Delayed justice: Ongoing trouble with Alberta bail system

Since October 2016, Crown prosecutors have been handling bail hearings in Alberta. Statistics obtained by CBC News reveal what one lawyer calls a "shocking" number of cases where an accused's access to those hearings has been delayed.

‘No question the new bail system is not yet sufficient,' says Crown

Between March, 2018 and March, 2019, 2,555 people arrested by the Edmonton Police Service had to wait more than 24-hours for access to a bail hearing. That number is nearly four times higher than Calgary's record for the same period. (Ben Nelms/Reuters)

The Criminal Code in Canada mandates that anyone placed under arrest has a constitutional right to a bail hearing within 24 hours.

In Alberta, it's become so common to go past the 24-hour time limit that there's a code word for it: over-hold. 

Statistics obtained by CBC News 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.

Those over-holds occurred after Alberta Justice put stricter controls on who could conduct bail hearings, prohibiting police officers from acting on behalf of the Crown. 

Edmonton police declined comment when asked why the numbers were nearly four times higher in the capital city than in Calgary. Alberta Justice also declined comment. 

"It is unacceptable," Edmonton criminal defence lawyer Will van Engen said. "We're talking about routine deprivations of an individual's fundamental charter rights. It's unsurprising to me, but it still is shocking to me."

Van Engen said some of his clients have been over-held and he will be in Court of Queen's Bench next month representing an accused in an over-hold case.

It's unclear how long after the 24-hour threshold it typically takes for an over-hold case to be heard.

Bail system fundamentally changed in October 2016

In the past, police officers stood in for Crown prosecutors at bail hearings. But after the murder of RCMP Const. David Wynn by repeat offender Shawn Rehn who was free on bail at the time, there was a dramatic shift in Alberta.

On Oct. 25, 2016, Crown prosecutors began to conduct bail hearings. But there was no longer around-the-clock access to a justice of the peace; no hearings are currently held between midnight and 8 a.m. Additional prosecutors and support staff were hired, but the so-called over-hold problem wouldn't go away.

Just over five months after the implementation of the new system, Ryan Reilly was arrested in Edmonton and charged with aggravated assault and unlawful confinement.

He allegedly grabbed his girlfriend by the neck, pinned her down, then grabbed her throat and slammed her back onto the stairs. She lost consciousness.

Reilly was taken into custody just before noon on April 4, 2017. It took 36 hours for him to appear before a justice of the peace. He was kept in a holding cell with a small bench, a toilet and sink where the lights were never turned off.

Reilly became an over-hold test case. In April 2018 provincial court judge Renee Cochard stayed the charges against him, ruling his constitutional rights had been violated by the delay to a bail hearing.

Cochard heard from members of the Edmonton Police Service who had sounded the warning bell about the over-hold situation.

In a scathing written decision, Cochard noted the over-hold problem had increased "exponentially".

A systemic and ongoing problem- Judge Renee Cochard

"The evidence before me reflects a systemic and ongoing problem," Cochard wrote. "It is a problem that was anticipated by the Edmonton Police Service prior to the implementation of the project...and has continued throughout the life of the project some 17 months later.

"The state has been aware of the ongoing problem and little if anything has been done to address the issue. Knowing there is a problem is one thing, addressing it is quite another."

Crown appeals stay of charges

The Alberta Court of Appeal heard the Crown's appeal of the Reilly case earlier this month and has reserved its decision.

In its factum filed with the court, the Crown noted, "There is no question that the new bail system is not yet sufficient and is unable to ensure that all detainees receive a bail hearing in 24-hours."

They explained some of the highest over-holds were caused by staff shortages or staff illness, and said they added staff to the system on Thursdays and Fridays because those tend to be the busiest days.

"The new bail system is adequate the vast majority of the time," the factum states. "The government...has been diligent in trying to solve the over-hold problem and has made steady progress."

Edmonton defence lawyer Will van Engen hopes the Alberta Court of Appeal will provide a definitive ruling on the bail over-hold issue. (Bottos Law )

Defence lawyer van Engen observed the Appeal Court hearing in early April. He hopes the decision rendered by Alberta's highest court in the case will make a difference.

"I'm optimistic that the Court of Appeal will see this as the deep problem that it really is and that they will do something about it," van Engen said. "I think it's something that needs to be addressed soon. Because every day this is happening."

As Reilly waits for a decision from the Court of Appeal, he is seeking the right to launch a $110-million class-action lawsuit against the Alberta government. The claim alleges the Crown does not have enough prosecutors available to conduct bail hearings on a timely basis. The suit has not been certified and to date, no statement of defence has been filed.


Janice Johnston

Court and crime reporter

Janice Johnston was an investigative journalist with CBC Edmonton who covered Alberta courts and crime for more than three decades. She won a national Radio Television Digital News Association award in 2016 for her coverage of the trial of a 13-year-old Alberta boy who was acquitted of killing his abusive father.


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