3.5 How to apply for release on bail pending appeal

Last Reviewed: June 2023 Reviewed by: Court of Appeal Staff

File notices

If you are in custody and wish to be released until your conviction appeal hearing, in addition to filing your Notice of Appeal you must file a Notice of Application for Release from Custody Pending Determination of Appeal (Form 8) in the appropriate registry.

File the original plus photocopies of the following:

  • The Notice of Application for Release from Custody Pending Determination of Appeal form.
  • Your written argument explaining why you should be released (see "write your argument for release of bail" below).
  • Your sworn affidavit (statement of facts). See File your affidavit.

Note: To apply for bail pending an appeal in the Court of Appeal ,you first have to get permission (“leave”) to appeal your sentence. The BC Court of Appeal will approve your application only if your appeal has merit (a reasonable chance of succeeding). Include 4 copies of any information or materials that support your case, such as any legal cases you intend to rely on.

Write your argument for release on bail

When you’re writing your argument for release on bail, it’s very important to be as persuasive as possible. There is no required form or format, but your written argument for release must persuade the court of the following:

  • Your appeal has enough merit (chance of succeeding) that keeping you in custody would cause unnecessary hardship.
  • You’ll surrender yourself into custody on the date set for the hearing of your appeal.
  • Keeping you in custody isn’t necessary in the public interest.

File your affidavit

You must also file an affidavit – a written summary of your evidence – in the court registry to show the truth of the facts that you’re relying on to support your application.

Find the Form

See page 57 of How to Appeal Your Conviction for a sample affidavit form.

You must sign the affidavit in front of a “commissioner for taking affidavits for BC,” who can be a lawyer or a notary public. If you’re in custody, a commissioner for taking affidavits will be available to you.

Get Help

If you’re out of custody, you can find a notary through BC Notaries or in the Yellow Pages. To find a private lawyer, look in the Yellow Pages under Lawyers – Criminal, or use Access Pro Bono’s Lawyer Referral Service.

Your affidavit must include the following information:

  • A statement listing all the places you’ve lived during at least the three-year period before the date that you were convicted.
  • Where you intend to live if you’re released.
  • The name of your employer and the place of your employment before you were placed in custody.
  • Your employment prospects if released.
  • The names and addresses of any relatives or friends who are willing to serve as “surety” (someone who will pledge money or assets to make sure you obey the conditions of your bail, if it’s granted).
  • A statement of any criminal convictions received during the five years before the conviction you’re appealing. List the offences and sentences imposed. You may include anything to show that the offences aren’t as bad as they sound, as long as it’s true.
  • Any special individual circumstances relating to your physical and/or mental health, or harm to you or your family if you aren’t released.

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