Bail Pending Appeal Lawyer Toronto | Release After Conviction

Composed by Chris Sewrattan, Certified Specialist in Criminal Law. Updated July 2026.

This is legal information, not legal advice. It does not create a lawyer-client relationship. For advice about your situation, contact us for a consultation.

A conviction and sentence do not automatically mean serving the sentence while the appeal is decided. Section 679 of the Criminal Code allows a judge of the appeal court to release a person on bail pending the appeal, and in Ontario these applications are a regular part of appellate practice. The presumption of innocence no longer applies after conviction, so the test is different from ordinary bail: the applicant carries the onus, and the strength of the appeal itself becomes part of the analysis.

What is bail pending appeal under Canadian law?

For an appeal against conviction, the applicant must establish three things:

The appeal is not frivolous: a low bar, met by grounds that are arguable on the record.
They will surrender into custody in accordance with the terms of any release order.
Detention is not necessary in the public interest. This is where most applications are decided. In R v Oland, the Supreme Court explained that the public interest has two components, public safety and public confidence in the administration of justice, and that confidence is assessed by balancing enforceability, the interest in enforcing judgments immediately, against reviewability, the interest in ensuring a person does not serve a sentence for a conviction that may be overturned. The apparent strength of the grounds of appeal matters most for serious offences, where a stronger appeal is needed to tip the balance toward release.

Where the appeal is against sentence only, the test is different: leave to appeal must be granted, and the applicant must show the appeal has sufficient merit that, in the circumstances, detention would cause unnecessary hardship, a standard aimed at the real problem of sentences being fully served before short appeals are heard.

How bail pending appeal works in Ontario

The application is brought to a single judge of the court hearing the appeal, for indictable matters the Court of Appeal for Ontario, supported by a notice of appeal, an affidavit from the applicant addressing the plan of release and the intention to surrender, surety affidavits, and materials showing the grounds of appeal, often including key excerpts of the trial record. The Crown responds, and the application is argued in writing and orally. Where the sentence is short, the application can be prepared and heard quickly, sometimes within days of sentencing, which is often the whole point.

Release orders typically include sureties, residence and reporting conditions, and a term requiring surrender into custody before the appeal is heard or by a fixed date. Breaching the order or failing to surrender ends the release and damages the appeal. A person denied bail pending appeal is not without options: directions can be sought to expedite the appeal, and renewed applications are possible where circumstances change, which parallels the review mechanisms described on our bail detention reviews page.

What strengthens a bail pending appeal application

Focused, arguable grounds of appeal, identified quickly with the help of trial counsel's file and the key transcripts.
A concrete plan: sureties, residence, reporting, and any conditions that mirror successful compliance on pre-trial release.
A record of attending court and complying with prior orders, which speaks directly to surrender.
For sentence appeals, a realistic showing that the sentence, or the disputed part of it, could expire before the appeal is decided.
Speed: filing the notice of appeal and moving for release promptly after sentencing.

Frequently asked questions

Can I get bail after being convicted?

Yes. Release pending appeal is available where the appeal is not frivolous, you will surrender into custody, and detention is not necessary in the public interest. The onus is on you, and preparation drives the result.

How fast can a bail pending appeal application be heard?

Quickly, where the materials are ready. In urgent cases, particularly short sentences, applications have been prepared and argued within days of sentencing.

Does the strength of my appeal matter?

Yes, especially for serious offences. The more serious the crime, the more the court weighs the apparent strength of the grounds when balancing immediate enforcement against the risk of a person serving time for a conviction that may not stand.

What conditions come with release pending appeal?

Typically sureties, residence and reporting terms, travel restrictions, and a requirement to surrender into custody before the appeal is heard. The conditions are tailored to the case and the concerns.

What happens if my appeal is dismissed?

You surrender into custody and serve the remainder of the sentence. Time spent in custody before release generally counts toward the sentence; time on bail pending appeal does not.

What if bail pending appeal is denied?

The appeal can be expedited, and a renewed application is possible on a material change. For sentence appeals, the court is alive to the risk of the sentence expiring before the hearing.

Convicted and appealing? Contact us