Alberta is facing the possibility of large numbers of criminal charges being challenged and dismissed over delays in holding bail hearings.
More than 400 accused persons a month are being held without a bail hearing for more than 24 hours, usually in the 36-hour range, in police cells, provincial government statistics show. The federal Criminal Code says accused persons must be brought before a justice of the peace for a bail hearing within 24 hours, or as soon as possible after that, if one is not available.
Late last week, Provincial Court Justice Reneé Cochard stayed several charges in a case of domestic violence. It was the first known case of its kind since the province made bail-hearing changes 18 months ago aimed at improving public safety. The charges against Ryan Reilly included aggravated assault and unlawful confinement. The stay means an end to the prosecution. The Crown conceded the delay violated his rights, but recommended reducing his sentence if he were convicted.
Following Justice Cochard’s ruling, the Alberta Criminal Trial Lawyers’ Association encouraged its members to seek more such stays.
“We are urging all our members to pay attention to the delay in their clients getting their first bail application, and where appropriate to bring similar applications for future stays,” Kelly Dawson, the association president, said in an interview.
“It’s a mess. I honestly believe there will be many more coming and many more granted by the court.”
Three years ago, a man who was free on bail, Shawn Maxwell Rehn, shot two Mounties, one fatally. An Edmonton police officer had consented to his release on $4,500 bail, despite a long criminal record that included possession of restricted weapons. After a year-long study, the province replaced police officers with prosecutors to handle the hearings. The police officers had been available around the clock, while the prosecutors are on duty for 16 hours.
In a statement, the province’s Justice and Solicitor General department said it is working on solving the problem of delay.
“We are aware there are cases that are not being heard within the 24-hour period, even though these numbers are starting to trend downward,” spokesman Dan Laville said in an e-mail.
“This is a complex issue and we formed a stakeholder working group to examine solutions. Already, we are adding clerks into bail offices so that Justices of the Peace can focus on more hearings rather than having to fill out paperwork. A Justice of the Peace spends approximately half their time filling out paperwork. Adding more court clerks to do this paperwork will allow Justices of the Peace to spend this time hearing cases instead. We have also improved our electronic filing system to create efficiencies.”
The province has not decided yet whether to appeal the ruling, he said.
Mr. Reilly testified that he had been held in a police cell dirtied by blood and fecal matter for 36 hours.
Mr. Reilly’s lawyer, Deborah Hatch, said the province needs to address the delay issue. “If we live in a country that presumes people are innocent until proven guilty, we can’t have this happening hundreds of times a month in the province,” she said in an interview.
The purpose of the 24-hour rule is to ensure that police do not detain accused persons arbitrarily, says Michael Lacy, president of the Criminal Lawyers’ Association, a group headquartered in Toronto.
In Ontario, it is rare for bail hearings at which the Crown opposes release to be done within 24 hours, if the hearing falls on a weekend or holiday, he said. But the accused individual is still brought to court within 24 hours (even on a weekend or holiday) and then, the hearing may be put over until the following Monday.
“That’s never given rise in Ontario jurisprudence [legal rulings] to systemic abuse or delay issues,” he said.
Eric Gottardi, a Vancouver lawyer, said he has not heard of the problem cropping up in British Columbia or elsewhere outside of Alberta. Justices of the Peace are available by phone on a nearly 24-hour basis, he said, and if the Crown is likely to oppose release, the matter is put over to court the next day or Monday morning if the person is arrested on a Friday or on the weekend.
Justice Cochard is a former steering-committee member of the Edmonton YWCA Battered Women’s Support Program, who was appointed by the province’s NDP government three years ago. She said the problem with delay is system-wide. The latest numbers, from December, show 450 accused persons being held beyond 24 hours. Justice Cochard made her ruling orally, and said she intends to produce a written ruling soon.