pause or halt a prison sentence.
To secure release, your appellate counsel must bring a specialized application known as a Bail Pending Appeal before a single judge of the Court of Appeal for Ontario. This complex area of law is strictly governed by Section 679(3) of the Criminal Code and a landmark framework established by the Supreme Court of Canada.
If you are looking to challenge a conviction or sentence in Toronto or anywhere across Ontario, here is a practical guide to the legal hurdles you must clear to win your freedom while your appeal is pending.
The Three Statutory Hurdles of Section 679(3)
Unlike pre-trial bail—where the Canadian Charter guarantees a presumption of innocence and the Crown usually bears the burden to justify detention—the legal matrix completely flips after a conviction. The presumption of innocence is displaced, and the burden shifts entirely to the convicted person to establish three specific criteria on a balance of probabilities:
- The Appeal is Not Frivolous: The applicant must establish that the appeal has some legal substance. While this is widely recognized as a very low bar, it requires showing that the grounds of appeal are legally plausible and anchored in the trial record.
- Flight Risk / Surrender into Custody: The applicant must satisfy the judge that they have strong roots in the community, will not flee the jurisdiction, and will faithfully surrender themselves back into custody when the appeal date arrives.
- Detention is Not Necessary in the Public Interest: This is the most fiercely litigated component of the entire application. If your loved one is facing a serious sentence, this is where the bail application will be won or lost.
Demystifying the "Public Interest" standard: R. v. Oland
For years, appellate courts across Canada applied wildly inconsistent standards to the "public interest" branch, often automatically detaining anyone convicted of a serious or violent crime. That changed with the Supreme Court of Canada’s foundational decision in R. v. Oland [2017] 1 S.C.R. 250.
The Supreme Court in Oland clarified that the public interest is not a standardless sweep, but rather a careful balancing act between two competing societal interests: Enforceability and Reviewability.
The Public Interest Balancing Scale
⚖️ ENFORCEABILITY: The public interest in having serious criminal convictions and jail sentences immediately enforced without delay.
⚖️ REVIEWABILITY: The public interest in recognizing that the justice system is not infallible and that wrongful convictions must be meaningfully reviewed.
You Do Not Need a "Guaranteed Win" to Get Bail
Before the Oland decision, many appeal judges refused bail on serious charges unless the defence could show a "smoking gun" that practically guaranteed the conviction would be overturned.
The Supreme Court explicitly ruled that this is an error of law. An appeal judge cannot demand that your grounds of appeal "virtually assure a new trial or an acquittal". Instead, if the grounds are "clearly arguable" and surpass the frivolous threshold, the interest of reviewability can legally overshadow enforceability—even in cases as serious as murder. If there are no public safety or flight concerns, detaining an ideal candidate simply because the crime was severe is unwarranted.
Running Public Confidence: The "Reasonable Person" Test
When evaluating whether releasing a convicted person will harm public confidence in the administration of justice, the law does not look to uninformed public outcry or reactionary media headlines.
According to Oland, public confidence must be viewed through the eyes of a reasonable, thoughtful, and dispassionate member of the public. This fictional person is someone who is fully informed of the specific circumstances of your case, understands that appeals take time, and respects fundamental constitutional values.
If an appeal is going to take a year or more to be transcribed, briefed, and argued, a reasonable member of the public understands that forcing someone to serve a large chunk of an unconstitutional sentence before their appeal is even heard undermines the entire integrity of the legal system.