Size of Alberta class action on bail hearing delay ‘well in excess’ of 17,000 people, lawyer says

By Ian Burns

Law360 Canada (October 3, 2022, 12:02 PM EDT) -- An Alberta judge has given the go-ahead to a class action alleging the lack of access to timely bail hearings has led to thousands of Charter violations in the province.

Court of King’s Bench Associate Chief Justice John Rooke certified the class in a decision issued Sept. 26 (Reilly v. Alberta 2022 ABKB 612), writing that the “abuse — in this case, delay — is so manifest that a broad procedural remedy must be found.”

The class covers all persons who were arrested in Alberta between May 2, 2016, and the date of certification, and who did not receive a bail hearing within 24 hours of their arrest, in violation of s. 503 of the Criminal Code.

According to plaintiff counsel Margaret Waddell, the class will be “well in excess” of 17,000 people.

Margaret Waddell, Waddell Phillips

“The language in the Criminal Code is an absolute obligation and a protected Charter right which falls into the category of habeas corpus, because people are not to be unreasonably detained,” said Waddell, who practises with Waddell Phillips in Toronto. “And this is a consistent problem across Canada, and is fundamentally a reflection of the failure of the government to properly resource the criminal justice system.”

In 2016, Alberta changed its old system for bail hearings, where police would present the case in court, to one where Crown counsel did.

Waddell said this led to a bottleneck system characterized by these “overholds” beyond the 24-hour period.

“The situation was so bad that it really was screaming out for a class action to bring access to justice for these folks,” she said. “Once you are arrested by the police you are chucked into one of these holding cells which are gross, to put it mildly — there are steel benches, concrete walls and the lights are on 24/7. They aren’t meant to be places where people are held for any length of time.”

For its part, Alberta argued that the Minister of Justice has no authority to micromanage the police, whose obligation is to get an accused a bail hearing within 24 hours, and the challenge does not address the cause of the delay.

But Justice Rooke wrote that it is “the fact of delay beyond 24 hours, not the individual causes or who caused the delay that is relevant to certification."

The individual who originally brought the action, Ryan Reilly, is a name that may be familiar to legal observers in Alberta. He received a stay on assault and unlawful confinement charges due to bail hearing delay in 2018, a move which was later overturned by the Alberta Court of Appeal but reinstated by the Supreme Court of Canada.

However, a person identified only as “MS” will be the representative plaintiff in the case, as Reilly will not be a class member because he has received a constitutional remedy in his criminal proceedings.

A representative for Alberta’s Ministry of Justice said in an e-mail it would be inappropriate to comment on the case while it remains before the courts.

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