The province must fix the ailing bail-hearing system, says Alberta’s Court of Appeal in a decision that ruled staying charges when a hearing is delayed is going too far.
“It must be emphasized that the primary responsibility for finding a remedy for systemic Charter breaches does not lie on the judiciary,” the Court of Appeal decision says. “It is up to the government to identify and implement the necessary solutions.”
The problems “have now persisted for over 18 months, with no resolution in sight,” it said.
The decision Tuesday overturned a stay of charges in a domestic violence case and ordered a new trial.
Ryan Reilly was arrested in April 2017 and charged with assault, unlawful confinement, mischief and failure to comply with a probation order.
He was not brought before a justice of the peace to ask for bail for nearly 36 hours, well past the 24-hour limit mandated by the Criminal Code.
A delayed bail hearing wasn’t enough reason for the lower court to stay criminal charges against Reilly, the court said noting, “The public has a real interest in seeing serious charges, including charges of domestic violence tried on the merits.
“The granting of a stay … was excessive.”
The court ordered a new trial.
In the 20-page decision, the three justices noted that if Reilly was tried and convicted in provincial court, a more appropriate remedy might be to give him enhanced credit for the extra 11 hours he spent in detention.
‘Over-holds’ more frequent
The judge at Reilly’s original trial noted that such so-called “over-holds” were becoming increasingly frequent since the province decided that police officers would no longer represent the Crown at bail hearings.
That decision came after the 2015 death of RCMP Const. David Wynn, who was investigating a stolen truck when he was gunned down in a casino in St. Albert.
The man who shot him, Shaun Rehn, was free on bail at the time after a hearing in which a police officer appeared instead of a Crown prosecutor and consented to Rehn’s release.
Following a review, in 2016, Alberta Justice put stricter controls on who could conduct bail hearings, prohibiting police officers from acting on behalf of the Crown. Backlogs were immediate.
Statistics obtained from Alberta Justice reveal that between March 2018 and March 2019, more than 25,000 bail hearings were held in Calgary and Edmonton. During that same time period, there were 678 over-holds in Calgary and 2,555 in Edmonton.
That means six per cent of accused didn’t hit the 24-hour bail threshold in Calgary, and 18 per cent in Edmonton.
“The situation is much better in Calgary than in Edmonton; someone has found some solutions,” the Court of Appeal noted adding, “It is unclear from the record where the remaining bottlenecks are, and what modifications could or should be directed by the Court as a systemic remedy.”
During the appeal hearing, the Crown referred to the challenge of securing additional government funding. The appeal court’s response to that argument is blunt.
“Inadequate funding is not an excuse.”
Alberta Justice Minister Doug Schweitzer said he is reviewing this decision.
“We are committed to providing the tools and resources necessary to ensure the criminal justice system operates in a timely and effective fashion,” Schweitzer said in a statement.
He noted the government is spending $10 million to hire 50 new prosecutors and support staff.
Reilly’s defence lawyer, Will van Engen, was disappointed by the court’s decision to overturn the stay and its comments on over-holds.
“I was hoping to see the stay upheld,” van Engen said. “I think the language was clear they thought this was an issue, but in doing so, they declined to issue any meaningful remedy.
“So it’s all talk, but it doesn’t do anything for someone whose rights have been violated,” he said.
“This has to stop. Other provinces seem to be able to manage getting people through the system in less than 24-hours and without unreasonable delay. Yet Alberta seems unable to do it at this point.”
The court warned that “unless the government takes steps to remedy the problem in very short order, it is inevitable that this issue will be back before the courts.”
In a footnote in the decision, the court suggested a starting point.
“While the issue is not strictly before this court, a starting point may be to invite the chief of police, the deputy chiefs and all the members of the police commission to spend one night sleeping on the concrete floors of their garages, without a mat, mattress, pillow or blanket and with the lights on as brightly as possible.”