Ontario Court of Appeal grants bail pending appeal of murder conviction in rare circumstances

In R. v. Papasotiriou, 2018 ONCA 719, Justice Trotter recently granted bail pending appeal from a murder conviction that was based entirely on circumstantial evidence. As set out in Sopinka & Gelowitz on the Conduct of an Appeal, Fourth Edition, the judicial discretion to grant bail pending appeal involves balancing enforceability and reviewability interests. In Papasotiriou, enforceability considerations factored against granting bail given the seriousness of the offence but, from a reviewability perspective, the applicant “advanced a credible argument that the verdict, based entirely on circumstantial evidence, was unreasonable and could not have been reached without impermissible speculation”. Supporting that conclusion was the rare circumstance that the Attorney General had preferred a direct indictment and forced a trial after a preliminary inquiry judge held that there was insufficient evidence to warrant a trial of the applicant in the first place.

Bail pending appeal

Bail pending appeal is addressed in Sopinka & Gelowitz on the Conduct of an Appeal, Fourth Edition in Chapter 4, Part H. Under subsection 679(3) of the Criminal Code, a judge of the court of appeal may order an appellant released if he establishes that the appeal is not frivolous (a low bar), he will surrender into custody in accordance with the terms of the order, and his detention is not necessary in the public interest. The leading case interpreting this provision, and in particular the “public interest” element, remains the Supreme Court of Canada’s decision in R. v. Oland, 2017 SCC 17, where the Court would have granted bail pending appeal from a murder conviction.

The factors to be considered under the “public interest” element of subsection 679(3) are like a branching tree, if the branches intertwined and influenced one another. “Public interest” has two components: public safety and public confidence in the administration of justice. Where public confidence arises in cases involving serious crime, it has two sub-branches that must be balanced:

• The enforceability interest, reflecting the general rule that judgments are immediately enforceable, and taking into account the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment.
• The reviewability interest, reflecting that appellants are entitled to meaningful appellate review, and taking into account the strength of the grounds of appeal.

These often-conflicting considerations are not silos and may be influenced by the presence or absence of residual public safety concerns from the earlier fork in the “public interest” branch. They may also be influenced by lingering flight risks that did not on their own rise to a level to defeat the application.

Like Oland, Papasotiriou shows that bail pending appeal may be available even in appeals from the most serious offences where public safety is not a concern, there are no lingering flight risks, and where the grounds of appeal clearly surpass the minimum threshold that they not be frivolous.

Distinctive considerations in Papasotiriou

Papasotiriou is interesting because of how its distinct procedural history factored into Justice Trotter’s analysis of the reviewability interest. Justice Trotter held that it was relevant on the bail application that the applicant had been discharged at the preliminary inquiry because the provincial court judge held that there was insufficient evidence to warrant a trial against the applicant. Although the Crown had applied for review of that decision by way of certiorari, that review was short-circuited when the Attorney General forced a trial by preferring a direct indictment. The preliminary inquiry judge’s detailed reasons for discharging the applicant at an early stage added weight to the applicant’s ground of appeal alleging that the jury’s verdict of guilt was unreasonable.

It will be rare for these circumstances to arise to support the reviewability interest on an application for bail pending appeal. Where they do arise, it will not be an answer for the Crown to argue that the preliminary inquiry judge’s decision was never reviewed by a superior court. Justice Trotter dismissed this as a consideration because the Attorney General’s decision to prefer a direct indictment foreclosed any possible review of the preliminary inquiry decision.

Appeal on the merits to come

We will continue to monitor Papasotiriou as the Court of Appeal considers the merits of the appeal. The panel’s consideration of unreasonableness as a ground of appeal under subsection 686(1)(a)(i) of the Criminal Code will be particularly interesting in the circumstances of this case. The Court will be called upon to consider unreasonableness in the context of a purely circumstantial case, like in R. v. Villaroman, 2016 SCC 33, with the added context that a preliminary inquiry judge determined that there was insufficient evidence to warrant a trial and the Attorney General forced a trial by preferring a direct indictment. On the other hand, the preliminary inquiry judge’s decision was never reviewed by way of certiorari, and the trial judge dismissed an application for a directed verdict (although this was heard before the defense evidence was called arguably giving an exculpatory explanation of the circumstantial evidence relied upon by the trial judge on the directed verdict application). We anticipate writing about Papasotiriou again after the Court of Appeal conducts its own assessment of the reasonableness of the jury verdict of guilt.