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Criminal - Appeals - Bail Pending (6). R. v. Matthews
In R. v. Matthews (Ont CA, 2026) the Ontario Court of Appeal considers bail pending appeal issues:[19] The only issue in dispute is whether the applicant meets the third criterion for bail pending appeal. The public interest criterion has two components: public safety and public confidence in the administration of justice.
a. Public Safety
[20] Bail is denied for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, where this “substantial likelihood” endangers “the protection or safety of the public”. Detention must be “necessary” for public safety: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737.
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[23] Public safety considerations alone may prevent a release order pending appeal: R. v. B.N, 2025 ONCA 534, at para. 9; R. v. Jacko, 2023 ONCA 38, at paras. 21-22; R. v. Abdullahi, 2020 ONCA 350, 150 O.R. (3d) 790, at paras. 19-24. Moreover, I believe that his release would undermine public confidence in the administration of justice for the reasons I will outline below.
b. Public Confidence
[24] Public confidence involves weighing the competing interests of enforceability and reviewability. Enforceability refers to the public’s interest in ensuring that judgments are enforceable upon imposition of the sentence. Reviewability refers to an appellant’s entitlement to a meaningful review before having to serve all or a substantial part of their sentence. There is no precise formula for this balancing exercise, which is to be undertaken through the eyes of a reasonable member of the public: Oland, at paras. 23-26, 47, 49; R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at paras. 41, 44; R. v. I.W., 2021 ONCA 628, at para. 16.
(i) Enforceability
[25] Enforceability is informed by factors such as the gravity of the offence, the circumstances surrounding the commission of the offence, and the length of the sentence. It also includes an assessment of the plan of release. The more serious the crime, the more public confidence in the administration of justice may be undermined if the person is released from custody pending appeal: Oland, at paras. 37-39.
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(ii) Reviewability
[33] Weighing the reviewability interest requires a “more pointed consideration” of the strength of the appeal beyond the “very low bar” set by the “not frivolous” standard: Oland, at paras. 20, 40-41. The reviewability analysis focuses on the strength of the proposed grounds of appeal and whether the merits of the appeal clearly surpass the “not frivolous” threshold.
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[39] Moreover, in balancing the enforceability and reviewability interests, the timing of the appeal is relevant: Oland, at para. 48. The applicant’s appeal will be heard when there is still considerable time left to serve his sentence. Accordingly, the reviewability interest is partially preserved even without release until the appeal is heard.
[40] Viewed from the perspective of a reasonable member of the public, the enforceability interest predominates and outweighs the reviewability interest given the less than strong grounds of appeal, the seriousness of the crime, and the “lingering public safety … concerns”: Oland, at para. 50.
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