Public confidence and bail pending appeal

R v Robson, 2025 ONCA 497: Appellants should only be sparingly detained under the public confidence component of the test for bail pending appeal. Appellant with middling grounds of appeal who received a four-year sentence after operating a snowmobile on an icy like in a manner that caused a 19-year-old's death released pending his appeal.

The public confidence component permits detention of an appellant who advances an arguable appeal and whose release poses no flight or safety risks where "enforceability" -- the public's interest in the immediate enforcement of criminal judgments -- outweighs "reviewability" -- the appellant's interest in the right to review their conviction or sentence. In this bail decision, Paciocco JA affirms that it is only rare cases where the public confidence component could justify detention. See para 15: "detaining individuals who are apt to attend court and who are not likely to commit offences pending appeal is an exceptional outcome. It is only in rare cases that individuals who will attend court if released, and who do not pose a serious risk to the public, should remain in detention pending appeal when they have real arguments to make before it can be finally resolved whether their punishment is appropriate."

Perhaps a niche decision for us appellate lawyers. But trial lawyers will also be interested in Paciocco JA's description of the "reasonable member of the public" -- also a consideration in the tertiary ground on trial bails -- in the same paragraph: "Ultimately, the damage that release pending appeal could cause to the repute of the administration of justice is to be judged through the eyes of reasonable people, fully informed of the circumstances and who are familiar with the relevant principles of justice, including those principles that have been adopted to protect the community at large from unjustified harm from the mistaken, disproportionate, or unfair use of the criminal law power."