3.5 How to apply for release on bail pending appeal

Last Reviewed: June 2022 Reviewed by: JES

File notices

If you are in custody and wish to be released until your sentence 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).

File the original plus 3 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
  • Your sworn affidavit (statement of facts).

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.

When you apply for bail pending appeal, you must be fully prepared to present your argument outlining why your sentence should be reduced. If you don’t convince the judge at the bail hearing that your appeal has merit (a reasonable chance of succeeding), you won’t be granted bail and you won’t be allowed to proceed with your appeal.

In the Court of Appeal, applications for bail pending appeal must be sent in writing, unless you get permission from the court to appear in person. Ask the registry how to do this.

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:

  • The appeal is not frivolous (meaning that it has a chance of succeeding).
  • You’ll surrender yourself into custody on the date set for the hearing of your appeal.
  • Keeping you in custody isn’t in the public interest.

File your affidavit

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

Find the Form

See page 59 of How to Appeal Your Sentence 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.

Get Help

If you’re in custody, a commissioner for taking affidavits will be available to you. 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 try 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 sentenced.
  • 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 sentence 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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