General Principles  

The enabling statutory authority is s. 679(7.1) of the Criminal Code, which provides:

Where, with respect to any person, the court of appeal or the Supreme Court of Canada orders a new trial, section 515 or 522, as the case may be, applies to the release or detention of that person pending the new trial or new hearing as though that person were charged with the offence for the first time, except that the powers of a justice under section 515 or of a judge under section 522 are exercised by a judge of the court of appeal.

The phrase "pending the new trial" engages two discrete time periods: 

i.             the time between the order for a new trial and the successful appellant's first                            appearance in the trial court; and

ii.            the time between the first appearance in the trial court and the start of the new trial.

 

In the first time period, a judge of the court of appeal has exclusive jurisdiction over release pending a new trial. In the second time period, a judge of the court of appeal and a judge of the trial court have concurrent jurisdiction over release pending a new trial. Where concurrent jurisdiction exists, court of appeal judges have often declined to hear the application and transferred it to the trial court.

Typically, in determining the most appropriate forum for the hearing and determination of the application, relevant considerations include, but are not limited to:

  1. the geographic location of the person, the proposed sureties, counsel and where necessary, witnesses.

  2. the nature of the hearing, including the reasonable necessity of the introduction of viva voce testimony;

  3. the issues in controversy;

  4. the anticipated length of the hearing;

  5. the need for familiarity with the appellate record and the reasons provided for ordering a new trial;

  6. the relationship, if any, between the issue of release and the hearing and scheduling of the new trial;

  7. the review mechanism available to any party aggrieved by the decision;

  8. the nature of the record required for the hearing; and

  9. the timing of the hearing.

R v Manasseri, 2017 ONCA 226 at paras 27-43