Judge certifies class-action lawsuit over delayed bail hearings and alleged Charter breaches

Update: On Oct. 25, the Government of Alberta filed a notice of appeal of the certification decision. The province argues that the chambers judge erred in his findings, and seeks to have the Court of Appeal of Alberta deny certification, which would prevent the class-action lawsuit from moving ahead.

A class-action lawsuit alleging that the Alberta government breached Charter rights potentially thousands of times by denying people timely bail hearings will go ahead.

In a decision filed in Calgary on Monday, Court of King's Bench Associate Chief Justice John Rooke certified a class-action suit for individuals arrested between May 2, 2016, and Sept. 26, 2022, who were caught up in what the plaintiffs allege was a systemic breach of the province's bail system.

At issue is the Criminal Code requirement of a right to a bail hearing within 24 hours of being arrested.

The plaintiffs allege that when the province changed how it runs first-appearance bail hearings in late 2016, many people were held in custody for longer than they should have been.

"The government has overall responsibility for the criminal justice system," one of the lawyers for the plaintiffs Margaret Waddell said in an interview Tuesday.

"If there's a presumption of innocence you shouldn't be incarcerated unless there's good reason to hold you."

Waddell said they have to wait for the province to disclose how many "overholds" – being held beyond 24 hours without a bail hearing –  occurred within the period identified in the lawsuit, but it is expected to be a significant number.

Thousands of delayed hearings

According to provincial data highlighted in Rooke's decision, between March 2018 and June 2020 nearly 17,000 people were subject to overholds, which amounts to about 12 per cent of all arrestees. 

Waddell said qualified class members are those who would have been released had they had a timely bail hearing or those who were ultimately acquitted. 

She added that it's her understanding that overholds decreased significantly in 2020. 

To proceed to a trial, a class action must be certified by a judge who finds certain criteria has been met.

Lawyers for the provincial government opposed the certification on several grounds, including that the justice minister can't micromanage police agencies responsible for arranging bail hearings, and that the lawsuit doesn't address the cause of the delay.

Rooke rejected that argument.

"It is the fact of delay beyond 24 hours, not the individual causes or who caused the delay that is relevant to certification," he wrote.

Provincial bail reform

Previously in Alberta, if an accused was in custody and had a bail hearing at a police station before an on-call justice of the peace, police officers would act as prosecutors at the hearing.

But calls for change followed the 2015 shooting death of RCMP Const. David Wynn, who was killed by Shawn Rehn shortly after Rehn was released on bail despite having outstanding criminal charges.

Following a review of the bail system and a judge's finding that police have no legal authority to act during bail hearings, Alberta began having prosecutors take on the role.

Waddell said the alleged problems with delay started in late 2016 when the province started changing the process.

In April 2017, Ryan Reilly was arrested on charges related to domestic violence allegations. He was held for 36 hours in a cell at police headquarters in Edmonton before finally getting a 15-minute bail hearing – 12 hours after the time limit allowed under the Criminal Code. 

After a lower court stayed the charges against Reilly on the grounds that his Charter rights had been violated, Crown prosecutors successfully appealed at the provincial level, but the case made its way to the Supreme Court of Canada, which restored the stay in 2020.

Reilly filed the class-action lawsuit in 2018, but a different man, identified as MS in filings, will act as the named plaintiff in the case. Waddell said Reilly has stepped away for personal reasons.

Waddell said MS was held for 26 hours without a bail hearing and was ultimately acquitted of the crimes he was accused of. 

Early on, the plaintiffs filed that they were seeking $100 million in damages, but Waddell said that the actual award being sought won't be clear until they have a better idea of how many people are included in the class.

Alberta has 30 days to appeal the certification decision.