Bail for trafficking drugs to undercover officer

April 4, 2021

R v Griffin, 2020 ABCA 319

On September 14, 2020, the Alberta Court of Appeal in Edmonton released a bail decision in the case R v Griffin, in which the accused was convicted at trial of two counts of trafficking in cocaine, on both occasions to an undercover officer. The accused plead guilty, but alleged entrapment; this argument failed at trial. Despite pleading guilty, the accused was released on bail pending appeal.

In making its decision, the Court discussed one of the three requirements that an accused must fulfill to be released in this circumstance: proving to the Court that their release is not contrary to the public interest. This requirement is split into two parts: public safety and public confidence in the administration of justice.

The Court further explained that public confidence in the administration of justice requires weighing two competing interests: enforceability and reviewability. “Enforceability” means the need to respect the general rule of the immediate enforceability of judgments, while “reviewability” means that persons who challenge the legality of their convictions should be entitled to a meaningful review process that does not require them to serve a significant part of a jail sentence only to find out after appeal that the conviction was unlawful.

When the Court balances these interests, it takes into account with respect to “reviewability” the danger represented by the anticipated delay in deciding an appeal. If it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard and decided, bail takes on greater significance: the Court understands that a successful appeal isn’t worth very much if somebody has already served their full sentence.

The Court also addressed one of the other two requirements an accused must fulfill to successfully achieve bail: that their argument not be frivolous. In this case, the prosecutor argued that the appeal was frivolous because the accused’s argument that she had been entrapped had never been tried before. The Court disagreed, pointing out that just because a legal argument is novel, that does not mean it is frivolous. The lawyers on the Alberta Bail Office all have considerable experience testing the limits of the case law when it comes to bail. We are experts at finding novel legal arguments that assist accused persons in achieving bail.

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