Newfoundland Court of Appeal demonstrates nuanced alternative to catch and release

Law360 Canada (April 8, 2026, 11:05 AM EDT) --

John L. Hill

Critics of Canada’s bail procedures argue that our police often practise “catch and release.” The term describes a situation where police, like fishermen, catch their prey and then release it back into the wild. The practice is criticized, even though the law aims to uphold the presumption of innocence and a person’s constitutional right to reasonable bail.

In March 2026, the Newfoundland and Labrador Court of Appeal had to balance the legal concerns of an accused and that person’s rights with the worry that public safety was at risk if a violent or repeat offender was not detained. The Appeal Court was familiar with Martin Racine, having previously granted him bail in November 2025 while he appealed drug-trafficking and weapons-related charges (R. v. Racine, 2025 NLCA 37). He had been sentenced to four years and 10 months in prison. He wanted to stay out of custody while the appeal of that conviction and sentence continued.

Within a few months, while on that appeal bail, Racine was back before the Appeal Court (R. v. Racine, 2026 NLCA 7). This time, the Appeal Court was asked to decide whether Racine should stay on release pending appeal after being charged with new offences.

In February 2026, he was arrested and charged with several new offences, including two assaults with a weapon and theft, allegedly against his former partner. These allegations also constituted a breach of the conditions of his previously granted release. Racine claimed innocence and an intention to dispute the new charges in court. The Crown’s position was that the new charges raised increased concern for public safety.

Racine acknowledged that the new charges justified the cancellation of his original release order under the Criminal Code. However, he requested continued release pending appeal under s. 679(3), asserting his innocence. This section allows a court of appeal judge to grant bail to an appellant pending an appeal if it is demonstrated that the appeal is not frivolous, that the accused will surrender into custody and that detention is not necessary in the public interest. The Crown agreed there was merit to Racine’s appeal and that he would surrender himself into custody when required. The appeal focused on convincing the court of the third criterion.

Therefore, the court focused on whether his detention was justified in the public interest, particularly with respect to public safety. Detention becomes necessary if public safety is at risk (R. v. Oland, 2017 SCC 17).

The Crown appeared to have a strong case for detention, considering the Appeal Court’s statement that “[t]hese new allegations are further evidence that Mr. Racine may commit an offence that puts the safety of the public, in particular, the complainant, in danger. These allegations of assault are troubling given that, although his previous criminal history is brief, it includes a conviction for assault against this complainant in 2018.”

While the new allegations, especially one involving a knife, raised serious concerns and increased the perceived risk, the court found that this risk could be managed through strict conditions.

Key factors supporting release included:

• The risk was primarily to the complainant and could be mitigated by a no-contact order.
• Racine proposed a new residence, reducing proximity to the complainant.
• A credible surety agreed to supervise him and pledge money.
• Additional financial deposits and stricter conditions were imposed.

Although the new charges justified revoking the original release order, the court ultimately decided that Racine still qualified for release pending appeal. He was therefore released again under a new, more restrictive order, which included a house curfew, increased financial security and a strict no-contact condition.

Racine’s original release was revoked due to new charges, but he was granted release again pending appeal under stricter conditions, as the court determined the risks could be adequately controlled. The decision might upset those opposed to “catch and release” and who would jail all offenders upon arrest, especially if the accused was already on bail. However, this court adopted a more nuanced approach, adhering to the law rather than public opinion.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books); The Rest of the (True Crime) Story (AOS Publishing) and Acts of Darkness (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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