On February 1, 2021, the Alberta Court of Appeal in Edmonton released a bail decision in the case R v Doma, in which it decided whether to allow an accused who’d been convicted at trial to remain on bail until the Court of Appeal heard his appeal. When a person obtains bail while they’re waiting for appeal, it is often referred to as “bail pending appeal”.
In this case, the accused had been convicted of sexual assault, specifically, having sex with a woman who was so intoxicated by alcohol that she couldn’t remember having sex. The trial judge found that the woman was incapable of consenting to sexual activity due to her intoxication.
Unlike bail before trial, bail between trial and appeal is not assumed to be appropriate: after all, there is no longer a presumption of innocence, because the accused has been convicted. Instead, the onus is on the accused to establish that:
- his appeal is not frivolous;
- he will surrender himself into custody in accordance with the terms of the order; and
- his detention is not necessary in the public interest.
You may notice that one of the factors making bail more difficult to attain after trial is that the appeal cannot be frivolous: you must have a good reason to think that your conviction was unfair. This is not the case before trial, where you can receive bail even if the case against you is “open and shut”.
When determining whether a person will surrender themselves into custody as ordered, the Court of Appeal stated that it mattered that the accused had been well-behaved and had not broken any more laws in the almost three years he was on bail before trial. This is a good reminder of just how long it can take for a case to get to trial, and how important it is to hire counsel like the Alberta Bail Office to maximize your chances of being released before trial.