Ontario Court of Appeal weighs real public risk against public opinion

Law360 Canada (December 4, 2025, 10:21 AM EST) --

John L. Hill

There is significant public pressure to deny bail after a person is arrested for a criminal offence. It is also reasonable to expect that this pressure could influence a Court of Appeal judge to refuse bail when an application for bail pending appeal is made, especially if the conviction involves a serious offence. On Nov. 28, defence counsel Mark Halfyard and Ema Ibrakovic applied to the motion judge, Justice David M. Paciocco, for appeal bail for Jeremy Folk. The reasons for granting bail on appeal were released on Dec. 1 (R. v. Folk, 2025 ONCA 834).

Folk was convicted of unlawful act manslaughter and sentenced to five years’ imprisonment. He applied for release pending appeal under s. 679 of the Criminal Code. The conviction resulted from an overdose death caused after Folk trafficked cocaine unknowingly laced with fentanyl to the deceased’s brother, who then shared it with the deceased.

The court initially examined the threshold requirements under s. 679(3) of the Criminal Code. The Crown agreed that the proposed grounds of appeal were not frivolous. Additionally, it was acknowledged that Folk was likely to surrender into custody and that there were no public safety concerns.

However, relying on R. v. Oland, 2017 SCC 17, the Crown argued that release would undermine public confidence in the administration of justice because of the seriousness of the offence, the perceived weakness of the grounds of appeal and concerns about the sufficiency of the bail plan.

The court examined the proposed grounds of appeal, focusing on the elements of the offence of manslaughter. The court referred to R. v. H.C., 2022 ONCA 409, which outlines the three elements of manslaughter:


Folk’s appeal challenged elements (ii) and (iii), and the court found these grounds “clearly not frivolous.”

In his challenge to objective foreseeability, Folk argued that the trial judge failed to conduct a case-specific foreseeability analysis.

Problems identified included reliance on general statements that trafficking in illicit drugs always carries a foreseeable risk; the trial judge citing authorities that primarily involved injection-drug cases, not cocaine; and the judge omitting consideration of a key factual finding: Folk did not know the cocaine was laced with fentanyl, a fact confirmed during sentencing.

The third element in the list above was causation. The trial judge held that “factual causation and legal causation merge” in this case. Folk argued this was a legal error: even where “but-for” causation is met, courts must still consider legal causation, including whether re-trafficking by the purchaser breaks the chain, and whether the deceased’s voluntary ingestion after witnessing the purchaser suffer adverse effects constituted an intervening act affecting moral responsibility.

A key aspect of the case was assessing how granting bail would impact public confidence and the public interest in law enforcement.

The court acknowledged that the grounds of appeal deserve careful appellate review. Folk’s prior criminal record was old, and he had consistently complied with bail conditions for five years on this charge. The proposed release terms were made more restrictive by mutual agreement of the parties.

Given the extensive trial record and Legal Aid funding, there was a significant chance that Folk would serve much of his sentence before the appeal is resolved, a factor the Oland case recognizes as favouring release.

Therefore, the court ruled that the public interest in appellate review takes precedence over the interest in immediate enforcement.

The outcome was that Folk was ordered released pending appeal on the agreed terms. It is also arguable that a less obvious outcome existed: the public interest in maintaining confidence in the law is best served when judges apply the law without being influenced by political pressures to do otherwise.

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. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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